10-Q

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-Q

(Mark One)

x Quarterly Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the quarterly period ended March 31, 2008

or

¨ Transition Report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

For the transition period from              to             

Commission File Number: 001-33399

Comverge, Inc.

(Exact name of Registrant as specified in its charter)

Delaware	22-3543611
(State or other jurisdiction of incorporation or organization)	(IRS Employer Identification No.)
120 Eagle Rock Avenue, Suite 190 East Hanover, New Jersey 07936	07936
(Address of principal executive offices)	(Zip Code)

(973) 884-5970

(Registrant’s telephone number including area code)

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  x    No  ¨

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. (See definition of “accelerated filer” and “large accelerated filer” in Rule 12b-2 of the Exchange Act). (Check one):

Large accelerated filer  ¨    Accelerated filer  ¨    Non-accelerated filer  x    Smaller Reporting Company  ¨

         (Do not check if a smaller reporting company)        

Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes  ¨    No  x

There were 21,819,004 shares of the Registrant’s common stock, $0.001 par value per share, outstanding on May 5, 2008.

Comverge, Inc.

Index to Form 10-Q

		Page
Part I - Financial Information
Item 1.	Unaudited Condensed Consolidated Financial Statements
	Condensed Consolidated Balance Sheets as of March 31, 2008 and December 31, 2007	2
	Condensed Consolidated Statements of Operations for the three months ended March 31, 2008 and 2007	3
	Condensed Consolidated Statements of Cash Flows for the three months ended March 31, 2008 and 2007	4
	Notes to Unaudited Condensed Consolidated Financial Statements	5
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	14
Item 3.	Quantitative and Qualitative Disclosures About Market Risk	26
Item 4.	Controls and Procedures	26
Part II - Other Information
Item 1.	Legal Proceedings	27
Item 1A.	Risk Factors	27
Item 2.	Unregistered Sales of Equity Securities and Use of Proceeds	27
Item 6.	Exhibits	28
SIGNATURES		29

PART I – FINANCIAL INFORMATION

Item 1: Financial Statements

COMVERGE, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands, except share data)

(Unaudited)

	March 31, 2008			December 31, 2007
Assets
Current assets
Cash and cash equivalents	$	34,560		$	39,755
Restricted cash		5,073			2,151
Marketable securities		26,937			33,174
Accounts receivable, net		14,250			12,194
Inventory, net		2,769			2,988
Deferred costs		3,007			1,615
Other current assets		2,956			2,841
Total current assets		89,552			94,718
Restricted cash		214			214
Property and equipment, net		15,839			14,011
Intangible assets, net		18,180			18,828
Goodwill		74,369			74,369
Other assets		958			1,005
Total assets	$	199,112		$	203,145
Liabilities and Stockholders’ Equity
Current liabilities
Accounts payable	$	3,107		$	4,571
Deferred revenue		9,198			4,340
Accrued expenses		3,929			3,976
Current portion of long-term debt		3,000			—
Other current liabilities		4,988			7,131
Total current liabilities		24,222			20,018
Long-term liabilities
Deferred revenue		1,019			1,697
Long-term debt		23,323			26,337
Other liabilities		2,717			2,462
Total long-term liabilities		27,059			30,496
Stockholders’ equity
Preferred stock, $0.001 par value per share, authorized 15,000,000 shares; no shares issued and outstanding as of March 31, 2008 and December 31, 2007		—			—
Common stock, $0.001 par value per share, authorized 150,000,000 shares; issued 21,819,031 and outstanding 21,818,789 shares as of March 31, 2008 and 20,893,336 issued and outstanding shares as of December 31, 2007		22			21
Additional paid-in capital		215,396			211,403
Common stock held in treasury, at cost, 242 and no shares as of March 31, 2008 and December 31, 2007, respectively		(3	)		—
Accumulated deficit		(67,647	)		(58,824	)
Accumulated other comprehensive income		63			31
Total stockholders’ equity		147,831			152,631
Total liabilities and stockholders’ equity	$	199,112		$	203,145

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

2

COMVERGE, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(in thousands, except share and per share data)

(Unaudited)

	Three Months Ended March 31,
	2008			2007
Revenue
Product	$	3,202		$	4,079
Service		7,251			1,656
Total revenue		10,453			5,735
Cost of revenue
Product		2,040			2,777
Service		4,005			817
Total cost of revenue		6,045			3,594
Gross profit		4,408			2,141
Operating expenses
General and administrative expenses		8,326			4,222
Marketing and selling expenses		4,000			1,899
Research and development expenses		368			273
Amortization of intangible assets		656			23
Operating loss		(8,942	)		(4,276	)
Interest and other expense (income), net		(211	)		232
Loss before income taxes		(8,731	)		(4,508	)
Provision for income taxes		92			7
Net loss	$	(8,823	)	$	(4,515	)
Net loss per share
Basic and diluted	$	(0.42	)	$	(1.25	)
Weighted average number of shares used in computation		20,873,479			3,602,912

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

3

COMVERGE, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands, except share data)

(Unaudited)

	Three Months Ended March 31,
	2008			2007
Cash flows from operating activities
Net loss	$	(8,823	)	$	(4,515	)
Adjustments to reconcile net loss to net cash used in operating activities
Depreciation		175			118
Amortization of intangible assets		656			23
Stock-based compensation		1,853			125
Amortization of debt issuance costs		47			56
Accretion of marketable securities		(131	)		—
Other		169			—
Changes in operating assets and liabilities
Accounts receivable, net		(2,224	)		(1,305	)
Inventory, net		(888	)		(155	)
Prepaid expenses, deferred costs and other assets		(700	)		(1,848	)
Accounts payable		(1,464	)		91
Accrued expenses and other liabilities		(2,055	)		1,225
Deferred revenue		4,180			3,692
Net cash used in operating activities		(9,205	)		(2,493	)
Cash flows from investing activities
Change in restricted cash		(2,922	)		—
Purchases of marketable securities		(10,380	)		—
Maturities of marketable securities		16,780			—
Purchases of property and equipment		(1,439	)		(800	)
Net cash provided by (used in) investing activities		2,039			(800	)
Cash flows from financing activities
Proceeds from exercises of stock options		189			154
Borrowings under credit agreement		1,886			1,831
Payment of public offering costs		(104	)		(1,008	)
Payment of debt issuance costs		—			(840	)
Net cash provided by financing activities		1,971			137
Decrease in cash and cash equivalents		(5,195	)		(3,156	)
Cash and cash equivalents at beginning of period		39,755			3,774
Cash and cash equivalents at end of period	$	34,560		$	618
Cash paid for interest	$	479		$	137
Supplemental disclosure of noncash investing and financing activities
Recording of asset retirement obligation	$	219		$	(9	)
Increase in fixed assets resulting from transfer of inventory	$	1,104		$	275
Subordinated convertible debt converted into common stock	$	1,900		$	—

The accompanying notes are an integral part of these unaudited condensed consolidated financial statements.

4

COMVERGE, INC. AND SUBSIDIARIES

NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(in thousands, except share and per share data)

1. Description of Business and Basis of Presentation

Description of Business

Comverge, Inc., a Delaware corporation, and its subsidiaries (collectively, the “Company”), provides (i) smart grid solutions to utilities and other energy customers consisting of demand response systems comprised of hardware, software and installation services (“Smart Grid Solutions Group”), (ii) electric capacity to utility customers during periods of peak energy demand as well as base load reduction (“Alternative Energy Resources Group”), and (iii) energy management and demand response solutions for large commercial and industrial consumers (“Enerwise Group”).

Basis of Presentation

The condensed consolidated financial statements of the Company include the accounts of its subsidiaries. These unaudited condensed consolidated financial statements have been prepared by management in accordance with accounting principles generally accepted in the United States and with the instructions to Form 10-Q and Article 10 of Regulation S-X.

In the opinion of management, the unaudited condensed consolidated financial statements reflect all adjustments considered necessary for a fair statement of the Company’s financial position as of March 31, 2008 and the results of operations and cash flows for the three month periods ended March 31, 2008 and 2007, consisting only of normal and recurring adjustments. All significant intercompany transactions have been eliminated in consolidation. Operating results for the three months ended March 31, 2008 are not necessarily indicative of the results that may be expected for the fiscal year ending December 31, 2008. The interim condensed consolidated financial statements do not include all of the information and footnotes required by accounting principles generally accepted in the United States for complete financial statements. For further information, refer to the Company’s consolidated financial statements and footnotes thereto for the year ended December 31, 2007 filed on Form 10-K filed on March 25, 2008.

The condensed consolidated balance sheet as of December 31, 2007, was derived from audited financial statements but does not include all disclosures required by accounting principles generally accepted in the United States.

Reverse Stock Split

On April 18, 2007, the Company effected a 1-for-2 reverse stock split of its common stock in connection with the closing of its initial public offering. All common shares and per share amounts have been retroactively restated in the accompanying consolidated financial statements and notes for all periods effected.

2. Significant Accounting Policies and Recent Accounting Pronouncements

Revenue Recognition

In accordance with Staff Accounting Bulletin (“SAB”) 104, Revenue Recognition, the Company recognizes revenues when the following criteria have been met: delivery has occurred, the price is fixed and determinable, collection is probable, and persuasive evidence of an arrangement exists.

In accordance with SAB 104, the Company defers revenue and associated cost of revenue in its Alternative Energy Resources Group related to certain long-term VPC contracts until such time as the annual contract price is fixed and determinable. Revenue is invoiced on a monthly or quarterly basis throughout the contract year. The VPC contracts require the Company to provide electric capacity through demand reduction to utility customers, and require a measurement and verification of such capacity on an annual basis in order to determine final contract consideration for a given contract year. Contract years begin at the end of a control season (generally, at the end of a utility’s summer cooling season that correlates to the end of the utility’s peak demand for electricity) and continue for twelve months thereafter.

5

The Company enters into agreements to provide base load capacity services to utilities or commercial and industrial end customers. Base load capacity revenues are earned based on the Company’s ability to achieve committed capacity through load reduction. In order to provide capacity, the Company delivers and installs demand side management measures to a portfolio of commercial and industrial end customers. The base load capacity contracts require the Company to provide electric capacity through demand reduction to utility customers, and include a measurement and verification of such capacity in order to determine contract consideration. In accordance with SAB 104, the Company defers revenue and associated cost of revenue in its electric load reduction services until such time as the capacity amount, and therefore the related revenue, is fixed and determinable. Once the capacity amount has been verified, the revenue is recognized. If the revenue is subject to penalty, refund or an ongoing obligation, the revenue is deferred until the contingency is resolved and/or the Company has met its performance obligation. Certain contracts are accounted for in accordance with Emerging Issues Task Force (“EITF”) No. 00-21, Revenue Arrangements with Multiple Deliverables, which requires the Company to assess whether the different elements qualify for separate accounting. The separate deliverables in these arrangements meet the separation criteria. Accordingly, revenue is recognized for each element by applying the residual method under EITF No. 00-21 since there is objective evidence of fair value of only the undelivered item. The amount allocated to the delivered item is limited to the amount that is not contingent upon delivery of the additional element.

The Enerwise Group enters into agreements to provide demand response and capacity event services. The demand response contracts require the Company to provide electric capacity through demand reduction to utility end customers when the utility calls a demand response event to curtail electrical usage. Demand response revenues are earned based on the Company’s ability to deliver capacity. In order to provide capacity, the Company manages a portfolio of commercial and industrial end users’ electric loads. Capacity amounts are verified through the results of an actual demand response event or a customer initiated demand response test. In accordance with SAB 104, the Company recognizes revenue and associated cost of revenue in its demand response services at such time as the capacity amount is fixed and determinable.

Capacity event services revenue is contingent revenue earned based upon the actual amount of energy provided during the capacity event. Contingent revenue from capacity events is recognized when the capacity amount and therefore the related revenue is fixed and determinable.

The Smart Grid Solutions Group sells hardware products directly to utilities for use and deployment by the utility. In addition, it provides installation services under a long-term service contract with one of the Company’s customers. The Company recognizes revenue for such sales when delivery has occurred or services have been rendered and all other criteria of SAB 104 have been met.

The current deferred revenue and deferred cost of revenue as of March 31, 2008 and December 31, 2007 are provided below:

	March 31, 2008		December 31, 2007
Deferred revenue:
VPC contract related	$	7,657	$	2,433
Other		1,541		1,907
Current deferred revenue	$	9,198	$	4,340
	March 31, 2008		December 31, 2007
Deferred cost of revenue:
VPC contract related	$	1,613	$	640
Other		1,394		975
Current deferred cost of revenue	$	3,007	$	1,615

6

The Company has certain contracts which are multiple element arrangements and provide for several deliverables to the customer that may include installation services, right to use software, hardware and hosting services. The Company applies EITF No. 00-3, Application of AICPA Statement of Position 97-2, Software Revenue Recognition, to Arrangements That Include the Right to Use Software Stored on Another Entity’s Hardware, to multiple element arrangements that include software hosting services. For contracts that include software hosting services, the customer does not have the contractual right to take possession of the Company’s software at any time during the hosting period without significant penalty. Therefore, in accordance with EITF 00-3, AICPA Statement of Position (“SOP”) 97-2, Software Revenue Recognition, does not apply to these contracts. Accordingly, these contracts are accounted for in accordance with EITF No. 00-21. EITF 00-21 requires that the Company assess whether the different elements qualify for separate accounting. Because the Company does not have objective evidence of the fair value of each element, the elements do not qualify for separate accounting. Accordingly, revenue for all elements is recognized ratably over the longer of the estimated customer relationship period or the life of the contract, once all revenue recognition requirements are met. Straight-line attribution is used because there is no other discernible pattern of use that suggests that revenue is earned or obligations are fulfilled in a different pattern.

Revenue from time-and-materials service contracts and other services are recognized as services are provided. Revenues from certain fixed price contracts are recognized on a percentage of completion basis, which involves the use of estimates. If the Company does not have a sufficient basis to measure the progress towards completion, revenue is recognized when the project is completed or when final acceptance is received from the customer. The Company also enters into agreements to provide hosting services that allow customers to monitor and analyze their electrical usage. Revenue from hosting contracts is recognized as the services are provided, generally on a recurring monthly basis. Revenue from maintenance contracts is recognized on a straight-line basis over the life of the contract.

Comprehensive Income

Statement of Financial Accounting Standards (“SFAS”) No. 130, Reporting Comprehensive Income, establishes standards for reporting and displaying comprehensive income and its components in a full set of general-purpose financial statements.

The components of comprehensive loss are as follows:

	Three Months Ended March 31,
	2008			2007
Net loss	$	(8,823	)	$	(4,515	)
Unrealized gain on marketable securities		32			—
Comprehensive loss	$	(8,791	)	$	(4,515	)

Concentration of Credit Risk

The Company derives a significant portion of its revenue from products and services that it supplies to electricity providers such as utilities and independent service operators. Changes in economic conditions and unforeseen events could occur and could have the effect of reducing use of electricity by our customers’ consumers. The Company’s business success depends in part on its relationships with a limited number of large customers. During the three months ended March 31, 2008, the Company had one customer which accounted for 23% of the Company’s revenue, in the aggregate. The total accounts receivable from this customer was $1,050 as of March 31, 2008, or 7% of net accounts receivable outstanding. During the three months ended March 31, 2007, the Company had three customers which accounted for 38% of the Company’s revenue, in the aggregate. The total accounts receivable from these customers were $1.0 million as of March 31, 2007, or 14% of net accounts receivable outstanding. No other customer accounted for more than 10% of the Company’s total revenue during the three months ended March 31, 2008 and 2007.

The Company is subject to concentrations of credit risk from its cash and cash equivalents, short term investments and accounts receivable. The Company limits its exposure to credit risk associated with cash and cash equivalents and short term investments by placing its cash and cash equivalents with a number of domestic financial institutions and by investing in investment grade securities.

7

Recent Accounting Pronouncements

In September 2006, the Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards No. 157, Fair Value Measurements (“SFAS 157”). SFAS 157 defines fair value as used in numerous accounting pronouncements, establishes a framework for measuring fair value in U.S. GAAP, and expands disclosures related to the use of fair value measures in financial statements. SFAS No. 157 does not expand the use of fair value measurements in financial statements, but standardizes its definition and guidance in U.S. GAAP. SFAS No. 157 emphasizes that fair value is a market-based measurement and not an entity-specific measurement, based on an exchange transaction in which the entity sells an asset or transfers a liability (exit price). SFAS No. 157 establishes a fair value hierarchy from observable market data as the highest level to an entity’s own fair value assumptions about market participant assumptions as the lowest level. In February 2008, the FASB issued FASB Staff Position (“FSP”)157-2, to defer the effective date of SFAS No. 157 for all nonfinancial assets and liabilities, except those items recognized or disclosed at fair value on an annual or more frequently recurring basis, until years beginning after November 15, 2008. The Company adopted SFAS No. 157 as it applies to its financial assets and liabilities effective January 1, 2008. The partial adoption of SFAS No. 157 did not have a material impact on its condensed consolidated financial statements. The Company is currently reviewing the adoption requirements related to its nonfinancial assets and liabilities and has not yet determined the impact, if any, on its financial position or results of operations.

In March 2008, the FASB issued SFAS No. 161 Disclosures about Derivative Instruments and Hedges, which requires enhanced disclosures about an entity’s derivative and hedging activities. SFAS No. 161 requires an entity to disclose (a) how and why it uses derivative instruments, (b) how derivative instruments and related hedged items are accounted for under SFAS No. 133, Accounting for Derivative Instruments and Hedging Activities, and its related interpretations, and (c) how derivative instruments and related hedged items affect an entity’s financial position, financial performance, and cash flows. SFAS No. 161 is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008. The Company believes that SFAS No. 161 will not have a material impact on its consolidated financial statements.

3. Net Loss Per Share

Basic net loss per share is computed by dividing net loss by the weighted average number of common shares outstanding for the period. Diluted net loss per share is computed using the weighted average number of common shares outstanding and, when dilutive, potential common shares from options and warrants using the treasury stock method, and from convertible securities using the if-converted method. Because the Company reported a net loss for the three month periods ended March 31, 2008 and 2007, all potential common shares have been excluded from the computation of the dilutive net loss per share for all periods presented because the effect would have been antidilutive. Such potential common shares consist of the following:

	March 31, 2008	March 31, 2007
Series A convertible preferred stock	—	5,200,573
Series B convertible preferred stock	—	2,820,439
Series C convertible preferred stock	—	550,000
Series A-2 convertible preferred stock	—	18,038
Subordinated debt convertible to common stock	582,759	551,693
Contingently issuable shares	11,945	—
Unvested restricted stock awards	646,129	242
Outstanding options	1,939,206	1,760,326
Outstanding warrant	250,000	250,000
Total	3,430,039	11,151,311

8

4. Marketable Securities

The amortized cost and fair value of marketable securities, with gross unrealized gains and losses, as of March 31, 2008 were as follows:

	Amortized Cost		Unrealized Gains		Unrealized Losses			Fair Value		Cash and Equivalents		Marketable Securities
Money market funds	$	26,167	$	—	$	—		$	26,167	$	26,167	$	—
Commercial paper		10,354		1		—			10,355		3,887		6,468
Corporate debentures/bonds		20,407		85		(23	)		20,469		—		20,469
Total	$	56,928	$	86	$	(23	)	$	56,991	$	30,054	$	26,937

Realized gains and losses to date have not been material. Interest income for the three months ended March 31, 2008 and 2007 was $734 and $3, respectively. The Company held no marketable securities as of March 31, 2007.

5. Inventory, net

Inventory as of March 31, 2008 and December 31, 2007 consisted of the following:

	March 31, 2008		December 31, 2007
Raw materials and supplies	$	589	$	507
Finished goods		2,180		2,481
Total inventory, net	$	2,769	$	2,988

As of March 31, 2008 and December 31, 2007, there were provisions of $142 and $149, respectively, for inventory identified as slow-moving, obsolete or unusable.

6. Long-Term Debt

The Company’s senior loan agreement matured, according to its terms, during the three months ended March 31, 2008. The Company did not renew or extend the senior loan agreement and there were no borrowings under the senior loan agreement at the time of its maturity.

On March 14, 2008, the Company converted the remaining $1.9 million outstanding balance of subordinated convertible debt for 262,430 shares of common stock and terminated the loan and security agreement. The non-detachable warrant related thereto terminated pursuant to its terms.

Long-term debt as of March 31, 2008 and December 31, 2007 consisted of the following:

	March 31, 2008		December 31, 2007
Credit agreement with a U.S. corporation, collateralized by all of Alternative Energy Resources, Inc.’s assets, expiring January 2014, interest payable at a variable rate (5.44% and 7.45% as of March 31, 2008 and December 31, 2007)	$	6,323	$	4,437
Subordinated convertible debt, collateralized by a second lien on substantially all of the Company’s assets not related to Alternative Energy Resources, Inc., maturing in June 2010, converted to equity and terminated in March 2008, interest payable monthly at a variable rate of interest (7.70% as of December 31, 2007)		N/A		1,900
Subordinated convertible promissory notes, maturing in March and April 2009, interest payable quarterly at 5.5% per annum issued in connection with the acquisitions of Enerwise Global Technologies, Inc. and Public Energy Solutions		20,000		20,000
Total debt		26,323		26,337

9

	March 31, 2008			December 31, 2007
Less: Current portion of long-term debt		(3,000	)		—
Total long-term debt	$	23,323		$	26,337

7. Stock-Based Compensation

The Company’s 2006 Long-Term Incentive Plan (“2006 LTIP”) provides for the granting of stock-based incentive awards to eligible Company employees and directors and to other non-employee service providers, including options to purchase the Company’s common stock and restricted stock at not less than the fair value of the Company’s common stock on the grant date and for a term of not greater than ten years. The purchase price must be paid in cash. Stock awards are granted with service vesting requirements, performance vesting conditions, market vesting conditions, or a combination thereof. Subject to adjustment as defined in the 2006 LTIP, the aggregate number of shares available for issuance is 4,156,037. As of March 31, 2008, the Company had 1,939,206 issued and outstanding options. Options expire between five and ten years from the date of grant. The options generally vest over a one to four-year period from the date of grant. As of March 31, 2008, 176,952 options were available for grant under the 2006 LTIP.

The expense related to stock options recognized under SFAS No. 123(R) for the three months ended March 31, 2008 was $1,853. A summary of the Company’s stock option activity for the three months ended March 31, 2008 is presented below:

	Number of Options (in Shares)		Weighted Average Exercise Price		Range of Exercise Prices
Outstanding as of December 31, 2007	1,799,852		$	13.44	$	0.58 - $34.23
Granted	272,328		$	13.54	$	12.40 - $19.46
Exercised	(105,876	)	$	1.96	$	0.58 - $10.34
Cancelled	—		$	—	$	0.00 - $0.00
Forfeited	(27,098	)	$	19.31	$	0.74 - $32.96
Outstanding as of March 31, 2008	1,939,206		$	14.00	$	0.58 - $34.23
Exercisable at end of period	471,996		$	8.39	$	0.58 - $34.23

	Outstanding as of March 31, 2008				Exercisable as of March 31, 2008
Exercise Prices	Number Outstanding	Average Remaining Contractual Life	Weighted Average Exercise Price per Share		Number Exercisable	Weighted Average Exercise Price per Share
	(In Shares)	(In Years)			(In Shares)
$0.58 - $0.82	509,040	4.1	$	0.73	208,101	$	0.68
$2.40 - $3.18	74,731	3.7	$	2.80	47,031	$	2.58
$4.00	67,139	4.7	$	4.00	41,381	$	4.00
$8.00	44,158	5.6	$	8.00	13,415	$	8.00
$10.34 - $14.09	291,704	6.6	$	12.12	17,223	$	10.78
$14.10	18,250	6.0	$	14.10	4,563	$	14.10
$18.00 - $23.53	563,397	5.8	$	18.10	92,039	$	18.00
$23.54	22,507	4.2	$	23.54	9,983	$	23.54

10

	Outstanding as of March 31, 2008				Exercisable as of March 31, 2008
Exercise Prices	Number Outstanding	Average Remaining Contractual Life	Weighted Average Exercise Price per Share		Number Exercisable	Weighted Average Exercise Price per Share
	(In Shares)	(In Years)			(In Shares)
$23.55 - $36.00	348,280	6.1	$	32.82	38,260	$	33.56
	1,939,206	5.4	$	14.00	471,996	$	8.39

The weighted average grant-date fair value of 272,328 options granted during the three month period ended March 31, 2008 was $7.73. The Company utilized the Black-Scholes option pricing model to estimate fair value of options issued in the first quarter of 2008, utilizing the following assumptions (weighted averages based on grants during the period):

	Three Months Ended March 31, 2008
Risk-free interest rate	2.43	%
Expected term of options, in years	4.6
Expected annual volatility	70	%
Expected dividend yield	0	%

During the quarter, the Company granted 558,196 restricted stock awards. Of these awards, 525,000 shares were granted with service and market conditions. For awards with market conditions, the Company utilized a lattice model to estimate the award fair value and the derived service period.

Each of the grants with service and market conditions include three components: (a) a performance incentive, representing 60% of the total value of each grant, that measures the performance of Comverge’s stock against the performance of a peer group over a three-year period; (b) a retention incentive, representing 20% of the total value of each grant, to encourage recipients to continue their service with Comverge; and (c) a stock price incentive, representing 20% of the total value of each grant, tied to Comverge’s stock price achieving certain target prices over time (the “Price Grant”). The portion of a recipient’s grant represented by the Price Grant will vest in equal increments upon Comverge sustaining a stock price equal to or greater than $30, $35, $40 and $45 per share, each for a separate continuous 30-day period prior to February 12, 2012.

8. Segment Information

As of March 31, 2008, the Company had three operating and reportable segments: the Smart Grid Solutions Group, the Alternative Energy Resources Group and the Enerwise Group. The Smart Grid Solutions Group sells hardware, software and installation services to utilities that elect to own and operate demand response networks for their own benefit. The Alternative Energy Resources Group sells electric capacity to utilities under long-term contracts, either through demand response or base load efficiency. The Alternative Energy Resources Group also provides utilities with program management and marketing services on an outsourced basis. The Enerwise Group provides energy infrastructure management, demand response and renewable energy services and technologies that enable commercial and industrial customers to reduce energy consumption and total costs, improve energy infrastructure reliability and make informed decisions on energy and renewable energy purchases and programs.

Management has three primary measures of segment performance: revenue, gross profit (margin) and operating income. The Alternative Energy Resources Group purchases demand response hardware and software from the Smart Grid Solutions Group. All inter-operating segment revenues are eliminated in consolidation. Substantially all of our revenues are generated with domestic customers. The Smart Grid Solutions Group’s product and service cost of revenue include materials, labor and overhead. Within the Alternative Energy Resources Group, cost of revenue is based on operating costs of the demand response networks, primarily telecommunications costs related to the

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network and depreciation of the assets capitalized in building the demand response network, and build-out costs of the base load efficiency networks, primarily lighting costs and installation services related to energy efficiency upgrades. Operating expenses directly associated with each operating segment include sales, marketing, product development, amortization of intangible assets and certain administrative expenses.

Corporate operating expenses, interest income, interest expense and other income (expense) are not allocated to the operating segments nor included in the measure of segment profit or loss. The Company does not allocate assets and liabilities to its operating segments. Operating expenses not directly associated with an operating segment are classified as “Corporate Unallocated Costs.” Corporate Unallocated Costs include support group compensation, travel, professional fees and marketing activities.

The following tables show operating results for each of the Company’s operating segments:

	Three Months Ended March 31, 2008
	Smart Grid Solutions Group			Alternative Energy Resources Group			Enerwise Group			Corporate Unallocated Costs			Eliminations			Total
Revenue	$	4,351		$	3,326		$	3,181		$	—		$	(405	)	$	10,453
Cost of revenue		2,634			1,546			2,155			—			(290	)		6,045
Gross profit		1,717			1,780			1,026			—			(115	)		4,408
Operating expenses
General and administrative expenses		1,434			2,786			1,086			3,020			—			8,326
Marketing and selling expenses		675			1,423			785			1,117			—			4,000
Research and development expenses		368			—			—			—			—			368
Amortization of intangible assets		—			279			372			5			—			656
Total operating expenses		2,477			4,488			2,243			4,142			—			13,350
Operating loss		(760	)		(2,708	)		(1,217	)		(4,142	)		(115	)		(8,942	)
Other/interest expense (income), net		—			204			(12	)		(403	)		—			(211	)
Loss before income taxes	$	(760	)	$	(2,912	)	$	(1,205	)	$	(3,739	)	$	(115	)	$	(8,731	)
	Three Months Ended March 31, 2007
	Smart Grid Solutions Group			Alternative Energy Resources Group			Enerwise Group			Corporate Unallocated Costs			Eliminations			Total
Revenue	$	5,272		$	823		$	—		$	—		$	(360	)	$	5,735
Cost of revenue		3,346			526			—			—			(278	)		3,594
Gross profit		1,926			297			—			—			(82	)		2,141
Operating expenses
General and administrative expenses		1,171			1,282			—			1,769			—			4,222
Marketing and selling expenses		516			965			—			418			—			1,899
Research and development expenses		273			—			—			—			—			273
Amortization of intangible assets		—			—			—			23			—			23
Total operating expenses		1,960			2,247			—			2,210			—			6,417
Operating loss		(34	)		(1,950	)		—			(2,210	)		(82	)		(4,276	)

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	Three Months Ended March 31, 2007
	Smart Grid Solutions Group			Alternative Energy Resources Group			Enerwise Group		Corporate Unallocated Costs			Eliminations			Total
Other/interest expense, net		3			109			—		120			—			232
Loss before income taxes	$	(37	)	$	(2,059	)	$	—	$	(2,330	)	$	(82	)	$	(4,508	)

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Item 2: Management’s Discussion and Analysis of Financial Condition and Results of Operations

Cautionary Statement Regarding Forward-Looking Statements

This Quarterly Report on Form 10-Q and the documents incorporated into this Quarterly Report on Form 10-Q by reference contain forward-looking statements. These forward-looking statements include statements with respect to our financial condition, results of operations and business. The words “assumes,” “believes,” “expects,” “budgets,” “may,” “will,” “should,” “projects,” “contemplates,” “anticipates,” “forecasts,” “intends” or similar terminology identify forward-looking statements. These forward-looking statements reflect our current expectations regarding future events, results or outcomes. These expectations may not be realized. Some of these expectations may be based upon assumptions or judgments that prove to be incorrect. In addition, our business and operations involve numerous risks and uncertainties, many of which are beyond our control, which could result in our expectations not being realized, cause actual results to differ materially from our forward-looking statements and/or otherwise materially affect our financial condition, results of operations and cash flows. Please see the section below entitled “Risk Factors,” the section entitled “Risk Factors” in our Annual Report on Form 10-K (File No. 001-33399) filed with the Securities and Exchange Commission, or SEC, on March 25, 2008, and elsewhere in this filing for a discussion of examples of risks, uncertainties and events that may cause our actual results to differ materially from the expectations we describe in our forward-looking statements. You should carefully review the risks described herein and in other documents we file from time to time with the SEC, including the other Quarterly Reports on Form 10-Q to be filed in 2008. We caution readers not to place undue reliance on any forward-looking statements, which only speak as of the date hereof. Except as provided by law, we undertake no obligation to update any forward-looking statement based on changing circumstances or otherwise.

You should read the following discussion together with management’s discussion and analysis, financial statements and the notes thereto included in our Annual Report on Form 10-K filed with the SEC on March 25, 2008 and the financials statements and the notes thereto included elsewhere in this Quarterly Report on Form 10-Q.

Overview

We are a clean energy company providing peaking and base load capacity to electric utilities, grid operators and associated electricity markets. We provide electric capacity to our customers either through long-term contracts where we actively manage demand or by selling our demand response systems to utilities that operate them. We provide our clean energy solutions through our three operating segments: the Smart Grid Solutions Group, the Alternative Energy Resources Group and the Enerwise Group.

• Our Smart Grid Solutions Group develops and delivers state-of-the-art demand response, smart metering, advanced metering initiative, advanced meter reading and other monitoring and control hardware and software, which allow our utility customers to measure, manage, shift and reduce energy consumption in real-time.

• Our Alternative Energy Resources Group offers our residential and small commercial Virtual Peaking Capacity, or VPC, programs and our long-term energy efficiency programs. Through these VPC programs, we provide electric capacity to our utility customers during periods of peak energy demand by remotely operating high energy-consuming devices, such as central air conditioners, water heaters and pool pumps. We provide this capacity by developing, owning and operating energy load management systems through long-term, pay-for-performance contracts. Pay-for-performance means that we enter into long-term contracts with utilities and are paid under each contract based on the amount of verifiable kilowatt hours of capacity that we provide. Through our energy efficiency programs, we provide long-term base load capacity reduction for our utility customers.

• Our Enerwise Group provides energy management and demand response solutions for large commercial and industrial consumers. These programs allow our consumers to participate in (i) regional demand response capacity programs offered by various utilities and Independent System Operators, (ii) energy efficiency upgrades and (iii) energy management solutions.

We first introduced our VPC programs in 2003. Growth and acceptance of our VPC programs have expanded the growth of our business as a whole. Our total revenues grew from $23.4 million for the year ended December 31,

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2005 to $55.2 million for the year ended December 31, 2007. While our revenues have grown, we have incurred net losses since our inception and had an accumulated deficit of $67.6 million as of March 31, 2008. Our net losses have been driven principally by general and administrative, marketing, operating and depreciation expenses related to capital expenditures for equipment required to support our VPC programs. We plan to continue the expansion and development of our capacity programs to grow our revenues and customer base, which will include increased marketing and operating expenses.

As of March 31, 2008, we owned 641 megawatts of contracted capacity from long-term contracts. Our existing VPC contracts represented contracted capacity of 527 megawatts and our base load capacity represented contracted capacity of 114 megawatts. The table below presents the activity in megawatts of contracted capacity from long-term capacity contracts.

	Megawatts Owned under Long-Term Capacity Contracts (1)
As of December 31, 2007	479
New VPC megawatts awarded during the three months ended March 31, 2008:
Southern Maryland Electric Cooperative VPC contract	75
Expansion of Nevada Power Company VPC program	20
Total new VPC megawatts awarded	95
New base load capacity program megawatts	67
As of March 31, 2008	641

(1) This table does not include megawatts of contracted capacity for VPC contracts that have been initially denied regulatory approval, whether the notification of initial denial occurred as of March 31, 2008 or subsequent to that report date, up to the date of filing this quarterly report. Specifically, the table does not include 130 megawatts of contracted capacity for the VPC contracts with The Connecticut Light and Power Company. As of the date of the filing of this quarterly report, we had received notification of initial denial for this contract. On March 3, 2008, we resubmitted the VPC contract with The Connecticut Light and Power Company to the Connecticut Department of Public Utility Control.

Cumulatively, we have installed capacity of 227 megawatts as of March 31, 2008 compared to 193 megawatts as of December 31, 2007, an increase of 34 megawatts. These amounts exclude approximately 40 megawatts of available capacity built out under our program with ISO New England, Inc. that we intend to contribute to our new VPC contract with The Connecticut Light and Power Company once, and if, regulatory approval is obtained. The main components of the change are an increase of 2 megawatts from the base load capacity program during the three months ended March 31, 2008 and an increase of 32 megawatts built out during the three months ended March 31, 2008 in our existing VPC programs. The table below presents contracted capacity, installed capacity, and available capacity as of March 31, 2008 and December 31, 2007, respectively.

	As of March 31, 2008	As of December 31, 2007
Contracted capacity	641	479
Installed capacity (1)	227	193
Available capacity (2)	207	169

(1) Installed capacity generally refers to the number of devices installed multiplied by the historically highest demonstrated available capacity provided per device for the applicable service territory.

(2) Available capacity represents the amount of electric capacity that we have made available to our customers during each contract year based on the results of our measurement and verification process. We have used

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the most recent measurement and verification results for contract year 2007 to present available capacity for each period presented. Available capacity is typically measured during the fourth quarter of each year.

Recent Developments

In February 2008, we executed a new long-term pay-for-performance VPC contract with Southern Maryland Electric Cooperative to provide up to 75 megawatts of contracted capacity over ten years. On April 15, 2008, we received regulatory approval for the contract.

During the first quarter of 2008, PJM Interconnection, or PJM, has been working with the Federal Energy Regulatory Commission, or FERC, on tariff and business rule changes to the Economic Demand Response Program, or economic program, in PJM’s service area. Interim rules were in effect based on sunset clauses in the original PJM tariff for the economic program during the first quarter and will continue to be effective until the new rules are approved. These interim rules reduced the price of each megawatt hour by the demand response participant’s retail rate. While our end users may respond during the summer peak season and off-season shoulder months, they have less incentive to do so during the shoulder months, when the rates are lower. To quantify the impact of the interim rules, economic demand response revenue for the Enerwise Group, or Enerwise, included $0.1 million in revenue for the first quarter of 2008 related to economic programs supported by PJM. This amount was significantly less than the $2.8 million Enerwise received from such economic programs in the first quarter of 2007, prior to the acquisition of Enerwise by Comverge.

In April 2008, PJM formally filed proposed changes to the tariff and operating agreement. We believe the proposed changes are similar to the interim rules, in that there is less incentive for our commercial and industrial end users to participate in the programs during the shoulder months. This change, which is being reviewed by the FERC, is being opposed by a variety of industrial groups and curtailment service providers. If the new rules become permanent in the PJM service area, Enerwise will predominantly generate revenue in the summer months with minimal revenue in the shoulder months for the economic program. We will continue to work through the regulatory process in an effort to effectuate a more favorable result and evaluate possible bilateral relationships whereby we may be able to sell these same megawatts at a more favorable rate to other parties during the shoulder months.

Management’s 2008 Outlook

We continue to expect our full-year fiscal 2008 revenues to be in a range from $95 million to $105 million.

Operating Segments

We operate through three operating segments: the Smart Grid Solutions Group, the Alternative Energy Resources Group and the Enerwise Group.

Smart Grid Solutions Group

Our Smart Grid Solutions Group offers a broad range of products from basic one-way load control switches to smart thermostats to comprehensive two-way data collection and control systems. The most widely-deployed products offered by our Smart Grid Solutions Group are our digital control unit, an intelligent, microprocessor-driven solution for load management control, which is installed on large energy-consuming devices and controls the cycling and operation of the device, and our SuperStat ®, an advanced, programmable thermostat solution with embedded communications to control air conditioning and heating loads.

Alternative Energy Resources Group

Our Alternative Energy Resources Group primarily offers peak and base load reduction programs to electric utilities pursuant to which we provide capacity, on a pay-for-performance basis, through long-term contracts. Under our VPC programs, we develop, operate and manage the entire load management system. As of March 31, 2008, we had begun build-out of four residential and small commercial VPC programs, one with each of PacifiCorp, Public Service Company of New Mexico, San Diego Gas & Electric Company and Nevada Power Company. In addition to VPC programs, our Alternative Energy Resources Group provides permanent base load reduction programs. Our Alternative Energy Resources Group provides utilities program management services in which we design, build-out and operate a load control program, with the utility retaining ownership of the underlying asset. The Alternative Energy Resources Group also provides utilities marketing services on an outsourced basis.

