Exhibit 10.27
CONFIDENTIAL TREATMENT REQUESTED
[*] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
Xonon(TM) Module Supply Agreement
This Agreement is made as of this 13/th/ day of December, 2000, by and between
Kawasaki Heavy Industries, Ltd. (hereinafter referred to as "KHI"), a Japanese
corporation and having its principal place of business at ▇-▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇-
▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇, ▇▇▇▇▇; Kawasaki Motors Corp., U.S.A. (hereinafter
referred to as "KMC"), a Delaware corporation and having its principal place of
business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇.▇. and Catalytica
Energy Systems, Incorporated (hereinafter referred to as "CESI"), a Delaware
corporation and having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, U.S.A., any or all of which shall also be hereinafter
referred to as a "party", and together as the "parties", respectively.
Whereas KHI and CESI entered into Technical Development and Transfer Agreement
dated as of 13/th/ day of December, 2000 (hereinafter referred to as "TDTA"),
and agree to execute the Supply Agreement separately under Article 5.0 of the
TDTA; and
Whereas KHI and KMC are desirous to procure the XONON Module(s) from CESI, to be
incorporated into the Adapted M1A-13A and/or the Adapted Kawasaki Gas Turbines
or to be used as replacement of such XONON Module(s) , under the terms and
conditions as set forth in the Supply Agreement. CESI is also desirous to
supply KHI and KMC with the XONON Module(s) , to be incorporated into the
Adapted M1A-13A and/or the Adapted Kawasaki Gas Turbines or to be used as
replacement of such XONON Module(s), under the terms and conditions as set forth
in the Supply Agreement.
NOW, THEREFORE, in consideration of these premises and of the mutual
covenants herein contained, the parties agree as follows:
1. Definitions
-------------
Unless otherwise as specifically defined in this Agreement, the capitalized
words used in this Agreement shall have the same meanings as defined in the
TDTA.
2. Customer Use / Rights
---------------------
CESI furnishes each XONON Module to KHI/KMC under the terms of a License with
the KHI/KMC having rights to sub-license the XONON Module to the operator of the
gas turbine (hereinafter the End User) only for installation in a gas turbine
combustion system designed specifically for such use by KHI/KMC licensed by CESI
pursuant to a written License. The XONON Module consists of the container and
its internal components including the catalytically active elements. The term
of License to the End User is for the period of time during which the XONON
Module is capable of combusting the specified range of fuel within the limits
set forth by CESI for emissions of NOx and other products of combustion.
KHI/KMC or its End User shall recover and return to CESI, freight prepaid, the
spent XONON
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Module immediately after it is removed from service in the gas turbine. This
license does not confer on KHI/KMC or the End User any rights of ownership of
such XONON Module or in any underlying technology rights, of any type, embodied
or used therein. The license to the End User is not transferable to any other
person, user, supplier, or customer; nor does it extend beyond the duty life of
the XONON Module. No warranty of CESI extends to any non-CESI provided XONON
Module nor to the operation of any turbine not using a CESI provided XONON
Module.
If any returned XONON Module, which on inspection by CESI is substantiated by
CESI by reasonable proof with the consent of KHI/KMC to have been damaged,
altered, misused, tampered with or disassembled, in whole or in part, result in
forfeiture of the core charge for that module XONON Module
All Licenses KHI/KMC enters with End Users shall include such terms, and KHI/KMC
shall enforce the terms of its Licenses with End Users.
3. Acceptance
----------
The issuance of a purchase order document by KHI/KMC under and with reference to
this Agreement shall constitute a definitive contract of sale (herein
"Order"),subject to acknowledgement by CESI to the said purchase order within
seven (7) calendar days after the issuance thereof. Provisions contained in
purchase order documents issued under and with reference to this Agreement
which materially add to or subtract from the provisions of this Agreement shall
not be a part of the Order unless specifically agreed to in CESI's written
acknowledgement.
