EXHIBIT 10(v)
RESEARCH & DEVELOPMENT AGREEMENT
THIS AGREEMENT made this 1st day of July, 2001 between Trimol Group, Inc.,
a Delaware corporation having its principal office located at 1285 Avenue of the
Americas, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Trimol"), and Aluminum-Power Inc., a
corporation incorporated under the laws of the Province of Ontario, Canada, and
having a principal office located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("Aluminum-Power"). Aluminum-Power and Trimol shall sometimes be
referred to herein as the "Parties." All capitalized terms not defined herein
shall have the meaning given to them in the Technology Acquisition Agreement
dated January 11, 2001 between the Parties (the "Technology Acquisition
Agreement") and the License Agreement dated January 11, 2001 between the Parties
(the "License Agreement").
WHEREAS, Aluminum-Power has developed certain technologies pertaining to
aluminum-air fuel cell technology;
WHEREAS, Aluminum-Power and Trimol entered into the Technology Acquisition
Agreement, whereby Trimol acquired certain aluminum-air fuel cell technology
developed by Aluminum-Power;
WHEREAS, Aluminum-Power and Trimol entered into the License Agreement,
whereby Trimol licensed certain rights from Aluminum-Power related to the
aluminum-air fuel cell technology developed by Aluminum-Power (the aluminum-air
fuel cell technology that is the subject of the Technology Acquisition Agreement
and the License Agreement shall collectively be referred to hereinafter as the
"Technology Assets");
WHEREAS, the Parties recognize that the Technology Assets and other
technology owned and/or licensed by Aluminum-Power ("Aluminum-Power Technology")
are the subject of continuing research and development ("R & D");
WHEREAS, the Parties believe it would be in their best interests to conduct
such R&D jointly, where appropriate;
WHEREAS, Aluminum-Power and Trimol desire to enter into an R&D cost sharing
arrangement whereby each will bear a portion of the cost of such R&D and other
expenses associated with the continuing development of said Technology Assets
and Aluminum-Power Technology (collectively, the Technology Assets and
Aluminum-Power Technology shall be referred to herein as "Technology").
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the Parties agree as follows:
1. Premises, Facilities, Equipment and Human Resources. Subject to the
provisions contained herein, Aluminum-Power hereby agrees to provide Trimol, in
connection with the development of its Technology Assets, with:
1) unlimited access to Aluminum-Power's R&D center and facility presently
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("R&D
Center");
2) unlimited use of all equipment located in the R&D Center; and
3) unlimited use of all employees located therein.
2. Approved Budgets. Trimol hereby agrees to share proportionately, all costs
and expenses associated with Aluminum-Power's R&D and marketing efforts of the
Technology as set forth in: (a) budgets; (b) the budget for Aluminum-Power's
overhead, including, but not limited to, employee expenses and salaries; and (c)
any budgets hereinafter prepared relating to the development and marketing of
the Technology, all as amended from time to time (collectively, all budgets
referred to in subsection (a)-(c) are hereinafter referred to as the "Approved
Budgets"). The Approved Budgets shall be prepared by Aluminum-Power and shall be
subject to approval by Trimol.
On the fifth business day of each month, Aluminum-Power agrees to provide
Trimol with an expense schedule and invoices from the previous month for
expenses incurred in connection with the research and development of the
Technology Assets.
Aluminum-Power hereby acknowledges that for five (5) years, Trimol will not
be obligated to pay any amount to Aluminum-Power in connection with this
Agreement, except for an amount equal to 1.2% of the fixed expenses of the
Approved Budget on a monthly basis. However, any amount not paid in accordance
with this Section 2 shall be accrued during the term of this Agreement and
payable upon the fifth anniversary of the date of this Agreement. Such accrued
expenses will bear interest at 2% per annum. At any time prior to the fifth
anniversary date of this Agreement, Trimol may, in its sole discretion, pay to
Aluminum-Power any or all of the portion of accrued expenses incurred as of that
date.
3. Rights to Developed Property. Parties hereby agree that any and all further
Improvements (as this term is defined in the Technology Acquisition Agreement)
to:
a) any technology not specifically conveyed to Trimol by virtue of the
Technology Acquisition Agreement or licensed to Trimol pursuant to the License
Agreement shall be the sole property of Aluminum-Power;
b) the Aluminum-Power Technology which is the subject of the License
Agreement evidenced by United States Patent and Trademark Office Patent
Application Number: 09/522,930, filed on March 10, 2000, titled, "Ecologically
Clean Mechanically Rechargeable Air-Metal Current Source," and Canadian Patent
Application Number: 2,301,470, filed on December 7, 2000, shall be incorporated
into the License Agreement where appropriate;
c) the Technology Assets evidenced by United States Patent and Trademark
Office Patent Application Number: 09/522,930, filed on March 10, 2000, titled,
"Ecologically Clean Mechanically Rechargeable Air-Metal Current Source," and
2
Canadian Patent Application Number: 2,301,470, filed on December 7, 2000, shall
be the sole property of Trimol; and
d) the DC/DC Converter, which was designed and developed by Aluminum-Power
and conveyed to Trimol pursuant to the Technology Acquisition Agreement, shall
be shared equally between the Parties.
