STRATEGIC ALLIANCE AND CROSS LICENSE AGREEMENT by and among SOLAR THIN FILMS, INC. KRAFT ELEKTRONIKAI ZRT and AMELIO SOLAR, INC. dated as of August 12, 2008
by
and among
KRAFT
ELEKTRONIKAI ZRT
and
AMELIO
SOLAR, INC.
dated
as of August 12, 2008
THIS
STRATEGIC ALLIANCE AND CROSS LICENSE AGREEMENT,
dated
as of August 12, 2008 (the “Agreement”),
is
made and entered into by and among SOLAR
THIN FILMS, INC., a
Delaware corporation (the “Company”);
KRAFT
ELEKTRONIKAI ZRT,
a
corporation organized and existing under the laws of Hungary (“Kraft”);
and
AMELIO
SOLAR, INC.,
a
Delaware corporation (“Amelio”).
The
Company, Kraft, and Amelio are hereinafter sometimes individually referred
to as
a “Party”
and
collectively as the “Parties.”
I
N T R O D U C T I O N
This
Agreement is made and entered into by the Parties with reference to the
following:
A. The
Amelio Group has advised the STF Group that RESI and Z. Kiss has, or will have
prior to the Closing Date (as hereinafter defined), transferred to Amelio all
of
their rights in the design, development, manufacture and sale of “PV Equipment,”
“PV Modules” and all “PV Technologies,” including, without limitation, all “a-Si
Technology” and “CIGS Technology” (as those terms are hereinafter
defined).
B. The
Parties hereto desire, pursuant to this Agreement, to establish an ongoing
working relationship between the STF Group and the Amelio Group with respect
to
the future manufacture, sale and distribution of PV Equipment, PV Modules,
and
“Turnkey PV Module Manufacturing Facilities”(as that term is hereinafter
defined) using all PV Technologies developed or acquired by the STF Group or
the
Amelio Group.
NOW,
THEREFORE,
in
consideration of the mutual covenants and agreements hereinafter contained,
the
Parties hereto intending to be bound thereby, it is hereby agreed as
follows:
ARTICLE
I
DEFINITIONS
In
addition to the other terms defined elsewhere in this Agreement, the following
capitalized terms shall have the meanings defined below.
Affiliate.
The
term “Affiliate” shall mean, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person. The term
“control” as used in the preceding sentence means the possession, directly or
indirectly, of the power to direct or cause the direction of the management
or
policies of such Person, whether through the ownership of voting securities,
by
agreement or otherwise.
Amelio CIGS
PV Products.
The
term “Amelio CIGS PV Products” shall have the meaning set forth in Section
3.1
of this
Agreement.
Amelio
Group. The
term
“Amelio Group” shall mean and include Amelio, RESI and Z. Kiss, and any direct
and indirect Subsidiaries or Affiliates of such Persons, whether now existing
or
hereafter formed or acquired.
a-Si.
The
term “a-Si” shall mean amorphous silicon.
a-Si
Equipment.
The term
“a-Si Equipment” shall mean PV Equipment embodying the a-Si Technology that is
utilized to deposit the active a-Si layer as a coating on PV
Modules.
a-Si
Technology.
The term
“a-Si Technology” shall mean all Intellectual Property and Improvements now or
hereinafter developed or obtained by any of the Amelio Group or STF Group with
respect to thin-film a-Si used as a coating or other material to deposit the
active layer on PV Modules.
Business
Day.
The term
“Business Day” shall mean any day on which the banks in New York City, New York,
are open for business (excluding Saturday, Sunday and federal
holidays).
CIGS.
The term
“CIGS” shall mean copper indium gallium diselenide.
CIGS
Equipment.
The term
“CIGS Equipment” shall mean PV Equipment embodying the CIGS Technology that is
utilized to deposit the active CIGS layer as a coating on PV
Modules.
CIGS
Technology. The
term
“CIGS Technology” shall mean all Intellectual Property and Improvements now or
hereinafter developed or obtained by any of the Amelio Group or STF Group with
respect to the use of CIGS as a coating or other material to deposit the active
layer on PV Modules.
Claim
the term
“Claim” shall mean any claim, suit, action, cause of action, proceeding,
investigation, dispute, demand, order, directive, obligation, loss, injury,
liability, damage, deficiency, assessment, fine, penalty, forfeiture, judgment,
lien, diminution of value, notice of violation or non-compliance, and all costs
and expenses associated therewith, including, but not limited to, reasonable
attorneys’ fees and expenses incurred to enforce this Agreement, to defend
against any of the aforementioned claims, and to settle any of the
aforementioned claims.