Once we secure a VPC contract with a utility customer, our Alternative Energy Resources Group incurs significant marketing costs to identify and enroll participants in our VPC programs. These participant acquisition costs are expensed as incurred. In addition, the participant may be paid an annual or one-time incentive to enroll and participate in the VPC program. The incentive payments are recognized as a cost of revenue over the annual

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commitment period. Once a participant enrolls in one of our VPC programs, we install a digital control unit or thermostat at the participant’s location. The cost of the installation and the hardware are capitalized and depreciated over the remaining term of the contract with the utility, which is shorter than the operating life of the equipment. Until our build-out of a VPC program reaches a critical mass, the participant acquisition costs typically result in lower operating margins and greater losses in the early years of a VPC contract.

Our base load reduction contracts are similar to the VPC contracts in that we have to recruit and enroll participants into the program. The participant acquisition costs are expensed as incurred. Unlike the majority of our VPC programs, we do not own the underlying assets.

Enerwise Group

Our Enerwise Group offers energy-related services for commercial and industrial end users comprising two principal offerings: demand response and energy and capacity services. The demand response services include the assessment of market opportunities in deregulated and unregulated markets, the performance of energy auditing and implementation strategies, and the management of our commercial and industrial VPC program with Pacific Gas & Electric. These demand response services provide commercial and industrial customers with an ability to participate in demand response programs offered in their area by grid operators such as PJM Interconnection or by utilities. The energy and capacity services include the upgrade and maintenance of power systems such as the implementation of power system distribution analysis, testing, maintenance, replacement or repair, engineering design and consulting, meter and sub-meter operations, and data management and analysis.

Payments from Long-Term Contracts

Payments from long-term contracts represent our estimate of total payments that we expect to receive under long-term agreements with twelve of our utility customers in our Smart Grid Solutions Group, our Alternative Energy Resources Group, and our Enerwise Group. The information presented below with respect to payments from long-term contracts includes payments related to our VPC contracts and base load contracts. We have not included payments that our Enerwise Group will receive from selling capacity in power pool programs because such contracts are not long-term contractual arrangements. As of March 31, 2008, we estimated that our total payments to be received through 2018 were approximately $324 million. Of this amount, we expect payments of $43 million from our Smart Grid Solutions Group’s contracts, $266 million from our Alternative Energy Resources Group’s contracts, and $15 million from our Enerwise Group’s contracts. While we have resubmitted an amended and restated contract to the Connecticut Department of Public Utility Control for approval and are currently working with Southern California Edison to resubmit an amended and restated contract to the California Public Utilities Commission, we have excluded any estimated payments from these contracts in light of the initial denials.

These estimates of payments from long-term contracts are forward-looking statements based on the contractual terms and conditions. In management’s view, such information was prepared on a reasonable basis, reflects the best currently available estimates and judgments, and, to management’s knowledge and belief, presents the assumptions and considerations on which we base our belief that we can receive such payments. However, this information should not be relied upon as being necessarily indicative of actual future results, and readers of this filing should not place undue reliance on this information. Any differences among these assumptions, other factors and our actual experiences may result in actual payments in future periods significantly differing from management’s current estimates of payments allowed under the long-term contracts and our actual experiences may result in actual payments collected being significantly lower than current estimates. See “Risk Factors—Risk Related to Our Business—We may not receive the payments anticipated by our long-term contracts and recognize revenue from our backlog, and comparisons of period-to-period estimates are not necessarily meaningful, may not be indicative of actual payments and should not be relied upon” in our Annual Report on Form 10-K, filed with the SEC on March 25, 2008. The information in this section is designed to summarize the financial terms of our long-term contracts and is not intended to provide guidance on our future operating results, including revenue or profitability.

Our estimated payments from long-term contracts have been prepared by management based on the following assumptions:

VPC Contracts:

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• Our existing VPC contracts as of March 31, 2008 represented contracted capacity of 527 megawatts, an increase of 95 megawatts compared to contracted capacity of 432 megawatts as of December 31, 2007. As of March 31, 2008, we had installed 205 megawatts of capacity. In calculating estimated $175 million of payments from our VPC contracts as of March 31, 2008, we have assumed that we will complete the build out of our remaining 322 megawatts by the end of 2012, reaching the full 527 megawatts of potential available capacity under our load management systems. Our expectations regarding the build-out under our VPC contracts are based on our experience to date in building out the load management systems.

• We have assumed that once our build-out phase is complete we will operate our VPC contracts at their maximum contractual capacity for the remainder of the term. For example, if one of our VPC contracts provides for 90 megawatts of contracted capacity, we have assumed that upon full build-out we will provide our utility customer with 90 megawatts of available capacity for the remainder of the contract term.

• The amount our utility customers pay to us at the end of each contract year may vary based upon the results of measurement and verification tests performed each contract year based on the electric capacity that we made available to the utility during the contract year. For purposes of calculating our payments from long-term contracts, we have assumed that the capacity we will provide our utility customer is the maximum contractual capacity under the applicable contract and that payments resulting from the measurement and verification tests will remain constant based on our current measurement and verification performance.

• The amount of available capacity we are able to provide, and therefore the amount of payments we receive, is dependent upon the number of participants in our VPC programs. For purposes of estimating our payments under long-term contracts, we have assumed the rate of replacement of participant terminations under our VPC contracts will remain consistent with our historical average.

• Payments from long-term contracts include $23 million that we expect to recognize as revenue over the next nine months, which we include in backlog. Payments from long-term contracts exclude $0.2 million of payments, which we have already received but have been deferred in accordance with our revenue recognition policy. We expect to also recognize these payments as revenue over the course of the next nine months.

Base Load Capacity Contracts:

• Our existing energy efficiency contracts as of March 31, 2008 represent potential base load contracted capacity of 114 megawatts. In calculating the estimated $103 million in payments from these contracts, we have assumed we will complete timely build-out of the entire megawatts under contract by the end of 2012. We have assumed that once our build-out is complete, the permanent base load reduction will remain installed and will continue to provide the maximum contractual capacity for the remainder of the contract term. Our expectations regarding the build out under our energy efficiency contracts is based on our experience to date.

Smart Grid Solutions Group Contracts:

• $33 million in payments expected to be received over the next eight years under a contract with Gulf Power Company to provide products and services. This is based on estimated contractual minimum order volumes and current payments attributable to installation and other services applied over the term of the contract.

• An estimated $4 million in purchase orders pursuant to multi-year contracts that we expect will be renewed through 2011 based on amounts and timing of historical purchases.

• $6 million in payments expected to be received over the next three years under a contract with Tampa Electric Company to provide products and services.

In addition to the foregoing assumptions, our estimated payments from long-term contracts assume that we will be able to meet on a timely basis all of our obligations under these contracts and that our customers will not terminate the contracts for convenience or other reasons. Our annual net loss in 2006 and 2007 was $6.2 million and $6.6 million, respectively. We may continue to generate annual net losses in the future, including through the term of our long-term contracts. See “Risk Factors—We have incurred annual net losses since our inception, and we may

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continue to incur annual net losses in the future” in our Annual Report on Form 10-K, filed with the SEC on March 25, 2008.

Although we currently intend to release quarterly updates of future revisions that we may make to our estimated payments from long-term contracts, we do not undertake any obligation to release the results of any future revisions that we may make to these estimated payments from long-term contracts to reflect events or circumstances occurring after the date of this filing.

Backlog

Our backlog represents our estimate of revenues from firm commitments, including purchase orders and long-term contracts, that we expect to recognize over the course of the next 12 months. A comparison of backlog from period to period is not necessarily meaningful and may not be indicative of actual revenues. As of March 31, 2008, we had contractual backlog of $72 million, with approximately 82% or $59 million to be fulfilled by December 31, 2008. As of March 31, 2007, we had contractual backlog of $32 million.

Results of Operations

Three Months Ended March 31, 2008 Compared to Three Months Ended March 31, 2007

Revenue

The following table summarizes our revenues for the three months ended March 31, 2008 and 2007 (dollars in thousands):

	Three Months Ended March 31,				Percent Change
	2008		2007
Segment Revenue:
Smart Grid Solutions Group	$	3,946	$	4,912	(20	)%
Alternative Energy Resources Group		3,326		823	304	%
Enerwise Group		3,181		—	*
Total	$	10,453	$	5,735	82	%
	March 31, 2008		December 31, 2007		Percent Change
Current Deferred Revenue		9,198		4,340	112	%

* - Not meaningful.

For the three months ended March 31, 2008, we had revenues of $10.5 million compared to $5.7 million for the three months ended March 31, 2007, an increase of $4.7 million, or 82%. Revenues for the three months ended March 31, 2008 included revenues of $5.8 million from our two acquisitions completed during the year ended December 31, 2007. Revenue for both three month periods exclude VPC contract revenues because such revenues are deferred until they are made fixed and determinable through a measurement and verification test, generally in our fourth fiscal quarter.

Smart Grid Solutions Group Revenue

Our Smart Grid Solutions Group had revenues of $3.9 million for the three months ended March 31, 2008 compared to $4.9 million for the three months ended March 31, 2007, a decrease of $1.0 million, or 20%. The decrease in revenue was due to the timing of receiving and fulfilling orders comprised of a $0.3 million decrease in digital control unit revenue, a $0.5 million decrease in SuperStat revenue, and a $0.2 million decrease in other products and services revenue.

Alternative Energy Resources Group Revenue

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Our Alternative Energy Resources Group had revenues of $3.3 million for the three months ended March 31, 2008 compared to $0.8 million for the three months ended March 31, 2007, an increase of $2.5 million, or 304%. The revenues for the three months ended March 31, 2008 included $2.6 million in revenues from our base load energy efficiency programs, which were acquired as part of the Public Energy Solutions, or PES, acquisition in September 2007. PES executed an additional long-term base load contract with an existing customer in February 2008. In conjunction with the contract, three prior contracts were amended to provide for a lower rate of liquidating damages, should we fail to maintain certain committed capacity as outlined in each contract. The reduction in the rate of liquidating damages allowed us to recognize $0.9 million in revenue that had previously been deferred and presented as long-term deferred revenue as of December 31, 2007 in accordance with our revenue recognition policy. Of the $2.6 million of revenue generated from our base load energy efficiency programs, $0.9 million of revenue and gross profit was a one-time benefit that will not recur in future periods. In addition, program management services were $0.7 million in revenue for the three months ended March 31, 2008 compared to $0.8 million in revenue for the three months ended March 31, 2007.

As discussed above, we defer revenues and direct costs under our VPC contracts until such revenue can be made fixed and determinable through a measurement and verification test, generally in our fourth quarter. No VPC contract revenues were recognized in the three months ended March 31, 2008 and 2007 due to the timing of the measurement and verification tests. Accordingly, deferred revenue related to VPC contracts increased from $2.4 million as of December 31, 2007 to $7.7 million as of March 31, 2008, and deferred costs of revenue increased from $0.6 million as of December 31, 2007 to $1.6 million as of March 31, 2008. Deferred revenue related to VPC contracts increased from $4.6 million as of December 31, 2006 to $9.1 million as of March 31, 2007, and deferred costs of revenue increased from $1.5 million as of December 31, 2006 to $3.3 million as of March 31, 2007.

Enerwise Group Revenue

During the three months ended March 31, 2008, the Enerwise Group had revenue of $3.2 million, consisting of $1.4 million of demand response services and $1.8 million of energy and capacity services. Energy and capacity services relate to the upgrade, maintenance and monitoring of power systems. The Enerwise Group increased megawatts provided for sale in open market programs and managed for a fee on a pay-for-performance basis by 395 megawatts during the first quarter of 2008.

Gross Profit and Gross Margin

The following table summarizes our gross profit and gross margin for the three months ended March 31, 2008 and 2007 (dollars in thousands):

	Three Months Ended March 31,
	2008				2007
	Gross Profit		Gross Margin		Gross Profit		Gross Margin
Segment Gross Profit and Margin:
Smart Grid Solutions Group	$	1,602	41	%	$	1,844	38	%
Alternative Energy Resources Group		1,780	54	%		297	36	%
Enerwise Group		1,026	32	%		—	—	%
	$	4,408	42	%	$	2,141	37	%

As a percentage of revenues, total gross margin for the three months ended March 31, 2008 increased to 42% from 37% for the three months ended March 31, 2007. The increase was primarily due to the gross margin contributed from our base load energy efficiency programs in the Alternative Energy Resources Group.

Smart Grid Solutions Group Gross Profit and Gross Margin

Gross profit for our Smart Grid Solutions Group was $1.6 million for the three months ended March 31, 2008 compared to $1.8 million for the three months ended March 31, 2007, a decrease of $0.2 million, or 13%. Decreased revenue, mainly due to volume of product shipment, reduced gross profit by $0.3 million. For the three months ended March 31, 2008, we shipped approximately 26,000 units compared to approximately 33,000 for the

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three months ended March 31, 2007. An increased gross margin resulting from higher margin product revenue contributed $0.1 million in gross profit.

Alternative Energy Resources Group Gross Profit and Gross Margin

Gross profit for our Alternative Energy Resources Group was $1.8 million for the three months ended March 31, 2008 compared to $0.3 for the three months ended March 31, 2007, an increase of $1.5 million, or 499%. The increase of $1.5 million is mainly attributable to the base load energy efficiency programs operated by PES. As discussed above, we recognized $0.9 million in revenue during the three months ended March 31, 2008 related to a reduction of future liquidating damages in our base load energy efficiency programs. The $0.9 million in revenue was recognized at 100% gross margin, as there were no associated costs deferred. Operations of the base load energy efficiency programs contributed $0.7 million in gross profit. Gross margin for the operations of the base load energy programs, excluding the one-time benefit of the contract amendment, was approximately 40% in the first quarter of 2008. The gross margin of the base load energy efficiency programs vary depending on the nature of the project completed, which includes a range of lighting upgrades. The remaining variance in gross profit for the three months ended March 31, 2008 compared to the three months ended March 31, 2007 is attributed to our program management services.

Enerwise Group Gross Profit and Gross Margin

During the three months ended March 31, 2008, our Enerwise Group’s gross profit was $1.0 million, consisting of $0.3 million of demand response services and $0.7 million of energy and capacity services. Our Enerwise Group’s gross margin for its demand response services was approximately 20%. It is typical for commercial and industrial demand response programs to maintain lower gross margins due to the financial incentive paid to the participating businesses. Our Enerwise Group’s gross margin for its energy and capacity services was approximately 40%. The gross margin for these services varies based on the nature of the project. For example, monitoring and analyzing meter data typically generates a higher gross margin than design and installation of an electrical generator.

Operating Expenses

The following table summarizes our operating expenses for the three months ended March 31, 2008 and 2007 (dollars in thousands):

	Three months ended March 31,				Percent Change
	2008		2007
Operating Expenses:
General and administrative expenses	$	8,326	$	4,222	97	%
Marketing and selling expenses		4,000		1,899	111	%
Research and development expenses		368		273	35	%
Amortization of intangible assets		656		23	*
Total	$	13,350	$	6,417	108	%

* - Not meaningful.

General and Administrative Expenses

General and administrative expenses were $8.3 million for the three months ended March 31, 2008 compared to $4.2 million for the three months ended March 31, 2007, an increase of $4.1 million, or 97%. The increase of $4.1 million was comprised of $1.6 million in expenses arising from the operations of our prior year acquisitions as well as an increase of $1.1 million in non-cash stock based compensation due to an increased number of award grants and an increase of $0.1 million in salaries and benefits, both excluding the increases associated with the acquisitions. The remaining increase was comprised of an increase of $0.5 million in administration expenses related to the build-out of our VPC programs, an increase of $0.3 million in legal and accounting professional fees, an increase of $0.1 million in travel expenses, and an increase of $0.2 million in insurance expense. For the duration of 2008, the year over year comparisons for non-cash stock compensation expense will exhibit similar increases.

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Marketing and Selling Expenses

Marketing and selling expenses were $4.0 million for the three months ended March 31, 2008 compared to $1.9 million for the three months ended March 31, 2007, an increase of $2.1 million, or 111%. The increase of $2.1 million was due to $0.7 million in expenses arising from the operations of our prior year acquisitions. In addition, there was an increase of $0.2 million in non-cash stock based compensation due to an increased number of award grants and an increase of $0.2 million in salaries and benefits, both excluding the increases associated with the acquisitions. The remaining increase was due to an increase of $0.6 million in new customer acquisition expenses for our VPC programs and $0.4 million in marketing and advertising expense.

Marketing costs related to end user acquisitions for our VPC programs were $1.0 million for the three months ended March 31, 2008 compared to $0.4 million for the three months ended March 31, 2007. Notwithstanding the deferral of VPC contract revenue, we expense these acquisition costs as incurred.

Research and Development Expenses

Research and development expenses are incurred primarily in connection with the identification, testing and development of new Smart Grid products, specifically the development of products to support utility Advanced Metering Infrastructure. Research and development expenses were $0.4 million and $0.3 million for the three months ended March 31, 2008 and 2007, respectively.

Amortization of Intangible Assets

For the three months ended March 31, 2007 and 2008, amortization of intangible assets increased from $23,000 to $0.7 million. The increase in amortization of intangible assets through the three months ended March 31, 2008 was due to the acquisitions of Enerwise Global Technologies, Inc., or Enerwise, and PES during the year ended December 31, 2007, which resulted in the addition of $16.4 million of finite-lived intangible assets.

Interest and Other Expense (Income), Net

Net interest expense (income) increased to income of $0.2 million for the three months ended March 31, 2008 from an expense of $0.2 million for the three months ended March 31, 2007 due to interest earned on proceeds of our public offerings, partially offset by interest expense related to our debt.

Income Taxes

For the three months ended March 31, 2008, a provision of $0.1 million was recorded related to a deferred tax liability and state income taxes for the legal entity of PES. A provision of $7,000 was recorded for the three months ended March 31, 2007 related to a deferred tax liability. We provided a full valuation allowance for our deferred tax assets because the realization of any future tax benefits could not be sufficiently assured as of March 31, 2008 or March 31, 2007.

Liquidity and Capital Resources

Since April 2003, when we ceased being a wholly owned subsidiary of Acorn Energy, until our initial public offering in April 2007, we funded our operations primarily through the issuance of an aggregate of $40.9 million in preferred stock, $4.0 million in subordinated convertible debt and borrowings under our senior loan agreement and General Electric Capital Corporation credit facility. We used these proceeds to fund our operations and to invest in our VPC programs, both in the form of capital expenditures to build out the capacity under our VPC contracts and participant acquisition expenses such as advertising and participant incentive payments, which were expensed as incurred. In April 2007, we completed an initial public offering of 5,300,000 shares of our common stock. Aggregate proceeds to us from the offering were $86.0 million, after deducting underwriting discounts and commissions and offering expenses. In conjunction with the completion of our initial public offering, the holder of our then only outstanding subordinated convertible debt converted $1.0 million of the principal balance into 138,121 shares of common stock. In December 2007, we completed a secondary public offering of 4,000,000 shares of our common stock. Of the 4,000,000 shares, 920,000 were newly issued and the remaining shares were sold by selling stockholders. Aggregate proceeds to us from the offering were $24.0 million, after deducting underwriting discounts and commissions and offering expenses. In conjunction with the completion of our secondary offering, the holder of

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our subordinated convertible debt converted $1.1 million of the principal balance into 151,933 shares of common stock. Management believes that available cash and cash equivalents, marketable securities and borrowings available under our credit agreement will be sufficient to meet our capital needs for at least the next 12 months.

The following table summarizes our cash flows for the three months ended March 31, 2008 and 2007 (dollars in thousands):

	Three months ended March 31,
	2008			2007
Operating activities	$	(9,205	)	$	(2,493	)
Investing activities		2,039			(800	)
Financing activities		1,971			137
Decrease in cash and cash equivalents	$	(5,195	)	$	(3,156	)

Cash Flows Used in Operating Activities

Cash used in operating activities of $9.2 million for the three months ended March 31, 2008 included the effects of:

• our net loss of $8.8 million;

• stock-based compensation expense of $1.9 million;

• an increase of $2.2 million in accounts receivable due primarily to the build-out of VPC programs and timing of cash receipts from VPC customers;

• an increase of $4.2 million in deferred revenue due primarily to our revenue recognition model for our VPC contracts (i.e. we defer until such time as revenue is fixed and determinable, generally the fourth quarter); and

• a decrease in accounts payable, accrued expenses, and other liabilities of $3.5 million due to the payment of $1.8 million to one of our VPC customers for the annual settlement for contract year 2007. The amount was recorded in other current liabilities as of December 31, 2007. The remainder of the decrease relates to timing of payments to our vendors.

Cash used in operating activities of $2.5 million for the three months ended March 31, 2007 included the effects of:

• our net loss of $4.5 million;

• stock-based compensation expense of $0.1 million;

• an increase of $1.3 million in accounts receivable due primarily to the build-out of VPC programs and timing of cash receipts from VPC customers; and

• an increase of $3.7 million in deferred revenue due primarily to our revenue recognition model for our VPC contracts (i.e. we defer until such time as revenue is fixed and determinable, generally the fourth quarter).

Cash Flows Provided By (Used In) Investing Activities

Cash provided by and used in investing activities was $2.0 million and $0.8 million for the three month periods ended March 31, 2008 and 2007, respectively. Cash flows provided by (used in) investing activities consisted of the following:

• capital expenditures of $1.4 million and $0.8 million for the three months periods ended March 31, 2008 and 2007, respectively;

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• purchases of marketable securities of $10.4 million and maturities of marketable securities of $16.8 million for the three month period ended March 31, 2008; and

• an increase of $2.9 million in restricted cash due to $3 million in payment of financial assurance required by one of our utility customers.

Our capital expenditures are mainly for purchases of equipment and installation services used to build out and expand our VPC programs. Installation services represent the installation of the demand response hardware at participants’ locations, which are primarily residential.

Noncash Investing Activities

Due to intercompany purchases of certain assets, the levels of capital expenditures reflected in the investing section of our consolidated statements of cash flows do not reflect the levels of capital investment made by us. Our Alternative Energy Resources Group purchases demand response equipment from our Smart Grid Solutions Group. These assets are initially classified as inventory when purchased by the Smart Grid Solutions Group. When transferred to the Alternative Energy Resources Group, they remain classified as inventory until they are deployed to service for a VPC program, at which time they are re-classified as a capital asset. These noncash purchases of equipment were $1.1 million and $0.3 million for the three month periods ended March 31, 2008 and 2007, respectively.

Cash Flows Provided by Financing Activities

Cash flows provided by financing activities were $2.0 million and $0.1 million for the three month periods ended March 31, 2008 and 2007, respectively. Cash flows provided by financing activities consisted of the following:

• cash of $0.2 million from the exercise of stock-based awards during the periods ended March 31, 2008 and 2007;

• cash of $1.9 and $1.8 million from borrowings under our debt facilities during the periods ended March 31, 2008 and 2007, respectively;

• payment of $0.1 and $1.0 million of offering costs during the periods ended March 31, 2008 and 2007; and

• payment of $0.8 million of debt issuance costs during the period ended March 31, 2007.

Indebtedness

Our senior loan agreement matured, according to its terms, during the three months ended March 31, 2008 and we elected to not renew or extend its terms. We had no borrowings under the senior loan agreement at the time of its maturity.

On March 14, 2008, we converted the remaining $1.9 million outstanding balance of subordinated convertible debt for 262,430 shares of common stock. The non-detachable warrant related thereto terminated pursuant to its terms.

Letters of Credit

Our credit agreement provides for the total issuance of up to $3.0 million of letters of credit. As of March 31, 2008, we had $1.9 million face value of irrevocable letters of credit outstanding.

Capital Spending

As of March 31, 2008, our VPC programs had installed capacity of 205 megawatts, which excludes capacity built out under the ISO New England, Inc. contracts that are not included herein as we have not yet received final regulatory approval for the Connecticut Light and Power VPC contract. We believe we will be able to apply a portion of these megawatts to the Connecticut Light and Power VPC contract. Our existing VPC contracts as of March 31, 2008 provided for a potential capacity of 527 megawatts. We expect to incur approximately $26 million in capital expenditures over the next five years to build out the remaining 322 megawatts under our existing VPC

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programs as of March 31, 2008, of which $7 million is anticipated to be incurred through December 31, 2008. If we are successful in being awarded additional VPC contracts, we would incur additional amounts to build out these new VPC programs.

Non-GAAP Financial Measures

Earnings Before Interest, Taxes, Depreciation and Amortization, or EBITDA, is defined as net loss before net interest expense, income tax expense, and depreciation and amortization. EBITDA is a non-GAAP financial measure and is not a substitute for other GAAP financial measures such as net loss, operating loss or cash flows from operating activities as calculated and presented in accordance with accounting principles generally accepted in the U.S., or GAAP. In addition, our calculation of EBITDA and Adjusted EBITDA may or may not be consistent with that of other companies. We urge you to review the GAAP financial measures included in this quarterly report and our condensed consolidated financial statements, including the notes thereto, and the other financial information contained in this quarterly report, and to not rely on any single financial measure to evaluate our business.

EBITDA is a common alternative measure of performance used by investors, financial analysts and rating agencies to assess operating performance for companies in our industry. Depreciation is a necessary element of our costs and our ability to generate revenue. We do not believe that this expense is indicative of our core operating performance because the depreciable lives of assets vary greatly depending on the maturity terms of our VPC contracts, which range from three to thirteen years. The clean energy sector has experienced recent trends of increased growth and new company development, which have led to significant variations among companies with respect to capital structures and cost of capital (which affect interest expense). Management views interest expense as a by-product of capital structure decisions and, therefore, it is not indicative of our core operating performance. Our internal budgets are based on EBITDA, and we use EBITDA as one of several criteria to determine performance-based cash compensation.

We define Adjusted EBITDA as EBITDA before stock-based compensation expense. Management does not believe that stock-based compensation is indicative of our core operating performance because the stock-based compensation is the result of restricted stock and stock option grants which require a noncash expense to be recorded in the financial statements in accordance with SFAS No. 123(R).

A reconciliation of net loss, the most directly comparable GAAP measure, to EBITDA and Adjusted EBITDA for each of the three month periods indicated is as follows (in thousands):

	Three Months Ended March 31,
	2008			2007
Net loss	$	(8,823	)	$	(4,515	)
Depreciation and amortization		831			141
Interest expense (income), net		(208	)		229
Provision for income taxes		92			7
EBITDA		(8,108	)		(4,138	)
Non-cash stock compensation expense		1,853			125
Adjusted EBITDA	$	(6,255	)	$	(4,013	)

Commitments and Contingencies

We are a party to various legal proceedings and claims of which the outcomes are subject to significant uncertainty. Our policy is to assess the likelihood of any adverse judgments or outcomes related to legal matters, as well as ranges of probable losses. A determination of the amount of the liability required, if any, for these contingencies is made after an analysis of each known issue arises in accordance with SFAS No. 5, Accounting for Contingencies and related pronouncements. In accordance with SFAS No. 5, a liability is recorded when we determine that a loss is probable and the amount can be reasonably estimated. In addition, we disclose contingencies for which a material loss is reasonably possible, but not probable. As of March 31, 2008, there were no material contingencies requiring accrual or disclosure.

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Off-Balance Sheet Arrangements

We have no off-balance sheet arrangements.

Critical Accounting Policies

For a complete discussion of our critical accounting policies, refer to the notes to the consolidated financial statements and management’s discussion and analysis in our Annual Report on Form 10-K for the year ended December 31, 2007.

Recent Accounting Pronouncements

For a complete discussion of recent accounting pronouncements, refer to Note 2 in the condensed consolidated financial statements included elsewhere in this report.

Item 3: Quantitative and Qualitative Disclosure About Market Risk

Quantitative and qualitative disclosures about market risk were included in Item 7A of our Annual Report on Form 10-K for the year ended December 31, 2007. We believe that there have been no significant changes from December 31, 2007 during the three months ended March 31, 2008.

Item 4: Controls and Procedures

Evaluation of Disclosure Controls

Based on their evaluation as of the end of the period covered by this Quarterly Report on Form 10-Q, the Chief Executive Officer and Chief Financial Officer have concluded that the disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934) are effective to ensure that information required to be disclosed by us in reports that we file or submit under the Securities Exchange Act of 1934 is recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission rules and forms. Additionally, our disclosure controls and procedures were also effective in ensuring that information required to be disclosed in our Exchange Act reports is accumulated and communicated to our management, including the Chief Executive Officer and Chief Financial Officer to allow timely decisions regarding required disclosures.

Changes in Internal Control over Financial Reporting

There have not been any changes in the Company’s internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the most recent fiscal quarter that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.

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PART II – OTHER INFORMATION

Item 1: Legal Proceedings

We are a party to various legal proceedings and claims of which the outcomes are subject to significant uncertainty. Our policy is to assess the likelihood of any adverse judgments or outcomes related to legal matters, as well as ranges of probable losses. A determination of the amount of the liability required, if any, for these contingencies is made after an analysis of each known issue in accordance with SFAS No. 5, Accounting for Contingencies and related pronouncements. In accordance with SFAS No. 5, a liability is recorded when we determine that a loss is probable and the amount can be reasonably estimated. In addition, we disclose contingencies for which a material loss is reasonably possible, but not probable. As of March 31, 2008, there were no material contingencies arising from legal proceedings requiring accrual or disclosure.

Item 1A: Risk Factors

Except as noted below, during the three months ended March 31, 2008, there were no material changes to the Risk Factors relevant to our operations, which are described in the Annual Report on Form 10-K for the year ended December 31, 2007 as filed with the SEC on March 25, 2008.

You should carefully consider the risks described in the risk-factors disclosed in our Annual Report on Form 10-K, filed with the SEC on March 25, 2008, and the additional risk factor below before making a decision to invest in our common stock or in evaluation of Comverge and our business. The risks and uncertainties described in our Annual Report on Form 10-K are not the only ones we face. Additional risks and uncertainties that we do not presently know, or that we currently view as immaterial, may also impair our business operations. This report is qualified in its entirety by these risk factors.

The actual occurrence of any of the risks described in our Annual Report on Form 10-K or the additional risk factor below could materially harm our business, financial condition and results of operations. In that case, the trading price of our common stock could decline.

Our business may be subject to additional obligations to collect and remit sales, use or other tax and, any successful action by state, foreign or other authorities to collect additional sales, use or other tax could adversely harm our business.

We file sales and/or use tax returns in certain states within the U.S. as required by law and certain client contracts for a portion of the hardware, software and services that we provide. We do not collect sales or other similar taxes in other states and many of the states do not apply sales or similar taxes to the vast majority of the services that we provide. However, one or more states could seek to impose additional sales or use tax collection and record-keeping obligations on us. Any successful action by state, foreign or other authorities to compel us to collect and remit sales or use tax, either retroactively, prospectively or both, could adversely affect our results of operations and business.

Item 2: Unregistered Sales of Equity Securities and Use of Proceeds

Except as previously reported on the Current Report on Form 8-K filed with the SEC on March 19, 2008, there were no unregistered sales of equity securities during the first quarter of 2008.

During the fiscal year 2007, we completed public offerings of our common stock on April 18, 2007 (Registration Nos. 333-137813 and 333-142082) and December 12, 2007(Registration No. 333-146837). Net proceeds to us from both offerings were $110 million. We utilized $34 million for our two acquisitions completed during 2007, $5 million as cash collateral for certain performance guarantees, $1 million to pay the then outstanding balance on our senior loan agreement, $3 million for payment of employee taxes due to net settlement of stock option exercises, $1 million for non-financed capital expenditures, and $5 million for general corporate purposes. We plan to use the remaining proceeds to finance capital requirements of our current long-term contracts, to finance research and development, to fund the cash consideration of potential future acquisitions, and for other general corporate purposes. We have invested the majority of remaining proceeds in marketable securities, pending their use.

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Period	Total Number of Shares Purchased (1)	Average Price Paid per Share
January 1 – January 31, 2008	—		—
February 1 – February 28, 2008	—		—
March 1 – March 31, 2008	242	$	13.13

(1) Represents shares surrendered by employees to satisfy tax withholding obligations on vested restricted stock pursuant to the 2006 Long-Term Incentive Plan.

Item 6: Exhibits

The following documents are filed as exhibits to this report:

10.1+	Amended and Restated Agreement by and between Connecticut Light & Power and Alternative Energy Resources, Inc., a wholly-owned subsidiary of the Company, dated February 27, 2008
10.2+	Demand Side Management Agreement by and between Consolidated Edison Company of New York, Inc. and Public Energy Solutions, LLC, a wholly-owned subsidiary of the Company, dated February 6, 2008
31.1	Rule 13a-15(e)/ 15d-15(e) Certification of Chief Executive Officer
31.2	Rule 13a-15(e)/ 15d-15(e) Certification of Chief Financial Officer
32.1	Section 1350 Certification of Chief Executive Officer
32.2	Section 1350 Certification of Chief Financial Officer
+	Confidential treatment has been requested for portions of this exhibit.

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Item 7: Signatures

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

	Comverge, Inc.
	(Registrant)
May 13, 2008	/s/ Robert M. Chiste
(Date)	Robert M. Chiste
	Chairman, President and Chief Executive Officer
	(Principal Executive Officer)
May 13, 2008	/s/ Michael D. Picchi
(Date)	Michael D. Picchi
	Executive Vice President and Chief Financial Officer
	(Principal Financial and Accounting Officer)

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EX-10.1

Exhibit 10.1

Confidential Treatment

Requested

DIRECT LOAD CONTROL

DELIVERY AGREEMENT

BETWEEN

THE CONNECTICUT LIGHT AND POWER COMPANY

AND

ALTERNATIVE ENERGY RESOURCES, INC.

Amended and Restated as of February 27, 2008

PROPRIETARY AND CONFIDENTIAL

EXECUTION COPY

DIRECT LOAD CONTROL DELIVERY AGREEMENT

Table of Contents

DIRECT LOAD CONTROL DELIVERY AGREEMENT		1
ARTICLE 1 – DEFINITIONS		2
1.1	Defined Terms	2-8
1.2	Interpretation	8-9
ARTICLE 2 – TERM AND TERMINATION		9
2.1	Term and Termination	9
2.2	DLCS Performance Reviews	9
2.3	***	9
2.4	Continuance in Effect	9-10
2.5	AMI and Technological Improvements and Interfaces	10
ARTICLE 3 – PROJECT DESCRIPTION		10
3.1	Summary Description	10
ARTICLE 4 – CONTRACT CAPACITY AND DISPATCH		10
4.1	Capacity	10-12
4.2	Dispatch	12
4.3	Forward Capacity Auction	13-15
ARTICLE 5 – CAPACITY PRICING / PAYMENT CALCULATIONS		15
5.1	Payments	15
5.2	Requested Changes	15
ARTICLE 6 – MARKETING, RECRUITMENT AND RETENTION		15
6.1	Scope of Work	15-16
6.2	Marketing Materials	16
ARTICLE 7 – EQUIPMENT INSTALLATION		16
7.1	Scope of Work	16
ARTICLE 8 – MAINTENANCE; SITE CLEAN UP		16
8.1	Scope of Work	16
8.2	Tracking, Verification and Resolution of Participant Complaints	16
8.3	Preventive, Routine and Non-Routine Maintenance and Repairs	17
8.4	Systems Quality Assurance	17
8.5	AER Monitoring and Testing	17
8.6	Reporting	17
8.7	Site Clean Up	17
ARTICLE 9 - MEASUREMENT AND VERIFICATION (M&V) PLAN		17
9.1	AER Responsibility	18

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9.2	Audit and Independent Verification	18
ARTICLE 10 – SOFTWARE SYSTEM		18
10.1	Software System	18
ARTICLE 11 – BILLING AND PAYMENT		18
11.1	Invoicing, Payment and True-Up	18
11.2	AER Responsibility	19
11.3	CL&P Responsibility	19
11.4	Late Payments	19
11.5	Billing Disputes	19
ARTICLE 12 – DEFAULT; TERMINATION		19
12.1	Events of Default of AER	19-20
12.2	Events of Default of CL&P	20-21
12.3	Termination	21-22
12.4	Special Bankruptcy Provision	22
ARTICLE 13 – CONTRACT ADMINISTRATION AND NOTICES		22
13.1	Notices in Writing	22
13.2	Changes	22
13.3	Authority of Representatives	23
13.4	Operating Records	23
13.5	Billing and Payment Records	23
13.6	Program Management Procedures	23
13.7	Dispute Resolution	23-25
ARTICLE 14 – FORCE MAJEURE		25
14.1	Definition of Force Majeure	25
14.2	Exceptions to Force Majeure	25-26
14.3	Applicability of Force Majeure	26
14.4	Limitations on Effect of Force Majeure	26
14.5	Effect of Force Majeure on Capacity Payments	27
ARTICLE 15 – REPRESENTATIONS AND WARRANTIES		27
15.1	AER’s Representations and Warranties	27-29
15.2	CL&P’s Representations and Warranties	29-30
ARTICLE 16 - INSURANCE		30
16.1	AER’s Insurance Requirements	30
16.2	Changes to Insurance Minimum Limits	31
16.3	Notice to CL&P	31
16.4	Certificates of Insurance Required	31
16.5	Application of Proceeds	31
ARTICLE 17 – INDEMNITY		31
17.1	General	31
17.2	Environmental	32
17.3	Intellectual Property	32

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17.4	Procedures	32-33
ARTICLE 18 – LIMITATION OF LIABILITY		33
18.1	Limitation of Liability	33-34
ARTICLE 19 – COMPLIANCE WITH LAW AND REGULATORY REQUIREMENTS		34
19.1	Compliances with the Law	34
19.2	Regulatory Compliance	34-35
19.3	Termination Due To Regulatory or Legislative Change / Disallowance	35
ARTICLE 20 – ASSIGNMENT AND OTHER TRANSFER RESTRICTIONS		35
20.1	No Assignment Without Consent	35-36
ARTICLE 21 – JOINT INTEREST		36
21.1	Cooperation by Parties	36
ARTICLE 22 – MISCELLANEOUS		36
22.1	Waiver	36
22.2	Taxes / Permits	36
22.3	Disclaimer of Third Party Beneficiary Rights	36
22.4	Relationship of the Parties	36-37
22.5	Confidentiality	37-38
22.6	Survival of Obligations	38
22.7	Invalidity	38
22.8	Complete Agreement; Amendments	38
22.9	Binding Effect	38
22.10	Headings	38
22.11	Counterparts	38
22.13	Governing Law	39
22.14	No Gifts or Inducements	39
22.15	Financial Statements	39
22.16	Document Retention	39

APPENDIX A –	CONTRACT CAPACITY	A1
APPENDIX B –	PRICING/PAYMENT CALCULATIONS	B1 – B7
APPENDIX C –	MARKETING, RECRUITMENT AND RETENTION	C1 – C6
APPENDIX D –	EQUIPMENT INSTALLATION AND MAINTENANCE SCOPE OF WORK	D1 –D4
APPENDIX E –	MEASUREMENT AND VERIFICATION PROGRAM	E1 – E9
APPENDIX F –	NOTICES	F1
APPENDIX G –	INSURANCE	G1 –G2
APPENDIX H –	SOFTWARE	H1 –H8
APPENDIX I –	PROGRAM DESCRIPTION	I1 – I2
APPENDIX J –	PARENT GUARANTY	J1 – J3
APPENDIX K –	CL&P CORPORATE IT SECURITY REQUIREMENTS	K1 –K5

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PROPRIETARY AND CONFIDENTIAL

EXECUTION COPY

DIRECT LOAD CONTROL DELIVERY AGREEMENT

This DIRECT LOAD CONTROL DELIVERY AGREEMENT (“Agreement”), amended and restated as of February 27, 2008, is entered into by and between The Connecticut Light and Power Company, with principal offices at 107 Selden Street, Berlin, Connecticut 06037 (“CL&P”) and Alternative Energy Resources, Inc., a Delaware corporation, located at 120 Eagle Rock Avenue, Suite 190, East Hanover, NJ 07936 (“AER”). CL&P and AER are sometimes hereinafter referred to as the “Parties” or individually as a “Party.”