4. Modifications/Changes.
---------------------
Requests by KHI/KMC for any modifications or changes to the Order, including but
not limited to changes in specifications, quantities, delivery obligations and
terms of payment, must be made in writing. All such requests are subject to
CESI's written acceptance (such acceptance shall not be unreasonably withheld by
CESI) and may result in adjustments to price and / or delivery schedules.
5. Prices and Payments
-------------------
The License for the XONON Module has two price components.
The Core Charge is a charge levied on being granted the License for each XONON
Module and is subject to refund or credit to the account of KHI/KMC on return of
the spent XONON Module in good condition, reasonable wear and tear excepted, and
on the condition that the terms of the License have not been violated. The Use
Charge is levied on procurement by KHI/KMC of each XONON Module and is not
refundable.
Unless otherwise specifically stated in CESI's offer, all prices are in U.S.
dollars and are valid for a period of ninety (90) days from the date of the
offer.
Prices of the XONON Module offered by CESI do not include sales, use or excise
taxes, import or export duties, special financing fees, value added taxes,
income or royalty taxes imposed outside the United States, consular fees,
special permits or licenses or
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similar charges. KHI/KMC shall either pay any and all such taxes and charges or
provide CESI with acceptable exemption certificates. All the prices are based on
delivery EXWORKS factory (as defined by Incoterms 1990), and do not include any
charges for services such as preservation packaging, insurance, brokerage fees,
marine survey, load out and tie down, site installation, or equipment start-up.
Invoices shall be submitted to KHI/KMC according to the payment schedule stated
in the offer, otherwise, invoices shall be submitted to KHI/KMC upon readiness
of modules for shipment. If payment originates in the United States, invoices
shall be due and payable NET 30 DAYS from date of the invoice without regard to
delays for inspection or transportation. If payment originates outside the
United States, KHI/KMC must establish an irrevocable letter of credit in a form
and with a bank acceptable to CESI. Unless otherwise specifically stated in the
offer, all payments shall be in U.S. dollars. Should KHI/KMC's financial
responsibility become unsatisfactory to CESI, cash payment or other security may
be required. If KHI/KMC fails to meet these requirements CESI may discontinue
manufacture and treat such failure as reasonable grounds for repudiation of the
Order. In such event, cancellation charges set forth in this Agreement shall be
due CESI. Past due invoices shall be subject to interest charges at the maximum
lawful rate of interest. (1.5% per month)
The breakdown of the Core charge and the Use charge, and payment terms thereof
shall be stipulated on EXHIBIT "A" attached hereto.
6. Escalation.
----------
The Core charge and the Use charge shall be adjusted in accordance with the
formula as set forth in EXHIBIT "B" attached hereto.
7. Risk of Loss.
------------
CESI warrants that the License and any sub-license to End Users granted
hereunder to KHI/KMC is rightful and free from any security interest or other
lien or encumbrance of third parties. Unless otherwise expressly agreed in
writing by CESI, risk of loss of the XONON Module shall pass to KHI/KMC upon
delivery of the XONON Module EX-WORKS factory. Claims for damages or shortages
attributable to CESI must be in writing and received by CESI within thirty (30)
days after receipt of XONON Module or within thirty (30) days after notice of
loss, whichever shall occur first, and must be accompanied by CESI's packing
slip and full particulars of any such claim. Prior to returning any XONON
Module for any reason, except the return of spent XONON Module in the normal
course of business, KHI/KMC must obtain a Return Material Authorization (RMA)
from the CESI sales department.
8. Alternative Product Source
--------------------------
In case that CESI is unable to consistently meet KHI/KMC's requirement for XONON
Module(s) from a quality or delivery standpoint, CESI shall promptly establish a
second source of supply (as a vendor to CESI) with a Third Party manufacturer
designated by CESI and approved by KHI (which approval shall not be unreasonably
withheld), solely for the purpose of satisfying CESI's obligations to supply
XONON Module(s) to KHI/KMC.