Closing.
The term
“Closing” shall mean the date of delivery of this Agreement and the consummation
of the transactions contemplated by the Settlement Agreement and the Stock
Purchase Agreement.
Closing
Date.
The term
“Closing Date” shall mean the date of Closing of the transactions contemplated
by this Agreement, the Settlement Agreement and the Stock Purchase Agreement;
provided, that without the prior written consent of the Amelio Group, the
Closing Date shall not occur later than the Outside Closing Date.
3
Collateral
Manufacturing Equipment.
The term
“Collateral Manufacturing Equipment” shall mean the collective reference to
carts, tables and the other items of PV Equipment listed or described on
Schedule
1
annexed
hereto and made a part hereof.
Commencement
Date.
The term
“Commencement Date” shall have the meaning set forth in Section
3.1(d)(i)
of this
Agreement.
Core
a-Si Equipment.
The term
“Core a-Si Equipment” shall mean the equipment listed or described in
Schedule
2
annexed
hereto and made a part hereof.
Core
CIGS Equipment.
The term
“Core CIGS Equipment” shall mean the equipment listed or described in
Schedule
3
annexed
hereto and made a part hereof.
Existing
RESI Agreements.
The term
“Existing RESI Agreements” shall mean the collective reference to the R&D
Contract and the Marketing and Turn-On Contract as defined and referred to
in
Paragraph A of the Settlement Agreement.
Improvements.
The term
“Improvements” shall mean any modification of or improvement to an invention
described in any patent or patent application that, unlicensed, would infringe
on one or more claims of any such patent or patent application, and any
inventions, discoveries, or innovations, whether patentable or not, relating
to
or arising out of any existing patents, patent applications or
inventions.
Intellectual
Property.
The term
“Intellectual Property” shall mean and include all: (i) patents and patent
applications (together with all reissues, re-examinations, renewals, extensions
(including governmental equivalents thereto), substitutions, provisionals,
additions, continuations, continuations-in-part, divisionals, supplementary
protection certificates, Improvements and enhancements of all of the foregoing,
and all trade secrets, trademarks, copyrights, Software (including STF
Software); (ii) all inventions (whether patentable or not), invention
disclosures, trade secrets, proprietary information, know how, technology,
technical data, drawings, blueprints, and all documentation relating to any
of
the foregoing; (iii) all Improvements; (iv) all copyrights, copyright
registrations and applications therefore, and all other rights corresponding
thereto throughout the world; (v) all trade names, logos, common law trademarks
and service marks, trademark and service ▇▇▇▇ registrations and applications
therefore throughout the world; (vi) all databases and data collections and
all
rights therein throughout the world; (vii) all moral rights of authors and
inventors, however denominated, throughout the world; (viii) all domain names
drawings, blueprints, intellectual property and related know-how; (ix) all
inventions, drawing, designs, descriptions, software and other materials
relating to the Selenization Equipment; and (x) the turn-on function (including
know-how documentation, training of personnel, organization of effectuating
of
performance testing) for PV Module Facilities.
Limited
STF Group License.
The
term “Limited STF Group License” shall have the meaning set forth on
Section
2.2 (b)
of this
Agreement.
Person .
The
term “Person” shall mean any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise
or any governmental or political subdivision or any agency, department or
instrumentality thereof.
4
PV.
The term
“PV” shall mean photovoltaic.
PV
Equipment.
The term
“PV Equipment” shall mean a-Si Equipment, CIGS Equipment and all other items of
machinery, equipment, parts, components and Software deploying PV Technologies
that are used or useful to manufacture and produce equipment to enable an owner
or operator of such equipment to manufacture or produce PV Modules.
PV
Modules.
The
term “PV Modules” shall mean PV cells or modules, whether based on a-Si
Technology, CIGS Technology or other PV Technologies.
PV
Technologies.
The
term “PV Technologies” shall mean the collective reference to (i) a-Si
Technology, (ii) CIGS Technology, (iii) microcrystalline a-Si Technology, or
(iv) any other development, improvements, additions or technologies now or
hereafter developed that are used as a coating or other material to deposit
the
active layer on PV Modules or in PV Equipment.
RESI.
The term
“RESI” shall mean Renewable Energy Solutions, Inc., a Delaware
corporation.
Settlement
Agreement. The
term
“Settlement Agreement” shall mean the Master Settlement Agreement, dated August
__, 2008, among the Company, Kraft, Z. Kiss, Amelio and RESI.
Software.