RECITALS

WHEREAS, pursuant to the directives of the Connecticut Department of Public Utility Control (“DPUC”), CL&P and *** (“***”) (collectively the “Utilities”) and AER developed a direct load control (“DLC”) program (“Program”) that primarily targets curtailment of air conditioning loads with the goal of providing benefit to Connecticut’s electric distribution system in the form of reduced peak kW demand and a corresponding lowering of generation costs associated with such demand during New England’s critical peak demand periods, and in addition, the Program is intended to result in longer term capacity cost benefits by lowering Connecticut’s peak load share proportionate to the New England region’s coincident peak determined by New England’s Independent System Operator (“ISO-NE”), and

WHEREAS, *** and CL&P’s joint plan was filed in response to Order No. 8 in DPUC Docket 05-07-14 PH01, DPUC Investigation of Measures to Reduce Federally Mandated Congestion Charges, which required the Utilities to submit a plan for a direct load control program to serve residential and small commercial and industrial customers throughout CL&P and *** service territories, and

WHEREAS, the Utilities conducted a request for proposal (“RFP”) process to solicit bids from vendors for the implementation of the Program via one-way switch technology and Comverge, Inc., acting through its wholly owned subsidiary, AER, was selected by the Utilities pursuant to such RFP process, and

WHEREAS, consistent with the Utilities’ joint plan and the terms and conditions contained in this Agreement, CL&P will contract with AER to design, develop, build, and own a DLC system using one-way switch technology (“DLCS”) in CL&P’s service territory, and to aggregate eligible multiple individual customer loads, including new and existing assets, to be controlled by this DLCS to produce, pursuant to Appendix A, a “Minimum Contract Capacity” for a Demand Reduction of *** megawatts (“MW”), *** and with a targeted growth to a “Target Contract Capacity” of up to 130 MW statewide (i.e., including the Demand Reduction provided under any *** Contract, or such other capacities as may be agreed to in advance by CL&P in writing and in its sole discretion, all as set forth in this Agreement, deliverable to CL&P, all as defined herein), and

WHEREAS, CL&P and AER desire to enter into this Agreement under the terms of which, among other things, AER will deliver for CL&P to purchase an amount not less than the

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Minimum Contract Capacity and up to the Target Contract Capacity arising from demand reduction delivered by AER pursuant to the operation of the DLCS Program, and

WHEREAS, as a condition to entering into this Agreement,***

WHEREAS, the Parties entered into an agreement on October 4, 2007, as amended on December 5, 2007 (collectively the “Original Agreement”) and this Agreement amends and restates the Original Agreement.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, the Parties agree as follows:

ARTICLE I – DEFINITIONS

1.1 Defined Terms. Unless otherwise defined herein or in any Exhibit, Schedule or Appendix hereto, the following terms, when used in this Agreement (including the Recitals and any Exhibit, Schedule or Appendix hereto) shall have the meanings set forth below. The capitalized terms listed in this Article shall have the meanings set forth herein whenever the terms appear in this Agreement, whether in the singular or the plural or in the present or past tense. Other terms used in this Agreement but not specifically defined in this Article shall have meanings as commonly used in the English language and, where applicable, in Good Industry Practice.

“Advanced Metering Infrastructure” (AMI) means a meter reading network that allows for remote reading of electric meters and is also capable of load control of multiple devices at the customer’s premises.

“AER Dispatch Event” is any period of no more than *** (***) continuous hours in any single Control Season Day in which CL&P does not Dispatch the DLCS pursuant to a Utility Dispatched Event but where the DLCS is activated by AER to control the End-use Equipment to demonstrate the available Demand Reduction of the DLCS.

“Automated Meter Reading” (AMR) means a meter reading network that allows for remote reading of electric meters.

“Affiliate” means an entity that controls, is controlled by, or is under common control with another entity. For purposes of this Agreement, “control” means the direct or indirect ownership of more than 50% of the outstanding capital stock or other equity interests having ordinary voting power

“Agreement” means this Direct Load Control Delivery Agreement and the Exhibits, Schedules and Appendices hereto.

“Business Day” means Monday through Friday of each week, except for Holidays.

“Capacity Benefits” shall mean ***

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“Capacity Payments” means the monthly payments to be paid by CL&P to AER as defined in Appendix B.

“Capacity Program” shall mean the Forward Capacity Market or other ISO initiated market, auction, or program.

“CL&P/Third-Party Marketing Channel” is a method of promoting the Program to Customers using a third-party acting on behalf of CL&P.

“CL&P-Generated Customer Enrollment Information” means Customer information, including name, address and phone number collected by CL&P or its third-party in connection with Customers desiring enrollment in the Program in response to CL&P/Third-Party Marketing Channel promotions.

“Commercial Operation” means the period during the Term of this Agreement that a Facility is a Participating Facility operating pursuant to the terms of this Agreement.

“Contract(ed) Capacity” for each Program Year has the meaning set forth in Appendix A.

“Control Device” means a one-way switch or other mutually agreed equipment installed at a Participating Facility and used to control a Participating Facility’s End-use Equipment pursuant to this Agreement.

“Control Season” means May 1 through September 30 of each Program Year or any other time period as necessitated by Emergency or as may be agreed by the Parties in writing.

“Control Season Day” means the period beginning midnight and ending on the following 11:59 p.m. Eastern Standard Time (“EST”) of any Business Day during the Control Season.

“Control Season Month” means any calendar month within a Control Season.

“CT DPUC” or “DPUC” means the Connecticut Department of Utility Control or any successor or replacement regulatory agency.

“Customers” means the persons or entities eligible to participate in the Program pursuant to (i) the applicable DLC Program tariff authorized by the DPUC or (ii) as otherwise agreed to by the Parties in writing on a case-by-case basis, who contract to participate in the Program.

“Deliverable” is any document or work product required to be delivered or submitted under this Agreement by either Party.

“Demand Reduction” means the actual aggregate reduction of electricity demand achieved by Customers, whether new or existing, measured in kilowatts resulting from the Dispatch of the DLCS, as determined by the Measurement and Verification Plan.

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“Direct Load Control System” or “DLCS” means any and all equipment and components, including new or existing assets, necessary for the operation of the Program including Control Devices, a Head-end Control System (“HECS”), proprietary software and required third-party application software.

“Dispatch” means activating the DLCS via a Dispatch Event in such a manner that the Control Devices are placed into control such that the Participating Facility’s End-use Equipment is activated with the intention of reducing aggregate demand on the CL&P system or determining the capacity available for the DLCS.

“Dispatch Event” means either a Utility Dispatch Event or an AER Dispatch Event.

“DPUC Approval” means the DPUC’s approval of the Program, including but not limited to, approval of this Agreement, CL&P’s associated tariff rider, *** and Program terms and conditions (all in their entirety and without conditions or modifications), ***

“Emergency” shall mean any sudden, generally unexpected occurrence, event, or set of circumstances which may necessitate immediate response and implementation of the DLCS, where Emergency shall not include a Dispatch primarily for economic purposes.

“End-use Equipment” means central air conditioning compressors, commercial heating ventilating and air-conditioning (“HVAC”) equipment, commercial lighting, motor loads and other similar loads, pool pumps, irrigation pumps, electric water heaters and any other mutually agreed equipment with curtailable loads located at a Participating Facility site.

“Energy Independence Act” means Public Act No. 05-01.

“Environmental Contamination” means the presence of hazardous wastes, hazardous substances, hazardous materials, toxic substances, hazardous air pollutants and other hazardous pollutants, and toxic pollutants, as those terms are used in the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Materials Transportation Act, the Toxic Substances Control Act, the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, the Oil Pollution and Hazardous Substances Control Act, and all other applicable federal, state and local laws and regulations as amended, at such levels or quantities or location, or of such form or character, to be of regulatory concern under said federal, state and local laws and regulations.

“Expected Contract Capacity” the amount of Demand Reduction capacity (in MW) ***

“Facility” means a physical customer premises in CL&P’s service territory containing one meter or a set of meters totalized for billing purposes as one customer account.

“FMCCs” means Federally Mandated Congestion Charges as defined in Section 16-1 of the Connecticut General Statutes, as such definition may be amended, modified or replaced.

“Forward Capacity Auction” shall mean the annual auction to be held in connection with the

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Forward Capacity Market, or any successor auction thereto, as defined in the ISO-NE Tariff, FERC Electric Tariff No. 3.

“Forward Capacity Market” shall mean the forward market for procuring capacity pursuant to the ISO-NE Tariff, FERC Electric Tariff No. 3, and any successor or replacement capacity procurement process thereto.

“Good Industry Practice” means the practices, methods and acts (including but not limited to the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry) that, at a particular time, in the exercise of reasonable judgment in light of the facts known or that should reasonably have been known at the time a decision was made, would have been expected to accomplish the desired result in a manner consistent with law, regulation, codes, standards, equipment manufacturers’ recommendations, reliability, safety, environmental protection, economy and expedition. With respect to each Participating Facility, Good Industry Practice(s) includes taking reasonable steps to ensure that:

(1) Equipment, materials, resources and supplies, including spare parts inventories, are supplied or made available by AER to meet the Participating Facilities’ needs;

(2) AER has sufficient operating personnel available at all times and who are adequately experienced and trained and licensed as necessary to operate the DLCS properly, efficiently, and in coordination with CL&P and are capable of responding to reasonably foreseeable emergency conditions;

(3) Preventive, routine and non-routine maintenance and repairs are performed by AER at no additional cost to CL&P on a timely basis that ensures reliable long term and safe operation, and are performed by knowledgeable, trained and experienced personnel utilizing proper equipment and tools;

(4) Appropriate monitoring and testing are performed to ensure equipment is functioning as designed;

(5) Equipment is not operated in a reckless manner, in violation of manufacturers’ guidelines or in a manner unsafe to workers, the general public, or CL&P’s transmission or distribution grid or contrary to environmental laws or regulations or without regard to defined limitations; and

(6) The equipment will function properly under normal conditions at the Participating Facilities.

“Holiday” means all holidays as defined from time to time by ISO–NE and any holidays specified by CL&P.

“Information” is all data, information, lists, and records produced, collected, and/or created by AER during the performance of its services pursuant to this Agreement, including information stored on any information system owned by AER or CL&P.

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***

“ISO-NE Manual M-MVDR” means the ISO New England Manual for Measurement and Verification of Demand Reduction Value from Demand Resources, as such may be amended, supplemented, revised or modified from time to time or any successor document(s) thereto.

“ISO-NE Dispatch Event” means an event called by ISO-NE where the system will be Dispatched according with the Utility’s request that falls within the definition of Utility Dispatch Event.

“kW Factor” means on an annual basis, the Demand Reduction per installed Control Device(s) for End-use Equipment under an M&V Event as more fully described in Appendix B.

“Measurement and Verification Event” or “M&V Event”, as further described in Appendix E, means any Dispatch Event whereby Customer load is curtailed by operation of the DLCS for at least one clock hour on the hour (e.g., 1:00:00 to 1:59:59 p.m. and not 1:30:00 to 2:29:59 p.m.) during the Control Season.

“Measurement and Verification Plan” or “M&V Plan” is defined in Appendix E.

“Minimum Contract Capacity” means the minimum amount of MW capacity of Demand Reduction to be secured by AER under this Agreement as set forth in the schedule in Appendix A .

“Participant” means the CL&P residential, commercial, municipal or industrial Customer name of record of a Participating Facility.

“Participating Facility” means one CL&P-metered residential or small commercial and industrial (“C&I”) Facility that is participating in the Program as a Residential Participating Customer or a Small Commercial and Industrial Participating Facility.

“Program” or “DLCS Program” means CL&P’s Direct Load Control System program as described in this Agreement.

“Program Availability Hours” means all hours between *** EST of any Control Season Day except in the event of an Emergency, or as otherwise agreed to by the Parties.

“Program Month” means the period beginning on the first calendar day of the month and ending on the last calendar day of the month for any month falling within a Program Year.

“Program Run Time” means the number of hours that the DCLS is activated due to a Utility Dispatch Event as determined by PowerCAMP™ reports that log every event by date and time, ***

“Program Year” means October 1 through September 30. Program Year 1 commences upon the Start Date and ends on the next September 30^th after the completion of one (1) full calendar year

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(ex. Start Date is May 1, 2008, PY 1 ends on September 30, 2009.) Each subsequent Program Year shall follow Program Year 1 and begin on October 1 and continue through September 30.

“Prospect” means any CL&P residential or small C&I customer who is eligible for the Program.

“Residential Participating Customer” means all single family residential customers or multi-family customer throughout CL&P’s service territories that is receiving electric service under an applicable DLC Program tariff authorized by the DPUC.

“Small Commercial and Industrial Participating Facility” means non Residential Participating Customers having peak demand of approximately *** and who are eligible to participate in the Program pursuant to the applicable DLC Program tariff authorized by the DPUC. Larger C&I customers will be evaluated and may be considered by the Parties for inclusion in the Program on a case by case basis and as agreed to in writing by the Parties. For multi-site commercial facilities, which are not Residential or Small C&I Participating Facilities, CL&P may, in its sole reasonable discretion on a case-by-case basis, determine if that Facility will be permitted to participate in the Program as a Participating Facility.

“Start Date” means the date that CT DPUC Approval has been obtained.

“System Dispatch Operator” or “SDO” means CL&P’s representative(s) responsible for centralized Dispatch of Participating Facilities’ Control Devices and control of tie-line power flows. Authorized personnel with login access will be considered authorized users within the definition of SDO.

“Target Contract Capacity” means one hundred and thirty (130) MW of Demand Reduction obtained throughout the State of Connecticut, whether through *** and/or CL&P’s territory, or such other quantity of capacity as may be presented by *** and/or CL&P and accepted by the DPUC in writing pursuant to the terms and conditions contained in this Agreement.

“Term” means the period of time during which this Agreement shall remain in full force and effect as defined in Article 2.

“*** Contract” means that Direct Control Delivery Agreement by and between AER and The *** pursuant to which AER will secure and provide Demand Reduction via the DLCS for *** in connection with the Program.

“Utility Dispatched Event” is any period of typically no more than four (4) hours in any single Control Season Day (except in the case of an Emergency, in which case AER shall make commercially best efforts to accommodate a request for a Dispatch Event for a longer period or during a period outside of the Control Season Day) in which the DLCS is activated through a CL&P initiated event, which includes without limitation an ISO-NE Dispatch Event, to control the End-use Equipment by system, region, substation or circuit.

1.2 Interpretation. In this Agreement, unless otherwise stated,

1.2.1 Any references to:

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(a) any Section, Schedule, Appendix, Exhibit or other provision thereof, shall be construed, at any particular time, as including a reference to the Section, Schedule, Appendix, Exhibit or the relevant provision thereof as it may have been amended, modified or supplemented;

(b) any agreement (including this Agreement or any Schedule, Appendix or Exhibit hereto) shall be construed, at any particular time, as including a reference to the relevant agreement as it may have been amended, modified, supplemented or novated;

(c) a Party to this Agreement includes, in the case of any Party, that Party’s successors and permitted assigns and any entity succeeding to its functions and capacities;

(d) a month shall be construed as a reference to a calendar month unless otherwise stated; and

(e) a particular Section, Schedule, Exhibit or Appendix shall be a reference to the relevant Section, Schedule, Exhibit or Appendix in or to this Agreement.

1.2.2 Words in the singular may be interpreted as referring to the plural and vice versa, and words denoting natural persons may be interpreted as referring to corporations and any other legal entities and vice versa.

1.2.3 Whenever this Agreement refers to a number of days, such number shall refer to the number of calendar days unless Business Days are specified. A requirement that a payment or Deliverable be made on a day that is not a Business Day shall be construed as a requirement that the payment or Deliverable be made on the next following Business Day.

1.2.4 The words “include” and “including” are to be construed as being at all times followed by the words “without limitation”, unless the context otherwise requires.

1.2.5 Words not otherwise defined herein that have well-known and generally acceptable technical or trade meanings are used herein in accordance with such well-recognized meanings.

ARTICLE 2 – TERM AND TERMINATION

2.1 Term and Termination. This Agreement is effective upon the date of execution for purposes of having the Parties meet to discuss marketing issues. The remaining obligations of the Parties under this Agreement become effective as of the Start Date. If DPUC Approval has not been obtained by ***, this Agreement shall terminate automatically as of such date, or if the DPUC’s approval is conditioned upon changes to the Agreement that the Parties cannot agree upon after a thirty (30) day period of good faith negotiation, this Agreement shall terminate upon written notice by either Party to the other, with no further action required by either Party and without liability or obligation to any Party. After the Start Date, the Agreement shall remain in

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full force and effect until the end of Program Year 10 unless terminated earlier pursuant to Sections 12.3 or Section 19.3.

2.2 DLCS Performance Reviews. ***, from time to time, as requested by either Party, the Parties shall meet to review the Program performance, including but not limited to customer enrollments, vendor performance, equipment performance, load control technologies, marketing and overall performance of the Program against initial ***, in order to further refine the Program with the goal of increasing enrollment *** , then CL&P and AER shall work together to adjust Program parameters as necessary or required to achieve *** Program ***. In addition to the foregoing, AER shall cooperate with CL&P as necessary and required to prepare and file with the CT DPUC any and all reports required or requested to be filed by the CT DPUC throughout the Term, including but not limited to with respect to *** and the Program’s performance during the same.

2.3 ***

2.4 Continuance in Effect. Applicable provisions of this Agreement shall continue in effect after termination to the extent necessary to satisfy the terms and conditions of this Agreement and, as applicable, to provide for, for example, removal of Control Devices from Participating Facilities as may be requested by a Participant and provided for under Appendices C and D, final billings and adjustments related to any period prior to termination, repayment of any money due and owing either Party pursuant to this Agreement, and the indemnifications specified in this Agreement.

2.5 AMI and Technological Improvements and Interfaces. The parties acknowledge that CL&P is investigating an AMR network and AMI technology through which consumer electricity consumption and costs may be metered, monitored and/or reduced. As part of its investigation and subject to DPUC approval, CL&P is planning to commence an AMI pilot in 2008, whereby AMI meters will be deployed on a sample of customers for use in testing AMI technology features. Based on AMI pilot results and subject to further DPUC approval, CL&P may elect to refresh its AMR network on a broader scale, throughout its service territory, to a full two-way network that would be capable of load control for multiple devices at Customers’ premises. In this scenario, the network would be capable of all communications for that control. In the event that CL&P opts to implement an AMI, it is anticipated that the CL&P AMI network would be capable of all communication necessary to control customer load. In the event that, during the Term, CL&P opts to pursue implementation of these technologies or any other technologies that may become available, including such implementation in connection with the aforementioned AMI pilot; AER, at CL&P’s request, agrees to work cooperatively with CL&P and its AMI vendors to integrate Control Devices with CL&P technologies and develop a module and/or upgrade that enables communications between the AER Control Devices and such technologies. AER shall provide a written estimate as to the cost and expense for upgrading the Control Devices to be compatible with the CL&P technologies, including the AMR and AMI technologies referenced herein provided however that CL&P may in its discretion, elect to have AER install any equipment upgrades during AER’s scheduled inspections, in which case, any reasonable additional charges, ***. AER will also use its commercially reasonable efforts to minimize costs to upgrade or modify its DLCS equipment to integrate such equipment with

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CL&P technologies. Nothing contained herein shall be considered to obligate CL&P to make any network changes whatsoever nor shall obligate CL&P to integrate its network and AER Control Devices.

ARTICLE 3 – PROJECT DESCRIPTION

3.1 Summary Description. The Program is a utility offering that encourages certain of CL&P’s eligible customers (as defined herein) to permit CL&P (via the AER DLCS) to control customer end-use equipment (e.g., central air conditioning) in order to advance the goals of the Energy Independence Act (i.e., a reduction in FMCCs by lowering Connecticut’s peak demand). *** Attachment I attached hereto sets forth the basic Program framework that outlines the respective activities of AER and CL&P in connection with the implementation of the Program.

ARTICLE 4 – CONTRACT CAPACITY AND DISPATCH

4.1 Capacity

4.1.1 Contract Capacity. For each Program Year, AER shall make commercially best efforts to provide CL&P *** not less than the Minimum Contract Capacity and not more than the Target Contract Capacity, unless the Target Contract Capacity has been modified pursuant to the terms and conditions contained herein. Pursuant to Section 4.3, AER will work with CL&P in a timely fashion to prepare documentation for the purpose of submitting such Contract Capacity into the Forward Capacity Market or other appropriate ISO-NE market.

4.1.2 Increase in Capacity. AER acknowledges and agrees that it shall promptly notify CL&P in writing in the event that AER reasonably anticipates that the number of Customers with which it has contracted pursuant to this Agreement will achieve a Demand Reduction near to or in excess of the Target Contract Capacity within the next forward-looking six-month period. In the event that such notice is provided to CL&P by AER, CL&P may, in its discretion and without obligation, promptly provide notice to the DPUC explaining and requesting (i) an increase to the Target Contract Capacity and (ii) recovery of all of CL&P’s Program costs associated with the same. In the event that the notice is approved and CL&P has received assurance from the DPUC of approval of such capacity increase and cost recovery to its satisfaction, the Target Contract Capacity as defined in this Agreement will mean the target level of Demand Reduction to be achieved under this Agreement as determined by the DPUC in response to CL&P’s request.

4.1.3 Capacity Ownership and Related Programs. AER acknowledges and agrees that it is securing Customers for participation in the Program as a CL&P contractor that is providing certain services that will enable implementing the Program in accordance with the directives of the DPUC and in furtherance of the Program’s objectives as may be expressed by the DPUC from time to time and as are set forth in the Energy Independence Act. Accordingly, in order to ensure the

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integrity of the Program and to avoid any diminution of the goodwill of CL&P, the Parties acknowledge and agree that:

(i) until such time and for so long as AER continues to achieve the Target Contract Capacity, AER ***

(ii) Any and all information regarding CL&P customers (including but not limited to customer lists, customer usage patterns, etc.), whether prospects or Customers, shall only be utilized by AER as expressly set forth in this Agreement and solely for the purposes of providing services to CL&P under this Agreement in connection with the Program. Except as otherwise expressly provided herein, in no event shall AER at any time (whether during the Term or thereafter) utilize any customer or utility information that becomes available to it as a result of the Program and this Agreement for any other purpose(s) other than providing services under this Agreement. As the Parties acknowledge that AER owns the DLCS, AER shall only be allowed to utilize such information (i) that pertains to the Participants enrolled in the Program and (ii) solely for demand response purposes, whether under the Agreement or any other agreement between AER and those end-use participants. AER shall not otherwise sell, transfer or otherwise disclose this information for such enrolled Participants other than for demand response purposes.

(iii) AER owns the DLCS. After the termination or expiration of this Agreement, the Parties acknowledge that AER shall be able to utilize the DLCS to the extent it is permitted to do so pursuant to its contractual agreements with enrolled Participants and applicable legal and regulatory requirements.

4.1.4 ***

4.2 Dispatch. Dispatch of the DLCS may be made as follows:

4.2.1 Utility Dispatch – CL&P shall have the right to Dispatch the DLCS via an AER-supplied website, email, or phone (as agreed to by the Parties), consistent with this Agreement, for the control of the Participating Facilities. Participating Facilities shall be capable of responding to CL&P’s dispatch signal within *** . CL&P shall provide to AER the names of all approved SDOs at least thirty (30) days before the start of each Control Season. AER represents and warrants that the mechanism for initiating and implementing a Dispatch will *** of the time be operational and capable of effectuating the Dispatch as requested by CL&P during the Control Season (including but not limited to within the time frames so requested), as the case may be.

4.2.2 AER Dispatch Event – AER shall have the right to Dispatch consistent with this Agreement, for the control of Participating Facilities. AER is permitted to dispatch the system on *** different Control Season days during each Program Year, except for ***.

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4.2.3 AER utilizes its PowerCamp System described in Appendix H attached hereto and incorporated by reference. PowerCamp is a program that is capable of providing CL&P or other parties as CL&P may designate including ISO-NE, direct dispatch control of the DLCS system through a secure website.

4.3 Forward Capacity Auction.

4.3.1 AER acknowledges and agrees that the capacity benefits associated with a reduction in peak demand form an essential part and purpose of this Agreement. Accordingly, the Parties agree that Capacity Benefits belong to CL&P subject to the Capacity Program bidding arrangements between the Parties set forth in this Section 4.3.

4.3.2 Except as otherwise notified in writing by CL&P, AER shall prepare the documentation *** necessary to make a capacity bid on behalf of CL&P into any Forward Capacity Auction and shall submit each Customer’s Demand Reduction in connection with the Capacity Program, in accordance with this Section and Appendix B(II). ***

4.3.3 With respect to any Forward Capacity Auction or comparable Capacity Program during the Term, AER shall ensure the show of interest, qualification packages, and any and all associated documentation (collectively “Capacity Program Bid”) are properly and timely submitted to allow CL&P to recover capacity benefits pursuant to Section 4.3.1 and shall prepare all required documentation. AER shall provide to CL&P a projected timeline and action item list detailing the workflow and requirements for upcoming Capacity Program Bids and shall coordinate all meetings, drafting sessions, and other action items leading up to the submission.

The Parties shall work in good faith together to agree upon the (i) proper category to place capacity, (ii) the amount of capacity to bid to any Capacity Program, and (iii) any other items which may affect both Parties; however, if the Parties do not reach agreement as to (i) and (ii), AER shall have the sole and final authority in regards to these issues for such capacity under the Capacity Program Bid, provided (i) such decision is commercially reasonable, (ii)***, and (iii) ***.

***

4.3.4 In consideration of AER undertaking the requirements under this Section 4.3, CL&P shall pay AER pursuant to Appendix B(II).

4.3.5 CL&P reserves the right during the term of this Agreement, but only at the end of the current Capacity Program for which AER has provided documentation and financial assurance, to discontinue having AER prepare the documentation and provide the financial assurance for submission to any Capacity Program, in which

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event the applicable fees payable to AER by CL&P shall be adjusted pursuant to this Article 4 and Appendix B (II). In such event, effective upon written notice by CL&P to AER, AER hereby reassigns all right, title and interest to the Capacity Benefits associated with any capacity bid into any Capacity Program in connection with such submission to CL&P and to take any and all action necessary to assure such assignments, including but not limited to executing any and all documents to evidence the same. The Parties acknowledge and agree that upon assignment pursuant to this Section 4.3.5, CL&P shall be the sole entity to determine whether or not to bid Customer Demand Reduction into the Capacity Program and (ii) bid Customer Demand Reduction into the Capacity Program, provided that the Parties must mutually agree to such bid amount *** and CL&P shall provide full financial assurance to the ISO with each bid. *** Accordingly, CL&P will be the “Enrolling Participant” (as defined by ISO-NE) with respect to Program resources. In addition to the foregoing, the Parties acknowledge and agree that, upon expiration or termination of this Agreement, the Parties shall work together and communicate with the Participants in regards to any termination, expiration or continuation of the Program.

4.3.6 In the event that CL&P bids Customer Demand Reduction into the Forward Capacity Market pursuant to Section 4.3.5 and AER ***

4.3.7 AER agrees that it will cooperate with CL&P in connection with CL&P’s bidding of Customer Demand Reduction into the Forward Capacity Market pursuant to Section 4.3.5, including but not limited to providing reasonable assistance in connection with submitting Show of Interest forms, Qualification packages, Measurement and Verification Plans and an other ISO-NE requirements for participation in the Forward Capacity Market for $*** as provided in Appendix B(II), ***.

ARTICLE 5 – CAPACITY PRICING / PAYMENT CALCULATIONS

5.1 Payments. Capacity Payments to be paid by CL&P to AER will be calculated monthly pursuant to Appendix B. The Measurement and Verification Plan will be used to determine the kW Factor. The kW Factor will be utilized to calculate Demand Reduction and will also serve as the basis for calculating monthly Capacity Payments.

5.2 Requested Changes. On a quarterly basis for the first Program Year, and thereafter, at the end of each Program Year (unless otherwise reasonably requested by CL&P), the Parties will evaluate the performance under this Agreement, schedule and other Program performance measures as deemed necessary by each Party and/or as required by the DPUC. Following each evaluation, each Party reserves the right to request the other Party to make reasonable changes to the current program, if either Party is believed to be underperforming by the other Party, for the consecutive years that may result in the Parties mutually agreeing in good faith to changes to $/kW payments to AER.

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ARTICLE 6 – MARKETING, RECRUITMENT AND RETENTION

6.1 Scope of Work. Marketing, recruitment and retention will include all activities required to solicit and retain Participants for the DLCS Program. Each Party’s duties are described in Appendix C. Within thirty (30) days after DPUC Approval of the Agreement, the Parties shall have an initial meeting to structure the marketing objectives. AER shall supply a marketing plan to CL&P within thirty (30) Business Days after the Start Date. Within fifteen (15) Business Days of receipt of the marketing plan, CL&P shall either approve the marketing plan or provide recommendations to allow for approval of the plan. In the event that CL&P provides recommendations for incorporation into the plan, such reasonable recommendations shall be incorporated by AER into the plan and resubmitted to CL&P for review and approval within five (5) Business Days of AER’s receipt of such recommendations. ***. CL&P agrees and acknowledges that its commercially best efforts to make timely responses to requests for approval of the marketing plan and all marketing documentation is material to this Agreement and may result in a failure of AER to fulfill its obligations herein. After approval by CL&P of the marketing plan, AER and CL&P may, from time to time, provide to each other proposals or recommendations for incorporation into the marketing plan. Such proposals and/or recommendations shall only be incorporated into the marketing plan upon the express written approval of CL&P. ***

6.2 Marketing Materials. With the exception of materials developed in connection with marketing activities associated with the CL&P/Third-Party Marketing Channel, all marketing materials for use in the Program shall be developed by AER at CL&P standards at AER’s sole cost and expense pursuant to Appendix C. In addition to the foregoing, all such marketing materials must be submitted to CL&P for CL&P’s express written approval and shall not be disseminated by AER until such express written approval has been obtained. AER acknowledges and agrees that this Agreement does not assign, license, or transfer to AER any right, title or interest to the copyrights, trademarks, and other intellectual property rights used in connection with the operation and promotion of the Program except for the right to use the CL&P name and logo in accordance with the terms of this Agreement. The limited right to use the CL&P name and logo provided for in this Agreement shall automatically terminate upon termination or expiration of this Agreement and no further use may be made by AER of the CL&P name and logo. CL&P reserves the right at any time to review any approved use of the CL&P name and logo and to require changes in such further use, and AER will comply with any such requirements.

6.3 During the Term, CL&P shall, at its reasonable discretion, have the right to market the Program using CL&P/Third-Party Marketing Channels. CL&P will supply CL&P-Generated Customer Enrollment Information to AER for customers identified from a CL&P/Third-Party Marketing Channel for AER’s enrollment of such customers in the Program. For CL&P/ Third-Party Marketing Channel, CL&P shall provide to AER any materials or messages to be distributed for AER’s prior written approval, which will not be unreasonably withheld.

6.4 Customer loads enrolled and installed from a CL&P/Third-Party Marketing Channel will be included as part of Demand Reduction achieved and AER’s Contracted Capacity obligations under this Agreement but in no event shall CL&P be obligated to obtain any enrollments using

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CL&P/Third-Party Marketing Channels, nor shall CL&P’s performance in obtaining such enrollments be a cause for default or termination.

6.5 ***

ARTICLE 7 – EQUIPMENT INSTALLATION

7.1 Scope of Work. Equipment installation includes all DLCS Program activities that interface with a Participating Facility from the time of receipt of a signed customer enrollment form, obtained by AER or by CL&P-Generated Customer Enrollment Information, through the measurement and verification of the Control Device, as set forth in Appendix D. AER shall use commercially reasonable efforts to ensure that no damage is caused to persons or property in connection with any and all equipment installations and AER shall be solely responsible for any and all such damages, including but not limited to any and all costs and expenses to take corrective action to repair such damages to Customers’ satisfaction.

ARTICLE 8 – MAINTENANCE; SITE CLEAN UP

8.1 Scope of Work. Maintenance will include all activities that interface with a Participating Facility to ensure continued operation of the DLCS at the Participating Facility throughout the Term of this Agreement.

8.2 Tracking, Verification and Resolution of Participant Complaints. AER shall follow standard procedures for resolving Participant complaints pursuant to Appendices C and D.

8.3 Preventive, Routine and Non-Routine Maintenance and Repairs. AER shall be responsible for preventive, routine and non-routine maintenance and repairs (“Maintenance”). Maintenance will be performed on a basis that ensures reliable long-term and safe operation, and will be performed by knowledgeable, trained and experienced personnel utilizing proper equipment and tools.

8.4 Systems Quality Assurance. For each Program Year, AER shall, at its sole cost and expense, make on-site inspections of installed switches and any and all equipment necessary for the operation of the Program by physically inspecting each Control Device at least every ***, targeting approximately *** inspection rate per year. The inspection will ensure that each Control Device is operational and has the ability to control Participants’ End-use Equipment. If the inspection reveals that the Control Device is not operating or is disconnected, AER shall be responsible for restoring the Control Device to Commercial Operation immediately and at no cost to CL&P. AER shall provide CL&P with a written report of the results of all inspections conducted pursuant to this Section 8.4 within thirty (30) days of completing the same. AER is solely responsible at all times for the Control Devices and their operation, including but not limited to, addressing any and all Customer inquiries regarding the same in a timely manner.

8.5 AER Monitoring and Testing. AER shall be responsible for conducting routine monitoring and testing to ensure equipment is functioning as designed and capable of achieving

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intended levels of kW demand reductions. CL&P will be notified in writing of these routine system tests. System tests will include, but not be limited to, monthly tests of the communication system to insure that Control Devices are receiving the signal.

8.6 Reporting. AER will provide written monthly customer contact logs and written monthly customer participation reports no later than the 15^th day of each month in a format and containing such information as reasonably specified by CL&P and as may be required by the DPUC from time to time. Customer participation reports will include program enrollment and installation activity, including a separate line item for the number Participants obtained through CL&P/Third-Party Marketing Channel for the preceding month and for the year-to-date, repairs, customer complaints and resolution and such other data as CL&P may reasonably request.

8.7 Site Clean Up. AER shall use commercially best efforts to collect and responsibly dispose of (as required by any and all applicable law, rule, or regulation) any trimmed wire clippings, unused screws or brackets, hazardous materials and any other material waste that may result from the installation of the Control Device. For any work performed at any Customer’s site, AER shall at all times keep the site free from accumulations of waste material or rubbish and shall remove at its sole cost and expense from the site and from all public and private property all tools and equipment other than the installed equipment and rubbish and waste materials resulting from AER’s operation. AER shall be solely responsible for its obligations under this Section 8.7.

ARTICLE 9 – MEASUREMENT AND VERIFICATION (M&V) PLAN

9.1 AER Responsibility. AER shall be responsible for implementing the field work, data collection and analyses for a Measurement and Verification Plan that shall comport with the requirements of Appendix E.

9.2 Audit and Independent Verification. CL&P reserves the right to audit field work at any time. CL&P reserves the right to audit data collection and analyses completed by AER at any time, other than during the Control Season unless an Emergency exists, or as mandated by regulatory requirements and may, at any time, conduct or cause to be conducted an independent verification and/or audits of data collection and analyses completed by AER pursuant to this Agreement. AER shall cooperate fully with CL&P, and any contractor retained by CL&P, in connection with any such audits or independent verification.

ARTICLE 10 – SOFTWARE SYSTEM

10.1 Software System. AER will implement its PowerCAMP™ software for operating the DLCS. This software shall be hosted and run at AER facilities as provided in Appendix H. The Parties acknowledge AER is in compliance with CL&P’s corporate IT Security requirements according to information provided to CL&P prior to executing this Agreement, a copy of which is attached hereto as Appendix K. AER will continue to take commercially best efforts to comply with CL&P’s corporate IT security requirements, as provided from CL&P, over the term of this Agreement.

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ARTICLE 11 – BILLING AND PAYMENT

11.1 Invoicing, Payment and True-Up. AER shall invoice CL&P monthly for Capacity Payments pursuant to Appendix B.

11.2 AER Responsibility.

11.2.1 AER shall prepare and submit to CL&P monthly invoices within ten (10) days of the end of the Program Month showing (i) a verified list of Control Devices installed in the previous month, including a list of Participants obtained through CL&P/Third-Party Marketing Channel for the preceding month, (ii) a cumulative list of Control Devices installed since the end of the prior Program Year, and (iii) Demand Reduction per switch, which shall be determined from the previous Program Year’s M&V Event(s) (except for the first Program Year during which monthly payments will be based on the Engineering Estimate as set forth in Appendix B . The monthly invoices shall be calculated pursuant to Appendix B. Data in items (i) and (ii) shall be provided in an electronic format agreeable to both Parties. In accordance with Sec. 6.5 and Appendix B, the annual true-up calculations will include a credit to CL&P based on a one-time amount of $25 for each net installed Control Device enrolled from a CL&P/Third-Party Marketing Channel and installed during the associated annual true-up period.

11.2.2 No later than October 15 of each year, AER shall prepare, and provide to CL&P, a statement showing Demand Reduction achieved by Customers for the previous Program Year. The statement will list: (i) all Participating Facilities for that Program Year, (ii) all M&V Events and Dispatch Events called, including the date, time and duration of each such event, (iii) the total Program Run Time, and (iv) the Demand Reduction used to determine the monthly Capacity Payment, as set forth in Appendix B and any other data reasonably pertinent to the calculation of monthly payments due to AER and/or required or reasonably requested by CL&P to audit and verify claimed aggregate load reductions. The latter shall include, but is not limited to, the information listed above, sampling plans and methodologies, analyses of sample data and methodologies, and anything else that is needed for independent verification.

11.3 CL&P Responsibility. CL&P shall pay all undisputed portions of monthly invoices and annual true-up invoices within *** after receipt of the invoice. In the case where CL&P is owed an annual true-up payment, AER shall pay this amount within *** after the determination has been made and verified.

11.4 Late Payments. Unless otherwise specified herein, payments due under this Agreement shall be due and payable by check or by wire transfer, on or before the *** following receipt of the invoice. Remittances received by mail will be considered to have been paid when due if the

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postmark indicates the payment was mailed on or before the *** following receipt of the invoice. If any amount due is not paid on or before the due date, a late payment charge shall be applied to the unpaid undisputed balance and shall be added to the next invoice. Such late payment charge shall bear interest at the rate of 1 ¹/2% per month or at the highest rate permitted by law (whichever is less), from the date due until paid. If the due date occurs on a weekend or Holiday, the late payment charge shall begin to accrue on the next succeeding Business Day.

11.5 Billing Disputes. In the event of a billing dispute, the Party asserting the billing dispute must notify the other Party in writing within the time period specified herein for raising billing disputes. Each Party must furnish within ten (10) days of notice of such dispute all detailed billing calculations for the amount in dispute to the other Party. When the billing dispute is resolved, the Party owing shall pay the amount owed within thirty (30) days of the date of such resolution, with late payment interest charges calculated on the amount owed in accordance with Section 11.4. Undisputed portions of amounts invoiced under this Agreement shall be paid on or before the due date or shall be subject to the late payment interest charges set forth in Section 11.4. Neither Party shall have the right to challenge with a monthly bill or annual true-up invoice or bring to court or take any administrative action with respect to a billing dispute after a period of two (2) years from the date that an invoice was due.