9. Warranty
--------
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[* ]
This warranty is conditioned on:
a. The XONON Module being installed and used in accordance with CESI's
recommended procedures and good industry practice, not altered, disassembled,
misused, tampered with or otherwise subjected to conditions outside the
environmental envelope specified; and,
b. Any defective XONON Modules are returned to CESI's facility without undue
delay within the Warranty Period in accordance with CESI's standard warranty
claim instructions, transportation charges prepaid; and,
c. Examination of such module(s) by CESI confirms the existence of such a
defect.
CESI's obligations under this warranty are limited to repair or replacement
including freight of such defective XONON Module(s) (as CESI elects ), free of
charge at CESI's place of business. Should multiple removal and reinstallation
during a single warranty period be required CESI will reimburse KHI/KMC for
reasonable costs of the second and subsequent installations. All replacement
XONON Module and repaired XONON Module are, warranted through, but not beyond,
the original Warranty Period. CESI's sole liability and responsibility, and
KHI/KMCs sole and exclusive remedy, with respect to this warranty shall be
limited to the remedies set forth above.
This warranty shall not apply to or include (i) Normal maintenance services or
adjustments, or (ii) the removal or reinstallation of warranted modules except
as stated above (iii) any XONON Module which have been repaired or altered by
others, or (iv) the effects of corrosion, erosion or wear and tear or failure
occasioned by operation or condition of service more severe than specified.
CESI warrants that the XONON Module will conform only to such national, federal,
state or local laws, ordinances, regulations, codes and standards, as stated in
the Purchase Order applicable to the XONON Module supplied by CESI hereunder.
THIS WARRANTY IS IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MECHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. All other representations to KHI/KMC and all other obligations or
liabilities do not constitute a warranty. Liability for incidental or
consequential damages is specifically disclaimed. No person is authorized to
give any other warranties or to assume any other liability on CESI's behalf
unless agreed to in writing by CESI.
10. Force Majeure
--------------
CESI shall not be liable for any delay in performance, any nonperformance, or
any other deviation in performance of CESI's obligations, nor for any loss or
damage to the XONON Module supplied hereunder, when occasioned directly or
indirectly by any cause or causes beyond the reasonable control of CESI or its
subcontractors or suppliers, including, but not limited to, acts of God, acts of
criminals or of the public enemy; war, riot; official or unofficial acts,
orders, regulations or restrictions of any governmental authorities, or failure,
shortage or delay in CESI's usual sources of labor or material supply caused by
such reasons as described in the proceeding of this sentence. CESI shall have a
reasonable extension of the time for performance when delayed by any such cause.
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11. Suspension of Order/Delay By KHI/KMC
------------------------------------
KHI/KMC's request for suspension of the Order or a delay in shipment must be
delivered in writing to CESI, and_shall be valid if dispatched by facsimile or
e-mail with confirmation by registered mail. Such suspensions or delays may
result in adjustments to prices, payments and delivery schedules and are subject
to the provisions of the agreement licensing Xonon technology to the KHI/KMC.
The time required for subsequent completion of the Order may exceed the number
of days of suspension or delay due to CESI's scheduling constraints. If a
suspension is more that sixty (60) days in duration, KHI/KMC will pay CESI pro
rata for the portion of the Order completed. In the event that production-
fabrication has proceeded to the point that ▇▇▇▇ ▇▇▇▇▇ it cannot reasonably
reschedule completion or the request for suspension is received less then sixty
(60) days prior to scheduled shipment, the Order shall be completed, invoiced,
and the XONON Module placed in storage at KHI/KMC's expense. CESI shall retain
ownership and a security interest therein until payment of the total Order price
is received. In the event CESI is otherwise unable to deliver the XONON Module
when ready due to the action or inaction of KHI/KMC, CESI shall so notify
KHI/KMC. Such inability to deliver shall also be subject to the above
provisions.