The term
“Software” shall mean and include all computer programs, source codes, object
codes and other related items used in computers to power or monitor PV
Equipment.
STF
Group Customers.
The term
“STF Group Customers” shall have the meaning set forth in Section
3.1(b)
of this
Agreement.
STF
Selenization Equipment.
The term
“STF Selenization Equipment” shall mean those specific items of equipment,
components and parts related to CIGS Technology that are listed or described
on
Schedule
4
annexed
hereto and made a part hereof, which have heretofore been designed by RESI
under
certain of the Existing RESI Agreements for the benefit of the Company, and
pursuant to which development fees have been paid by the Company to
RESI.
STF
Selenization Equipment License.
The
term“STF
Selenization Equipment License” shall have the meaning set forth in Section
2.1(b)
of this
Agreement.
STF
Software.
The term
“STF Software” shall mean and include all Software related solely to control
systems for a-Si deposition systems and for sputtering ▇▇▇▇▇▇▇▇.
STF
Group. The
term
“STF Group” shall mean and include the Company, together with its wholly-owned
Subsidiaries, Kraft and Superior Ventures Corp. and its majority-owned
Subsidiary, Solar Thin Power, Inc., and any future direct and indirect
Subsidiaries or Affiliates of the Company.
5
Turnkey
PV Module Manufacturing Facilities.
The term
“Turnkey PV Module Manufacturing Facilities” shall mean the collective reference
to all PV Equipment and related components and software that are installed
in
any facility owned and operated by any Person to enable such Person to produce
PV Modules in all PV Technologies.
Sale
of Control. The
term
“Sale of Control” shall mean, as to any Person in question, the sale of all or
substantially all of the securities or assets and business of such Person,
whether by stock sale, asset sale, merger or consolidation) to any other Person
who is not an Affiliate of the Person in question.
Subsidiary.
The term
“Subsidiary” shall mean any Person of which a majority of the outstanding voting
securities or other voting equity interests are owned, directly or indirectly,
by any other Person.
Z.
Kiss. The
term
“Z. Kiss” shall mean Zoltan Kiss, an individual.
ARTICLE
II
SELENIZATION
EQUIPMENT AND AMELIO CIGS TECHNOLOGY LICENSES
2.1. Selenization
Equipment.
(a) Ownership.
On the
Closing Date, the Amelio Group shall deliver to the Company the most recent
copies and versions of all drawings, blueprints and other tangible Intellectual
Property relating to the STF Selenization Equipment. As of the Closing Date,
Amelio Group acknowledges and agrees all right, title and interest in and to
the
STF Selenization Equipment, including, without limitation, any Intellectual
Property rights therein, shall remain the sole and exclusive property of the
Company, and, to the extent not previously conveyed, the Amelio Group hereby
assigns and conveys to the Company all of the Amelio Group’s right, title and
interest in and to in and to the STF Selenization Equipment, including, without
limitation, any Intellectual Property rights therein. The STF Group acknowledges
and agrees, under this Section 2.1(a), Amelio Group is not assigning nor
conveying any other Amelio Intellectual Property other than the STF Selenization
Equipment.
(b) License.
Notwithstanding the foregoing, the Parties hereto acknowledge and agree that
the
Intellectual Property relating to the STF Selenization Equipment may constitute
a portion of, enable, permit or otherwise be useful to the Amelio’s efforts to
develop the Amelio CIGS Technology (defined below in Section
2.2(a)).
Accordingly, as of the Closing Date, the STF Group grants to the Amelio Group
a
perpetual, irrevocable, paid-up, royalty-free, worldwide, non-exclusive,
assignable, transferable, sub-licensable right and license under the Company’s
Intellectual Property rights in the STF Selenization Equipment to make, use,
offer for sale, sell or import the STF Selenization Equipment (the “STF
Selenization Equipment License”).
6
2.2. Amelio
CIGS Technology.
(a) Ownership.
The
Parties hereto do hereby acknowledge and agree that the Amelio Group has and
shall continue to engage in research and development efforts to design and
develop Amelio CIGS Technology, as defined below. Accordingly, the Parties
hereto do hereby covenant and agree that all right, title and interest in and
to
(i) all CIGS Technology that has been or will be designed, developed, acquired
or licensed by the Amelio Group and all Improvements thereto, including any
Intellectual Property rights therein, and (ii) except to the extent that such
products are sold to and paid for by third Persons (in which case such third
Person will acquire a use license in a form customary in such transactions),
or
as otherwise expressly provided under this Agreement, all PV Equipment, PV
Modules and PV Technologies derived from or to be derived from such CIGS
Technology, and any Intellectual Property rights therein, (collectively,
“Amelio
CIGS Technology”)
shall
remain the sole and exclusive property of the Amelio Group.