ARTICLE 12 – DEFAULT; TERMINATION

12.1 Events of Default of AER.

12.1.1 Any of the following shall constitute an Event of Default of AER upon its occurrence and no cure period shall be applicable:

A. AER’s or Comverge, Inc.’s dissolution or liquidation; provided, however, that a reorganization of AER or Comverge, Inc.’s into other or multiple entities shall not constitute dissolution or liquidation if AER and Comverge, Inc. (and/or the applicable entity) continues to guarantee full performance under the Agreement in a writing reasonably acceptable to CL&P ;

B. AER’s or Comverge, Inc.’s filing of a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or AER or Comverge, Inc.’s voluntarily taking advantage of any such law or act by answer or otherwise; or

C. The making of an assignment contrary to Article 20.

12.1.2 Except for any other specified notice and cure periods, any of the following shall constitute an Event of Default of AER upon its occurrence unless cured within thirty (30) days after the date of written notice from CL&P to AER as provided for in Section 13.1:

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A. AER’s failure to perform any material obligations under the terms of this Agreement, or to maintain in effect any material agreements that would impair its ability to deliver Contract Capacity

B. AER’s failure to comply with any other material obligation under this Agreement; or,

C. Any material misrepresentation by AER related to this Agreement;

12.1.3 Any of the following shall constitute an Event of Default of AER upon its occurrence unless cured within sixty (60) days after the date of written notice from CL&P to AER as provided for in Section 13.1:

A. The filing of a case in bankruptcy or any proceeding under any other insolvency law against AER and/or Comverge as debtor that could materially impact AER’s ability to perform its obligations hereunder; provided, however, that AER does not obtain a stay or dismissal of the filing within the cure period, or,

B. AER’s failure to maintain ***

12.1.4 The following event shall constitute an Event of Default of AER upon its occurrence unless cured within ten (10) days after the date of written notice from CL&P to AER as provided for in Section 13.1: AER’s failure to make any payment due hereunder. For all late payments, regardless of any cure period, Section 11.4 applies.

12.2 Events of Default of CL&P.

12.2.1 Any of the following shall constitute an Event of Default of CL&P upon its occurrence and no cure period shall be applicable:

A. CL&P’s dissolution or liquidation; provided, however, that a reorganization of CL&P into other or multiple entities shall not constitute dissolution or liquidation if CL&P (and/or the applicable entity as the case may be) continues to guarantee full performance under the Agreement in a writing reasonably acceptable to AER; or

B. CL&P’s filing of a petition in bankruptcy or insolvency or for reorganization or arrangement under the bankruptcy laws of the United States or under any insolvency act of any state, or CL&P voluntarily taking advantage of any such law or act by answer or otherwise.

12.2.2 Any of the following shall constitute an Event of Default of CL&P upon its occurrence unless cured within thirty (30) days after the date of written notice from AER to CL&P as provided for in Section 13.1.

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A. CL&P’s failure to comply with any material obligation under this Agreement; or,

B. Any material misrepresentation by CL&P related to this Agreement.

12.2.3 The following event shall constitute an Event of Default of CL&P upon its occurrence unless cured within sixty (60) days after the date of written notice from AER to CL&P as provided for in Section 13.1: the filing of a case in bankruptcy or any proceeding under any other insolvency law against CL&P that could materially impact CL&P’s ability to perform its obligations hereunder; provided, however, that CL&P does not obtain a stay or dismissal of the filing within the cure period.

12.2.4 The following event shall constitute an Event of Default of CL&P upon its occurrence unless cured within ten (10) days after the date of written notice from AER to CL&P as provided for in Section 13.1: CL&P’s failure to make any payment due hereunder. For all late payments, regardless of any cure period, Section 11.4 applies.

12.3 Termination. Either Party may, upon written notice to the other Party, terminate this Agreement if any one or more of the Events of Default of the other Party described in this Article 12 occurs and is not cured within the cure periods set forth herein. Neither Party shall have the right to terminate this Agreement, except as provided for upon the occurrence of an Event of Default as described above or as otherwise may be explicitly provided for in this Agreement, ***. Except as expressly provided in this Agreement, nothing in this Agreement shall be construed to limit any right or remedy available at law or in equity to the Parties, including the right to any and all damages for any breach or other failure to perform hereunder. All remedies in this Agreement shall survive termination, cancellation or expiration of this Agreement and are cumulative. Upon termination, AER shall cease all operations and actions under the Agreement and CL&P shall pay AER for all payments due up until the termination date. Each Party shall promptly return to the other any and all materials, information, documentation, or other product belonging to that Party. ***:

(a)***

(i) ***

(ii) ***

(iii) ***.

(b) ***.

12.4 Special Bankruptcy Provision. Because of the importance of this Agreement in promoting the goals of the Energy Independence Act, it is agreed that in the event AER should ever seek protection under the provisions of the bankruptcy laws of the United States or under any insolvency act of any state, and AER or its representative trustee considers whether to assume or reject this Agreement under such bankruptcy law provisions, the appropriate standard to apply in consideration of rejection is a standard more rigorous than the usual business judgment standard, such more rigorous standard being appropriate to balance the burdens to the bankruptcy estate against the impact on Connecticut electric ratepayers; and in such consideration, to give equal or greater weight to the public interest in the adequate, efficient and

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reasonable provision of electric utility service at just and reasonable rates, including the effect that a rejection of this Agreement would have on Connecticut electric ratepayers.

ARTICLE 13 – CONTRACT ADMINISTRATION AND NOTICES

13.1 Notices in Writing. Notices required by this Agreement shall be addressed to the other Party, including the other Party’s representative at the addresses noted in Appendix F. Any notice, request, consent or other communication required or authorized under this Agreement to be given by one Party to the other Party shall be in writing. It shall either be personally delivered, or mailed, return receipt requested, or by overnight carrier. Any such notice, request, consent or other communication shall be deemed to be given when delivered. Routine communications concerning Participating Facility operations or other matters as expressly agreed to by the Parties shall be exempt from the requirements of this Section 13.1 and may be made in any manner agreed to by the Parties.

13.2 Changes. Either Party may, by written notice to the other Party (pursuant to the provisions contained in Article 13.1), change the representative or the address to which such notices and communications are to be sent.

13.3 Authority of Representatives. The Parties’ designated representatives, including Frank Evans for AER and Ronald Araujo for CL&P shall have authority to act for their respective principals in all technical matters relating to performance of this Agreement and to attempt to resolve disputes or potential disputes. However, they shall not have the authority to amend or modify any provision of this Agreement.

13.4 Operating Records. AER shall each keep complete and accurate records and all other data required for the purposes of proper administration of this Agreement (including but not limited to verification of performance of Participating Facilities), including such records as may be required from time to time by state or federal regulatory authorities. AER shall retain all such records pursuant to the requirements in Section 22.16 and allow CL&P access to such records for *** following termination or expiration of this Agreement and forward all such records to CL&P within ten days following the termination or expiration of this Agreement. In addition to the foregoing, AER shall provide to CL&P and/or the CT DPUC any such operating records as may be required by AER and/or CL&P to verify the performance of the Program and/or the performance of the Parties under this Agreement.

13.5 Billing and Payment Records. To facilitate payment and verification, AER and CL&P shall keep all books and records necessary for billing and payments (as well as verification of the same) and grant the other Party reasonable access to those records during regular business hours and with reasonable notice. Each Party shall bear its own costs and expenses incurred in connection with any review or audit of such records for a period of two (2) years following termination or expiration of the Agreement.

13.6 Program Management Procedures. The Parties shall design and institute program management procedures within thirty (30) days following the Start Date, which procedures shall include, without limitation, a provision for regular meeting times to discuss the Program,

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including a governance and an escalation plan. To the extent such procedures are signed by both Parties, such program procedures will form a part of this Agreement.

13.7 Dispute Resolution.

13.7.1 Negotiation Between Executives. AER and CL&P shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement and/or the Work, promptly by negotiation between executives with authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any party may give the other party written notice of any dispute not resolved in the normal course of business. Such notice shall include: (a) a statement of that requesting party’s position and a summary of arguments supporting that position; and (b) the name and title of the executive who will be representing that party and of any other person who will accompany the executive. Within fifteen (15) days after delivery of the notice, the receiving party shall respond with: (i) a statement of that party’s position and a summary of arguments supporting that position; and (ii) the name and title of the executive who will represent that party and of any other person who will accompany the executive. Within thirty (30) days after delivery of the initial notice, the executives of both parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to attempt to resolve the dispute. All negotiations pursuant to this Article 13 are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable law and rules of evidence.

13.7.2 Mediation. If the dispute has not been resolved by negotiation within forty-five (45) days after the disputing party’s notice, or if the parties failed to meet within thirty (30) days, each as contemplated in this Article 42, the parties shall endeavor to settle the dispute by non-binding mediation under the then current CPR Mediation Procedure; provided, however, that if one party fails to participate as provided herein, the other party can initiate mediation prior to the expiration of the forty-five (45) days. Unless otherwise agreed, the parties will select a mediator from the CPR Panels of Distinguished Neutrals.

13.7.3 Arbitration. All Disputes in question not resolved by mediation between the parties to this Agreement shall be submitted to private, binding arbitration with AAA at the AAA regional office closest to the headquarters of the CL&P or at a mutually agreed upon location, and shall be conducted in accordance with the then current AAA Commercial Arbitration Rules, as applicable, then in effect, or a mutually agreed upon set of arbitration rules. This agreement to arbitrate and any other agreement or consent to arbitrate entered into in accordance herewith will be specifically enforceable by any court having jurisdiction. Notice of demand for arbitration must be filed in writing with the other party to this Agreement and with AAA. The demand must be made within a reasonable time after the dispute has arisen. In no event may the demand for arbitration be made if the institution of legal or equitable proceedings based on such dispute is barred by the applicable

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statute of limitations. Any arbitration may be consolidated with any other arbitration proceedings. The arbitrators will have no authority to award attorneys’ fees, punitive, or treble damages to any party. The award of the arbitrator shall be specifically enforceable in a court of competent jurisdiction. If the total dispute, exclusive of interest and arbitration costs, does not equal or exceed one million dollars ($1,000,000.00), the arbitration shall be heard by one (1) neutral arbitrator. If the total dispute equals or exceeds one million dollars ($1,000,000.00), then the arbitration shall be heard by three (3) neutral arbitrators. The procedures for the resolution of disputes set forth herein shall be the sole and exclusive procedures for the resolution of disputes; provided, however, that a party may seek a preliminary injunction or other preliminary judicial relief if in its judgment such action is necessary to avoid irreparable damage or to preserve the status quo. Despite such action, the parties will continue to participate in good faith in the procedures specified herein.

13.7.4 Powers of Arbitrator(s). The arbitrator is not empowered to award damages in excess of compensatory damages (including liquidated damages specified herein) and each party expressly waives and foregoes any right to punitive, exemplary or similar damages unless a statute requires that compensatory damages be increased in a specified manner. All costs of the arbitration shall be paid equally by the parties, unless the award shall specify otherwise. Each party shall be responsible for its own expenses, including attorney’s fees. Both parties shall be afforded adequate opportunity to present information in support of its position on the dispute being arbitrated. The arbitrator may also request additional information from the parties.

13.7.5 Continued Performance. Unless otherwise directed by CL&P, AER shall continue performance of the Work in compliance with the Agreement and CL&P shall pay AER for such performance, notwithstanding the existence of any claim, dispute and/or proceeding between AER and/or Comverge and CL&P. Nothing herein shall prejudice, impair or otherwise prevent CL&P from receiving equitable relief, including an order for specific performance and/or an injunction, from an appropriate governmental authority pending the conclusion of any mediation and/or arbitration proceeding.

ARTICLE 14 – FORCE MAJEURE

14.1 Definition of Force Majeure. The term Force Majeure, as used in this Agreement, means causes or events beyond the reasonable control of, and without the fault or negligence of the Party claiming Force Majeure, including, without limitation, acts of God, sudden actions of the elements such as floods, earthquakes, hurricanes or tornadoes; sabotage; vandalism beyond that which could reasonably be prevented by a Party; terrorism; war; riots; fire; explosion; epidemic or pandemic; extreme weather conditions, blockades; insurrection; strike; slow down or labor disruptions (even if such difficulties could be resolved by conceding to the demands of a labor group); network or internet failure by reason of a computer virus provided that AER has complied with CL&P approved corporate IT security measures, as provided in advance by

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CL&P; any disruption of electrical power in the CL&P service territory preceding a Dispatch Event or during a Dispatch Event that prevents the proper operation of the DLCS; any failure, or partial failure of a paging tower or system; actions by federal, state, municipal or any other government or agency (including the adoption or change in any rule or regulation or environmental constraints lawfully imposed by federal, state or local government bodies, with the exception of any regulatory or legislative changes leading to a termination but only if such actions or failures to act prevent or delay performance); and inability, despite due diligence, to obtain required licenses, permits or approvals, provided that such inability is not caused by the Party claiming the Force Majeure.

14.2 Exceptions to Force Majeure. Except as otherwise provided in Section 14.1, the term Force Majeure does not include:

14.2.1 any full or partial curtailment in the operation of a Participating Facility that is caused by or arises from the act or acts of any vendor, materialman, customer or supplier of AER, unless such act or acts is itself excused by reason of Force Majeure; or

14.2.2 any full or partial curtailment in the operation of a Participating Facility that is caused by or arises from a Control Device breakdown, or fires, explosions, or other mishap or events or conditions attributable to normal wear and tear or flaws in the Control Device

14.2.3 any inability by AER to sign up sufficient customers for participation in the Program as required under this Agreement

14.2.4 ***

14.3 Applicability of Force Majeure. Neither Party shall be responsible or liable for any delay or failure in its performance under this Agreement (except for payment obligations) due solely to conditions or events of Force Majeure, provided that:

14.3.1 the non-performing Party gives the other Party prompt written notice describing the particulars of the occurrence of the event of Force Majeure;

14.3.2 the suspension of performance is of no greater scope and of no longer duration than is required by the event of Force Majeure;

14.3.3 the non-performing Party proceeds with reasonable diligence to remedy its inability to perform and provides weekly progress reports to the other Party describing actions taken to end the event of Force Majeure; and

14.3.4 when the non-performing Party is able to resume performance of its obligations under this Agreement, the non-performing Party shall give the other Party written notice to that effect.

14.4 Limitations on Effect of Force Majeure. In the event of any delay or failure of performance caused by conditions or events of Force Majeure, which would otherwise constitute

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an Event of Default pursuant to Article 12, the cure provisions of Article 12 shall not apply and such delay or failure of performance, if not previously cured, shall become an Event of Default on that date which is six (6) months from the date of notice provided for in Section 14.3.1. The Party not claiming Force Majeure may, at any time following the end of such six (6) month period, terminate this Agreement upon written notice to the affected Party, without further obligation by the terminating Party except as to costs and balances incurred prior to the effective date of such termination. The Party not claiming Force Majeure may, but shall not be obligated to, extend such six (6) month period, for such additional time as it, at its sole discretion, deems appropriate, if the affected Party is exercising due diligence in its efforts to cure the conditions or events of Force Majeure.

14.5 Effect of Force Majeure on Capacity Payments. For purposes of, and pursuant to, the monthly Capacity Payment calculation specified in Appendix B, a Participating Facility’s Contract Capacity shall be considered to be unavailable during all hours where AER is unable to provide or deliver such Contract Capacity due to an event of Force Majeure (i.e., no Capacity Payment is required to be made), provided, that such event is not caused by, and does not result from, CL&P’s failure to perform in accordance with the provisions of this Agreement.

ARTICLE 15 – REPRESENTATIONS AND WARRANTIES

15.1 AER’s Representations and Warranties. AER represents and warrants the following:

15.1.1 AER is a corporation duly organized under the laws of the State of Delaware. AER is qualified to do business in each jurisdiction where the failure to so qualify would have a material adverse effect on the business or financial condition of AER. AER has all requisite power and authority to conduct its business, to own its properties, and to execute, deliver and perform its obligations under this Agreement.

15.1.2 t***

15.1.3 AER has the expertise, experience and qualifications to perform its obligations under this Agreement, including an understanding of CL&P’s needs and the requirements of the Energy Independence Act.

15.1.4 AER is or will be properly licensed and permitted insofar as required to perform its obligations under this Agreement.

15.1.5 AER possesses all ownership of intellectual property rights required to be used in connection with AER’s performance of its obligations under this Agreement and use of the Software will not infringe any third party copyright, patent, trade secret or any other proprietary right.

15.1.6 The execution, delivery and performance of its obligations under this Agreement by AER have been duly authorized by all necessary action, and do not and will not:

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A. require any consent or approval of AER’s Board of Directors, or shareholders, other than that which has been obtained and is in full force and effect;

B. violate any provision of law, rule, regulation, order, writ, judgment, injunction, decree, determination or award currently in effect having applicability to AER or violate any provision in any formation documents of AER, the violation of which could have a material adverse effect on the ability of AER to perform its obligations under this Agreement;

C. result in a breach of or constitute a default under AER’s formation documents or bylaws, or under any agreement relating to the management or affairs of AER or any indenture or loan or credit agreement, or any other agreement, lease or instrument to which AER is a party or by which AER or its properties or assets may be bound or affected, the breach or default of which could reasonably be expected to have a material adverse effect on the ability of AER to perform its obligations under this Agreement; or

D. other than results from financing documents involving AER’s senior lender, result in, or require the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature (other than as may be contemplated by this Agreement) upon or with respect to any of the assets or properties of AER now owned or hereafter acquired, the creation or imposition of which could reasonably be expected to have a material adverse effect on the ability of AER to perform its obligations under this Agreement.

15.1.7 This Agreement is a valid and binding obligation of AER.

15.1.8 The execution and performance of this Agreement by AER will not conflict with or constitute a breach or default under any contract or agreement of any kind to which AER is a party or any judgment, order, statute or regulation that is applicable to AER.

15.1.9 AER shall (i) respond to Customer complaints, with CL&P’s reasonable assistance, in a timely fashion, and to Customer’s and CL&P’s reasonable satisfaction and (ii) shall make commercially reasonable efforts to resolve any such complaints, resulting from the Program, both of which the Parties agree are material obligations under this Agreement.

15.1.10 AER shall comply with all applicable local, state and federal laws, regulations and ordinances, including but not limited to equal opportunity and affirmative action requirements and all applicable federal, state and local environmental laws and regulations presently in effect or which may be enacted during the Term of this Agreement

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15.1.11 AER shall disclose to CL&P, to the extent that, and as soon as it is known to AER, any alleged violation of any environmental laws or regulations arising out of the construction or operation of any Participating Facility, or the alleged presence of Environmental Contamination at any Participating Facility or on its site, or the existence of any past or present enforcement, legal or regulatory action or proceeding relating to such alleged violation or alleged presence of Environmental Contamination.

15.1.12 For the term of this Agreement, AER warrants that all DLCS equipment, Software, systems and materials it supplies shall be free from defects in title, design, material and workmanship and shall conform to the specifications provided to CL&P and any specifications set forth in the Agreement. If the warranty set forth in this Section 15.1.8 is breached, AER shall at its option and expense, either repair or replace the affected equipment and materials within thirty days of notice.

15.1.13 AER warrants that any services performed or provided by, through, or on behalf of AER as part of or in connection with the Agreement shall (i) be performed by personnel who are fully qualified and competent and whose recommendations, guidance and performance reflect professional knowledge, judgment, and performance in accordance with professional standards applicable to the utility industry and/or the direct load control industry; and (ii) comply with and conform to all provisions of the Agreement and to any and all provisions of any and all applicable laws. If CL&P determines that any portion of the Services performed by, through, and/or on behalf of AER fails to comply with the warranties set forth in this Section 15.1, AER shall, at its sole cost and at CL&P’s option, (i) correctly re-perform such services or correct the defect or error in the design, plan, drawing, specification, data or information, or (ii) return to CL&P the charges paid by CL&P and attributable to such services or defective or erroneous design, plan, drawing, specification, data or information supplied. CL&P shall have the right to set-off against other amounts due AER hereunder or otherwise any amount owed by AER to CL&P.

15.1.14 Completion Warranty. AER warrants that it shall complete all services in accordance with the Project schedule. If the services fall behind schedule due to causes attributable to AER or any subcontractor or any person under its and/or their respective control, AER shall, at its sole expense, use its commercially best efforts to restore the services to schedule, including but not limited to the following measures: placing its forces and those of its subcontractors on extended working hours; assigning additional forces to the work, establishing expedited, priority treatment for the acquisition, fabrication, and delivery of the materials, equipment and supplies necessary to complete the work.

In the event that AER fails to satisfy any warranty obligations or remedies set forth in this Agreement and /or any other obligations in accordance with applicable Agreement terms, CL&P may exercise all available rights and remedies under law and/or equity.

15.2 CL&P’s Representations and Warranties. CL&P represents and warrants the following:

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15.2.1 CL&P is a corporation duly organized under the laws of the State of Connecticut and is qualified to do business in each other jurisdiction where the failure to so qualify would have a material adverse effect upon the business or financial condition of CL&P. CL&P has all requisite power and authority to conduct its business, to own its properties, and to execute, deliver and perform its obligations under this Agreement.

15.2.2 The execution, delivery and performance of its obligations under this Agreement by CL&P have been duly authorized by all necessary corporate action, and do not and will not:

A. subject to obtaining the regulatory approvals identified in Section 19.2, violate any provision of law, rule, regulation, order, writ, judgment, injunction, decree, determination or award currently in effect having applicability to CL&P or violate any provision in any corporate documents of CL&P, the violation of which could have a material adverse effect on the ability of CL&P to perform its obligations under this Agreement;

B. result in a breach of or constitute a default under CL&P’s charter or bylaws, or under any agreement relating to the management or affairs of CL&P, or any indenture or loan or credit agreement, or any other agreement, lease or instrument to which CL&P is a party or by which CL&P or its properties or assets may be bound or affected, the breach or default of which could reasonably be expected to have a material adverse effect on the ability of CL&P to perform its obligations under this Agreement; or

C. result in, or require the creation or imposition of any mortgage, deed of trust, pledge, lien, security interest or other charge or encumbrance of any nature (other than as may be contemplated by this Agreement) upon or with respect to any of the assets or properties of CL&P now owned or hereafter acquired, the creation or imposition of which could reasonably be expected to have a material adverse effect on the ability of CL&P to perform its obligations under this Agreement.

15.2.3 This Agreement is a valid and binding obligation of CL&P.

15.2.4 The execution and performance of this Agreement will not conflict with or constitute a breach or default under any contract or agreement of any kind to which CL&P is a party or any judgment, order, statute or regulation that is applicable to CL&P.

ARTICLE 16 – INSURANCE

16.1 AER’s Insurance Requirements. AER shall obtain and maintain in effect throughout the Term of this Agreement such insurance policies and coverage as is required by law and as set out in Appendix G. AER shall be solely responsible for payment of any and all deductible amounts relating to any and all of the policies of insurance required by this Article 16 and Appendix G. AER shall ensure that its broker shall provide CL&P with replacement certificates evidencing required

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insurance coverage prior to the expiration of prior certificates. Failure to provide such certificates shall be grounds for withholding payment .

16.2 Changes to Insurance Minimum Limits. CL&P shall have the right, at times deemed appropriate by CL&P during the Term of this Agreement, to request AER to increase the insurance minimum limits specified in Appendix G in order to maintain reasonable coverage amounts. AER shall make all reasonable efforts to comply with such request at CL&P’s expense, unless AER already has the requested coverage.

16.3 Notice to CL&P. Notwithstanding any provision of the insurance policies, such policies may not be canceled, non-renewed or materially changed without the insurer giving thirty (30) days’ prior written notice to CL&P or ten (10) days prior written notice in the event of non-payment. All other terms and conditions of such policy shall remain unchanged.

16.4 Certificates of Insurance Required. Within 15 days of execution of this Agreement, AER shall provide CL&P a certificate(s) of insurance verifying the existence of insurance coverages and endorsements required by Appendix G. Failure of AER to obtain the insurance coverages required by this Article 16, or to provide CL&P with the certificates of insurance, shall in no way relieve AER of the insurance requirements of this Article 16 or limit AER’s obligations and liabilities under any provision of this Agreement.

16.5 Application of Proceeds. For the Term, and subject to the requirements of the financing documents and the rights or remedies of the senior lender thereunder, AER shall apply any and all insurance proceeds received in connection with the damage or destruction of the Participating Facilities toward the repair, reconstruction or replacement of the Participating Facilities. In the event that such proceeds are insufficient to repair, reconstruct or replace the Participating Facilities, AER will remain solely responsible for the same.

ARTICLE 17 – INDEMNITY

17.1 General. *** (THE “INDEMNIFYING PARTY”) SHALL FULLY INDEMNIFY AND DEFEND *** AND HOLD HARMLESS *** AND EACH OF *** SUBSIDIARIES AND AFFILIATES, AND THE PARTNERS, MEMBERS, PARTICIPANTS, PRINCIPALS, REPRESENTATIVES, SHAREHOLDERS, DIRECTORS, TRUSTEES, OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS OF EACH OF THEM (THE “INDEMNIFIED PARTY”) FROM AND AGAINST ANY AND ALL LOSSES, COSTS, DAMAGES, INJURIES, LIABILITIES, CLAIMS, DEMANDS, PENALTIES AND INTEREST, INCLUDING REASONABLE ATTORNEYS’ FEES (“DAMAGES”), DIRECTLY OR INDIRECTLY RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR NON-PERFORMANCE THEREOF, TO THE EXTENT CAUSED OR CONTRIBUTED TO BY (A) THE FAULT, INTENTIONAL ACT, NEGLIGENCE OR STRICT LIABILITY OF THE INDEMNIFYING PARTY OR ITS SUBSIDIARIES, AFFILIATES, CONTRACTORS OR SUBCONTRACTORS OR ANY OF THE OFFICERS, PARTNERS, MEMBERS, PARTICIPANTS, SHAREHOLDERS, PRINCIPALS, DIRECTORS, TRUSTEES, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS OF ANY OF

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THEM OR (B) A BREACH BY THE INDEMNIFYING PARTY OF THIS AGREEMENT, INCLUDING THE MATERIAL BREACH OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INDEMNIFYING PARTY.

17.2 Environmental. AER shall indemnify, defend and hold CL&P harmless from and against all claims, demands, losses, liabilities, penalties and expenses (including reasonable attorneys’ fees) for personal injury or death to persons, damage to or loss of property, and response costs relating to Environmental Contamination, arising out of, resulting from or caused by the violation of any applicable environmental laws or the negligent or tortuous acts, errors or omissions of AER (or its respective officers, employees, agents and contractors) with respect to the release of hazardous materials at or from any Participating Facility, except to the extent that such violation, injury, death, loss, liability or response costs are attributable to the negligent or tortuous acts, errors or omissions of CL&P (or its officers, employees, agents or contractors). ***

17.3 Intellectual Property. AER will indemnify, defend and hold CL&P harmless from and against all losses incurred by CL&P arising out of or connected with a thirty party claim relating to: infringement of such third party’s patent, copyright, trademark, trade secret, confidentiality or other right by AER’s DLCS; provided, that (i) such use by CL&P that infringes is consistent with the use described in or contemplated by the Parties; (ii) such infringement or misappropriation is not based on the combination or integration of any software or any other device or product not contemplated by AER or this Agreement; (iii) such design or software, if any, was not effected by CL&P with CL&P’s knowledge (actual or constructive) of any infringement or misappropriation issue related thereto. If CL&P provides AER with notice of a claim of infringement with respect to any material, equipment of information used in connection with the DLCS or if the use of all or any portion of the DLCS is enjoined due to a claim of infringement, AER shall promptly and at its sole cost and expense either (i) procure for CL&P the right to continue to use the DLCS or (ii) replace the DLCS with non-infringing and functionally equivalent DLCS, (iii) modify the DLCS so that it becomes non-infringing and functionally equivalent or (iv) take such other action as is necessary to assure CL&P’s uninterrupted use of the DLCS. *** .

17.4 Procedures.

17.4.1 Promptly after receipt by a Party of any claim or notice of the commencement of any action, administrative or legal proceeding, or investigation as to which the indemnity provided for in this Article may apply, the Indemnified Party shall notify the Indemnifying Party in writing of such fact, but the failure so to notify such Indemnifying Party of any such action shall not relieve the Indemnifying Party from any liability which it may have to the Indemnified Party except to the extent that such failure to notify shall adversely affect the rights of the Indemnifying Party. The Indemnifying Party shall be entitled to participate at its own expense in the defense or, if it so elects, to assume the defense thereof with counsel designated by the Indemnifying Party and satisfactory to the Indemnified Party; provided, however, that if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are different from or additional to, or inconsistent with, those available to the Indemnifying

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Party, the Indemnified Party shall have the right to select and be represented by separate counsel, at the Indemnifying Party’s expense, unless a liability insurer is willing to pay such costs.

17.4.2 The Indemnifying Party shall bear the reasonable fees and expenses of the counsel retained by the Indemnified Party if (i) the Indemnified Party shall have retained such counsel in accordance with the preceding paragraph 17.4.1, (ii) the Indemnifying Party shall elect not to assume the defenses of such action, (iii) the Indemnifying Party, within a reasonable time after notice of the commencement of the action, shall not have employed counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party, or (iv) the Indemnifying Party shall have authorized the employment of counsel for the Indemnified Party at the expense of the Indemnifying Party. An Indemnified Party shall not enter into a settlement or other compromise with respect to any claim without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The Indemnifying Party shall not enter into a settlement or other compromise with respect to any claim against the Indemnified Party without the Indemnified Party’s consent unless (i) there is no finding or admission of any violation of law or any violation of the rights of any person, and (ii) the sole relief provided is monetary damages that are paid in full by the Indemnifying Party. If the Indemnifying Party fails to assume the defense of a claim meriting indemnification, the Indemnified Party may at the expense of the Indemnifying Party contest, settle or pay such claim, provided that settlement or full payment of any such claim may be made only following consent of the Indemnifying Party or, absent such consent, with the written opinion of the Indemnified Party’s counsel that such claim is meritorious or warrants settlement.

17.4.3 Except as otherwise provided in this Article, in the event that a Party is obligated to indemnify and hold the other Party and its successors and assigns harmless under this Article 17, the amount owing to the Indemnified Party will be the amount of the Indemnified Party’s actual loss net of any insurance proceeds received by the Indemnified Party following a reasonable effort by the Indemnified Party.

ARTICLE 18 – LIMITATION OF LIABILITY

18.1 LIMITATION OF LIABILITY. NEITHER PARTY NOR ITS SUBSIDIARIES OR AFFILIATES NOR THE OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARTICIPANTS, PARTNERS, MEMBERS, SHAREHOLDERS, PRINCIPALS, DIRECTORS, TRUSTEES, SUCCESSORS OR ASSIGNS OF ANY OF THEM SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY OR ITS SUBSIDIARIES OR AFFILIATES OR THE OFFICERS, AGENTS, EMPLOYEES, REPRESENTATIVES, PARTICIPANTS, PARTNERS, MEMBERS, SHAREHOLDERS, PRINCIPALS, DIRECTORS OR TRUSTEES OF ANY OF THEM FOR INCIDENTAL, PUNITIVE, CONSEQUENTIAL (EXCEPT AS PROVIDED FOR HEREIN), SPECIAL, OR INDIRECT DAMAGES OF ANY NATURE, ARISING AT ANY TIME, FROM ANY CAUSE WHATSOEVER, WHETHER ARISING IN TORT, CONTRACT, WARRANTY, STRICT LIABILITY, BY OPERATION OF LAW OR OTHERWISE, CONNECTED WITH OR RESULTING FROM PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT. NOTHING IN THIS ARTICLE 18 SHALL BE DEEMED TO

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AFFECT OR LIMIT THE RIGHT OF AN INDEMNIFIED PARTY TO CLAIM INDEMNIFICATION FROM THE INDEMNIFYING PARTY UNDER ARTICLE 17. THE LIMITATIONS OF LIABILITY CONTAINED HEREIN SHALL NOT APPLY IN CONNECTION WITH THIRD PARTY CLAIMS FOR LOSS OF LIFE, PERSONAL INJURY OR DAMAGE TO PROPERTY.

ARTICLE 19 – COMPLIANCE WITH LAW AND REGULATORY REQUIREMENTS

19.1 Compliance with the Law. Each Party shall at all times comply with all applicable laws, ordinances, rules and regulations applicable to it. As applicable, each Party shall give all required notices and shall procure and maintain all necessary governmental licenses, necessary for performance of this Agreement, and shall pay its respective charges and fees in connection therewith.

19.2 Regulatory Compliance. AER acknowledges that CL&P is required to file with the CT DPUC certain information regarding the Program, including this Agreement. CL&P is further required by the CT DPUC to monitor the Program. Accordingly, AER acknowledges and agrees that nothing in this Agreement shall prohibit CL&P from providing any and all information to the CT DPUC as the CT DPUC may, from time to time, require and request, with respect to the Program and this Agreement, including the filing of this Agreement with the CT DPUC. CL&P will file this Agreement, and any other confidential information, with the CT DPUC pursuant to a motion for protective order for confidential treatment of the same. AER further acknowledges and agrees that it will cooperate with CL&P as necessary or required in order for to CL&P to comply with any and all requirements or directives of the CT DPUC in connection with the Program. In the event that the CT DPUC does not approve the Agreement in its entirety or does not allow CL&P to recover all costs of the Program from retail ratepayers on a timely non-deferred basis, the Parties shall negotiate in good faith terms and conditions of the Agreement that may need to be amended in light of such CT DPUC’s action, provided that if such an amendment is not reached within sixty (60) days of the DPUC’s disapproval of the Agreement or disallowance of cost recovery, as the case may be, then this Agreement shall be of no further force and effect as of the expiration of such sixty (60) day period and neither party shall have any further obligation to the other party in connection with the Program or this Agreement. CL&P acknowledges that AER, through its parent, may be required to file with the Securities and Exchange Commission (“SEC”) certain information regarding the Program, including this Agreement. Accordingly, CL&P acknowledges and agrees that nothing in this Agreement shall prohibit AER from providing any and all information to the SEC as the SEC may, from time to time, require and request, with respect to the Program and this Agreement, including the filing of this Agreement with the SEC, provided that AER will provide CL&P with prompt and timely notice of any and all SEC requirements regarding the Program and this Agreement and reasonably cooperate with CL&P in using commercially reasonably efforts to ensure that confidential information that may be required to be provided to the SEC is accorded such confidential treatment (including but not limited to working together in connection with redacting confidential, proprietary and commercially sensitive information from the Agreement). If required to do so, AER will file this Agreement, and any other confidential information, with

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the SEC pursuant to a motion for protective order for confidential treatment of the same. CL&P further acknowledges and agrees that it will cooperate with AER as necessary or required in order for to AER to comply with any and all requirements or directives of the SEC in connection with the Program. The Parties agree that AER has required deadlines for filing with SEC and shall comply with those guidelines.

19.3 ***

***

ARTICLE 20 – ASSIGNMENT AND OTHER TRANSFER RESTRICTIONS

20.1 No Assignment Without Consent. Except as permitted below, neither Party shall assign this Agreement or any portion hereof, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Prior notice of any such assignment shall be given to the other Party. Notwithstanding the above:

20.1.1 This Agreement may be assigned by AER, without the prior approval of CL&P: (i) as part of a reorganization, merger, share exchange, consolidation or sale or disposition of all or substantially all of the assets of AER, (ii) in an initial public offering, (iii) to a wholly owned subsidiary of AER, where AER shall be a guarantor, or (iv) for the benefit of AER’s lenders provided that, in all case, AER shall not be relieved from its obligations and liabilities under this Agreement. In the event of any such assignment, AER shall remain liable under this Agreement until (x) CL&P consents to the release of AER, (which such release shall not be unreasonably withheld or delayed) and (y) AER’s successor or assignee consents in writing to be bound by the obligations of AER.

20.1.2 This Agreement may be assigned by CL&P, without the prior approval of AER: (i) as part of a reorganization, merger, share exchange, consolidation or sale or disposition of all or substantially all of the assets of CL&P; (ii) to an affiliate; or (iii) for the benefit of CL&P’s lenders. In the event of any such assignment, CL&P shall remain liable under this Agreement until (x) AER consents to the release of CL&P (which shall not be unreasonably withheld or delayed) and (y) CL&P’s successor or assignee consents in writing to be bound by the obligations of CL&P.

ARTICLE 21 – JOINT INTEREST

21.1 Cooperation by Parties. CL&P and AER believe it to be in their joint interest that the Program achieves a high degree of success and reaches the maximum possible number of Participants. Accordingly, CL&P and AER intend that, during the Term of the Agreement, CL&P shall, subject to the terms and conditions of this Agreement and of all applicable regulatory requirements which may exist during the Term of this Agreement, use commercially reasonable efforts to support and work with AER in connection with this Agreement.

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ARTICLE 22 – MISCELLANEOUS

22.1 Waiver. The failure of either Party to enforce or insist upon compliance with or strict performance of any of the terms or conditions of this Agreement, or to take advantage of any of its rights thereunder, shall not constitute a waiver or relinquishment of any such terms, conditions or rights, but the same shall be and remain at all times in full force and effect.

22.2 Taxes/ Permits. AER shall be responsible for any and all present or future federal, state, municipal or other lawful taxes applicable by reason of the installation, ownership and operation of the DLCS under this Agreement, and all ad valorem taxes relating to the DLCS. For equipment that AER installs, AER shall be responsible for obtaining required and all permits necessary or requirement for the operation of the Program and performance of this Agreement and CL&P will provide reasonable support as may be necessary if requested to do so by AER.

22.3 Disclaimer of Third Party Beneficiary Rights. In executing this Agreement, CL&P does not, nor should it be construed to, extend its credit or financial support for the benefit of any third parties lending money to or having other transactions with AER. Nothing in this Agreement shall be construed to create any duty to, or standard of care with reference to, or any liability to, any person not a party to this Agreement.

22.4 Relationship of the Parties.

22.4.1 This Agreement does not create an association, joint venture or partnership between the Parties and does not impose any partnership obligation or liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as an agent or representative of, the other Party. The relationship of AER to CL&P shall be that of independent contractor. This Agreement does not create an association, joint venture or partnership between the Parties and does not impose any partnership obligation or liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for, or act on behalf of, or to act as an agent or representative of, the other Party.

22.4.2 AER shall be solely liable for the payment of all wages, taxes and other costs related to the employment of persons to perform such services, including all federal, state and local income, social security, payroll and employment taxes and statutorily mandated workers’ compensation coverage. None of the persons employed by AER shall be considered employees of CL&P for any purpose; nor shall AER represent to any person that he or she is or shall become a CL&P employee.

22.4.4 All benefits, protections, indemnifications and other rights in favor of either Party under the Agreement shall also benefit, protect and indemnify the principals of that Party.