For the purposes of this Agreement "Technology Assets" shall mean:
(a) an exclusive worldwide license to make, use and sell a mechanically
rechargeable metal-air battery solely for use with consumer portable electronic
devices, evidenced by United States Patent and Trademark Office Patent
Application Number: 09/522,930, filed on March 10, 2000, titled, "Ecologically
Clean Mechanically Rechargeable Air-Metal Current Source," and Canadian Patent
Application Number: 2,301,470, filed on December 7, 2000, that will allow for an
instantaneous mechanical rechargeable battery requiring no external power source
for recharging;
(b) all rights and title to certain technology relating to metal-air
batteries and fuel cells, evidenced by United States Patent and Trademark Office
Patent Application Reference No. PNK/M275689/IAROCHENKO, filed on December 19,
2000, and Internal Reference Patent Application #1167 filed with the Canadian
Intellectual Property Office on February 7, 2000, and titled, "A Metal-Air
Battery Having In-Situ Generatable Electrolyte," suitable for consumer portable
electronic devices, including two-way radios, wireless telephones, portable
audio and video players, video cameras and personal computers; and
(c) the design and know-how to a DC/DC Converter designed and developed by
Aluminum-Power to be used as part of a full battery assembly which will enable
the conversion of cell voltage of virtually any aluminum-metal-air-cathode
battery to the voltage required by different consumer portable electronic
devices.
4. Term. The initial term of this Agreement shall commence as of the Effective
Date and continue for a period of five (5) consecutive years (the "Initial
Term"). Thereafter, this Agreement shall automatically continue for consecutive
renewal terms of one (1) years (each a "Renewal Term") unless and until either
party provides written notice of termination to the other party at least ninety
(90) days prior to the expiration of the Initial Term or any subsequent Renewal
Term.
5. Exclusivity. This Agreement shall not be exclusive between the Parties, and
each party may consult, contract or use the services of any third party to
develop the Technology Assets during the term of this Agreement.
6. Survival of Representations. The representations and agreements contained in
this Agreement shall survive the termination of this Agreement.
3
7. Entire Agreement. This Agreement constitutes the entire agreement of the
parties respecting the sharing of costs associated with the research and
development of the Technology Assets.
8. No Waiver. The failure to enforce any provision of this Agreement or to
require at any time performance by any party of any provision hereof shall in no
way be construed to be a waiver of such provision or to affect the validity of
this Agreement, or any part hereof, or the right of any party thereafter to
enforce each and every provision in accordance with the terms of this Agreement.
9. Binding Effect. The provisions of this Agreement shall be binding upon the
parties hereto and their respective heirs, legal representatives, successors and
assigns. Nothing herein shall permit a party to assign or otherwise transfer its
rights herein.
10. Notices. Any notice required to be given pursuant to this Agreement shall be
in writing and shall be deemed to have been given when delivered or mailed,
certified mail, return receipt requested, or sent via recognized overnight
carrier (with delivery of receipt required) to the parties at their respective
addresses set forth herein, or as otherwise notified. For purposes hereof, the
parties' addresses are as follows:
If to Trimol: Trimol Group, Inc.
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with copy to: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
If to Aluminum-Power: Aluminum-Power Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to: ▇▇▇▇▇ ▇▇▇▇▇▇▇, LL.M., Q.C.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
11. Confidentiality. Parties hereby agree to treat as secret and confidential
any information disclosed pursuant to the joint effort to research, develop and
market the Technology and to use each party's respective best efforts to prevent
the disclosure of this information to persons outside the employ of the Parties,
provided, however, the covenants contained in this Section 11 shall not apply to
any information which:
4
a) was readily available to the general public at the time of receipt
thereof from the other;
b) subsequently becomes known to the general public through no fault or
omission on the part of the party receiving such information; or
c) or is required to be disclosed by applicable law.
12. Severability. The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects as though such invalid or
unenforceable provision or provisions were omitted.
13. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York.
14. Modification. This Agreement may be changed only by an agreement in writing
signed by all the parties hereto.
15. Counterparts and Facsimile Signatures. This Agreement may be signed in two
or more counterparts each of which shall be an original and all of which
together shall be deemed one and the same agreement. Facsimile signatures shall
be valid for all purposes hereunder as if they were original signatures.
16. Good Faith; Further Assurances; Further Cooperation. The parties to this
Agreement shall in good faith undertake to perform their respective obligations
under this Agreement, to satisfy all conditions and to cause the transactions
contemplated by this Agreement to be carried out promptly in accordance with the
terms of this Agreement. Upon the execution of this Agreement and thereafter,
the parties shall do such things as may be reasonably requested by the other
parties hereto in order more effectively to consummate or document the
transactions contemplated by this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
TRIMOL GROUP, INC. ALUMINUM-POWER INC.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------ ---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: President
5