12. Term and Termination
--------------------
12.1 The term of this Agreement is five (5) years, and shall be automatically
renewed for an indeterminate number of consecutive one year periods unless
either party shall serve the other with a notice of the termination in
writing at least 60 days prior to the next renewal date.
Such termination is effective at the close the business on next
anniversary date.
12.2 Either party may terminate this Agreement for cause upon the occurrence
of any of the following:
A) The other party shall (a) seek the liquidation, reorganization,
dissolution or winding up of itself (other than dissolution or winding up
for the purposes of reconstruction or amalgamation) or the composition or
readjustment of all or substantially all of its debts, (b) apply for or
consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or substantially all of its
assets, (c) make a general assignment for the benefit of its creditors,
(d) commence a voluntary case under the Bankruptcy Code, (e) file a
petition seeking to take advantage of any other law relating to
bankruptcy, insolvency, reorganization, winding-up or composition or
readjustment of debts, or (f) adopt any resolution of its Board of
Directors or stockholders for the purpose of effecting any of the
foregoing; or
B) A proceeding or case shall be commenced without the application or
consent of the other party and such proceeding or case shall continue
undismissed, or an order, judgment or decree approving or ordering any of
the following shall be entered and continue unstayed in effect, for a
period of ninety (90) days from and after the date service of process is
effected upon the other party, seeking (a) its liquidation,
reorganization, dissolution or winding up, or the composition or
readjustment of all or substantially all of its debts, (b) the appointment
of a trustee, receiver, custodian, liquidator or the like of itself or of
all or substantially all of its assets, or (c) similar relief under any
law relating to bankruptcy, insolvency, reorganization, winding up or
composition or readjustment of debts; or
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C) Upon or after the breach of any material provision of this Agreement,
if the breaching party has not cured such breach within ninety (90) days
after notice thereof from the non-breaching party, this Agreement shall
terminate for cause, at the option of the non-breaching party, upon the
expiration of such ninety (90) day cure period.
12.3 In case of termination of this Agreement by KHI/KMC in accordance with
Article 12.2 due to the causes attributable to CESI, CESI agrees that
(i)CESI shall supply KHI/KMC with the XONON Module(s) to be incorporated
into Kawasaki Gas Turbines for the project of which order KHI/KMC has
already received from its customers; and (ii) KHI/KMC shall have the
rights as granted under the Article 10 of the TDTA to continue to purchase
Xonon Modules during the remainder of the term if the Agreement had not
been terminated by KHI/KMC.
13. Patent Infringement.
-------------------
CESI warrants that the XONON Module shall be delivered free of rightful claim of
any third party by way of infringement of any patent, trademark and other
intellectual property rights. Subject to the limitation of liability as set
forth Article 16 hereof, CESI shall reimburse the damages incurred by KHI/KMC
due to any rightful claim raised by a third party alleging infringement and,
CESI will defend, indemnify and hold KHI/KMC harmless from any such claim for
infringement provided prompt notice and opportunity to defend is given by
KHI/KMC to CESI. This warranty constitutes CESI's sole responsibility for
infringement claims.
14. Assignments.
-----------
Neither of the parties hereto may assign the whole or any part of this Agreement
and any rights or obligations under the Order to any third party without prior
written consent of the other party thereto, provided, however, that such consent
shall not be unreasonably withheld by such other party.
15. Independent Contractor.
----------------------
At all times while performing the Order, CESI shall be deemed to be an
independent contractor and not an employee or agent of KHI/KMC. Equipment
operators and other KHI/KMC employees, agents, subcontractors, or servants
assigned to assist CESI may receive temporary instructions, directions, or
control from CESI but shall, at all times be considered the employees, agents,
subcontractors, or servants of KHI/KMC and not of CESI.