22.5 Confidentiality. The parties acknowledge and agree that during the Term, each party may provide to the other party confidential and/or proprietary information that is designated or

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otherwise identified orally or in writing as confidential or proprietary or which, under the circumstances surrounding disclosure, the receiving party should know is treated as confidential by the other party, including but not limited to information or materials related to the business of such party (the “Confidential Information”). Confidential Information shall include, without limitation, notes, documents, memoranda, or other writings including any materials which copy or disclose Confidential Information. Each party shall protect all such Confidential Information with at least the same degree of care its uses to protect its own confidential information, but under no circumstances with not less than a reasonable degree of care. Each party shall not disclose, provide or permit any other person to obtain the Confidential Information except for such of its employees with a need to know such information solely for the purpose of performing a party’s obligations under this Agreement and who are informed of the confidential nature of the Confidential Information. Such employees shall use the Confidential Information solely in connection with the performance of obligations under this Agreement and for no other purpose. Each party agrees to be responsible for any breach of this Section 22.5 by its employees. The confidentiality obligations set forth in this Section 22.5 shall not apply to any information that (i) is generally available to the public or previously known to the public, (ii) can reasonably be demonstrated was known to the receiving party prior to the execution of this Agreement, (iii) was obtained from a third party who did not, directly or indirectly, receive the same from the other party to this Agreement or from a party who was under an obligation of confidentiality to the other party to this Agreement, or (iv) was developed by either party independent of and without use or reference to any Confidential Information. Each receiving party shall, upon termination of this Agreement or at any time upon the request of the disclosing party, cease use of and promptly return or destroy all Confidential Information of the disclosing party then in its possession together with all copies thereof and certify in writing to the same.

Notwithstanding the preceding, Confidential Information may be disclosed to any governmental, judicial or regulatory authority requiring and requesting such Confidential Information pursuant to any applicable law, regulation, ruling, or order, provided that: (a) such Confidential Information is submitted under any applicable provision, if any, for confidential treatment by such governmental, judicial or regulatory authority; and (b) except with respect to a party’s regular reporting requirements under this Agreement, prior to such disclosure, the other party is given prompt notice of the disclosure requirement so that it may take whatever action it deems appropriate, including intervention in any proceeding and the seeking of any injunction to prohibit such disclosure.

22.6 Survival of Obligations. Cancellation, expiration or early termination of this Agreement shall not relieve the Parties of obligations that by their nature should survive such cancellation, expiration or termination, prior to the term of the applicable statute of limitations, including without limitation confidentiality, remedies or indemnities which obligation shall survive for the period of the applicable statute(s) of limitation including without limitation the following: After the expiration or termination of this Agreement, as the DLCS is owned by AER, AER forever releases CL&P and agrees to hold harmless, defend, and indemnify CL&P from any and all claims asserted by third-parties related, whether directly or indirectly, to the DLCS.

22.7 Invalidity. In case one or more of the provisions of this Agreement is determined to be invalid, illegal, or unenforceable in any respect, such provisions shall be reformed to the

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minimum extent necessary to cause such provision to be valid, legal or enforceable. If no such reformation is possible, then such provisions shall be deemed omitted and the balance of the Agreement shall remain valid and enforceable.

22.8 Complete Agreement; Amendments. The terms and provisions contained in this Agreement, including all appendices attached hereto, constitute the entire agreement between CL&P and AER with respect to the subject matter hereof and supersede all previous communications, representations or agreements, either oral or written, between CL&P and AER with respect to the subject matter hereof. *** . *** This Agreement may be amended, changed, modified or altered, provided that such amendment, change, modification or alteration shall be in writing and signed by both Parties, provided, however that no such amendment shall be effective until submitted to and approved in its entirety by the CT DPUC.

22.9 Binding Effect. This Agreement, as it may be amended from time to time, shall be binding upon and inure to the benefit of the Parties’ respective successors-in-interest, legal representatives and assigns.

22.10 Headings. Captions and headings used in the Agreement are for ease of reference only and do not constitute a part of this Agreement.

22.11 Counterparts. This Agreement may be executed in any number of counterparts, and each executed counterpart shall have the same force and effect as an original instrument. All counterparts shall constitute a single instrument.

22.13 Governing Law. The interpretation and performance of this Agreement and each of its provisions shall be governed and construed in accordance exclusively with the laws of the State of Connecticut without regard to its conflicts of laws provisions.

22.14 No Gifts Or Inducements. Comverge and AER warrant and represent to CL&P that neither it has neither provided nor offered to provide any gifts, payments, or other inducements to any officer, employee or agent of CL&P for any purpose. Comverge and AER shall not provide or offer any gifts, payments, or other inducements to any officer, employee or agent of Utility for any purpose and shall ensure that no employee or agent of Comverge or AER offers and such gifts, payments or inducements.

22.15 Financial Statements. AER shall provide to CL&P all such financial information as CL&P may reasonably request from time to time. In addition to any such requested information, AER shall deliver to CL&P by April 15 of each Program Year a copy of Comverge, Inc.’s audited consolidated financial statements for the prior Program Year. All statements shall be prepared in accordance with generally accepted accounting principles. Upon becoming listed on a national stock exchange, AER shall make available its audited, annual financial statements to CL&P at the same time it releases such information publicly.

22.16 Document Retention. AER shall preserve the Program Information in its care, custody or control for a period of *** following termination of this Agreement (“Document Retention Period”) or, with respect to CL&P’s Confidential Information, return such Information to CL&P in a form acceptable to CL&P . AER shall not destroy any such Program Information prior to

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the expiration of the Document Retention Period absent CL&P’s prior written consent. All CL&P’s Confidential Information shall remain the exclusive property of CL&P, regardless of where it is stored. Subject to the restrictions contained herein regarding AER’s Confidential Information, CL&P reserves the right to access such Program Information at any time while such Information is in AER’s possession and such Information shall be provided to CL&P on a timely basis whenever requested, regardless of whether such requests are for audits, regulatory or legal proceedings such as lawsuits or arbitrations. Any CL&P Confidential Information in AER’s possession shall be disclosed to third parties only as necessary to comply with applicable laws and government orders or requests so long as CL&P receives advance written notice of such disclosure and an opportunity to contest such requests. AER agrees to access Confidential Information in its possession only for the purposes of performing the services under this Agreement and to operate or maintain its information systems and will take appropriate and CL&P approved measures and precautions to protect against unauthorized access or disclosure. It is AER’s responsibility to ensure that the Program Information is protected from damage or loss while in the AER’s care, custody or control, including making backups of such Program Information and using disaster recovery best practices for any computer systems used to store the Program Information. CL&P reserves the right to audit AER to ensure such Program Information is managed in accordance with this Article 22.16. Any Program Information that is AER’s Confidential Information shall be disclosed to CL&P or third parties only as necessary to comply with applicable laws and government orders or requests so long as AER receives advance written notice of such disclosure and an opportunity to contest such requests.

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IN WITNESS WHEREOF, the signatories hereto represent that they have been appropriately authorized to enter into this Agreement on behalf of the Party for whom they sign. This Agreement is hereby executed as of the date first above stated.

ALTERNATIVE ENERGY RESOURCES, INC.		CONNECTICUT LIGHT AND POWER COMPANY
By:	/s/ Frank A. Magnotti	By:	/s/ Raymond Necci
Name:	Frank A. Magnotti	Name:	Raymond Necci
(Type or Print)		(Type or Print)
Title:	President	Title:	President & COO

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APPENDIX A

CONTRACT CAPACITY

I. Contract Capacity Schedule

The following table sets forth the cumulative Contract Capacity that AER will make available during the Term of the Agreement:

Program Year	Minimum Contract CapacityA (MW)	Expected Contract CapacityB (MW)	Target Contract CapacityC (MW)
PY 1	***	***	***
PY 2	***	***	***
PY 3	***	***	***
PY 4	***	***	***
PY 5	***	***	***
PY 6	***	***	***
PY 7	***	***	***
PY 8	***	***	***
PY 9	***	***	***
PY 10	***	***	***

^A. The Minimum Contract Capacity represents the cumulative Demand Reduction that must be delivered to CL&P in each Program Year.

^B. The Expected Contract Capacity Schedule represents the projected enrollment for Demand Reduction that the parties anticipate will be delivered to CL&P in each Program Year.

^C. The Target Contract Capacity represents the cumulative Demand Reduction that AER may not exceed in each of the Program Years under both this Agreement and the *** Contract.

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APPENDIX B

PRICING/PAYMENT CALCULATIONS

I.	***
	***
	***

II. Capacity Program Administration Payment.

As consideration for assuming responsibility for preparing the documentation and providing the financial assurance necessary to participate in the Forward Capacity Auction or comparable capacity program during the Term as authorized by CL&P in its discretion, in addition to the Annual Capacity Price, CL&P shall pay to AER ***

In the event that CL&P elects to assume responsibility for preparing the documentation and providing the financial assurance necessary to participate in the Forward Capacity Auction or comparable capacity program during the Term, CL&P shall pay to AER ***

III. Total Payment Calculations per Program Year: *** :

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A. ***

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(i) ***

(ii) ***

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APPENDIX C

MARKETING, RECRUITMENT AND RETENTION

1.0 Scope of Work. The Parties intend that the Program will be marketed as a CL&P Program, that AER’s role is acting solely as an agent on behalf of CL&P to administer the Program, and that all marketing materials will feature CL&P prominently. Marketing, recruitment and retention will include all activities required to solicit and retain Participants for the DLCS Program. Activities include, but are not limited to, the development of a Marketing Plan, enrollment and education materials and periodic communications to minimize Participant abandonment. CL&P will have final approval of all marketing and recruitment activities pursuant to Article 6. The Program will be evaluated by both Parties annually to monitor customer recruitment and retention.

2.0 Marketing Plan. On or before *** of the year preceding the marketing year, CL&P and AER will work together to develop a Marketing Plan as provided in Article 6. CL&P and AER will agree on the final components of the Marketing Plan. The Marketing Plan will include:

2.1 Identifying and quantifying the target markets.

2.2 Developing a Communications and Marketing Plan to reach the target markets.

2.3 Developing the key messaging and support points.

2.4 The Marketing Plan may include the following promotional channels (“Marketing Channels”)

2.4.1 Direct Mail (timing TBD),

2.4.2 CL&P Bill Inserts, if mutually agreed to targets can be selected,

2.4.3 Employee awareness and ambassador program,

2.4.4 Grass Roots campaigns for residential and commercial customers,

2.4.5 CL&P’s small and medium commercial account reps and contractors to help support and cross sell the Program, as time allows as determined by CL&P,

2.4.6 Radio and Newspaper ads,

2.4.7 CL&P to strategically help cross promote the Program via its regular customer touches such as news letters, direct mail, brochures and online information as appropriate and as space is available,

2.4.8 Participation in fairs, events and cause marketing events to promote the Program,

2.4.9 Integrate Program information and signup process developed by AER at the CL&P website,

2.4.10 Banner Ads on the web - such as at Weather.com based on zip code entry,

2.4.11 HVACs Partnerships, and

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2.4.12 Co-marketing and other marketing channels given CL&P approval of AER for co-branding.

2.5 In addition to Marketing Channels described above in Sec. 2.4, the Marketing Plan may include promotional strategies to be performed by third party entities marketing on behalf of CL&P (“CL&P/Third-Party Marketing Channels”), as approved by AER in writing, where such approval shall not be unreasonably withheld. In no way will CL&P’s performance in obtaining enrollments from CL&P/Third Party Marketing Channels diminish AER’s obligations to satisfy Contracted Capacity or any other obligations under this Agreement, nor shall CL&P’s performance in obtaining such enrollments be a cause for default or termination.

3.0 AER Responsibilities. AER agrees to:

3.1 Commence execution of the Marketing Plan and Recruiting Prospects. CL&P will prepare Prospect lists based on previously determined targets (including, as available, metering information, geographic location, NAICS codes and any other demographic information deemed appropriate in the marketing plan). *** AER retains the right to decline certain Prospects based solely on objective circumstances that prevent customer participation such as faulty or dangerous end-use equipment, unsafe working conditions for AER employees or low curtailment signal strength or objective criteria regarding load value, such as loads that are not coincident with CL&P’s summer peak.

3.2 Assign dedicated AER Project management staff to design, develop and distribute all enrollment materials including enrollment operations, education packages and other activities. Project management staff shall provide the following support activities:

• Coordination and Planning;

• Prepare Weekly and Ad-Hoc as needed Status Reports;

• Attend Weekly and Ad Hoc as needed Implementation Meetings (phone); and

• Attend Meetings when requested by CL&P.

3.3 Design and development of the marketing collateral. AER will design CL&P branded marketing collateral, according to CL&P standards and subject to CL&P approval pursuant to Article 6, which shall not be unreasonably withheld. Such approval shall include, without limitation, CL&P’s right to approve all uses of and references to its logos, trademarks and name at its sole discretion. As time is of the essence, CL&P will respond to request for approval of all requested materials in accordance with Article 6.

3.4 Mail an initial education package to potential Prospects. The package shall include information that describes how the specific features of the Program will work. The information shall be professionally printed and may include direct mail letters, brochures, free standing inserts, posters and CDs.

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3.5 Be responsible for costs associated with a direct mail campaign, including but not limited to, concept, design, production, mailing and postage of all marketing collateral for the *** mailed. *** In addition to direct mail, AER will be responsible for outreach to organizations such as trade associations, Chambers of Commerce and local publications.

3.6 ***

***

***

***

3.7 With the assistance of CL&P, add to the existing CL&P Website a link acceptable to CL&P to include a comprehensive on-line customer education and enrollment experience.

3.8 Maintain the Customer Call Center to receive and respond to customer inquiries. AER will work with CL&P and provide example scripting for the call center agents. CL&P shall have the opportunity to comment on and approve the scripts, and such comments or approval shall be provided with 15 days of receipt of the final copy. AER will work with CL&P to identify linkages necessary between call centers.

3.8.1 Call Center Performance Metrics. AER shall set up a system to monitor and report to CL&P on a regular basis and will perform commercially best efforts to achieve the following call center performance metrics:

3.8.1.1 ***

3.8.1.2. ***

3.9 Maintain an electronic Customer Contact log of the Facilities interested in participating in the Program and results from the inquiries. The Customer Contact Log shall include Customer Name, Facility Address, Contact Name and Phone number, customer feedback and answer time

3.10 Educate and train CL&P’s small and medium commercial account reps and contractors, if any, about the Program so that they can effectively cross sell to their eligible customer base.

3.11 Develop and distribute periodic Participant communications designed to maintain high customer satisfaction and minimize dropout.

3.12 Track various customer incentives in the AER Tracking system. At the end of the Control Season, AER will create a listing of all customers who are eligible to receive an incentive by incentive type. AER will supply this list to CL&P within thirty (30) days of the M&V results being accepted by CL&P. Upon receipt, CL&P will review the customer list, and

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approve the participants for payment or recommend reasonable changes for approval, within fifteen (15) days of receipt of the list from AER.

3.13 Upon receipt by AER of the wire transfer, as defined and contingent upon Sections 4.13 and 4.14 in this Appendix, AER shall within thirty (30) days pay Participating Facilities either Residential Incentive Payments or Commercial Incentive Payments, as applicable, and provide the facilities with materials mutually acceptable by both Parties.

3.14 Contingent upon Sections 4.13 and 4.14 in this Appendix, AER will generate a Participating Facility letter and check, including without limitation the one time incentive, as required for each customer. The letter will thank customers for participating in the Program and explain the enclosed check. The letter will be in a format mutually acceptable by both Parties, and CL&P will approve all incentive letters prior to the letters being printed. AER will insert checks, as required, into the end of year Participating Facility letter. Checks will be issued with instructions stating that they will expire if not cashed within 60 days; however AER will honor checks for up to one year. AER will include fraud detection. AER will create a monthly reports list to include the customer, check number assigned to each payee, and the report will indicate when each check clears. AER will reissue checks as requested by CL&P utilizing existing processing procedures.

3.15 ***

	***	***	***	***	***	***	***	***	***	***
***	***	***	***	***	***	***	***	***	***	***

4.0 CL&P Marketing Responsibilities. CL&P agrees to:

4.1 ***

4.2 Respond to request for approval of all Marketing Channels for use by AER in a timely manner.

4.3 Make commercially best efforts to provide AER with all current marketing restrictions at the time of the approval of the Marketing Plan.

4.4 CL&P will prepare Prospect lists based on previously determined targets (including metering information, geographic location, available demographic codes and any other demographic information deemed appropriate in the marketing plan). *** This list will include all Customers in the targeted area, including but not limited to Customer Name, Site Address, Mailing Address, available demographic codes (when available), and 12-month consumption history (where available), and any appliance information available.

4.5 Provide Updated Target List to the final place of fulfillment of marketing materials (mail house) once a signed confidentiality agreement is received.

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4.6 ***

4.7 Respond to requests for approval of all marketing activities in a timely manner pursuant to Article 6, including approval of all ongoing marketing, including without limitation direct mail, bill inserts, print ads, call center scripts, or scripts for face-to-face meetings, surveys, partnership marketing, radio commercials, web banner ads, website based campaigns. CL&P shall, within fifteen (15) days of receipt of such proposals for ongoing marketing, either approve the proposed marketing plan or provide reasonable recommendations for modifications acceptable to CL&P to allow for approval of the proposal. In the event that CL&P provides recommendations for incorporation into the plan, such reasonable recommendations shall be incorporated by AER into the plan and resubmitted to CL&P for review and approval within five (5) Business Days of AER’s receipt of such recommendations.

4.8 Provide AER with limited use of brand name and logo at no cost to AER and subject to CL&P’s guidelines and restrictions as to such use.

4.9 Provide other activities generally in support of the Program such as references to the Program on CL&P’s website and/or on newsletters.

4.10 Authorize CL&P branded program name and subject to CL&P’s guidelines and restrictions as to such use.

4.11 Respond to requests for approval of the first six (6) months of marketing activities and collateral based on mutual agreement between CL&P and AER pursuant to Article 6. Subsequently, AER will provide quarterly campaigns to CL&P for approval.

4.12 Reimburse AER for any direct costs resulting from third party marketing materials previously approved by CL&P, but subsequently cancelled solely and directly due to change in CL&P’s marketing direction, change in name of Program or change in name of company provided however that AER shall make commercially best efforts to mitigate such costs. CL&P will not be responsible for changes in program materials including all collateral, marketing and advertising due to requirements not previously stipulated by the CT DPUC subsequent to or proceeding CL&P’s approval. The foregoing shall not apply to any costs of CL&P/Third-Party Marketing Channel.

4.13 Make commercially reasonable efforts to make available its public relations team, at no cost or expense to AER, to assist (a) in coordination with local news media for publicity coverage of the Program, at AER’s expense; (b) AER in developing communities of interest and making inroads with local Universities, Schools, Hospitals and elected officials for Program endorsement and signup as appropriate.

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4.14 Determine within thirty (30) days of the Start Date whether CL&P desires for AER to process certain correspondence to Customers, and with advanced reasonable notice if CL&P chooses to have AER process after Program Year 1, including mailing incentives/incentive letter, to Customers. If CL&P determines that AER will process such correspondence, it shall pay to AER:

4.14.1 ***

4.14.2 ***

4.15 Subject to DPUC Approval, allocate funds to AER for payment of Participant incentives, pursuant to Section 4.14 herein, or to Participant, either through a direct payment or bill reduction, by November 1 of any Program Year the following:

4.15.1 ***

4.15.2 ***

4.15.3 ***

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APPENDIX D

EQUIPMENT INSTALLATION AND MAINTENANCE

SCOPE OF WORK

1.0 Scope of Work. Equipment Installation includes all activities that interface with a Participating Facility from the point of receipt of a signed Customer Enrollment form through verification of commercial operation of the Control Device.

2.0 Head-End Control System (HECS). The HECS will be designed, furnished, supported and maintained by AER and/or its subcontractors.

3.0 The HECS shall include the following:

3.1 Master Station. AER will provide the master station for the HECS. AER will provide the software and hardware to manage the end-use Control Devices installed at the Facilities. The Master Station will be configured pursuant to Appendix H.

3.2 Transmitter Site Equipment. A local paging company will provide the transmitter network. If CL&P provides all paging services. *** The Parties will determine within thirty (30) days of the Start Date whether CL&P will provide such paging services.

3.3 Control Devices. AER will provide all Control Devices Installation. Control Devices will be designed to switch loads on and off remotely in response to commands from the Master Station. All control devices will be manufactured new for use in the CL&P program and will not have been used by any other utility or other load control program.

3.4 Control Device Installation. AER shall be responsible for scheduling the installation of the Control Device with the Participant which shall be tracked by the AER Business Information System (“BIS”). The BIS shall be utilized to track customer interactions including installations, and the information shall be the basis for programming the switches in the DLCS. AER shall also be responsible for resolving any problems with the End-use Equipment that the Participant may have resulting solely from the installation of a Control Device.

4.0 Systems Dispatch.

4.1 CL&P Dispatch - CL&P shall be able to operate the load management control center and dispatch the system via an AER supplied website. AER will maintain the system and be responsible for programming the load management control center to be able to control the End-use Equipment by system, region, substation or circuit. CL&P will provide AER with an electronic file of the nodal addresses so that AER can program the devices.

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4.2 ISO-NE Dispatch - CL&P’s designated ISO representative shall have the right to Dispatch directly with AER, consistent with this Agreement, control of the Participating Facilities.

5.0 Intentionally Deleted.

6.0 Installation Training.

6.1 AER will provide a comprehensive training and testing program that ensures that each installer knows both the technical and customer service aspects of the job.

6.2 If installation defect trends develop, AER’s project manager will take corrective actions including additional training, increasing the number of random audits for that installer, or releasing the installer from the project.

6.3 AER’s technicians will not only be trained in the technical side of the installation, but will also be trained and equipped for customer service.

7.0 Installation workmanship, codes and licensing

7.1 AER or its subcontractors will become a registered HVAC contracting firm in Connecticut or acquire the necessary licenses.

7.2 AER will perform all installations in a professional, workmanlike manner according to the National Electric Code (NEC).

7.3 AER will respond to all governmental bodies, as requested by CL&P, that are requesting information about the Program, respond to their concerns with meetings and written explanations of the Program, the equipment and installation techniques.

7.4 CL&P or its subcontractors will perform all installation of any ancillary monitoring equipment in a workmanlike manner according to the NEC.

7.5 Neither CL&P, nor AER, nor their subcontractors will disable, interfere with, or alter the installation of the other Party’s equipment unless the Parties believe that the installation is a danger to the occupants of the domicile. Any alteration will be brought to the other Party’s attention within 24 hours.

8.0 Tracking of Components. AER will provide:

A database system that will target, enroll and track customers through the Term of the Agreement.

The system will begin tracking the customer when phone center personnel complete an enrollment record for a client.

The system will produce work orders for the routes and the technicians will install the devices.

Once the device has been installed, the work order will be entered with the information from the device installation and this information will be tracked.

As other operations become necessary such as temporary or permanent removal, quality control inspections or service calls, the system will track these additional events and send this information to CL&P as required.

The systems will also track “could not install” cases and device inventory.

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AER will supply management reports, and audit trail features, from these systems on a periodic basis.

9.0 Participating Facility Equipment Installation. For any installations, AER will:

9.1 Inspect and make minor repairs to the air conditioning units at no charge in order to meet electrical code before devices can be installed.

9.2 Install all devices and necessary components for the Program.

9.3 Provide and apply a label on each device indicating the DLCS component and a number to call for customer service and support.

9.4 Record a serial number from each Control Device installed by removing the “bar-code label” from the front of the device and attaching the label to the work-order.

9.5 Provide work order copies for each installed unit on a monthly basis (if requested) as part of project documentation.

9.6 Mount the Control Device in a location that provides access to the air conditioning wiring with the least effect on aesthetics while allowing proper functioning of the devices.

9.7 Make equipment installations in such a manner as to minimize alterations to the current structure.

9.8 Install conduit, junction boxes and connectors to comply with applicable building codes and the National Electric Code.

9.9 Verify that the air conditioning and DLC units function correctly.

10.0 Customer Service Telephone and Support. AER will:

10.1 Staff the telephone center with HVAC-knowledgeable Customer Service Representatives knowledgeable in DLC and HVAC equipment,, who have received detailed training on problem resolution over the telephone, from 8:00 am – 6:00 pm Eastern Standard Time (EST). Continue staffing call center on days of a curtailment event until one hour after the event has concluded.

10.2 Use an answering service after hours.

10.3 Designate a service technician, who may be reached by the answering service by pager, as “on-call” for after hours.

10.4 Provide each telephone workstation with a computer allowing access to the customer database, tracking system and dispatch software.

10.5 Attempt to solve any problems over the phone by asking the customer a series of scripted questions about the problem.

10.6 If the problem cannot be solved over the phone, dispatch a service technician.

10.7 Have the service technician make a service call to the Participant’s site (within 24 hours).

10.8 If the inspection reveals that the problem is with the appliance, the technician will recommend the customer call an HVAC contractor.

10.9 If the switch device installation or operation caused the breakdown, repair the appliance as soon as reasonably possible.

10.10 Report the outcome of the visit by entering all relevant information into the tracking system.

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10.11 Deactivate equipment immediately upon customer request and schedule equipment removal, if necessary.

10.12 Print a new work order and dispatch a service technician to remove the device if necessary. The technician will remove the equipment and restore any modifications to the customer’s premises and note such changes in the BIS.

10.13 Provide periodic repair reports to CL&P’s project manager as requested.

10.14 Track the resolution of customers’ complaints. Notify CL&P immediately of any customer complaints or claims for damages that are not resolved.

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APPENDIX E

MEASUREMENT AND VERIFICATION PLAN

AER’S CONFIDENTIAL TRADE SECRETS

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APPENDIX F

NOTICES

If to AER:	Comverge, Inc./ Alternative Energy Resources, Inc.
	120 Eagle Rock Avenue, Suite 190
	East Hanover, NJ 07936
	***
	with a copy to:
	Comverge, Inc./ Alternative Energy Resources, Inc.
	3950 Shackleford Rd., Suite 400
	Duluth, Georgia 30096
	***
If to CL&P:	Connecticut Light and Power Company
	107 Selden Street
	Berlin, Connecticut 06141
	***
	with a copy to:
	Connecticut Light and Power Company
	107 Selden Street
	Berlin, Connecticut 06141
	***

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APPENDIX G

INSURANCE

	Type of Insurance	Minimum Limits of Coverage
1.	Commercial General Liability	$1,000,000 each occurrence and in the aggregate
CGL insurance shall cover liability arising from premises, operations, independent contractors, products/completed operations, contracts, property damage, personal injury and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract), all with limits as specified above. There shall be no endorsement or modification of the insurance limiting the scope of coverage for liability arising from explosion, collapse, or underground property damage.
2.	Business Automobile Liability	$1,000,000 combined single limit (each accident), including all Owned, Non-Owned, Hired and Leased Autos
3.	Workers Compensation, including statutory requirements.
4.	Employers Liability	$1,000,000 each accident for bodily injury by accident, or $1,000,000 each employee for bodily injury by disease.
5.	“Umbrella or Excess Liability” insurance with a limit per occurrence and in the aggregate of Ten Million ($10,000,000).

AER shall ensure that the insurance policies required above provide:

(i) Insurance required in 1, 2 and 5 above shall include CL&P, and its officers, directors, employees and agents as additional insureds.

(ii) Such insurance as afforded by this policy for the benefit of CL&P, shall be primary as respects any claims, losses, damages, expenses, or liabilities arising out of this Agreement, and insured hereunder, and any insurance or self insurance carried by CL&P, shall be excess of and noncontributing with insurance afforded by this policy.

(iii) The commercial umbrella liability policy shall provide coverage excess of,

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and shall drop down in the event the underlying CGL, Business Automobile Liability, and Employers Liability insurance policy limits are exhausted due to claims during the policy term.

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APPENDIX H

SOFTWARE

The Parties hereby agree as follows:

1. SOFTWARE LICENSE AND TERMS

1.1 License Grant: It is generally contemplated that all Software, as defined in the attached Scope of Work, including without limitation field applications, or other proprietary licensed products, utilized and/or necessary for the performance of and receipt of the Services (the “Software”) shall be used by and run on the hardware systems owned by AER. All descriptions of the Software, reports generated by the Software, or additional Software related documents are collectively referred herein as “Software Documentation”. To the extent that CL&P is required to Use, as defined below, any of AER’s Software or Software Documentation, subject to the conditions set forth herein and the attached Exhibits and Schedules, AER hereby grants to CL&P, and CL&P accepts from AER for the Term of this Agreement (unless terminated as stated herein and therein, respectively), a non-exclusive, non-transferable, royalty-free right and license to Use the Software and Software Documentation as specified herein, installed on the equipment as negotiated by AER and CL&P, solely in connection with AER’s Direct Load Control System. AER shall retain ownership of all Software, equipment, and Software Documentation. Such license shall be assignable in connection with any assignment of this Agreement and pursuant to such assignee agreeing to the terms contained herein.

1.2 Use Restrictions: The term “Use” solely means restricted internet access to the Software’s web based connection by specific SDO only for the purpose of instituting a Dispatch Event. CL&P hereby understands and agrees that (i) CL&P shall have no right to copy the Software or any Software Documentation, except as permitted under the Agreement; (ii) notwithstanding the foregoing, CL&P is authorized to make a reasonable number of copies of documentation of the Software Documentation as is necessary for CL&P’s use of the Software pursuant to the terms of this Agreement and for backup, archive, or disaster recovery purposes; (iii) CL&P may not modify the Software or merge the same into software that is not provided by AER without the prior written consent of AER; (iv) CL&P shall prevent unauthorized use or unauthorized access to Software provided that CL&P may allow third parties to whom it has outsourced services or business processes to access the Software and Software Documentation so long as such parties agree to be bound by an appropriate confidentiality agreement, (v) CL&P will only use the Software as provided for in this Agreement, and (vi) upon termination of the Agreement or any license granted hereunder CL&P shall promptly return any access rights, pass codes, Software Documentation, any Software related applications or products, or any resulting merger software and CL&P shall have no right thereafter to Use the Software or any portion thereof.

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2. MAINTENANCE

2.1 AER shall maintain the Software and DLCS. AER shall provide such repair services and replacement parts as are necessary to keep the DLCS operating in accordance with the requirements of this Agreement during the operational period as defined in the this Agreement, at no additional cost to CL&P or CL&P customers.

2.2 If, as a result of maintenance or service performed pursuant to this Section, AER concludes that the problem results from a Software or system failure, and that the system’s use is materially affected thereby, then AER shall immediately commence correction procedures on such Software.

3. ACCEPTANCE

3.1 CL&P shall conduct an initial test as determined by the Parties to determine if the Software performs in accordance with its specifications and capability to perform Demand Reduction. CL&P shall notify AER, in writing, of its acceptance of the DLCS or specify in reasonable detail those deficiencies which CL&P deems unacceptable within thirty (30) days of notice of DLCS test completion. AER shall have ten (10) days to correct all such deficiencies and shall notify CL&P in writing when the deficiencies have been corrected. CL&P shall then have fifteen (15) days to respond otherwise Software shall be deemed acceptable. Software acceptance shall not be unreasonably withheld.

3.2 AER agrees that it will correct any nonconformities of the DLCS to the requirements of this Agreement (“System Flaws”) in the Software and any revisions to the Software which are reported to AER by CL&P.

4. TRAINING

Training sessions will be conducted and shall include hands-on training utilizing trainers describing and demonstrating function, activation and application of the DLCS. Two (2) training sessions will be conducted, one each in April and May of each Program Year. All training expenses shall be borne by AER.

5. CL&P RULES

5.1 AER, when on CL&P property, shall conduct its operations in strict observation of access routes, entrance gates or doors, parking and temporary storage areas as designated by CL&P. Under no circumstances shall any of AER’s personnel, vehicles or equipment enter, move or be stored upon any area not authorized by CL&P.

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5.2 AER shall abide by all CL&P security procedures, rules and regulations, and cooperate with CL&P Security personnel whenever on CL&P premises, as provided by CL&P prior to such visit to the premises.

6. OWNERSHIP OF INTELLECTUAL PROPERTY; CONFIDENTIALITY

6.1 As the owner of the DLCS, AER shall retain all rights to intellectual property thereof.

6.2 CL&P acknowledges and agrees that AER owns all proprietary rights, including patent, copyright, trade secret, trademark and other such proprietary rights, in and to the DLCS, Software and Software documentation and any corrections, remedial modifications, maintenance upgrades, updates or the other modifications, including custom modifications to the Software whether made by AER, CL&P or any third party.

6.3 Except as permitted pursuant to this Agreement, CL&P hereby acknowledges and agrees that: (i) the DLCS, Software, the Software Documentation, access rights to the Software, and all related documents and all copies thereof are AER’s exclusive property and AER represents that they constitute a valuable TRADE SECRET of AER (“Proprietary Information”), which CL&P may not disclose or make available to third parties without being previously approved in writing by AER; (ii) CL&P shall hold the Proprietary Information, including, without limitation, any methods or concepts utilized therein, in strict confidence for the sole benefit of AER; (iii) CL&P shall not reproduce, copy or modify the Proprietary Information in whole or in part, except as authorized by AER in writing; (iv) CL&P hereby agrees that, during the Term of this Agreement and at all times thereafter, CL&P and its employees shall maintain the confidentiality of the Proprietary Information, and CL&P shall not sell, license, publish, display, distribute, disclose or otherwise make the Proprietary Information available to any third party or attempt to (or allow any third-party to attempt to) reverse engineer, decompile or disassemble or otherwise attempt to derive the source code for the operation of the Proprietary Information, or to decode, de-encrypt, decrypt or engineer around any measures contained in the Proprietary Information; (v) CL&P shall not alter in any way the database schema without the expressed written consent of AER; (vi) CL&P shall issue adequate instructions to all persons, and take all actions reasonably necessary to satisfy CL&P’s obligations under this Section 6.3; (vii) any use or disclosure of the Proprietary Information in violation of this Section 6.3 may seriously and irreparably impair and damage AER’s business; and (viii) upon any termination or cancellation of the Agreement, CL&P shall, if requested by AER, forthwith return to AER, or with AER’s written consent destroy, any access rights, passwords, magnetic tape, disc, semiconductor device or other memory device or system and/or documentation or other material including, but not limited to, all printed material furnished by AER to CL&P.

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Scope of Work

1.0 Introduction

This Scope of Work describes AER’s PowerCAMP™ software system (“Software”) and the practices and guidelines that both Parties shall use to carry out their respective responsibilities according to Appendix H.

AER shall supply the PowerCAMP™ and provide access to CL&P via the web using a standard web browser. Accessing the PowerCAMP™ does not require the use of AER software or equipment.

As owner of the Software, AER may, at its sole discretion, change the architecture to ensure a more robust, stable or secure network environment, or create improvements to the website architecture to provide more enhanced services to CL&P.

2.0 Responsibilities

2.1 AER Responsibilities: AER shall use good industry practices to design, deploy, operate, manage, and maintain this DLCS. AER will supply all equipment and services to ramp up to the Demand Reduction over the periods described in Appendix A, and then operate and maintain the system for the period specified by the terms of the Program.

2.1.1 AER will be responsible for configuring and programming the Software to be able to control specific appliances by system, by region, by substation or by circuit according to the parameters established by CL&P.

2.1.2 AER will provide CL&P access to the Software through a web-based application interface over the Internet between CL&P’s System Operations Center and the AER facility. Alternatively, AER will activate the system as directed by CL&P though a telephone call, fax, or e-mail.

2.1.3 AER will create logon id’s and initial passwords for personnel designated by CL&P to have access to the Software. AER will send these to the appropriate CL&P personnel via the mail.

2.1.4 AER will provide password resets to authorized CL&P personnel following a two (2) step verification process.

2.1.5 AER will be responsible to execute requests from ISO-NE and/or CL&P for Dispatch Events.

2.2 CL&P Responsibilities: This section defines the responsibilities that CL&P has regarding the design, implementation, and ongoing support of the Software.

2.2.1 CL&P shall provide to AER the customer data necessary to set up and maintain current and accurate information used by the Software.

2.2.2 CL&P shall determine the scheduling, groups, and activation of the Software in dispatching test and Dispatch Events. CL&P SDO shall have the right to determine the Dispatch control of the Participating Facilities according to

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the operating parameters defined by the Dispatch Event set forth in this Agreement.

2.2.3 CL&P shall Dispatch for Utility Dispatch Event events.

2.2.4 CL&P shall provide Personal Computers with internet connectivity and Microsoft Internet Explorer (v.5.5 or above) at their system operations center to enable users to log into the PowerCAMP^TM via the web interface.

2.2.5 CL&P will notify AER who should have access to the system. Any Dispatch Event scheduled by CL&P personnel with a valid logon id and password shall be considered a valid event.

2.2.6 CL&P will promptly notify AER in writing of personnel who should no longer have access, and AER will work to promptly ensure that access is no longer allowed by those users.

3.0 System Description

The DLCS is a network consisting of devices which are remotely controlled over RF transmission equipment by the PowerCAMP^TM Software or equivalent. CL&P shall have access to the PowerCAMP™ LMS (as defined below) via the web interface.

The PowerCAMP^TM LMS shall include the software and hardware necessary to manage the Control Devices installed at the End-use Equipment at Participating Facilities.

The PowerCAMP^TM LMS includes AER’s PowerCAMP^TM Server and PowerCAMP^TM Suite, networking equipment, and third party software.

PowerCAMP^TM LMS Hardware

a. PowerCAMP^TM LMS Servers – Two (Primary and Secondary)

b. Rack-mounted Dell PowerEdge servers for scalable expansion.

c. Disks in RAID mode for fault tolerance and high availability

PowerCAMP^TM LMS Software

a. AER’s PowerCAMP^TM LMS (LMS) Software – Visual Basic, Microsoft Jet DB Engine

b. AER PowerCAMP^TM LMS Web Interface – Apache/Tomcat on Microsoft SQL Server

4.0 Web Interface

4.1 Help Feature. Help may be accessed by clicking on the Customer Service button near the bottom of the main PowerCAMP^TM screen or by contacting the AER help desk.

4.2 Logging into Web Control Application . ***

4.3 ***, ***

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4.4 ***

4.5 ***

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5.0 Security

5.1 Physical Security. ***

5.2 Network Security. AER will work to ensure that incoming connections from AER will not compromise the overall security posture of the CL&P network perimeter. Steps include:

5.2.1 Data transfer between CL&P and AER will be ***

5.2.2 AER SFTP servers sit behind the AER firewall. ***

5.2.3 AER will use dedicated application servers in the Data Center to process data from CL&P.

5.2.4 AER uses ***

5.2.5 AER will provide any ***

5.3 Network Redundancy. AER will provide reasonable assurance that capacity thresholds are maintained above current network utilization and those operations can continue in the event of unplanned disruptions. ***

5.4 Network Back-Up & Recovery. AER will perform ***

5.4.1 System configurations backed up on a regular basis and stored off-site.

5.4.2 The DLCS shall contain primary and secondary server.

5.4.3 Node configurations are kept consistent on both machines.

5.4.4 Secondary server is in warm-failover mode and can be brought up at any time.

5.5 Audit: CL&P shall have the right from time to time and upon *** to AER, outside of the Control Season unless an emergency exists, at its expense, to conduct an audit to verify (i) that the Services are being performed in accordance with

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its obligations under the Agreement; (ii) to verify the AERs’ proper management and storage of CL&P’s data and information; (iii) AER’s security systems are maintained in accordance with its representations at the time of the execution of the Agreement; and (iv)compliance by AER with any of its other material obligations under the Agreement and this Addendum (an “AUDIT”). The Audit will be restricted to the specific matters specified by CL&P in such notice and must be restricted to records no older than two years prior to the date of the audit notice. The Audit may be conducted by such professional auditors or advisers selected by CL&P (including its internal audit department). CL&P and its professional auditors or advisers shall comply with AER’s reasonable health and safety, security and confidentiality procedures. AER shall provide CL&P and its advisers all reasonable facilities and access to its premises during normal office hours, documents and information as they shall reasonably require, and co-operate fully with CL&P in relation to any such Audit. Notwithstanding anything to the contrary set forth in this Section, CL&P shall have the right to conduct such Audits and at such frequency as is required by applicable laws or regulations from time to time.