(b) License.
In
order to facilitate and implement the rights and obligations of the STF Group
set forth in Articles III and IV of this Agreement and for so long as the STF
Group shall be marketing and distributing PV Equipment, PV Modules and Turnkey
PV Module Manufacturing Facilities using Amelio CIGS Technology and
manufacturing PV Equipment and Turnkey PV Module Manufacturing Facilities using
Amelio CIGS Technology, as contemplated by such Articles III and IV below,
as of
the Closing Date, the Amelio Group grants to the STF Group a limited, worldwide,
non-exclusive, irrevocable paid up royalty fee right and license under the
Amelio Group’s Intellectual Property rights in the Amelio CIGS Technology to
make for the Amelio Group and use the Amelio CIGS Technology for the sole and
limited purpose of exercising STF Group’s rights and meeting STF Group’s
obligations under Articles III and IV of this Agreement (the “Limited
STF Group License”).
The
foregoing Limited STF Group License shall not be assignable or transferable
and
may not be sub-licensed by the STF Group, except: (i) as needed to allow STF
Group to exercise its rights and meet its obligations under Articles III and
IV
of this Agreement, or (ii) to any successor-in-interest to the STF Group as
a
result of a Sale of Control; provided,
that:
(A)
such successor-in-interest agrees to be bound by the terms of this Agreement
and
all other Collateral Documents, as applicable, and executes a writing indicating
such intention to be so bound, or (B) if such successor-in-interest refuses
to
be bound to the terms of this Agreement and any applicable Collateral Documents,
than Amelio’s written consent, not to be unreasonably withheld, will be required
prior to any attempted Sale of Control.
ARTICLE
III
MARKETING
AND PURCHASE OF CIGS PV PRODUCTS
3.1. Marketing
and Distribution of CIGS PV Products.
Effective
as of the Closing Date, the Amelio Group does hereby grant unto the STF Group
the non-exclusive right for a period of seven (7) years following the
“Commencement
Date”
(as
hereinafter defined), to market, distribute and sell throughout the world,
on
behalf of the Amelio Group, items of CIGS Equipment, PV Modules and Turnkey
PV
Module Manufacturing Facilities utilizing Amelio CIGS Technology (collectively,
the “Amelio
CIGS PV Products”).
In
such connection, the Parties hereto do hereby agree as follows:
7
(a) All
of
the terms and conditions of any contracts entered into by the STF Group with
any
Person electing to purchase CIGS PV Products shall be approved in writing in
advance by Amelio, which approval shall not be unreasonably withheld or delayed,
unless such contract shall be adverse to Amelio’s then commercial interests.
Notwithstanding the foregoing, the Parties agree to develop a set of economic
terms and forms of agreement that shall be deemed “pre-approved” by Amelio and
which may be used by the STF Group in connection herewith. Any proposed changes
to such pre-approved terms and conditions shall be approved in writing by Amelio
in its discretion.
(b) The
Amelio Group shall be the general contractor and vender of record for delivery
of the Amelio CIGS PV Products, and the STF Group shall serve as sole and
exclusive subcontractor to manufacture, deliver and sell all Amelio CIGS PV
Products to all customers or purchasers that are directly or indirectly sourced
by or referred to the Amelio Group by the STF Group (the “STF
Group Customers”).
In
such connection, the Amelio Group shall:
(i) contract
directly, as general contractor, with the customer or purchase to sell and
install Amelio CIGS PV Products, and
(ii) in
addition to payment of the Commissions (defined below in Section 3.1(d)),
purchase from the STF Group the equipment specified on Schedule
5
annexed
hereto (“STF
Group Equipment”).
(c) The
customer or purchaser prices for all Amelio CIGS PV Products marketed by the
STF
Group for the Amelio Group shall be based on the then prevailing list prices
in
effect as published by the Amelio Group; provided,
that,
the
Parties recognize that concessions may be made during customer negotiations
and
the Parties agree to review these proposed concessions in good faith on a
case-by-case basis for all Amelio CIGS PV Products sales sourced or referred
to
Amelio directly or indirectly by the STF Group.