16. Limitation of Liability.
-----------------------
Neither KHI/KMC nor CESI or their Affiliates, subcontractors, agents and/or
employees shall be liable for any incidental or consequential damages
whatsoever, including but not limited to, loss of product, loss of profit
(except profit of CESI from the Order), loss of use of the power generation,
pumping or compression system or any auxiliary system, losses resulting from or
related to downtime of the modules or the cost of replacement power or
compression, heating, cooling or pumping, howsoever caused, and whether based on
warranty, contract, tort (including negligence) strict liability or otherwise.
The total liability of CESI, its affiliates,
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subcontractors, agents and employees arising out of the performance or
nonperformance of the Order or its obligations in connection with the design,
manufacture, sale, delivery, storage, installation or use of modules or the
rendering of any work or services in connection therewith, whether based on
warranty, contract, tort, (including negligence), strict liability or otherwise,
shall not exceed in the aggregate a sum equal to the Order price. The limitation
of liability set forth in this article shall prevail over any conflicting or
inconsistent provisions contained in any document comprising the Order. [* ]
17. Regulatory Compliance.
---------------------
KHI/KMC shall not use or operate the XONON Module in a manner other than that
intended in CESI's offering without CESI's prior written consent. The XONON
Module shall not be exported or transshipped contrary to U.S. law. As KHI/KMC
is the exporter of record (XONON Module sold EX-WORKS), it is the responsibility
of KHI/KMC to acquire any required export license. CESI will assist in the
supply of information required in the application process
18. Disputes/applicable law.
-----------------------
KHI/KMC and CESI shall use their best efforts to resolve any dispute or claim
which may arise under the Order and/or this Agreement in an amicable manner. In
the event CESI is in breach of or noncompliance with any of the provisions of
the Order and/or this Agreement, KHI/KMC shall notify CESI in writing and CESI
shall take reasonable measures to remedy such breach or noncompliance within
fourteen (14) days after receipt of notice. Any dispute or claim arising out of
or in relation to the Order and/or this Agreement which is not settled by
agreement of the parties shall be submitted to arbitration before a single,
qualified, technically trained, arbitrator selected by mutual consent of the
parties in accordance with the Rules of the American Arbitration Association,
(but the auspices, at CESI election, need not be used) and judgment upon the
arbitrators award may be entered in any court having jurisdiction. The rules of
commercial arbitration of AAA shall apply in any arbitration and the laws of the
state of California shall govern. The request for arbitration shall be made
within a reasonable time after the dispute or claim arises, and in no event
after it would be barred by any applicable statute of limitations. The cost of
such arbitration shall be borne as determined by the arbitrator. Unless
otherwise mutually agreed, arbitration hearings shall be held in Los Angeles
,California, U.S.A. Should any provision of the Order and/or this Agreement be
declared invalid, such declaration shall not invalidate or void the remaining
provisions of the Order and/or this Agreement except that such invalidated
provisions are indispensable to such Order and/or this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
AGREED FOR AND ON BEHALF OF KAWASAKI HEAVY AGREED FOR AND ON BEHALF OF
CATALYTICA ENERGY INDUSTRIES, LTD. SYSTEMS, INC. GAS TURBINE DIVISION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________ __________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
____________________________________ __________________________
Title: Director and General Manager of Title: Senior Vice President
Gas Turbine Division
____________________________________ __________________________
AGREED FOR AND ON BEHALF OF
Kawasaki Motors Corp, U.S.A.
GAS TURBINE DIVISION
By :
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
______________________________
Title: General Manager
______________________________
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EXHIBIT "A"
Prices of Xonon Modules: [* ]
------------------------
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EXHIBIT "B"
Price adjustment
----------------
1. Quarterly adjustment of Core Charge. The core charge shall be adjusted on
the first business day of every calendar quarter in accordance with the
following formula:
[* ]
2. Quarterly adjustment of Use Charge. The use charge shall be adjusted on the
first business day of every calendar quarter in accordance with the
following formula:
[* ]
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