5.6 Third Party Software. AER shall be responsible for the licensing of all third-party software utilized as part or in conjunction with this Agreement. The terms and conditions of such licenses shall be compatible with CL&P’s intended use of the DLCS and shall guarantee the continuous use of such third-party software by CL&P for the term of the final, definitive agreements.

5.7 Backup. CL&P shall have the right and ability to export, backup, delete or retrieve its data from AER at any time during its Agreement term and within 30 days after the effective date of termination. Within 30 days of any termination of the Agreement, AER will provide CL&P with a complete copy of all CL&P and CL&P customer data stored on AER’s system in a SQL Database format or other format acceptable to CL&P. After 30 days after termination, AER has no obligation to maintain or provide any CL&P or CL&P customer data and shall thereafter, unless legally prohibited, and provided that all CL&P and CL&P customer data has been delivered to CL&P, delete all CL&P and CL&P customer data in its systems or otherwise in its possession or under its control and AER shall certify in writing to CL&P that such deletion has in fact occurred.

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APPENDIX I

PROGRAM DESCRIPTION SUMMARY

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APPENDIX J

Guaranty

Reference is made to a certain Direct Load Control Delivery Agreement (“Agreement”) by and between The Connecticut Light and Power Company (“CL&P”), and Alternative Energy Resources, Inc. (“AER”), a wholly owned subsidiary of Comverge, Inc., dated February 27, 2008.

The undersigned, COMVERGE, INC., a Delaware corporation (hereinafter referred to as the “Guarantor”), whose is located at 120 Eagle Rock Avenue, Suite 190, East Hanover, NJ 07936, in consideration of CL&P entering into the above-referenced Direct Load Control Delivery Agreement (“Agreement”) with AER, does hereby covenant and agree as follows:

A. The undersigned Guarantor does hereby If AER shall default at any time in the payment of any sums, costs or charges whatsoever, or in the performance of any of the other covenants and obligations of AER, under or pursuant to the Agreement, then the undersigned, as its expense, shall.***

B. The obligations of the undersigned Guarantor hereunder are independent of the obligations of AER. The undersigned may be joined in any action or proceeding commenced by CL&P against AER arising out of, in connection with or based upon the Agreement. The undersigned waives any right to require CL&P to proceed against AER to pursue any other remedy in CL&P’s power whatsoever, any right to complain of delay in the enforcement of CL&P’s rights under the Agreement, and any demand by CL&P and/or prior action by CL&P or any nature whatsoever against AER, or otherwise.

C. This Guaranty shall remain and continue in full force and effect and shall not be discharged in whole or in part notwithstanding (whether prior or subsequent to the execution hereof) any alteration, renewal, extension, modification, amendment or assignment of, or concession, franchising, licensing or permitting under the Agreement. Without limiting the foregoing, this Guaranty shall be applicable to any obligations of AER arising in connection with a termination of the Agreement, whether voluntary or otherwise. The undersigned hereby waives notices of any of the foregoing, and agrees that the liability of the undersigned hereunder shall be based upon the obligations of AER set forth in the Agreement as the same may be altered, renewed, extended, modified, amended or assigned. For the purpose of this Guaranty and the obligations and liabilities of the undersigned hereunder, “AER” shall be deemed to include any and all assignees or others directly or indirectly operating or conducting the business contemplated under the Agreement, as fully as if any of the same were the named AER under the Agreement.

D. The undersigned Guarantor’s obligations hereunder shall remain fully binding although CL&P may have.***

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E. This Guaranty shall remain in full force and effect notwithstanding the institution by or against AER,.***

F. This Guaranty shall be applicable to and binding upon the heirs, executors, administrators, representatives, successors and assigns of CL&P, AER and the undersigned. CL&P may, without notice, assign this Guaranty in whole or in part.

G. ***

H. The undersigned hereby waives trial by jury in any action, proceeding or counterclaim brought by any person or entity with respect to any matter whatsoever arising out of or in any way connection with: this Guaranty, the Agreement; any liability or obligation of AER in any manner related to the Premises; any claim of injury or damage in any way related to the Agreement or the Premises; any action or omission of AER, its agents, employees, contractors, suppliers, servants, customers or licensees; or any aspect of the use or occupancy of, or the conduct of business in, on or from the Premises. The undersigned shall not impose any counterclaim or counterclaims or claims for set-off in any action brought by CL&P against the undersigned under this Guaranty. The undersigned shall not be entitled to make, and hereby waives, any and all defenses against any claim asserted by CL&P or in any suit or action instituted by CL&P to enforce this Guaranty or the Agreement. In addition, the undersigned hereby waives, both with respect to the Agreement and with respect to this Guaranty, any and all rights which are waived by AER under the Agreement, in the same manner as if all such waivers were fully restated herein. The liability of the undersigned under this Guaranty is primary and unconditional.

I. ***

J. Any default or failure by the undersigned to perform any of is obligations under this Guaranty shall be deemed to be ***

K. The execution of this Guaranty prior to execution of the Agreement shall not invalidate this Guaranty or lessen the obligations of Guarantor(s) hereunder.

IN WITNESS WHEREOF, the undersigned as executed this Guaranty this 27th day of February, 2008.

COMVERGE, INC.
By:	/s/ Frank A. Magnotti
Name:	Frank A. Magnotti
Title:	President, COO, Alternative Energy Resources Group Duly Authorized

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ACKNOWLEDGED AND ACCEPTED:

THE CONNECTICUT LIGHT AND POWER COMPANY

By:	/s/ Raymond Necci
Name:	Raymond Necci
Title:	Pres. & C.O.O.

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APPENDIX K

CL&P CORPORATE IT SECURITY REQUIREMENTS

Security Policies

1. Has the organization published a complete set of policies and procedures that support information integrity, availability, and confidentiality for the organization?

Each employee and long term consultant is required to ***

2. Is security awareness training mandatory, and does the training include the concepts of confidentiality, integrity, and availability of data, corporate security policies, information protection standards, and privacy awareness?

We train ***

3. Does your company have a formal incident response and reporting procedure in place, and is it tested regularly?

Every project has ***

Personnel Security

1. Are (criminal, prior employment, identity) checks performed on all employees that will have access to Northeast Utilities’ system?

Yes

2. Are there established procedures to rescind personnel access in a timely manner when access is no longer required?

Yes

3. What is your current method of notifying your clients (like Northeast Utilities in the future) that a person assigned to your clients’ project is no longer employed by your company?

a. How quick your disable their access in your system?

We disable their access within m***. Our IT manager is notified prior to the termination to enable a close to contemporaneous deactivation.

b. How quick do you notify your client for restricting access for that user in your client’s network system?

Comverge Project Manager will notify client of personnel changes in the event of employee terminations immediately

Environmental Security

1. What type of access devices are used to control entrance to the facility?

a. Is there 24 hour onsite security or monitoring where your

i. data center is located (facility where NU will be terminating to your company)

Yes

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ii. user community is located (the employees who will be assigned to the NU project)

***

2. Is management of your information processing facilities (data center) outsourced to a third party?

***

3. How is physical access to the data centers and server rooms restricted? (referred to the data center we will be interfacing)

***

4. Do you use cameras within the building and in the data center to detect unauthorized access?

Yes

Network Management

1. Does your company have a network firewall to separate the internal network from the internet?

Yes

2. Does your firewall architecture addresses the following:

a. Stateful inspection of all packet traffic? Yes

b. Antispoofing filtering (RFC-1918)? ***

c. Log all inbound and outbound traffic? ***

3. Is management of your firewall services and routers outsourced to a third party? No

4. If management of your firewall services and routers done in-house:

a. How large is the team that manages your firewalls (have admin rights)? ***

b. How large is the team that manages your routers (have admin rights)? ***

c. For after hours: ***

d. How do the administrators authenticate to the firewalls and routers to perform administrative functions (eg. telnet, ssh, http, https, other)? ***

e. Do your devices support/configured for centralized ID verification/authentication (tacacs, ldap, radius, active directory, other)? ***

5. Is wireless technology used to allow user access to the internal network - Wireless access not available in datacenter network

a. If so, then define what controls are in place to prevent “snooping” of the network?

Access Control

1. Does each individual who will be assigned to Northeast Utilities’ project use a unique and identifiable login ID to access application and network resources?

Remote Access is allowed through unique IDs only

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2. Do the IDs have at least the following characteristics

a. Locked after a given number of unsuccessful tries – ***

b. Locked IDs can be unlocked by authorized administrator ***

c. Not displayed on terminals and monitors ***

3. Do the IDs have at least the following characteristics

a. Predefined minimum length – Specify length – Minimum 7

b. Composition rules are in effect to enforce strong passwords ***

c. Users are required to change passwords periodically – Specify period – 30 days

d. Not displayed on screens or in reports - True

4. Do you maintain a logon history, so one can trace who logged when and where?

Remote access is logged

End Point Security

1. Do all servers and workstations utilize an antivirus solution? Yes

a. Who are you using for antivirus? ***

b. Does all inbound email being checked for viruses? ***

c. How often are the signatures updated? ***

d. How do you handle emergency updates? Immediate, upon advisory

2. Do all servers and workstations are patched regularly?

a. Describe process Standard patch installs tested and implemented on schedule. Critical patches applied immediately

b. If regular patch cycle, identify frequency - Monthly

c. How do you handle critical security updates Applied immediately after testing on test servers

3. Are all workstations protected by password protected screen savers that automatically activate after a period of inactivity? Yes

a. How long is the inactivity interval? ***

Compliance

1. Is your company in compliance with pertinent information protection legislation (i.e. SOX, etc.)?

***

2. Do you perform self-based security assessments?

a. Please define frequency and type of assessment

3. Are independent third party reviews conducted periodically? Client IP protection teams have reviewed and certified Comverge Hosted Infrastructure

4.

a. Please define frequency of audits

b. Remediation process of findings

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Business Continuity and Disaster Recovery Planning

1. Is there a Business Continuity Plan available for the Data Center where Northeast Utilities will be connecting to your company?

a. What are the expected recovery time objectives? – Should there be a disaster, how long would it take before Northeast Utilities can establish a connection back to your company?

***

b. Is your BCP revised periodically? – Specify frequency

Yes (it is reviewed on yearly basis and revised accordingly or sooner should the need arise)

c. Has your BCP tested?

i. ***

2. Is there a Business Continuity Plan available for the Customer Service area (your employees that will be assigned to Northeast Utilities’ project and the phone lines that will be terminating at the Call Center)? Yes

a. What are the expected recovery time objectives? 8 hours

i. ***

ii. Should there be a disaster, how long would it take before employees of your company are assigned back to answer phone calls?

***

b. Is your BCP revised periodically? – Specify frequency Yes (it is reviewed on yearly basis and revised accordingly or sooner should the need arise)

c. Has your BCP tested?

i. Have the BC Plan and Test Results been subjected to an independent audit? – Specify auditing firm, and when the audit occurred No

3. Does the primary Data Center have an alternate site for Data Center recovery? Yes

4. Are there high target building, structure, or other tenants, at the facility where your Data Center is housed? No

5. Does the company subscribe to multiple, diverse carriers for local and long distance service providers? Yes

6. Is the termination point at your end for the Internet connection on dual power supplies, on two separate circuits, on two separate power supplies? Yes

7. Does the physical cable (copper or fiber) that is provided by the telecom companies (primary and redundant) enter the building through multiple locations on the building perimeter, and terminate into separate distribution rooms? Yes

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EX-10.2

Exhibit 10.2

Confidential Treatment

Requested

DEMAND SIDE MANAGEMENT AGREEMENT

This DEMAND SIDE MANAGEMENT AGREEMENT (this “Agreement”) dated as of February 6, 2008 is by and between CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., a New York corporation (“Con Edison”), and Public Energy Solutions, LLC, a New Jersey limited liability company (“Contractor”). Con Edison and Contractor are sometimes collectively referred to in this Agreement as the “Parties” and, individually, as a “Party.”

WHEREAS, Con Edison issued a Request for Proposals (the “RFP”) dated August 28, 2007 soliciting proposals for new demand side management measures, devices, and/or equipment (“DSM Measures”) that will reduce the need for additional electric capacity and/or defer certain capital investment in transmission and distribution system load relief in designated Con Edison electric networks;

WHEREAS, Contractor submitted a proposal in response to the RFP; and

WHEREAS, Con Edison reviewed Contractor’s proposal, Con Edison and Contractor have agreed on the provisions under which Contractor would furnish and install the DSM Measures set forth herein, and Contractor desires to furnish and install such DSM Measures and Con Edison desires to pay Contractor in order to obtain the benefit of the electric load reductions associated with such DSM Measures all upon the provisions of this Agreement.

NOW, THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Installation of DSM Measures; Load Reduction Guaranty. In accordance with the provisions of this Agreement, Contractor shall install or cause to be installed one or more of the DSM Measures listed in Exhibit A to this Agreement in the Con Edison electric network(s) and/or load areas, as applicable (each, an “Electric Network”) described in Exhibit B to this Agreement. The DSM Measures from among the list in Exhibit A that Contractor elects to install are referred to herein as the “Contract DSM Measures.” Contractor shall cause the existing electrical-related equipment, facilities and/or items that are replaced at a premises (by Contractor or at Contractor’s

direction) by one or more Contract DSM Measures to be rendered permanently inoperable. Contractor guarantees that the Contract DSM Measures, when installed, shall achieve an electric load reduction, as determined in accordance with the procedures set forth in Exhibit D to this Agreement (the “M&V Procedures”), of at least the number of kilowatts (“KW”) in each Electric Network during the on-peak portions of the summer peak periods (such portions of such summer peak periods, as collectively defined in Exhibit E to this Agreement, are referred to herein as the “Summer Peak Periods”) during the period commencing on the date(s) (each, a “Load Reduction Commencement Date”) and continuing up to and including the date(s) (each, a “Load Reduction Expiration Date”) as set forth in Exhibit B. The period between the Load Reduction Commencement Date and the Load Reduction Expiration Date for a particular Electric Network is referred to herein as an “Electric Network Period” and the guaranteed electric load reduction for an Electric Network during the Electric Network Period is referred to herein as a “Contract Load Reduction Guaranty”). For each Electric Network to which this Agreement applies, each applicable Load Reduction Commencement Date, Load Reduction Expiration Date, Electric Network Period, and Contract Load Reduction Guaranty are set forth in Exhibit B to this Agreement.

2. Performance Standards; Compliance With Applicable Laws. Contractor shall cause the Contract DSM Measures to be installed and maintained in a good workmanlike manner, in accordance with all applicable laws, regulations and orders of governmental agencies with jurisdiction, including all environmental requirements, and in accordance with the generally prevailing good and acceptable practices in the industry. Contractor shall, and shall cause its subcontractors to, permit only those employees, agents and other persons acting on its behalf who have passed an adequate criminal background check to enter the premises of third parties in connection with Contractor’s performance under this Agreement.

3. Term. This Agreement shall become effective when each Party has executed and delivered it to the other Party and shall remain in force and effect until the expiration of the latest Electric Network Period for the Electric Network(s) set forth in Exhibit B to this Agreement, subject to the earlier termination of this Agreement pursuant to the provisions hereof (such period is referred to herein as the “Term”); provided, however, that applicable provisions of this Agreement shall continue in effect after the expiration or earlier termination of this Agreement to

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the extent necessary to provide for final billings, payments and adjustments related to the period prior to such expiration or earlier termination and, provided, further, that other provisions of this Agreement shall survive such expiration or earlier termination to the extent specifically expressed in such provisions.

4. DSM Measures Implementation Reports. A. For each Electric Network Period, Contractor shall submit one or more detailed reports in the form of Exhibit F to this Agreement (each, a “DSM Measures Implementation Report”) to Con Edison in electronic form for Con Edison’s approval. At a minimum, each DSM Measures Implementation Report shall include the following information for each Electric Network: (a) the names, addresses and Con Edison electric account numbers of those Con Edison customers located in such Electric Network who have committed to have Contract DSM Measures installed at their premises and indicate if the premises serve a customer who does not pay the monthly adjustment clause; (b) a full and complete description of the existing electrical-related equipment facilities and/or items (where applicable) to be replaced by the Contract DSM Measures and the KW usage of such existing electrical-related equipment, facilities and/or items determined in accordance with Exhibit D; (c) a full and complete description of the Contract DSM Measures to be installed at each such premises (which shall be from among the DSM Measures listed in Exhibit A hereto); (d) a statement of the load reduction in such Electric Network that will be achieved by those Contract DSM Measures (the sum of all load reductions in the DSM Measures Implementation Report(s) for an Electric Network shall be no less than the Contract Load Reduction Guaranty applicable to such Electric Network); (e) copies of the signed, written agreements binding on Contractor and each Con Edison customer committing to the installation, operation and maintenance of the Contract DSM Measures (and, where the Contract DSM Measures consist of clean distributed generation measures, an acknowledgement from the customer that the customer understands that Con Edison will not be supplying backup service for the electric load reduction provided by the clean distributed generation; (f) an acknowledgement from the customer that the customer understands that no inspection or verification by Con Edison with respect to any Contract DSM Measures shall constitute any promise, warranty or representation from Con Edison to the customer as to the installation, operation or effectiveness of any Contract DSM Measures; (g) copies of the signed, written agreements or purchase orders binding on Contractor and its suppliers, subcontractors, and/or customers under which Contractor will cause the Contract DSM Measures to be procured,

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delivered and installed no later than the June 1 of the first year of the applicable Electric Network Period and under which Contractor will cause the Contract DSM Measures to be maintained, repaired and, as necessary, replaced at all times during the Electric Network Period; (h) a detailed schedule pursuant to which the Contract DSM Measures will be installed in the premises of the identified Con Edison customers (which shall be consistent with the applicable Load Reduction Commencement Date); and (i) a full and complete schedule for the installation of the Contract DSM Measures (which schedule shall indicate that all such Contract DSM Measures shall be installed and operational no later than June 1 of the first year of the applicable Electric Network Period). Con Edison may waive the requirement to include any of the above listed items in any DSM Measure Implementation Report(s); provided, however, that no such waiver shall be effective unless it is in writing and signed by an authorized representative of Con Edison. Each DSM Measures Implementation Report submitted by Contractor (other than the last such report) shall describe in detail electric load reductions of no less than 100 KW of the applicable Contract Load Reduction Guaranty. Con Edison will have thirty (30) days from receipt of a DSM Measures Implementation Report to review, comment on, or accept such DSM Measures Implementation Report, and, if Con Edison does not respond within such thirty (30) day period, it will be deemed to have accepted such DSM Measures Implementation Report and the Contractor will be permitted to proceed with implementation of the Contract DSM Measures described therein. Notwithstanding the foregoing, Con Edison acknowledges that a Pre-Installation Inspection for a Residential Site (as defined in Exhibit G) may precede the inclusion of such site in a DSM Measures Implementation Report.

B. The DSM Measures Implementation Reports applicable to Electric Network Periods commencing on the Load Reduction Commencement Date of March 1, 2010 shall be submitted as follows: DSM Measures Implementation Reports for at least thirty percent (30%) of the applicable Contract Load Reduction Guaranty shall have been submitted to Con Edison no later than July 1, 2009; DSM Measures Implementation Reports for at least sixty percent (60%) of the applicable Contract Load Reduction Guaranty shall have been submitted to Con Edison no later than September 1, 2009; and DSM Measures Implementation Reports for one hundred percent (100%) of the applicable Contract Load Reduction Guaranty shall have been submitted to Con Edison no later than December 1, 2009. The DSM Measures Implementation Reports for one hundred percent (100%) of the applicable Contract Load

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Reduction Guaranty for Electric Network Periods commencing on the Load Reduction Commencement Dates of March 1, 2011 and March 1, 2012 shall be submitted to Con Edison no later than September 1, 2010, and September 1, 2011, respectively. The provisions in this Section 4(B) concerning submission of DSM Measures Implementation Reports to Con Edison for one hundred percent (100%) of the applicable Contract Load Reduction Guaranty no later than the applicable specified dates set forth in this Section 4(B) are material provisions of this Agreement, but the provisions in this Section 4(B) concerning submission of DSM Measures Implementation Reports to Con Edison for any percentage of less than one hundred percent (100%) of the applicable Contract Load Reduction Guaranty no later than the applicable specified dates set forth in this Section 4(B) shall not be deemed to be material provisions of this Agreement. The specification in the preceding sentence concerning whether or not certain provisions of Section 4(B) of this Agreement are material provisions shall not be construed to affect whether or not other provisions of this Agreement are material provisions.

5. Status Reports and Load Reduction Forecasts. A. No later than the first week of each month during the period commencing with the first full month after the date of this Agreement first set forth above and ending with the first full month after the later of: (i) the latest Load Reduction Commencement Date set forth in Exhibit B hereto and (ii) the date of completion by Con Edison of the last Post-Installation Inspections and verification by Con Edison of the installation of the Contract DSM Measures hereunder, Contractor shall submit to Con Edison a status report, in electronic form, of Contractor’s activities in respect of this Agreement as of the end of the immediately prior month (each, a “Monthly Status Report”). Each Monthly Status Report shall include, at a minimum, the following information with respect to work relating to installing the Contract DSM Measures to be installed in each Electric Network: (a) information describing the work completed, the work in progress, and the work not yet commenced; (b) a comparison of the work performed with the schedule for work set forth in the applicable DSM Measures Implementation Report to the extent that such DSM Measures Implementation Report previously has been submitted (and if such DSM Measures Implementation Report has not previously been submitted, a comparison of the work performed to the schedule that Contractor intends to submit as part of the DSM Measures Implementation Report); (c) an explanation of the reason(s) why any work has fallen behind schedule and Contractor’s plan for regaining the

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schedule; (d) a description of recent and planned marketing and sales activities; and (e) all other information necessary for Con Edison to determine the progress of work, the electric load reductions likely to be achieved by the installation of Contract DSM Measures as of the last month covered by the Monthly Status Report, and the likelihood that the applicable Load Reduction Guaranties will be achieved by the applicable Load Reduction Commencement Dates.

B. Between February 1 and April 1 of each year until the end of the Term of this Agreement, Contractor shall submit to Con Edison a written, signed status report (each, an “Annual Status Report”) covering the period since the end of the period covered by the immediately prior Annual Status Report (the first Annual Status Report shall cover the period between the date of this Agreement and the date of such first Annual Status Report) that describes, as may be applicable, all maintenance, repair and replacement of Contract DSM Measures performed during such prior twelve-month period including the status of any such work that is not yet completed and Contractor’s schedule for completing it (each, an “Annual Status Report”). If requested by Con Edison, the Annual Status Reports shall be submitted on a form that Con Edison provides to Contractor in connection with such request.

C. No later than thirty (30) days prior to the Load Reduction Commencement Date for each Electric Network Period, Contractor shall submit to Con Edison, in electronic form, a forecast containing a good faith estimate of the cumulative load reduction to be achieved by Contractor in each month of such Electric Network Period (each, a “Load Reduction Forecast”).

D. Contractor shall provide such other reports concerning, as may be applicable, the status of the installation, maintenance, repair, and/or replacement of Contract DSM Measures as may reasonably be requested by Con Edison.

E. The provisions in this Section 5 concerning submission of Monthly Status Reports, Annual Status Reports, Load Reduction Forecasts and any other reports which may be required pursuant to Section 5(D), no later than the applicable specified dates, are material provisions of this Agreement.

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6. Maintenance And Replacement Of Contract DSM Measures. A. Contractor shall, at all times during the Term of this Agreement, cause the Contract DSM Measures to be maintained, repaired and, as necessary, replaced so that the Contract DSM Measures remain in good operating condition and the electric load reduction in each Electric Network resulting from such Contract DSM Measures is no less than the applicable Load Reduction Guaranty (to the extent it has been satisfied) plus the amount of any Excess Load Reduction (as defined in Section 9) for which any installment of the Additional Price has been made.

B. Contractor shall provide written notice to Con Edison within ten (10) Business Days (as defined below) after Contractor becomes aware or reasonably should have become aware that Contract DSM Measures have ceased to operate in whole or in part, which notice shall include the expected schedule of their repair and/or replacement and the specifications of such replacements. Contractor agrees that all replacement parts of Contract DSM Measures and all replacement Contract DSM Measures shall produce the same or greater load reductions as such parts or measures they replace. Contractor further agrees that any electricity consuming equipment or parts thereof removed pursuant to this Agreement in order to install Contract DSM Measures shall be rendered permanently inoperable. For purposes of this Agreement, “Business Day” means any day except Saturday, Sunday, or a Federal Reserve Bank holiday. A Business Day shall open at 8:00 a.m. and close at 5:00 p.m. local time for the relevant Party.

C. Contractor agrees to cause all “planned” maintenance work on Contract DSM Measures (as opposed to “emergency” or “forced” maintenance work on Contract DSM Measures caused by the inoperability of such measure) to be performed at times other than weekdays in the months of June through September, inclusive (the “Prohibited Maintenance Period”); provided, however, that upon receiving the prior written consent of Con Edison (which shall be granted or withheld in the sole discretion of Con Edison), Contractor may perform planned maintenance work on Contract DSM Measures during the Prohibited Maintenance Period.

7. Certifications by Contractor. Between April 1 and April 30 of each year during each Electric Network Period, Contractor shall submit a written, signed certification (each, a

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“Contractor’s Annual Certification”) to Con Edison certifying the number and nature of Contract DSM Measures installed and operating in each premises located in each Electric Network, the location of such premises and the electric load reduction for the upcoming Summer Peak Period resulting from such Contract DSM Measures (based on customer electric usage levels in effect when the Contract DSM Measures were first installed). The electric load reduction shall be determined in accordance with the M&V Procedures. If (i) any such electric load reduction certified in a Contractor’s Annual Certification is equal to or greater than the applicable Contract Load Reduction Guaranty and, in the case of any Additional Price (as defined in Section 9) to be invoiced, the electric load reduction certified in a Contractor’s Annual Certification is equal to or greater than the sum of the applicable Contract Load Reduction Guaranty plus the applicable Excess Load Reduction (as defined in Section 9), and (ii) Con Edison has not determined through a Follow-Up Inspection (as defined in Section 8) that the applicable Contract Load Reduction Guaranty or the applicable Excess Load Reduction, as the case may be, has not been satisfied, then Contractor, subject to the other provisions of this Agreement, shall be entitled to submit an invoice for the applicable installment payment pursuant to Section 10(B).

8. Access; Inspections And Verifications By Con Edison. A. The applicable DSM Measures Implementation Report shall be furnished electronically to Con Edison at least twenty (20) Business days prior to the commencement of installation of Contract DSM Measures by or on behalf of Contractor at any premises pursuant to Contractor’s obligations under this Agreement. Within twenty (20) Business days of acceptance by Con Edison of the DSM Measures Implementation Report, Con Edison shall cause the premises to be inspected in order to ascertain and verify the electrical-related equipment, facilities and/or items existing at such premises (and the KW usage of same) which are to be replaced or affected by the Contract DSM Measures to be installed as set forth in the applicable DSM Measures Implementation Report (a “Pre-Installation Inspection”) and provide the results of such Pre-Installation Inspection to Contractor; provided, however, that Contractor shall, at all times from Con Edison’s receipt of the DSM Measures Implementation Report until the scheduled date of installation listed therein (which shall be no earlier than twenty (20) Business Days after Con Edison’s receipt of the DSM Measures Implementation Report) cause Con Edison and/or its representatives to be provided with full access to the premises and the electrical-related equipment, facilities and/or items to be inspected, and all equipment and tools, as may be reasonably necessary for the purpose of conducting such

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inspection(s) and shall make available a representative of Contractor or any of its subcontractors to accompany the Con Edison representative during such Pre-Installation Inspection. Notwithstanding the foregoing, Pre-Installation Inspections for Residential Sites (as defined on Exhibit G) shall be conducted as set forth on Exhibit G. The results of the Pre-Installation Inspections conducted by or on behalf of Con Edison shall be final and binding on Contractor and shall establish the baseline KW usage of the existing electrical-related equipment facilities and/or items existing at such premises intended to be replaced or affected by Contract DSM Measures, from which the electrical load reductions resulting from the Contract DSM Measures to be installed at such premises will be measured. Assuming Contractor causes the aforementioned access to the premises and equipment and tools to be provided and, as aforesaid, makes available a representative of Contractor to accompany the Con Edison representative during such Pre-Installation Inspection, a failure by Con Edison to cause the Pre-Installation Inspection to be conducted at such premises and the results of such Pre-Installation Inspection provided to Contractor within twenty (20) Business Days of Con Edison’s acceptance of the DSM Measures Implementation Report (or within such longer period as may exist between Con Edison’s acceptance of the DSM Measures Installation Report and the scheduled date specified therein for installation of the Contract DSM Measures) shall, subject to other provisions of this Section, be deemed to constitute a waiver of the right of Con Edison to conduct a Pre-Installation Inspection at such premises, in which case Contractor shall certify to Con Edison the existing electrical-related equipment, facilities and/or items intended to be replaced or affected by Contract DSM Measures at such premises, as well as the KW usage of such existing electrical-related equipment, facilities and/or items in accordance with Exhibit D, which shall be used to establish the said baseline from which the electric load reductions resulting from the Contract DSM Measures to be installed at such premises are measured. Con Edison may waive at any time its right to conduct a Pre-Installation Inspection; provided, however, that no such waiver shall be effective unless it is in writing and signed by an authorized representative of Con Edison. To be considered a single Pre-Installation Inspection, a Pre-Installation Inspection at any premises must take place on continuous days without suspension or interruption except for purposes of stopping work at the end of the work day and continuing the immediately following day and except as may be directed by, or due to the fault of, Con Edison. Any Pre-Installation Inspection at any premises that does not take place on continuous days as aforesaid shall be deemed a separate Pre-Installation Inspection. Con Edison, at its expense, shall perform no more than two (2) Pre-Installation Inspections at any

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particular premises and any additional Pre-Installation Inspections required to be performed at any such premises shall be performed by Con Edison at the expense of Contractor. Notwithstanding anything to the contrary herein: (i) in any twenty (20) Business Day period, Con Edison shall not be obligated to cause more Pre-Installation Inspections to be conducted than are equal to the product (the “Pre-Installation Inspection Guaranty”) of (a) 200 and (b) a fraction where the numerator is the amount of KWs of load reduction claimed in the DSM Implementation Report(s) which have been received by Con Edison on the beginning of such twenty (20) Business Day period but the Pre-Installation Inspection has not been conducted, and the denominator is 1,000; and (ii) no waiver by Con Edison nor any liability of Con Edison to Contractor shall result from a failure to conduct any Pre-Installation Inspection at any premises and provide the results of such Pre-Installation Inspection to Contractor within the time otherwise set forth above in this Section if the Pre-Installation Inspection Guaranty is satisfied during the period commencing on the date of Con Edison’s receipt of the DSM Measures Implementation Report and ending twenty (20) Business Days after such date. In the event that the failure to perform a Pre-Installation Inspection at any premises and/or provide the results of same to Contractor within the time as otherwise set forth in this Section is excused because the Pre-Installation Inspection Guaranty is satisfied as aforesaid, the applicable DSM Measures Implementation Report shall be deemed to have been received (the “Pre-Installation Deemed Receipt Date”) on the twenty-first (21^st) Business Day after its initial receipt and the provisions of this Section 8(A) (including the calculation and effect of the Pre-Installation Inspection Guaranty) shall be applied accordingly. The same process shall be repeated each time that the failure to perform a Pre-Installation Inspection at the premises and/or provide the results of same to Contractor within twenty (20) Business Days from the Pre-Installation Deemed Receipt Date of the applicable DSM Measures Implementation Report is excused because the Pre-Installation Inspection Guaranty is satisfied, except that the new Pre-Installation Deemed Receipt Date of the applicable DSM Measures Implementation Report shall be the twenty-first (21^st) Business Day after the immediately prior Pre-Installation Deemed Receipt Date.

B. Within thirty (30) business days of Con Edison’s receipt and acceptance of a report in electronic form in the form of Exhibit H hereto notice (a “Post-Installation Inspection Report”) from Contractor regarding the installation of Contract DSM Measures by or on behalf of Contractor pursuant to Contractor’s obligations under this Agreement have been completed at a

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particular premises and are operational, Con Edison shall cause the premises to be inspected in order to ascertain and verify that the Contract DSM Measures have been installed and are operational (a “Post-Installation Inspection”) and provide the results of such Post-Installation Inspection to Contractor; provided, however, that Contractor shall at all times, from Con Edison’s receipt of the Post-Installation Inspection Report until the scheduled date of installation listed therein (which shall be no earlier than thirty (30) Business Days after Con Edison’s receipt of the Post-Installation Inspection Report), cause Con Edison and/or its representatives to be provided with full access to the premises and electrical-related equipment, facilities and/or items to be inspected, and all equipment and tools, as may be reasonably necessary for the purpose of conducting such inspection and shall make available a representative of Contractor to accompany the Con Edison representative during such Post-Installation Inspection. Notwithstanding the foregoing, Post-Installation Inspections for Residential Sites (as defined on Exhibit G) shall be conducted as set forth on Exhibit G and Contractor shall not include a Residential Site in a Post-Installation Inspection Report until at least one week after such inspection has been completed and after Con Edison has acknowledged in writing that such inspection has been completed. The results of the Post-Installation Inspections conducted by or on behalf of Con Edison shall be final and binding on Contractor and shall assist Con Edison in determining whether Contractor satisfies the applicable Contract Load Reduction Guaranty and any applicable Excess Load Reduction. Assuming Contractor causes the aforementioned access to the premises and equipment and tools to be provided and, as aforesaid, makes available a representative of Contractor to accompany the Con Edison representative during such Post-Installation Inspection, a failure by Con Edison to cause the Post-Installation Inspection to be conducted at such premises and the results of such Post-Installation Inspection to be provided to Contractor within thirty (30) Business Days of Con Edison’s acceptance of the Post-Installation Inspection Report (or within such longer period as Contractor may specify therein for conducting the Post-Installation Inspection) shall, subject to other provisions of this Section, be deemed to constitute a waiver of the right of Con Edison to conduct a Post-Installation Inspection at such premises, in which case Contractor shall certify to Con Edison the load reduction resulting from such Contract DSM Measures at such premises in accordance with Exhibit D. If the results of the Post Installation Inspection provided to Contractor indicate that any Contract DSM Measure has not been properly installed or is not operational, then unless Contractor, within thirty (30) days of its receipt of such results, (i) causes the defects in such installation to be cured such that the Contract DSM Measures are fully operational or (ii)

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demonstrates to Con Edison’s satisfaction that there are no defects in such installation and that the Contract DSM Measures are fully operational, the load reduction that would have resulted from the defectively installed or inoperable Contract DSM Measures had they been properly installed and fully operational shall be not be credited to Contractor when Con Edison determines whether Contractor has satisfied the applicable Contract Load Reduction Guaranty and any applicable Excess Load Reduction for the first year of the Electric Network Period. Contractor may submit a subsequent Post-Installation Inspection Report for any measures which Con Edison has reported as not being properly installed or not operational provided that Contractor (i) causes the defects in such installation to be cured such that the Contract DSM Measures are fully operational, or (ii) demonstrates to Con Edison’s satisfaction that there are no defects in such installation and that the Contract DSM Measures are fully operational. Con Edison’s determination concerning whether Contractor has satisfied any and all Contract Load Reduction Guaranties and any and all Excess Load Reductions shall be final and binding on Contractor. To be considered a single Post-Installation Inspection, a Post-Installation Inspection at any premises must take place on continuous days without suspension or interruption except for purposes of stopping work at the end of the work day and continuing the immediately following day and except as may be directed by, or due to the fault of, Con Edison. Any Post-Installation Inspection at any premises that does not take place on continuous days as aforesaid shall be deemed a separate Post-Installation Inspection. Con Edison, at its expense, shall perform no more than two (2) Post-Installation Inspections at any particular premises, inclusive of Post-Installation Inspections that are required because Contractor failed to achieve the applicable Contract Load Reduction Guaranty as of the Load Reduction Commencement Date for any Electric Network Period, and any additional Post-Installation Inspections required to be performed at any such premises shall be performed by Con Edison at the expense of Contractor. Notwithstanding anything to the contrary herein: (i) in any thirty (30) Business Day period, Con Edison shall not be obligated to cause more Post-Installation Inspections to be conducted than are equal to the product (the “Post Installation Inspection Guaranty”) of (a) 250 and (b) a fraction where the numerator is the amount of KWs of load reduction during Summer Peak Periods from Contract DSM Measures claimed in the DSM Implementation Report(s) for the premises for which a Post-Installation Inspection Report has been received by Con Edison on the beginning of such thirty (30) Business Day period but the Post-Installation Inspection has not been conducted, and the denominator is 1,000; and (ii) no waiver by Con Edison nor any liability of Con Edison to Contractor shall result from a failure to

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conduct any Post-Installation Inspection at any premises and provide the results of such Post-Installation Inspection to Contractor within the time otherwise set forth above in this Section if the Post-Installation Inspection Guaranty is satisfied during the period commencing on the date of Con Edison’s receipt of the Post-Installation Inspection Report and ending thirty (30) Business Days after such date. In the event that the failure to perform a Post-Installation Inspection at any premises and/or provide the results of same to Contractor within the time as otherwise set forth in this Section is excused because the Post-Installation Inspection Guaranty is satisfied as aforesaid, the applicable Post-Installation Inspection Report shall be deemed to have been received (the “Post-Installation Deemed Receipt Date”) on the thirty-first (31^st) Business Day after its initial receipt and the provisions of this Section 8(B) (including the calculation and effect of the Post-Installation Inspection Guaranty) shall be applied accordingly. The same process shall be repeated each time that the failure to perform a Post-Installation Inspection at the premises and/or provide the results of same to Contractor within thirty (30) Business Days from the Post-Installation Deemed Receipt Date of the applicable Post-Installation Inspection Report is excused because the Post-Installation Inspection Guaranty is satisfied, except that the new Post-Installation Deemed Receipt Date of the applicable Post-Installation Inspection Report shall be the thirty-first (31^st) Business Day after the immediately prior Post-Installation Deemed Receipt Date. Post-Installation Inspection Reports for an Electric Network Period shall be submitted to Con Edison no later than November 1 of the first year of the applicable Electric Network Period.

C. Following the initial operation of Contract DSM Measures, as verified by Con Edison through the Post-Installation Inspection, Con Edison, from time to time during the Term of this Agreement (but no more frequently than three (3) times per twelve-month period at any particular premises), shall have the right, but not the obligation, to cause any and all premises where Contract DSM Measures are installed to be inspected in order to reasonably verify the continued existence and operation of such Contract DSM Measures (each, a “Follow-Up Inspection”). The results of the Follow-Up Inspections conducted by or on behalf of Con Edison shall be final and binding on Contractor and shall assist Con Edison in determining (based on customer usage levels in effect when the Contract DSM Measures were first installed) whether Contractor continues to satisfy the applicable Contract Load Reduction Guaranty and any applicable Excess Load Reduction. Contractor shall cause Con Edison and/or its representatives to be provided with full access to such premises and equipment, and such equipment and tools, as may be reasonably necessary to

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conduct the Follow-Up Inspections. If, following a Follow-Up Inspection, Con Edison reasonably determines that any Contract DSM Measure does not exist at any premises and/or is not operational (a “Deficient Contract DSM Measure”), Con Edison shall notify Contractor in writing of its determination and the reasons therefor a (a “Notice To Remedy”). If a Notice To Remedy is received by Contractor between February 28^th and April 30^th of any year of an Electric Network Period, then unless Contractor, within thirty (30) days of receipt of such written notice, remedies the Deficient Contract DSM Measure(s) described in such Notice To Remedy, the electric load reduction that would have resulted from the Deficient Contract DSM Measures had they existed and been fully operational shall be not be considered when Con Edison determines whether Contractor has satisfied the applicable Contract Load Reduction Guaranty and any applicable Excess Load Reduction for the year of the Electric Network Period in which the Follow-Up Inspection occurs or for any subsequent year of the Electric Network Period. If a Notice To Remedy is received by Contractor on a date other than between February 28^th and April 30thof any year of an Electric Network Period, then unless Contractor, within thirty (30) days of receipt of such Notice To Remedy, remedies the Deficient Contract DSM Measures described in the Notice To Remedy or, if the Deficient Contract DSM Measures cannot reasonably be remedied within such thirty (30) day period, then unless Contractor works diligently at all times after receipt of the Notice To Remedy to remedy and does remedy the Deficient Contract DSM Measure as soon as reasonably practicable after receipt of the Notice To Remedy, but in no event later than the first April 30^th following date that the Notice To Remedy was received by Contractor, the electric load reduction that would have resulted from the Deficient Contract DSM Measures had they existed and been fully operational shall not be considered when Con Edison determines whether Contractor has satisfied the applicable Contract Load Reduction Guaranty and any applicable Excess Load Reduction for the year of the Electric Network Period in which the Follow-Up Inspection occurs or for any subsequent year of the Electric Network Period. Con Edison’s determination concerning whether Contractor has satisfied any and all Contract Load Reduction Guaranties shall be final and binding on Contractor.

9. Price. As full and complete compensation to Contractor for the installation and maintenance of the Contract DSM Measures and the performance of all other obligations of Contractor hereunder with respect to an Electric Network Period (including, without limitation, satisfaction of the Contract Load Reduction Guaranty during each year of the applicable Electric

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Network Period and furnishing all applicable security required hereby), Con Edison shall pay Contractor (i) the applicable price per KW of load reduction set forth in Exhibit C hereto for each KW of load reduction, up to the applicable Contract Load Reduction Guaranty, achieved by the Contract DSM Measures with respect to such Electric Network Period (such price per KW being referred to herein as the “Price”) and (ii) for each KW of load reduction in excess of the applicable Contract Load Reduction Guaranty, up to a quantity equal to ten percent (10%) of the applicable Contract Load Reduction Guaranty, achieved by the Contract DSM Measures with respect to such Electric Network Period (the “Excess Load Reduction”), the applicable price per KW of load reduction set forth in Exhibit C hereto (such price per KW being referred to herein as the “Additional Price”). Notwithstanding the foregoing, with respect to any customer who does not pay the monthly adjustment clause set forth in Con Edison’s electric tariff, as filed with the New York State Public Service Commission, the Price or Additional Price payable under this Agreement for load reduction achieved at such customer’s premises shall not exceed the value of the corresponding deferred capital investment in the transmission and distribution system for the applicable Electric Network. Contractor acknowledges and agrees that Contractor shall have no rights to, and may not apply for, any funding or credits that may be available from the New York State Energy Research and Development Authority (“NYSERDA”), the New York Independent System Operator (“NYISO”) and/or any other entity associated with the installation of any and all Contract DSM Measures (no part of which funding payments or credits shall be due, owing, paid or credited to Contractor), including, but not limited to, energy efficiency credits that may have value in a greenhouse gas, carbon reduction or energy efficiency portfolio trading system. Contractor also acknowledges and agrees that Con Edison retains all rights to enroll Contract DSM Measures in demand response and/or energy efficiency or greenhouse gas programs administered by Con Edison, the NYISO or any other entity, including the qualification of Contract DSM Measures as installed capacity under NYISO tariffs or otherwise, and to receive payments for participation in such programs (no part of which payments shall be due, owing, or paid to Contractor). Contractor agrees to comply, at its sole expense, with all applicable rules and procedures necessary for the Contract DSM Measures to participate in the energy efficiency demand response programs for which the Contract DSM Measures may qualify, including, without limitation, all metering, scheduling, notice and certification requirements and, upon the request of Con Edison, to furnish all other information and documentation to Con Edison as may be reasonably necessary for Con Edison to enroll the Contract DSM Measures in such demand

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response or energy efficiency programs. Contractor shall not enroll the Contract DSM Measures in any other DSM program.

10. Payment. Subject to Contractor’s installation and the maintenance of the Contract DSM Measures and the performance of all other obligations of Contractor hereunder with respect to the Electric Network Period (including maintaining the applicable Contract Load Reduction Guaranty and any applicable Excess Load Reduction during each year of the Electric Network Period and furnishing all Security required hereby) as more specifically provided for in this Agreement, the Price and the Additional Price applicable to such Electric Network Period shall be paid to Contractor (to the extent to which Contractor has installed Contract DSM Measures) in accordance with the following payment schedule:

A. Ninety percent (90%) of the Price for each KW (up to an aggregate amount of KWs equal to the applicable Contract Load Reduction Guaranty) of electric load reduction during Summer Peak Periods, and ninety percent (90%) of the Additional Price for each KW of Excess Load Reduction (not exceeding the amount of KWs equal to ten percent (10%) of the applicable Contract Load Reduction Guaranty) during Summer Periods, in each case resulting from the Contract DSM Measures, shall be paid within thirty (30) days after Con Edison’s receipt of Contractor’s invoice for such amount, which invoice shall not be submitted until after (a) the beginning of the calendar year that immediately precedes the calendar year in which the Load Reduction Commencement Date for the applicable Electric Network Period falls. (This restriction shall not apply to invoices for the East 13^th Street/East River Switching Station project); and (b) completion by Con Edison of all Post-Installation Inspections and verification by Con Edison of the installation and operation of the Contract DSM Measures that result in the electric load reduction for which the invoice is submitted (and to the extent that Con Edison has waived any such Post-Installation Inspection pursuant to Section 8(B), receipt of the certification required by such Section which certifies the installation and operation of the applicable Contract DSM Measures and the electric load reductions during Summer Peak Periods resulting therefrom); provided, however, that no such invoice (except the last such invoice) shall be submitted for any electric load reduction that is less than 100 KW.

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B. The remaining ten percent (10%) of the Price for each KW (up to an aggregate amount of KWs equal to the applicable Contract Load Reduction Guaranty) of electric load reduction during Summer Peak Periods and the remaining ten percent (10%) of the Additional Price for each KW of Excess Load Reduction (not exceeding the amount of KWs equal to ten percent (10%) of the applicable Contract Load Reduction Guaranty) during Summer Periods, in each case resulting from the Contract DSM Measures, shall be paid in equal annual installment payments over the remaining years in the applicable Electric Network Period, the first of which installment payments shall be made within 30 days after Con Edison’s receipt of Contractor’s invoice submitted after the first annual anniversary of the later of (a) the Load Reduction Commencement Date for the Electric Network Period or (b) the completion by Con Edison of all Post-Installation Inspections and verification by Con Edison of the installation and operation of the Contract DSM Measures for the Electric Network Period sufficient to achieve the Contract Load Reduction Guaranty applicable to that Electric Network Period and, in the case of any Additional Price invoiced, sufficient to achieve the Excess Load Reduction (and to the extent that Con Edison has waived any such Post-Installation Inspection pursuant to Section 8(B), receipt of the certification required by such Section which certifies the installation and operation of the applicable Contract DSM Measures and the electric load reductions during Summer Peak Periods resulting therefrom), and the remaining installment payments being made one per year within thirty (30) days after Con Edison’s receipt of Contractor’s invoice submitted on or after each of the next succeeding annual anniversaries dates of the later of clauses (a) and (b) above in the applicable Electric Network Period (invoices for such installment payments may be sent only if the amount of the electric load reduction certified in the applicable Contractor’s Annual Certification is equal to or greater than the applicable Contract Load Reduction Guaranty (and, in the case of any Additional Price invoiced, only if the amount of electric load reduction there certified is equal to or greater than the applicable Contract Load Reduction Guaranty plus the applicable Excess Load Reduction) and Con Edison has not determined through a Follow-Up Inspection (as defined in Section 8(C)) that the applicable Contract Load Reduction Guaranty or Excess Load Reduction, as the case may be, has not been satisfied).

Upon Contractor’s written request, Con Edison shall pay Contractor any amount provided for herein by wire transfer to an account designated by Contractor.

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C. ***

11. Taxes; Permit Charges. Neither the Price nor the Additional Price include any federal, state or local license, privilege, sales, use, excise, gross receipts, value added or other like taxes which may now or hereafter be applicable to, measured by, or imposed upon the payment of all or any portion of the Price and/or the Additional Price to Contractor (collectively, “Taxes”), or any other transaction contemplated by this Agreement, nor does the Price or the Additional Price include any charge or fee for any governmental or non-governmental permits, authorizations, consents or approvals that may be required in connection with any of the transactions contemplated by this Agreement (collectively, “Permit Charges”). Contractor agrees to promptly pay any such Taxes and Permit Charges and to promptly reimburse Con Edison for any such Taxes and Permit Charges that Con Edison is required to pay. To the extent that any Taxes or Permit Charges are applicable to Contractor’s reimbursement to Con Edison of Taxes and Permit Charges, Contractor shall gross up the amount of such reimbursement to Con Edison so that Con Edison is made whole after taking account of such Taxes and Permit Charges.

12. Interest. A. If either Party fails to make any payment required by this Agreement when due, including payment of any Initial Liquidated Damages and/or Subsequent Liquidated Damages (as defined in Section 13) and payment of contested portions of invoices that are later determined to be due, or if either Party makes an overpayment requiring a refund by the other Party, the amount due shall bear interest, from the due date of the payment or the date on which the overpayment was made until the date of payment, at a rate equal to the lower of (i) 200 basis points over the prime lending rate in effect during the period of nonpayment or overpayment, as applicable, as quoted to substantial commercial customers by Citibank, New York, New York, or (ii) the highest interest rate permitted by applicable law (“Interest”).

B. Payments mailed and postmarked or wired on the due date will be considered timely. If the due date of any payment falls on a day other than a Business Day, the payment will be considered timely if mailed and postmarked or wired on the next Business Day.

13. Security; Liquidated Damages. A. Security. Contractor shall be required to furnish the following security to Con Edison on or before the date indicated as security for Contractor’s

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payment to Con Edison of “Liquidated Damages” (as defined below) due to a failure to achieve or maintain a Contract Load Reduction Guaranty:

(i) Security in a sum equal to the product of (a) $10.00 and (b) the total KWs of electric load reduction in all Contract Load Reduction Guaranties combined for all Electric Network Periods combined (the “Security A Amount”), which Security A Amount shall be furnished to Con Edison on or before the earlier of (a) the date that is ninety (90) days after the date of this Agreement first set forth above, or (b) the date that Con Edison makes the first payment to Contractor for any Electric Network Period pursuant to Section 10; and

(ii) For each Electric Network Period set forth on Exhibit B, security in the sum equal to the product of (i) $150.00 and (ii) the amount of KWs of electric load reduction comprising the Contract Load Reduction Guaranty for such Electric Network Period, as shown on Exhibit B (the “Security B Amount”) shall be furnished to Con Edison on or before the applicable date shown on Exhibit B; provided, however, that the Security B Amount that Contractor is required to provide may be reduced by a proportional amount for each KW of electric load reduction verified by Con Edison through a Post-Installation Inspection and a report of the results of the same that is concluded prior to the time that Contractor is required to furnish the Security B Amount.

The Security A Amount and the Security B Amount shall collectively be referred to herein as the “Security.”

The Security A Amount shall be in the form of cash or a “Letter of Credit” (as defined below) from an issuing bank with the “Required Credit Rating” (as defined below). The Security B Amount shall be in the form of cash, a Letter of Credit from an issuing bank with the Required Credit Rating or a “Guaranty” (as defined below) from a guarantor with the Required Credit Rating.

A “Letter of Credit,” as used herein, means an irrevocable, unconditional transferable, standby letter of credit, in a form acceptable to Con Edison, issued by a major U.S. commercial bank or the U.S. branch office of a foreign bank (in either case which issuing bank has counters for drawings under the Letter of Credit in the City of New York and has the Required Credit Rating), and which letter of credit permits drawings (including partial

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drawings) upon the submission of a sight draft and a statement by a Con Edison representative that the amount of such drawing is due and owing by Contractor pursuant to this Agreement.

A “Guaranty,” as used herein, means an irrevocable, unconditional guaranty, in a form acceptable to Con Edison, from a guarantor that has the “Required Credit Rating,” and which requires the guarantor to pay Con Edison amounts due and owing to Con Edison by Contractor pursuant to this Agreement upon the submission to the guarantor of a statement by Con Edison that such an amount is due and owing.

“Required Credit Rating” means, with respect to a bank issuing a Letter of Credit, ratings of at least the following that are assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then ratings of at least the following that are assigned to such entity as an issuer rating: (i) a rating of at least “A” from Standard & Poor’s Rating Group or its successor (“S&P”) and a rating of at least “A2” from Moody’s Investor Services, Inc. (“Moody’s”) if such entity is rated by both S&P and Moody’s, or (ii) a rating of at least “A” from S&P or a rating of at least “A2” from Moody’s if such entity is rated by either S&P or Moody’s, but not both. “Required Credit Rating” means with respect to a guarantor issuing a Guaranty, ratings of at least the following that are assigned to such entity’s unsecured, senior long-term debt obligations (not supported by third party credit enhancements) or if such entity does not have a rating for its senior unsecured long-term debt, then ratings of at least the following that are assigned to such entity as an issuer rating: (i) a rating of at least “BBB” from Standard & Poor’s Rating Group or its successor (“S&P”) and a rating of at least “Baa2” from Moody’s Investor Services, Inc. (“Moody’s”) if such entity is rated by both S&P and Moody’s, or (ii) a rating of at least “BBB” from S&P or a rating of at least “Baa2” from Moody’s if such entity is rated by either S&P or Moody’s, but not both.

Any cash, Letter of Credit, or Guaranty provided to Con Edison as Security shall remain in the possession of Con Edison until it is required to be returned back to Contractor as provided below. Con Edison shall not be required to keep any cash provided as Security in a separate account, but rather, shall be entitled to use, invest, commingle, assign, sell, or pledge such cash in any way it sees fit free from any claim or right of any nature whatsoever of Contractor, including any right of

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redemption by Contractor. Any interest, return on investment, or other result of Con Edison’s use, investment, commingling, assignment, sale or pledge of such cash shall be the sole property of Con Edison and shall not be furnished to Contractor. Any Letter of Credit or Guaranty provided as Security shall have an expiration date no earlier than (or be renewed or amended to have an expiration date no earlier than) the date upon which such Letter of Credit or Guaranty is required to be returned back to Contractor as provided below.

Should the bank issuing the Letter of Credit or the guarantor issuing the Guaranty fail to maintain the Required Credit Rating prior to the date that they are required to be returned to Contractor as provided below, Contractor shall furnish or cause to be furnished to Con Edison a substitute Letter of Credit from a bank meeting the Required Credit Rating and/or a substitute Guaranty from a guarantor meeting the Required Credit Rating within three (3) Business Days after Con Edison has provided written notice to Contractor demanding such substitute Letter of Credit and/or such substitute Guaranty. In addition, where the Letter of Credit and/or Guaranty has an expiration date earlier than the date that they are required to be returned to Contractor as provided below, Contractor shall be required to provide Con Edison, at least thirty (30) days prior to the expiration date of the Letter of Credit and/or Guaranty, an amendment to or renewal of such Letter of Credit and/or Guaranty that extends its expiration date. In each case where Contractor is required to provide a substitute Letter of Credit, the substitute Letter of Credit shall be required to comply with all requirements for a Letter of Credit set forth in this Agreement and shall be considered a Letter of Credit following its initial provision. In each case where Contractor is required to provide a substitute Guaranty, the substitute Guaranty shall be required to comply with all requirements for a Guaranty set forth in this Agreement and shall be considered a Guaranty following its initial provision. Promptly following the submission of the substitute Letter of Credit and/or substitute Guaranty to Con Edison, Con Edison shall return to Contractor the Letter of Credit and/or Guaranty being replaced, as applicable.

Should Contractor fail to furnish a substitute Letter of Credit or substitute Guaranty, as applicable, to Con Edison within the time specified in, and as otherwise required by, this Agreement, then Con Edison shall draw down and/or make a claim upon, as applicable, the entire remaining amount of the Letter of Credit and/or Guaranty, as applicable, and utilize the cash obtained as a result of such draw down and/or claim as Security for Contractor’s performance under this Agreement with such

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cash constituting Security that Con Edison may draw upon to the same extent that the Letter of Credit or Guaranty was Security that Con Edison could have drawn down on and/or made a claim upon, as applicable; provided, however, that if cash in the amount of the entire remaining amount of the Letter of Credit and Guaranty is not furnished to Con Edison within three (3) Business Days after Con Edison’s draw down or claim, as applicable, then Contractor shall remain obligated to furnish a substitute Letter of Credit or substitute Guaranty, as applicable, to Con Edison within the time set forth above for furnishing such substitute Letter of Credit or substitute Guaranty. If cash in the amount of the entire remaining amount of the Letter of Credit and Guaranty is furnished to Con Edison within three (3) Business Days after Con Edison’s draw down or claim, as applicable, Contractor may at any time thereafter furnish a substitute Letter of Credit or substitute Guaranty, as applicable, to Con Edison. In the event that Contractor subsequently furnishes the required substitute Letter of Credit or substitute Guaranty, as applicable, to Con Edison, Con Edison shall return to Contractor a sum of cash equal to (i) the amount of the cash security obtained as a result of the draw down under and/or claim upon the prior Letter of Credit and/or prior Guaranty, as applicable, that was made was a result of Contractor’s prior failure to furnish the substitute Letter of Credit and/or substitute Guaranty, as applicable, minus (ii) the aggregate amount of any and all drawings made by Con Edison on such cash security as permitted hereunder.

The Security applicable to an Electric Network Period less the aggregate amount of any and all draw downs on and claims upon such Security by Con Edison as permitted hereunder shall be returned to Contractor within forty five (45) days after completion by Con Edison of all Post-Installation Inspections for such Electric Network Period. For purposes of the immediately preceding sentence, the portion of the Security A amount that is based on the Contract Load Reduction Guaranty for a particular Electric Network Period shall be considered Security applicable to such Electric Network Period.

The provisions of this Section 13(A) shall survive the expiration or earlier termination of this Agreement.

B. Initial Liquidated Damages. Should Contractor fail to achieve the applicable Contract Load Reduction Guaranty for an Electric Network Period during the period between the Load Reduction Commencement Date of that Electric Network Period and the first day of June of the

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first year of that Electric Network Period with respect to any particular Electric Network, the Parties, recognizing that Con Edison will have suffered damages that are significant, but which are difficult or impossible to calculate, agree that Contractor shall be obligated to pay Con Edison the following amounts (collectively, the “Initial Liquidated Damages”) on the following dates as liquidated damages and not as a penalty:

On the first day of each month starting with March 1 and ending with May 1 in the first year of the applicable Electric Network Period, Contractor shall make a partial, non-refundable, payment of Initial Liquidated Damages to Con Edison equal to the product of (i) the amount of KWs by which Contractor failed to achieve the applicable Contract Load Reduction Guaranty as of such date (the “Contract Load Reduction Guaranty Initial Shortfall”), (ii) .16666, and (iii) $300; and

If, on June 1st of the first year of the applicable Electric Network Period, there still remains a Contract Load Reduction Guaranty Initial Shortfall, then Contractor shall make a partial, non-refundable, payment to Con Edison of Initial Liquidated Damages equal to the product of (i) the Contract Load Reduction Guaranty Initial Shortfall that exists as of such date, (ii) .50002, and (iii) $300.

Moreover, the amount of any Contract Load Reduction Guaranty Initial Shortfall that exists as of June 1st of the first year of the applicable Electric Network Period shall not be entitled to any further opportunity to cure and shall become permanently ineligible under this Agreement for any payment by Con Edison; provided, however, that the Contract Load Reduction Guaranty Shortfall that exists as of June 1 of the first year of the applicable Electric Network Period shall not also lead to the assessment of any Subsequent Liquidated Damages (as defined in Section 13(C) below).

C. Subsequent Liquidated Damages. If, at anytime after June 1 of the first year of the applicable Electric Network Period, Contractor, after having achieved the applicable Contract Load Reduction Guaranty as of such June 1, subsequently fails to maintain such Contract Load Reduction Guaranty or, if after having failed to achieve such Contract Load Reduction Guaranty as of such June 1 with respect to any Electric Network, Contractor fails to achieve the applicable Contract Load Reduction Guaranty by an amount of KWs in excess of the Contract Load Reduction Guaranty Initial Shortfall that exists as of June 1 of the first year of the applicable Electric Network Period, then the Parties, recognizing that Con Edison will have suffered damages

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that are significant, but which are difficult or impossible to calculate, agree that Contractor shall be obligated to pay Con Edison a one-time payment of the following amount (the “Subsequent Liquidated Damages” and, together with the Initial Liquidated Damages, the “Liquidated Damages”) as liquidated damages and not as a penalty: a sum equal to the product of (i) the sum of (x) the amount, expressed in KW, by which Contractor has failed to achieve the applicable Contract Load Reduction Guaranty as of such date, minus (y) the amount, expressed in KW, by which Contractor previously has failed to achieve the applicable Contract Load Reduction Guaranty and paid Liquidated Damages to Con Edison (but the amount, if any, of a Contract Load Reduction Guaranty Initial Shortfall that existed prior to June 1 of the first year of the applicable Electric Network Period for which partial, non-refundable, payment(s) of Initial Liquidated Damages were paid pursuant to Section 13(B) shall not be subtracted (the sum of clause (x) minus clause (y) being referred to as the “Contract Load Reduction Guaranty Subsequent Shortfall”), and (ii) $300 for Contract DSM Measures which do not involve lighting applications or $75 for Contract DSM Measures which do involve lighting applications. The amount of any Contract Load Reduction Guaranty Subsequent Shortfall for which such Subsequent Liquidated Damages are due shall not be entitled to any further cure by Contractor and shall become permanently ineligible under this Agreement for any payment from Con Edison. Notwithstanding anything to the contrary in the foregoing, in the case where the destruction (not caused by Contractor) in whole or in part, of any premises where Contract DSM Measures have been installed by Contractor and verified through a Post-Installation Inspection by Con Edison causes Contractor to be unable to maintain the applicable Contract Load Reduction Guaranty, Contractor shall not be obligated to pay Subsequent Liquidated Damages to Con Edison in respect thereof.

D. Use of Security to Pay Liquidated Damages. To the extent that Con Edison is then in possession of any Security, Con Edison may draw down on and/or claim upon such Security and/or exercise any and all rights in respect of such Security in order to collect Liquidated Damages and, to the extent that such Liquidated Damages are collected by such actions, the amount of the Liquidated Damages that Contractor shall be obligated to pay Con Edison shall be reduced accordingly. The foregoing shall not be construed to condition any right of Con Edison to collect Liquidated Damages from Contractor upon the existence or possession of any Security. Con Edison shall have the right to receive payment of Liquidated Damages from Contractor following a failure by Contractor to achieve or continue to achieve the applicable Contract Load

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Reduction Guaranty at any time during an Electric Network Period regardless of whether any Security was provided, has been retained, or has been returned.

14. Maintenance Of Records; Audit By Con Edison Or Representative. Contractor shall maintain and shall cause its subcontractors to maintain during the Term of this Agreement and for at least two (2) years thereafter all books, records, and accounts as well as all correspondence, instructions, drawings, energy audits, receipts, invoices, vouchers, memoranda and other records and documents whatsoever relating to the Contract DSM Measures, their design, installation and performance (including, without limitation, in respect of satisfying the applicable Contract Load Reduction Guaranty), or any other obligation of Contractor under this Agreement (collectively, the “Records”). Contractor shall cause the Records to be available for inspection and audit by Con Edison and its representatives at all reasonable times (and upon reasonable notice) during the Term of this Agreement and for at least two (2) years thereafter. At the conclusion of such period, Contractor, upon Con Edison’s written request, shall furnish a copy of the Records to Con Edison. If inspection or audit discloses that Con Edison paid Contractor hereunder under circumstances where any work was not performed (including the installation and maintenance of any DSM Measures and/or any Contract Load Reduction Guaranty was not achieved and/or maintained, Contractor shall refund to Con Edison, with ten (10) days of Con Edison’s written demand therefor, the amount of any such overpayment plus Interest (as defined in Section 12 of this Agreement) accrued between the date of such overpayment and the date such refund is received by Con Edison.

15. Representations and Warranties. A. Contractor represents and warrants and covenants to Con Edison, as of the date of this Agreement first set forth above, as follows: (i) Contractor is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of New Jersey; (ii) Contractor has all necessary power and authority to execute, deliver, and perform this Agreement; (iii) the execution, delivery, and performance of this Agreement have been duly and validly authorized by all necessary power on the part of Contractor; (iv) Contractor has obtained all approvals and other consents and permission from, and has made all notices to and filings with, all governmental and non-governmental authorities, necessary for Contractor to execute, deliver and perform its obligations under this Agreement; (v) this Agreement constitutes a valid and legally binding obligation of Contractor enforceable in

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accordance with its terms, except as such enforceability may be affected by reason of bankruptcy or other similar laws affecting creditors rights; (vi) there are no actions, suits, investigations, or other proceedings pending or, to the knowledge, of Contractor, threatened, against or relating to Contractor or any affiliate of Contractor, at law or in equity, or before or by any federal, state, local, foreign or other court, governmental department, agency or instrumentality, or any arbitrator, arbitration panel, mediator, or mediation panel, or any other alternative dispute resolution person, body or panel, which, if decided, would prevent or impair, in whole or in part, performance by Contractor of its obligations under this Agreement; and (vii) neither the execution, delivery or performance of this Agreement will (a) violate any applicable law, rule or regulation of any governmental body having jurisdiction or any order, judgment, writ, or injunction applicable to Contractor or its assets, (b) conflict with or result in a breach of any provision of Contractor’s articles of organization or operating agreement or other organizational documents, or (c) result in a default (or give rise to any right of termination, cancellation or acceleration) under the provisions of any note, bond, mortgage, indenture, license, agreement, lease or other instrument or obligations to which Contractor or its assets may be bound.

B. Con Edison represents and warrants to Contractor, as of the date of this Agreement first set forth above, as follows: (i) Con Edison is a corporation duly organized, validly existing, and in good standing under the laws of the State of New York; (ii) Con Edison has all necessary corporate power and authority to execute, deliver, and perform this Agreement; (iii) the execution, delivery, and performance of this Agreement have been duly and validly authorized by all corporate action on the part of Con Edison; (iv) Con Edison has obtained all approvals and other consents and permission from, and has made all notices to and filings with, all governmental and non-governmental authorities, necessary for Con Edison to execute, deliver, and perform its obligations under, this Agreement; (v) this Agreement constitutes a valid and legally binding obligation of Con Edison enforceable in accordance with its terms, except as such enforceability may be affected by reason of bankruptcy or other similar laws affecting creditors rights; (vi) there are no actions, suits, investigations, or other proceedings pending or, to the knowledge, of Con Edison, threatened, against or relating to Con Edison or any affiliate of Con Edison, at law or in equity, or before or by any federal, state, local, foreign or other court, governmental department, agency or instrumentality, or any arbitrator, arbitration panel, mediator, or mediation panel, or any other alternative dispute resolution person, body or panel, which, if decided, would prevent or

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impair, in whole or in part, performance by Con Edison of its obligations under this Agreement; and (vii) neither the execution, delivery or performance of this Agreement will (a) violate any applicable law, rule or regulation of any governmental body having jurisdiction or any order, judgment, writ, or injunction applicable to Con Edison or its assets, (b) conflict with or result in a breach of any provision of Con Edison’s Certificate of Incorporation or By-Laws, or (c) result in a default (or give rise to any right of termination, cancellation or acceleration) under the provisions of any note, bond, mortgage, indenture, license, agreement, lease or other instrument or obligations to which Con Edison or its assets may be bound.

16. Limitation Of Liability For Direct And Consequential Damages. A. Con Edison’s aggregate liability to Contractor, whether in contract, tort (including negligence, gross negligence, and strict liability) or otherwise, for any and all direct damages relating to, arising from, or in connection with this Agreement, including, without limitation, any failure to perform or delay in performance by Con Edison under this Agreement, shall for each Electric Network Period at issue not exceed an amount equal to the maximum amount payable by Con Edison pursuant to Sections 9 and 10 and Exhibit C of this Agreement in respect of such Electric Network Period.

B. To the fullest extent permitted by law, neither Con Edison, its respective affiliates nor its or their respective trustees, directors, officers, employees, or agents shall be liable, whether in contract, tort (including negligence, gross negligence, and strict liability), or otherwise, for any special, indirect, incidental, or consequential damages (including, without limitation, damage, loss, liability, costs, and expenses resulting from loss of use, loss of business or business opportunities, loss of profits or revenue, costs of capital, loss of goodwill, claims of customers, claims of related or unrelated companies and other third parties, cost of purchased or replacement power, and like items of special, indirect, incidental, or consequential loss and damage) asserted, suffered, or incurred by any person or entity (including Contractor), which arise from, relate to or are connected with this Agreement, including, without limitation, any failure to perform or delay in performance by Con Edison under this Agreement.

C. Except for Contractor’s obligations hereunder in respect of indemnification, insurance, Liquidated Damages and Security, and any rights of contribution or indemnification pursuant to applicable law that Con Edison may have against Contractor in respect of claims of third parties, to

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the fullest extent permitted by law, neither Contractor, nor its directors, officers, or employees, shall be liable to Con Edison, whether in contract, tort (including negligence, gross negligence, and strict liability), or otherwise, for any special, indirect, incidental, or consequential damages (including, without limitation, damage, loss, liability, costs, and expenses resulting from loss of use, loss of business or business opportunities, loss of profits or revenue, costs of capital, loss of goodwill, claims of customers, claims of related or unrelated companies and other third parties, cost of purchased or replacement power, and like items of special, indirect, incidental, or consequential loss and damage) which arise from, relate to or are connected with this Agreement, including, without limitation, any failure to perform or delay in performance by Contractor under this Agreement.

D. The provisions of this Section shall survive the expiration or earlier termination of this Agreement.

17. Indemnification. To the fullest extent permitted by law, Contractor agrees to defend, indemnify and hold Con Edison, its affiliates and its and their respective trustees, directors, officers, employees, and agents (the “Protected Parties”) harmless from and against all claims, damage, loss and liability, including costs and expenses, legal and otherwise, for injury to or the death of persons, or damage to property, including the property of Con Edison, economic loss, or statutory or administrative fines, penalties or forfeitures, which in whole or in part arise from, relate to, or are connected with the installation, maintenance or operation of the Contract DSM Measures or any other act or omission of Contractor, its directors, officers, employees, subcontractors, suppliers, agents, or representatives arising from, related to or in connection with this Agreement (including any act or omission that constitutes a breach of this Agreement), whether such claims, damage, loss, or liability be based on contract, tort (including negligence, gross negligence, and strict liability), or otherwise. To the fullest extent permitted by law, the foregoing indemnification provisions shall apply regardless of whether any act or omission (including any act or omission amounting to negligence or gross negligence) of the Protected Parties or any one or more of them caused or contributed to the claim, damage, loss or liability. Contractor expressly agrees that Con Edison may pursue claims for contribution and indemnification against Contractor in connection with claims against Con Edison for injury and/or death to Contractor’s employees notwithstanding the provisions of Section 11 of the Workers’ Compensation Law limiting such claims for contribution and indemnification against employers,

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and Contractor hereby waives the limitations on contribution and indemnity claims against employers provided in Section 11 of the Workers’ Compensation Law insofar as such claims are asserted by Con Edison. The provisions of this Section 17 shall survive the expiration or earlier termination of this Agreement.

18. Insurance. Contractor shall procure and maintain the following insurance at its own expense until the end of the Term of this Agreement, and thereafter to the extent stated below, with at least the monetary limits specified. The insurance shall be in policy forms which contain an “occurrence” and not a “claims made” determinant of coverage and shall be placed with insurance companies acceptable to Con Edison.

A. Employment related insurance.

(a) Workers’ Compensation Insurance as required by law.

(b) Employer’s Liability Insurance, including accidents (with a limit of $1,000,000 per accident) and occupation diseases (with a limit of $1,000,000 per employee).

B. Comprehensive (also called Commercial) General Liability Insurance, including Contractual Liability, with limits of $5,000,000 per occurrence for bodily injury or death and $1,000,000 per occurrence for property damage or a combined single limit of $5,000,000 per occurrence and, for at least one year after completion of performance hereunder, Products/Completed Operations Liability Insurance with similar but separate and independent limits. The insurance shall contain no exclusions for explosion, collapse of a building or structure, or underground hazards. The insurance policy or policies shall name Con Edison as an additional insured. There shall be no exclusion for claims by Contractor employees against Con Edison based on injury to Contractor’s employees.

C. Comprehensive Automobile Liability Insurance, covering all owned, non-owned and hired automobiles used by Contractor or any subcontractors, with limits of $1,000,000 per occurrence for bodily injury or death and $500,000 per occurrence for property damage or a combined single limit of $1,000,000 per occurrence.

D. Where the work to be performed involves asbestos abatement or lead abatement, Asbestos Abatement General Liability Insurance and Lead Abatement Liability Insurance, as

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applicable, each with a combined single limit of $5,000,000 for bodily injury or death and property damage. Each insurance policy shall name Con Edison as an additional insured. Where the abatement work is to be performed by a subcontractor, Contractor shall require the subcontractor to name both Contractor and Con Edison as additional insureds and to submit copies of the policies to Con Edison.

There shall be no policy deductibles without Con Edison’s prior written approval.

Contractor shall cause all insurance carried hereunder to be endorsed by the insurer to require that the insurer furnish Con Edison with at least ten (10) days’ written notice prior to the effective date of cancellation of the insurance or of any changes in policy limits or scope of coverage. All coverage of additional insureds shall be primary coverage as to the additional insureds.

At least three (3) days prior to commencing any of the work to be performed hereunder, Contractor shall furnish Con Edison with copies of the policies specified in the inset paragraphs B and D above of this Section and Certificate(s) of Insurance covering all required insurance and signed by the insurer or its authorized representative certifying that the required insurance has been obtained and will not be canceled or altered without at least ten (10) days’ prior written notice to Con Edison. Such certificates shall state that the policies have been issued and are effective, show their expiration dates, and state that Con Edison is an additional insured with respect to all coverages specified in the inset paragraphs B and D above of this Section. Such certificates shall not contain a disclaimer of liability of the insurer for failure to provide Con Edison with notice of cancellation or substantial alteration. Con Edison shall have the right to require Contractor to furnish Con Edison, upon request, with a copy of the insurance policy or policies required under paragraphs A and C of this Section. Contractor agrees that this is an insured contract. The insurance required herein is intended to cover Con Edison for its own liability for negligence or any other cause of action in any claim or lawsuit for bodily injury or property damage arising out of the work to be performed hereunder.

For purposes of interpretation or determination of coverage of any policy of insurance or endorsement thereto, Contractor shall be deemed to have assumed tort liability for any injury to any employee of Contractor or Con Edison arising out of the performance of the work required

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hereby, including injury caused by the partial or sole negligence of Con Edison and notwithstanding any statutory prohibition or limitation of the Contractor’s indemnification obligation hereunder.

Certificates of Insurance identifying this Agreement shall be sent to:

Consolidated Edison Company of New York, Inc.

4 Irving Place

New York, N.Y. 10003

Attention:	Purchasing Department
	Administrative Services

19. Breach; Remedies; Termination. A. The occurrence of any one or more of the following events shall constitute a material breach of this Agreement by Contractor, which shall give Con Edison the right, but not the obligation, to terminate this Agreement upon written notice to Contractor:

(i) Any one or more of Contractor’s certifications, representations, or warranties in the proposal that it submitted to Con Edison in response to the RFP was materially false when made; or

(ii) Any one or more of Contractor’s representations and warranties contained in Section 15 of this Agreement was false when made; or

(iii) Any Contractor’s Annual Certification was false in any material respect when made; or

(iv) Contractor’s failure to furnish any Security when due under this Agreement, to renew or amend any Security when due under this Agreement, or to furnish any replacement Security when due under this Agreement; or

(v) Contractor’s failure to perform or observe any other of the material provisions of this Agreement not otherwise specified in this Section, which failure is not rectified or cured within thirty (30) days after written notice thereof from Con Edison or, if such failure cannot reasonably be rectified or cured within such thirty (30) day period, failure of Contractor to proceed promptly to institute corrective action to rectify or cure the same and thereafter to prosecute the complete rectification or curing of such breach with due diligence; provided, however, that receipt of Initial Liquidated Damages and/or Subsequent Liquidated Damages, as applicable, and the ineligibility for payment by Con Edison hereunder of any associated Contract Load Reduction Guaranty Initial Shortfall and/or Contract Load Reduction Guaranty Subsequent Shortfall, shall be the sole remedies of Con Edison in the event that there is a Contract Load Reduction Guaranty Initial Shortfall and/or a Contract Load Reduction Guaranty Subsequent Shortfall and Con

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Edison shall not have the right to terminate this Agreement therefor, except that such remedies shall not be deemed the sole remedies of Con Edison or prohibit Con Edison from seeking indemnification or contribution against Contractor or others with respect to any claims of third parties against Con Edison, which in whole or in part arise from, relate to, or are connected with the installation, maintenance or operation of the Contract DSM Measures or any other act or omission of Contractor, its directors, officers, employees, subcontractors, suppliers, agents, or representatives arising from, related to or in connection with this Agreement; or

(vi) to the extent permitted by applicable law, the dissolution or liquidation of Contractor, or the admission in writing of Contractor of its inability to pay its debts as they become due, or the failure by either Contractor to lift any execution, garnishment or attachment of such consequence as will impair Contractor’s ability to perform substantially its obligations pursuant to this Agreement or the commission by Contractor of any act of bankruptcy, or the adjudication of Contractor as a bankrupt, or the making of an assignment by Contractor for the benefit of its creditors or the entry by Contractor into an agreement of composition with its creditors, or the approval by a court of competent jurisdiction of a petition applicable to Contractor in any proceeding for the reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar proceeding instituted under the provisions of any bankruptcy act or under any similar act in any domestic or foreign jurisdiction which may now be in effect or hereafter enacted, or within sixty (60) days after the commencement of any such proceeding against Contractor such proceeding shall not have been dismissed, or the filing of an answer admitting or not contesting the material allegations of a petition against it in such proceeding, or the appointment without the consent or acquiescence of Contractor, of any trustee, receiver or liquidator of Contractor or of any material part of its properties, if within sixty (60) days thereafter such appointment shall not have been vacated, or if Contractor shall seek or consent or acquiesce in the appointment of any trustee, receiver or liquidator of itself or of any material part of its properties.

In the event that Con Edison terminates this Agreement due to a breach by Contractor as described above, the Parties, recognizing that Con Edison will have suffered damages that are significant, but which are difficult or impossible to calculate, agree that Con Edison will have been damaged in a sum equal to the total of the Subsequent Liquidated Damages that would be owed pursuant to Section 13 (C)) for all Electric Network Periods covered by this Agreement if the Contract Load Reduction Guaranty Subsequent Shortfall with respect to each such Network Electric Period were equal to the entire amount of KWs comprising the Contract Load Reduction Guaranty for such Electric Network Period, and that Contractor shall be

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obligated to pay such sum, as liquidated damages and not as a penalty, to Con Edison. Following such a termination, with respect to the affected Electric Network, no further payment shall be made by Con Edison to Contractor pursuant to this Agreement, except, subject to the applicable limitation of liability provisions in this Agreement, for any unpaid payments due pursuant to Section 10(A) of this Agreement for electric load reduction resulting from Contract DSM Measures (i) for which Con Edison, prior to the date of such termination, (a) has verified through a completed Post-Installation Inspection to be installed and operational and (b) has not found through a Follow-Up Inspection to be inoperable, or (ii) for which Con Edison (a) prior to the date of such termination has received a Post-Installation Inspection Report and (b) subsequently verifies through a Post-Installation Inspection to be installed and operational (which Post-Installation Inspection Con Edison shall cause to be conducted or shall waive such Post-Installation Inspection in accordance with this Agreement); provided, however, that no payment shall be made to Contractor until Con Edison receives the liquidated damages due from Contractor. Notwithstanding anything to the contrary in the foregoing, in lieu of terminating this Agreement in its entirety due to a breach by Contractor as set forth in this Section 19(A), Con Edison may elect, in its sole discretion, to terminate this Agreement with respect to any one or more, but less than all, Electric Network Periods covered by this Agreement, in which case the liquidated damages in this Section 19(A) shall be calculated only with regard to the terminated Electric Network Period(s).

B. The occurrence of any one or more of the following events shall constitute a material breach of this Agreement by Con Edison, which shall give Contractor the right, but not the obligation, to terminate this Agreement upon written notice to Con Edison:

(i) Any one or more of Con Edison’s representations and warranties contained in Section 15 of this Agreement was false when made; or

(ii) Con Edison has failed to pay the undisputed portion of any invoice from Contractor when due, which failure is not rectified or cured within thirty (30) days after written notice thereof from Contractor; or

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(iii) to the extent permitted by applicable law, the dissolution or liquidation of Con Edison, or the admission in writing of Con Edison of its inability to pay its debts as they become due, or the failure by Con Edison to lift any execution, garnishment or attachment of such consequence as will impair Con Edison’s ability to perform substantially its obligations pursuant to this Agreement or the commission by Con Edison of any act of bankruptcy, or the adjudication of Con Edison as a bankrupt, or the making of an assignment by Con Edison for the benefit of its creditors or the entry by Con Edison into an agreement of composition with its creditors, or the approval by a court of competent jurisdiction of a petition applicable to Con Edison in any proceeding for the reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar proceeding instituted under the provisions of any bankruptcy act or under any similar act in any domestic or foreign jurisdiction which may now be in effect or hereafter enacted, or within sixty days after the commencement of any such proceeding against Con Edison such proceeding shall not have been dismissed, or the filing of an answer admitting or not contesting the material allegations of a petition against it in such proceeding, or the appointment without the consent or acquiescence of Con Edison, of any trustee, receiver or liquidator of Con Edison or of any material part of its properties, if within sixty (60) days thereafter such appointment shall not have been vacated, or if Con Edison shall seek or consent or acquiesce in the appointment of any trustee, receiver or liquidator of itself or of any material part of its properties.

In the event that Contractor terminates this Agreement due to a breach by Con Edison, as described above, Contractor, subject to the applicable limitation of liability provisions in this Agreement, shall (i) be entitled to invoice and receive payment for any unpaid payments due pursuant to Section 10(A) of this Agreement for electric load reduction resulting from Contract DSM Measures (a) for which Con Edison, prior to the date of such termination, has verified through a completed Post-Installation Inspection to be installed and operational and has not found through a Follow-Up Inspection to be inoperable, or (b) for which Con Edison, prior to the date of such termination, has received a Post-Installation Inspection Report and subsequently verifies through a Post-Installation Inspection to be installed and operational (which Post-Installation Inspection Con Edison shall cause to be conducted or shall waive in accordance with this Agreement), and (ii) have the rights and remedies available under applicable law and this Agreement. In the event that Contractor terminates this Agreement due to a breach by Con Edison as described above, Contractor shall be released from any obligations under this Agreement attributable to the period on and after the date of such termination, but shall not be released from any obligations under this Agreement attributable

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to the period prior to the effective date of such termination or the failure to perform any obligations prior to the date of such termination (and Con Edison shall be entitled to receive any Liquidated Damages due from Contractor relating to any such failure to perform by Contractor prior to Con Edison paying any portion of the amount set forth in the immediately preceding sentence). Notwithstanding anything to the contrary in the foregoing, in lieu of terminating this Agreement in its entirety due to a breach by Con Edison as set forth in this Section 19(B), Contractor may elect, in its sole discretion, to terminate this Agreement with respect to any one or more, but less than all, Electric Network Periods covered by this Agreement in which case the liquidated damages in this Section 19(B) shall be calculated only with regard to the terminated Electric Network Period(s).

C. Con Edison may, at its sole discretion, terminate the Agreement in whole or with respect to any one or more Electric Network Periods at any time for convenience, to be effective on the final day of the second full calendar month of the receipt by Contractor of a written “Termination for Convenience” notice from Con Edison. If Con Edison terminates this Agreement or any one or more Electric Network Periods for convenience, for each Electric Network period so terminated, (i) Con Edison shall, within sixty (60) days of the effective date of such termination and without regard as to when such sum would otherwise be due, pay Contractor, at the applicable rates set forth in Sections 9 and 10 and Exhibit C (and subject to the applicable maximum amount of KWs of load reduction for which any payment would otherwise be due), any previously unpaid payments for electric load reduction resulting from Contract DSM Measures (a) for which Con Edison, prior to the effective date of such termination, has verified through a completed Post-Installation Inspection to be installed and operational and has not found through a Follow-Up Inspection to be inoperable, or (b) for which Con Edison, prior to the effective date of such termination, has received a Post-Installation Inspection Report and subsequently verifies through a Post-Installation Inspection to be installed and operational (which Post-Installation Inspection Con Edison shall cause to be conducted or shall waive in accordance with this Agreement), and (ii) solely if the effective date of such termination is prior to November 1 of the first year of the Electric Network Period being terminated for convenience, Con Edison shall pay Contractor, within ninety (90) days of the effective date of such termination, an amount equal to the product of (a) $150 and (b) the sum of (X) the amount of KWs of load reduction comprising the

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applicable Contract Load Reduction Guaranty, minus (Y) the sum of the amount of KWs of electric load reduction for which Con Edison makes a payment to Contractor pursuant to clause (i) immediately above. In the event of such a termination for convenience, Contractor shall be released from any obligations under this Agreement in respect of the terminated Electric Network period(s) that are attributable to the period on and after the effective date of such termination, but shall not be released from any obligations under this Agreement attributable to the period prior to the effective date of such termination or the failure to perform any obligations prior to the effective date of such termination (and Con Edison shall be entitled to receive any Liquidated Damages due from Contractor relating to any such failure to perform by Contractor prior to Con Edison paying any portion of the amount set forth above). Upon such a termination for convenience by Con Edison, Con Edison shall promptly return or release, as applicable, any Security in Con Edison’s possession except for any Security that may secure the payment of any damages due Con Edison for Contractor’s failure to perform any obligation prior to the effective date of such termination. The remedies of Contractor specified in this Section 19(C) shall be the sole and exclusive remedies of Contractor arising from, related to or in connection with a termination for convenience by Con Edison.

20. Force Majeure. A. The term “Force Majeure Event” as used herein, shall include, but shall not be limited to, acts of God, earthquakes, fires, floods, industry wide strikes, labor disputes, riots insurrections, acts of war (whether declared or otherwise), acts of terrorism, acts of governmental, regulatory, or judicial bodies, or any other causes beyond the reasonable control of, without the fault or negligence of, and not reasonably foreseeable and avoidable by, the Party claiming the Force Majeure Event, provided that the destruction, in whole or in part and due to any cause, of any Contract DSM Measures or any premises where Contract DSM Measures are installed or are contemplated to be installed shall not be a Force Majeure Event.

B. To the extent that a Party is unable to perform one or more of its obligations under this Agreement because of a Force Majeure Event, that Party (the “Claiming Party”) shall be excused from performance of such obligation(s) to the extent so affected by the Force Majeure Event, provided that the Claiming Party: (i) within ten (10) days of the occurrence of the Force Majeure Event, notifies the other Party in writing of the occurrence of the Force

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Majeure Event and in such written notice states when the Force Majeure Event occurred, describes the nature of the Force Majeure Event, specifies the obligations under this Agreement that cannot be performed because of such Force Majeure Event, and provides an estimate of the duration of the Force Majeure Event, and (ii) after the occurrence of the Force Majeure Event, endeavors in good faith to remedy its inability to perform (provided that the Claiming Party shall not be required to settle any strike or other labor dispute on terms, which, in the sole judgment of the Claiming Party, are contrary to its interest).

C. Notwithstanding anything to the contrary in this Section, (i) no failure by the Claiming Party to perform an obligation under this Agreement prior to the occurrence of a Force Majeure Event shall be excused because of the occurrence of such Force Majeure Event, (ii) the failure by the Claiming Party to perform an obligation under this Agreement shall not be excused for any period longer than the period during which the Force Majeure Event makes the Claiming Party unable to perform such obligation, and (iii) no Force Majeure Event shall excuse any obligation of either Party hereunder to make any payments (including, but not limited to, payments of any liquidated damages), make any deposits, post and maintain any security, perform any defense, indemnification and hold harmless obligations, or procure and maintain any insurance.

D. Prior to resumption of performance of any obligation under this Agreement excused by the occurrence of a Force Majeure Event and the provision of the written notice specified in paragraph B of this Section, the Claiming Party shall provide the other Party with written notice of such resumption.

21. Notices. All invoices, notices and other communications hereunder (collectively, “Notices”) to a Party shall be in writing and shall be delivered by hand delivery, United States mail, nationally recognized overnight courier service, or by facsimile to the address/facsimile number for such Party described below (provided that, in the case of Notice by facsimile, a copy of the Notice is also sent by nationally recognized overnight courier service). Notices shall be effective at the close of business on the day actually received, if received during business hours on a Business Day, and otherwise shall be effective at the close of business on the next Business Day.

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If to Con Edison - to Consolidated Edison Company of New York, Inc., 4 Irving Place, 10^th Floor North, New York, NY 10003, Attn: Director, Energy Efficiency Programs, Facsimile No.: (212) 780-3636, with a copy of any Notice asserting a default by Con Edison under this Agreement being provided to Consolidated Edison Company of New York, Inc., 4 Irving Place, Room 1810-S, New York, NY 10003, Attention: General Counsel, Telecopier No.: (212) 677-5850, or to such other address/facsimile number for Notices under this Agreement as Con Edison (or its successor or permitted assign) shall have last furnished in writing to Contractor in accordance herewith;

and

If to Contractor – to Public Energy Solutions, LLC, 41 Honeck Street, Englewood, NJ 07631, Attn: Mr. Keith S. Hartman, President, Facsimile No.:(201) 871-8622, or to such other address/facsimile number for Notices under this Agreement as Contractor (or its successor or permitted assign) shall have last furnished in writing to Con Edison in accordance herewith.

22. Subcontracting. A. Contractor shall not subcontract all or any portion of the work to be performed hereunder by Contractor without the express written approval of Con Edison as to the work to be subcontracted and the subcontractor (which approval shall not be unreasonably withheld); provided, however, that this limitation shall not apply to the purchase of standard commercial supplies or raw materials. Contractor shall, as soon as practicable after execution of this Agreement, and, as applicable throughout the Term of this Agreement, notify Con Edison in writing of any subcontractor proposed to be utilized for the performance of any work hereunder. Contractor shall not be relieved of any obligations hereunder by reason of any such approved subcontracting.

B. Contractor shall, notwithstanding Con Edison’s approval of any work to be subcontracted or any subcontractor, be as fully responsible for the acts and omissions of its subcontractors and their agents as it is for its own acts and omissions. Should any approved subcontractor fail to perform to the reasonable satisfaction of Con Edison, Con Edison shall have

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the right to rescind its approval and to require the work subcontracted to be performed by Contractor or by another approved subcontractor. Nothing contained herein shall create any contractual rights in any subcontractor against Con Edison. Contractor shall cause all subcontracts applicable to the work to be performed hereunder to contain provisions which require the subcontractor to provide the same insurance coverage as is required of Contractor hereunder naming both Con Edison and Contractor as additional insureds. Subcontracts shall provide for Contractor the same rights against the subcontractor as Con Edison has hereunder against Contractor and shall expressly state that such provisions shall also be for the benefit of Con Edison.

23. Liens. Contractor shall save harmless and indemnify Con Edison against all claims, liens or attachments growing out of the demands of subcontractors, mechanics, workmen, materialmen and furnishers of machinery, equipment, tools, or supplies, including commissary, in connection with the work performed or to be performed under this Agreement. Contractor shall cause all work to be performed so as to maintain Con Edison and its property free and clear of all liens, claims, and encumbrances, and shall furnish Con Edison a certification to that effect upon request. Contractor shall furnish Con Edison a Waiver of Liens in full with the presentation of Contractor’s final invoice for payment. The final payment to be made to Contractor hereunder shall not become due until Contractor furnishes a Waiver of Lien. Contractor may, if any of its subcontractors or suppliers refuse to furnish a Waiver of Lien, furnish a bond reasonably satisfactory to Con Edison indemnifying Con Edison against any lien. If required by Con Edison, Contractor shall furnish Con Edison, in addition to the Waiver of Lien, an affidavit stating that, so far as Contractor has knowledge, the Waiver of Lien includes all labor and material for which a lien could be filed. Con Edison may withhold from payment an amount sufficient to protect Con Edison and its property against any claims filed in court, or any liens or attachments. Con Edison may withhold from payment an amount sufficient to protect Con Edison and its property against any claims, liens or attachments. If any claim, lien or attachment remains unsatisfied after final payment has been made to Contractor, Contractor shall refund to Con Edison all monies that Con Edison may be compelled to pay in discharging such claim, lien or attachment, including all costs and attorneys’ fees.

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24. Confidentiality. Except to the extent that disclosure may be required by applicable laws, rules, regulations or judicial or governmental agency orders or judgments, each Party (the “Obtaining Party”) agrees that it will not disclose to any third party any confidential information concerning the customers, trade secrets, methods, processes or procedures or any other confidential business or financial information of the other Party (the “Other Party”) that are clearly marked “confidential” by the Other Party and that the Obtaining Party obtains as a result of the performance of this Agreement. The foregoing obligation does not apply to any information: (i) which, at the time that Obtaining Party obtains it as a result of performance hereunder, is generally available to the public; (ii) which, after the Obtaining Party obtains it as a result of performance hereunder, becomes generally available to the public by publication or otherwise through no fault of the Obtaining Party; (iii) which the Obtaining Party can show by written record was in its possession prior to obtaining it as a result of performance hereunder; (iv) which the Obtaining Party can show by written record was received by it from a non-party to this Agreement after the time that the Obtaining Party obtained it as a result of performance hereunder and (A) such non-party imposes no obligation of confidentiality upon the Obtaining Party concerning such information, and (B) to the knowledge of the Obtaining Party, such non-party (y) did not acquire any such information directly or indirectly from the Other Party, and (z) is not subject to an obligation of confidentiality with regard to such information; or (v) which the Obtaining Party can show by written record was independently developed by it after the time the Obtaining Party obtained it as a result of performance hereunder other than in connection with an attempt to duplicate the information previously received. The obligations under this Section 24 shall not affect the right of Con Edison to use information obtained from Contractor as a result of performance hereunder for its own research purposes. The obligations under this Section 24 shall survive the expiration or earlier termination of this Agreement.

25. Successors And Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of each of the Parties hereto; provided, however, that neither Party shall assign or transfer, whether by operation of law or otherwise, any of its rights or obligations hereunder without the prior written consent of the other Party and any purported assignment without such consent shall be void.

26. Entire Agreement. This Agreement contains the entire agreement between the Parties relating to the subject matter hereof, and any prior or contemporaneous oral or written

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understandings, promises, representations or warranties relating to such subject matter are merged herein and superseded hereby.

27. Waiver; Modification. This Agreement may be modified only by a writing signed by an authorized representative of each Party. No waiver of any right under this Agreement shall be effective unless in writing and signed by an authorized representative of the Party granting such waiver and such waiver shall be effective only with respect to the particular event expressly referred to in such signed writing. Notwithstanding the immediately preceding sentence, a waiver shall also arise from such failures to act as this Agreement may expressly provide constitute a waiver.

28. Governing Law; Consent To Jurisdiction And Service; Waiver Of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York determined without reference to principles of conflicts or choice of law (other than Section 5-1401 of the New York General Obligations Law). Each Party agrees to submit to the exclusive jurisdiction of the Courts of the State of New York and of the United States situated within the Borough of Manhattan in the City and State of New York for any legal or equitable proceeding arising from or relating to or connected with this Agreement and waives any claim, defense or objection that any such proceeding in any such court has been brought in an incorrect or inconvenient venue or forum. Contractor agrees that service of process on it and its successors and permitted assigns in relation to such jurisdiction may be made, at the option of Con Edison, by certified or registered mail, return receipt requested, addressed to the address for Notices pursuant to Section 21 hereof or by actual personal delivery to such address. Service of process on Contractor may also be effected in any manner permitted by applicable law. EACH PARTY WAIVES ITS RESPECTIVE RIGHT TO ANY JURY TRIAL WITH RESPECT TO ANY DISPUTE ARISING FROM OR RELATING TO OR CONNECTED WITH THIS AGREEMENT.

29. Relationship Of Parties. This Agreement does not create, and shall not be construed to create, a joint venture, partnership, association, principal-agent, or employer-employee relationship between the Parties. Neither Party, by virtue of this Agreement, shall have any right, power, or authority to enter into any agreement or undertaking for or on behalf of, to act on behalf

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of, to act as or be an agent, employee, or representative of, or to otherwise bind, act for, or represent the other Party. As to Con Edison, Contractor is an independent contractor with respect to all work and services under this Agreement.

30. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the Parties and their successors and permitted assigns, any rights or remedies under or by reason of this Agreement.

31. Severability. Every provision of this Agreement is intended to be severable. If any provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, it shall be enforced to the fullest extent permitted by law, any such illegality, invalidity or unenforceability shall not affect the other provisions hereof, and such other provisions shall remain binding, enforceable, and in full force and effect.

32. Interpretation. When reference is made in this Agreement to any Section or Exhibit, such reference is to a Section or Exhibit of this Agreement unless otherwise indicated. The headings and subheadings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement shall be deemed to have been jointly prepared by the Parties hereto and the provisions hereof shall not be construed in favor of or against any Party on account of its participation in such preparation. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The phrases “the date of this Agreement,” “the date hereof” and terms of similar import, unless the context otherwise requires, shall be deemed to refer to the date set forth in the first paragraph of this Agreement. The words “hereof”, “herein”, “hereby” and other words of similar import refer to this Agreement as a whole unless otherwise indicated. Whenever the singular is used herein, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate.

33. Binding When Executed And Delivered; Counterparts; Delivery Of Agreement By Facsimile. This Agreement shall not be binding upon a Party until it is executed and delivered by that Party to the other Party hereto. This Agreement may be executed in

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counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument. This Agreement and any counterpart thereof may be delivered via facsimile, it being the express intent of the Parties that this Agreement and any counterpart thereof delivered via facsimile (together with the signatures thereon) shall have the same force and effect as if they were originals.

34. Letter of Introduction. Con Edison agrees to provide Contractor with a “letter of introduction” on Con Edison letterhead, which indicates that Con Edison has entered into this Agreement with Contractor for load reductions in the applicable Electric Network resulting from the installation of Contract DSM Measures. Such letter of introduction will also contain a disclaimer of any responsibility of Con Edison for any Contract DSM Measures that are installed in the premises of the Contractor’s customers, including statements that any arrangements made by Contractor and Contractor’s customers with respect to the installation of Contract DSM Measures shall be between Contractor and its customers and that Con Edison shall not be a party to those arrangements or have any responsibility relating to those arrangements or any Contract DSM Measures that are installed. Con Edison agrees to permit Contractor to show, or give a copy of, such letter of introduction to prospective customers of Contractor in whose premises Contractor desires to install Contract DSM Measures in furtherance of its obligations under this Agreement.

35. FAR Clauses. To the extent they may be applicable to the Agreement, Contractor shall comply with Federal Acquisition Regulation (“FAR”) clause 52.203-6, “Restrictions On Subcontractor Sales To The Government (Jul 1985)”, FAR clause 52.203-7, “Anti-Kickback Procedures (Oct 1988)”, FAR clause 52.203-11, “Certification And Disclosure Regarding Payments To Influence Certain Federal Transactions (Apr 1991)”, FAR clause 52.203.12, “Limitation On Payment To Influence Certain Federal Transactions (Jan 1990)”, FAR clause 52.219-8, “Utilization Of Small business Concerns and Small Disadvantaged Business Concerns (Feb 1990)”; FAR clause 52.219-9, “Small Business And Small Disadvantaged Business Subcontracting Plan (Jan 1991)”, FAR clause 52.222-26, “Equal Opportunity (Apr 1984)”, FAR clause 52.222-35, “Affirmative Action For Special Disabled And Vietnam Era Veterans (Apr 1984)”, FAR clause 52.222-36, “Affirmative Action For Handicapped Workers (Apr 1984)”, FAR clause 52.222-37, “Employment Reports On Special Disabled Veterans And Veterans Of the Vietnam Era Jan 1988)”, FAR clause 52.223-2, “Clean Air And Water (1984)”. Contractor

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certifies that neither it nor its principals is debarred, suspended or proposed for debarment by the Federal Government, that it does not and will not maintain or provide for its employees any segregated facilities (i.e., facilities that are segregated on the basis of race, color, religion, or national origin) at any of its establishments, and that it does not permit and will not permit its employees to perform their services at any location under its control where segregated facilities are maintained.

36. Set-off. Con Edison shall have the right to set off against any sums due Contractor under this Agreement any claims Con Edison may have against Contractor under this Agreement, without prejudice to the rights of the parties in respect of such claims.

IN WITNESS WHEREOF, the Parties by their duly authorized representatives have executed this Agreement as of the date first written above.

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. (“Con Edison”)		PUBLIC ENERGY SOLUTIONS, LLC (“Contractor”)
By:	/s/ John Miksad	By:	/s/ Keith S. Hartman
Name:	John Miksad	Name:	Keith S. Hartman
Title:	SVP, Electric Operations	Title:	President

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Exhibit 10.2

Confidential Treatment

Requested

Exhibit A

Eligible DSM Measures

Contractor, in accordance with this Agreement, shall cause one or more of the DSM Measures listed below to be installed in the premises of Con Edison customers located in the Electric Networks described in Exhibit B, excluding measures in new construction or total renovation. Contractor may add new DSM Measures to the list below with the written approval of Con Edison, which approval shall not be unreasonably withheld. All lighting DSM measures shall be installed using hard wired fixtures, permanent socket modifiers or locking devices that prevent or discourage the replacement of higher efficiency lighting measures by those lighting applications that were replaced. Any equipment upgrades are to be comprised of the physical replacement of parts, which by changing the design of the equipment, make the resulting equipment more efficient. Operating and maintenance work such as chiller tube cleaning or filter replacement is ineligible. The DSM Measures are the following:

• Replace incandescent fixtures or HID or Metal Halide with lower wattage fluorescent or Metal Halide fixtures or lower wattage lighting systems.

• Replace incandescent lamps with hard-wired compact fluorescent (“CFL”) and screw-in CFLs fitted with mechanical clip restraints to prevent replacement except for CFLs having the same characteristics pursuant to an agreement between Contractor and the customer.

• Replace incandescent exit signs with LED exit signs or lower wattage than existing exit signs.

• Replace existing ballasts with higher efficiency ballasts.

• Replace fluorescent fixture with high efficiency lamp and high efficiency ballast.

• Replace existing motors with newly installed higher efficiency motors.

• Replace electric air conditioning with newly installed more efficient units or upgrades which increase the efficiency of air conditioning units (Pursuant to the PSC’s March 16, 2006 Order in Case 04-E-0572, demand management incentives under this program will not be available for the installation of electric chillers to customers served by, or otherwise located on, Con Edison’s steam system.)

• Replace electric air conditioning with newly installed gas air conditioning.

• Replace existing electric water heaters with alternative fueled water heaters or with heat pump water heaters.

• Replace electric refrigeration with more efficient units or upgrades which increase the efficiency of refrigeration units. Replace electric refrigeration with gas or steam refrigeration.

• Install clean distributed generation (“DG”). (To qualify as “clean DG” under this Agreement, the requirements set forth below must be satisfied.) All DG installations operating in parallel with Con Edison’s system must comply with Con Edison’s applicable interconnection specifications, which are available at www.coned.com/dg. Please note in particular that there are some areas where parallel synchronous DG cannot be installed on the primary service without fault current mitigation.

In addition, where thermal recovery would displace or offset Con Edison steam in the steam system service territory an additional review will be conducted by Con Edison to determine if the project would be detrimental to the steam system and the project will not qualify if such determination is made.

DG also has to provide “physical assurance,” i.e., the application of devices and equipment that automatically interrupt a DG customer’s normal load when DG does not perform as contracted. For example, an equal amount of customer load to the DG capacity would be interrupted to prevent adverse consequences to the distribution system and to other customers.

• Replace electric air conditioning with newly installed steam air conditioning or install steam air conditioning in new construction, except that steam chillers installed as part of a hybrid configuration will be required to comply with the “physical assurance” requirement above applicable to DG.

• Install thermal storage for on-peak cooling. Such installations will be required to comply with the “physical assurance” requirement applicable to DG.

(Note: As part of the DSM Measures Implementation Reports that Contractor must submit to Con Edison, Contractor is to obtain from customers and submit to Con Edison an acknowledgement from the customer stating that the customer understands that Con Edison will not be supplying backup service for the electric load reduction provided by the DG.

Requirements for Clean DG*

1. DG facilities shall not emit, at any time, more than 1.6 pounds of nitrous oxide per megawatt-hour. For a combined heat and power facility, thermal recovery will be considered as a credit.

2. DG facilities shall comply with the National Fire Protection Association standards for stationary combustion engines and gas turbines or equivalent local code requirements.

3. DG facilities located within New York City shall comply with: (a) the New York City Building Code and the regulations for chimney heights and locations; and (b) the New York City Noise Code.

4. DG facilities located in Westchester County shall comply with: (a) the New York State Fuel Gas Code; and (b) local noise codes, or, where no such codes exist, the same standards contained in the New York City Noise Code.

5. Distance requirements for DG facilities: To avoid significant air quality impacts at nearby receptors, all DG projects shall comply with the following minimum distances between the projects’ stacks and the receptors, with the distances based on the size of the projects, as shown on Figure 1 below.

^* Reference: New York Public Service Commission Case 04-E-0572 – Proceeding on Motion of the Commission as to the Rates, Charges, Rules and Regulations of Consolidated Edison Company of New York, Inc. for Electric Service. Order On Demand Management Action Plan (Issued and Effective March 16, 2006).

For example, for a facility with a generating capacity of 0.5 megawatts or less, no significant impacts are predicted at or beyond thirty (30) feet from the exhaust stack to a sensitive receptor; for a facility with a generating capacity of 0.5 megawatts to 1 megawatt, no significant impacts are predicted at or beyond forty (40) feet from the exhaust stack to a sensitive receptor.

Exhibit B

Electric Networks;

Contract Load Reduction Guaranty Per

Electric Network Period; Security B Amounts

	3/1/2010 LRCD to 2/28/2012_ LRED	3/1/2011 LRCD to 2/28/2012_ LRED	3/1/2012 LRCD to 2/28/2013_ LRED
Load Areas/Networks (“Electric Network” as defined in the Agreement)
***	*** KW CLRG (Security B Amount of $*** due on or before 1/1/2010)	*** KW CLRG (Security B Amount of $*** due on or before 1/1/2011)	*** KW CLRG (Security B Amount of $*** due on or before 1/1/2012)

Key/Notes:

LRCD = Load Reduction Commencement Date

LRED = Load Reduction Expiration Date

KW = kilowatts

CLRG = Contract Load Reduction Guaranty

N/A = Not Applicable

All Contract Load Reduction Guaranties shown above for any Electric Network Period (the period applicable to a particular “Electric Network” as defined in the Agreement (i.e., those areas indicated in the first column above) that commences on a particular Load Reduction Commencement Date (i.e., the respective dates preceding “LRCD” in the headings for each Electric Network in the table above) are incremental to the Contract Load Reduction Guaranties for Electric Network Periods (relating to the same Electric Network) with earlier Load Reduction Commencement Dates.

Borders of Load Areas/Electric Networks

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

***

Contractor shall submit to Con Edison the addresses and account numbers of potential customers located on a street, avenue or road serving as a geographical border between load areas/electric networks (“Border Locations”) so that Con Edison may verify that load reductions resulting from Contract DSM Measures to be installed at such locations are eligible to be counted towards Contractor’s achievement of the applicable Contract Load Reduction Guaranty since such Border Locations may be part of one or another load area/electric network and, on rare occasions, particular circumstances (including those attending a repair or replacement of electric connection to a location) may have dictated that a location within the borders of a load area/electric network, be electrically connected to a different load area/electric network. In cases where Con Edison informs Contractor that the address submitted by Contractor does not match the address under which a Con Edison customer is listed in Con Edison’s data systems that are electronically searchable by address, Contractor will be so informed and, in such cases, Contractor shall submit to Con Edison the Con Edison customer account number applicable to the location at issue in order

for the verification referenced in the preceding sentence to be made. Con Edison will respond to Contractor’s submission of addresses and to Contractor’s submission of addresses and account numbers within ten (10) days of receipt of the submission. Notwithstanding the foregoing Contractor shall only be required to submit the account number for a potential customer relating to a Residential Site (as defined in Exhibit G) if such account number is known to Contractor.

Exhibit C

Price

Subject to the provisions of this Agreement, the price to be paid per KW of load reduction (resulting from Contract DSM Measures) achieved in each Electric Network Period relating to the *** Load Area is $***.

Additional Price

Subject to the provisions of this Agreement, the applicable Additional Price to be paid per KW of Excess Load Reduction (resulting from Contract DSM Measures) achieved in each Electric Network Period relating to the *** Load Area is $***.

Exhibit D

M&V Procedures

Methodology For Calculating Load Reductions Resulting From Contract DSM Measures

Methodology:

Subject to the Notes below: (i) the load reductions resulting from the installation and operation of Contract DSM Measures shall be calculated for each individual Contract DSM Measure by comparing the nameplate data or the manufacturer’s specification data for peak KW demand by the equipment (the “Existing Equipment”) being replaced with the nameplate data or the manufacturer’s specification data for peak KW demand by the Contract DSM Measure replacing it; and (ii) the positive difference, if any, between the nameplate data or the manufacturer’s specification data for peak KW demand by the Existing Equipment and the nameplate data or the manufacturer’s specification data for peak KW usage by the Contract DSM Measure that is replacing such Existing Equipment shall be the load reduction resulting from such Contract DSM Measure.

Notes:

1. In the event that both the nameplate data and the manufacturer’s specification data for peak KW demand are available, the nameplate data shall govern in the case of any inconsistency between the two.

2. In the event that nameplate data or the manufacturer’s specification data for peak KW demand by the Existing Equipment or by the Contract DSM Measure is not available, the Parties shall substitute therefor the peak KW demand data for the equipment at issue (i.e., for the Existing Equipment and/or for the Contract DSM Measure, as applicable) that was utilized in NYSERDA’s Commercial and Industrial Performance Program (or other applicable NYSERDA Program) for such equipment as of the date that such equipment was installed. If such information from NYSERDA is not available, data from other sources may be used if approved by Con Edison.

3. For Existing Equipment that has been made inoperable by the customer (e.g., delamping) or is not utilized in the ordinary course by the customer, no load reduction will be deemed to result from the installation and operation of Contract DSM Measures that replace such Existing Equipment.

4. For Existing Equipment that has failed (as opposed to being made inoperable or not utilized in the ordinary course by the customer) and needs to be replaced (e.g., a burned out lamp), the load reduction, if any, resulting from the Contract DSM Measure will be calculated based on the methodology described above as though the Existing Equipment were operable.

5. The nameplate data and manufacturer’s specification data for peak KW demand of Contract DSM Measures consisting of fuel switching measures shall be deemed to be zero.

6. For Contract DSM Measures consisting of DG measures that result in an entire premises being isolated from Con Edison’s electric system such that power from such system no longer supplies such premises, the methodology described above shall not be used and the load reduction resulting from such Contract DSM Measures shall be deemed to be equal to the summer peak load at such premises immediately prior to the installation of such Contract DSM Measures.

7. For Contract DSM Measures consisting of DG measures that result in some electrical powered equipment in a premises no longer being eligible to receive power from Con Edison when the DG facility is not operating, the methodology described above shall not be used and the load reduction resulting from such Contract DSM Measures shall be deemed to be equal to the nameplate data or manufacturer’s specification data for peak KW demand by such equipment; provided, however, that if such nameplate data or manufacturer’s specification data is not available, the Parties shall substitute therefore peak KW usage determined in accordance with Note 2 above.

Exhibit E

Summer Peak Periods

For each Electric Network Period, the peak period during which the Contract DSM Measures are required to achieve load reductions is between the hours of 12:00 noon and 6:00 p.m. Eastern Prevailing Time (the “Applicable Hours”), Monday through Friday (other than holidays) during the period May 1 to September 30 of each year (each, a “Summer Weekday”). Contractor shall provide Con Edison with documentation evidencing that the Contract DSM Measures are utilized at some time during the Applicable Hours of each Summer Weekday (e.g., a customer’s certification that its hours of occupancy/business hours at the portion of its premises utilizing the Contract DSM Measures at least partially fall within the Applicable Hours of each Summer Weekday, together with the customer’s statement that this is expected to continue in the future) such that it is appropriate to credit the load reductions resulting from such Contract DSM Measures towards Contractor’s obligations under this Agreement pertaining to achieving load reductions. In the event that a customer does not operate one or more end uses with installed Contract DSM Measures each Summer Weekday, then the customer shall certify the number of Summer Weekdays the applicable end use is not used per year. Subject to documentation or other evidence indicating that the contrary is true, Contract DSM Measures consisting of increased efficiency or alternate fuel refrigeration, water heating, and air conditioning will be deemed to be in use during the Applicable Hours of each Summer Weekday.

Exhibit 10.2

Confidential Treatment

Requested

Exhibit F

Form of DSM Measures Implementation Report

See attached

Exhibit 10.2

Confidential Treatment

Requested

Exhibit G

Residential Site Inspection

The following inspection procedures shall apply to Pre-Installation Inspections and Post-Installation Inspections for residential sites (“Residential Sites”). For purposes of this Agreement, “Residential Sites” shall mean 1-4 family homes, individual apartments in buildings of five (5) or more units, the common areas of multi-family dwellings with living areas which qualify as Residential Sites hereunder and any other site which both Parties agree in writing to treat as a Residential Site. The limitations in Section 8 on the number of inspections that Con Edison is obligated to perform shall not apply to Residential Sites.

Ride-Along Inspections

The primary procedure to be used for inspections for Residential Sites shall be “Ride-Alongs” in which Con Edison and/or its representative shall accompany Contractor and/or its representative when existing equipment is being removed (a “Removal”) and Contract DSM Measures are being installed (a “Replacement”). At each Residential Site, Con Edison and/or its representative and Contractor and/or its representative shall sign an inspection report based on the wattages and number of Removals and Replacements. The results, as determined by Con Edison, shall be final and binding on Contractor. For purposes of this Agreement, if Con Edison and/or its representative is present at a Removal and Replacement of the equipment removed at such Removal, then such Removal and Replacement shall be deemed to be a Pre-Installation Inspection and a Post-Installation Inspection, respectively. Contractor shall notify Con Edison of the expected number of Removals and Replacements, the locations thereof and the projected hours needed therefor with respect to each week by the close of business on Monday of the immediately preceding week.

Tag and Bag Inspections

In the event Con Edison determines, in its sole discretion, that a Ride-Along Inspection cannot take place or that wattages cannot be determined as a result thereof for a Residential Site, then Contractor shall complete Removals and Replacements at such Residential Site, recording the data and securing an inspection report signed by the customer. Contractor shall retain all such Removals in a container which is sealed at the Residential Site where the Removal took place with the customer inspection report stapled (or otherwise attached) to the container (e.g., a clear plastic bag). Contractor shall retain the container for a minimum of two (2) full weeks following the reporting of such Removal and Replacement to Con Edison. Con Edison shall, on a weekly basis, inspect the sealed containers to verify that the contents match the wattages of the Removals reported on the applicable DSM Implementation Report and Post-Installation Inspection Report. Such inspection by Con Edison shall be deemed to be the Pre-Installation Inspection and Post-Installation Inspection for such Residential Site. Con Edison’s determinations shall be final and binding on Contractor.

Notwithstanding the foregoing, Con Edison may, in its reasonable discretion after consultation with Contractor, modify or otherwise change any or all of the inspection procedures for Residential Sites.

Exhibit 10.2

Confidential Treatment

Requested

Exhibit H

Form of Post-Installation Inspection Report

See attached

EX-31.1

Exhibit 31.1

CERTIFICATIONS

I, Robert M. Chiste, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Comverge, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

May 13, 2008

/s/    ROBERT M. CHISTE

Robert M. Chiste

Chairman, President and Chief Executive Officer

(Principal Executive Officer)

EX-31.2

Exhibit 31.2

CERTIFICATIONS

I, Michael D. Picchi, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Comverge, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

May 13, 2008

/s/    MICHAEL D. PICCHI

Michael D. Picchi

Executive Vice President and Chief Financial Officer

(Principal Financial and Accounting Officer)

EX-32.1

Exhibit 32.1

CERTIFICATIONS PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

(18 U.S.C. SECTION 1350)

In connection with the Quarterly Report of Comverge, Inc., a Delaware corporation (the “Company”), on Form 10-Q for the quarter ended March 31, 2008, as filed with the Securities and Exchange Commission (the “Report”), Robert M. Chiste, Chief Executive Officer of the Company, does hereby certify, pursuant to § 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. § 1350), that to his knowledge:

(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/    ROBERT M. CHISTE

Robert M. Chiste

Chairman, President and Chief Executive Officer

May 13, 2008

[A signed original of this written statement required by Section 906 has been provided to Comverge, Inc. and will be retained by Comverge, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.]

EX-32.2

Exhibit 32.2

CERTIFICATIONS PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

(18 U.S.C. SECTION 1350)

In connection with the Quarterly Report of Comverge, Inc., a Delaware corporation (the “Company”), on Form 10-Q for the quarter ended March 31, 2008, as filed with the Securities and Exchange Commission (the “Report”), Michael Picchi, Chief Financial Officer of the Company, does hereby certify, pursuant to § 906 of the Sarbanes-Oxley Act of 2002 (18 U.S.C. § 1350), that to his knowledge:

(1) The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/    MICHAEL D. PICCHI

Michael D. Picchi

Executive Vice President and Chief Financial Officer

May 13, 2008

[A signed original of this written statement required by Section 906 has been provided to Comverge, Inc. and will be retained by Comverge, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.]