(d) To
the
extent that the STF Group provides any STF Group Customers to the Amelio Group,
the STF Group shall be entitled to receive the following sales commissions
(the
“Commissions”),
which
Commissions shall be in addition to and not in lieu of any payments to which
the
STF Group shall be entitled to receive as subcontractor of PV Equipment and
Turnkey PV Module Manufacturing Facilities utilizing CIGS Technology and any
Intellectual Property or Improvements, pursuant to the provisions of Article
IV
of this Agreement:
(i) For
the
first twelve (12) months (the “First
Anniversary Year”),
commencing at such time as the Amelio Group shall complete its research and
development efforts with respect to CIGS Technology that is capable delivering
any or all of the CIGS PV Products (the “Commencement
Date”),
a
Commission equal to seven and one-half percent (7.5%) of the total purchase
price of any such CIGS PV Products;
(ii) For
the
twelve (12) months immediately following the First Anniversary Year (the
“Second
Anniversary Year”),
a
Commission equal to seven percent (7.0%) of the total purchase price of any
such
CIGS PV Products;
8
(iii) For
the
twelve (12) months immediately following the Second Anniversary Year (the
“Third
Anniversary Year”),
a
Commission equal to six and one-half percent (6.5%) of the total purchase price
of any such CIGS PV Products;
(iv) For
the
twelve (12) months immediately following the Third Anniversary Year (the
“Fourth
Anniversary Year”),
a
Commission equal to six percent (6.0%) of the total purchase price of any such
CIGS PV Products;
(v) For
the
twelve (12) months immediately following the Fourth Anniversary Year (the
“Fifth
Anniversary Year”),
a
Commission equal to five and one-half percent (5.5%) of the total purchase
price
of any such CIGS PV Products; and
(vi) For
the
twelve (12) months immediately following the Fifth Anniversary Year (the
“Sixth
Anniversary Year”)
and
for each of the remaining twelve (12) months thereafter, until the expiration
of
seven (7) years from the Commencement Date, a Commission equal to five percent
(5.0%) of the total purchase price of any such CIGS PV Products.
3.2. Production
Capacity.
Effective as of the Commencement Date and for the First Anniversary Year, the
Amelio Group shall make available as necessary to fulfill obligations to STF
Group Customers not less than thirty-five percent (35%) of its total annual
production capacity (the “Dedicated
Minimum Annual Production”)
to the
manufacture, delivery and installation of CIGS PV Products that are directly
or
indirectly sourced by the STF Group. In order to enable the Amelio Group to
expand its own marketing and distribution efforts independent of the STF Group,
the Parties hereto agree that such Minimum Annual Production shall be reduced
by
two and-one half percent (2.5%) per Anniversary Year; provided,
that,
without
the prior written consent of STF, in no event shall such Dedicated Minimum
Annual Production be reduced to less than twenty percent (20%). To the extent
that such capacity is not sufficient to meet the requirements of STF Group
Customers, the Parties shall meet and confer in good faith to discuss means
to
alleviate such capacity constraints. The Parties agree that production capacity
to develop Amelio’s own manufacturing facilities shall be excluded from the
foregoing limits.
3.3. Purchases
from STF Customers.
In the
event and to the extent that STF shall directly or indirectly source customers
or purchasers for CIGS PV Products, it shall have the right to (a) negotiate
and
acquire equity interests in such STF Group Customers, and (b) purchase from
such
STF Group Customers PV Modules using CIGS Technology for resale. In such
connection, the Amelio Group shall have the right to participate with the STF
Group in such purchases; provided that the STF Group shall retain the exclusive
right to not less than fifty percent (50%) of any such equity or PV Module
purchases.
9
3.4. Purchased
CIGS Facilities.
(a) For
a
period of ten (10) years from the Commencement Date, the STF Group shall have
the right (but not the obligation) to purchase from the Amelio Group for itself
or for any Affiliate of the STF Group (i) one Turnkey PV Module Manufacturing
Facilities utilizing CIGS Technology and any Intellectual Property or
Improvements relating thereto to be located in North America, (ii) one Turnkey
PV Module Manufacturing Facilities utilizing CIGS Technology and any
Intellectual Property or Improvements relating thereto to be located in Europe,
and (iii) one Turnkey PV Module Manufacturing Facilities utilizing CIGS
Technology and any Intellectual Property or Improvements relating thereto to
be
located in Asia (collectively, the “Purchased
CIGS Facilities”);
in
each case, upon terms and conditions that are terms comparable to the best
terms
then being offered by the Amelio Group to third Persons. In addition, if
the STF Group shall have purchased one or more Purchased CIGS Facilities within
seven (7) years of the Commencement Date, the STF Group shall have the right,
exercisable at any time within ten (10) years from the Commencement Date, to
purchase from the Amelio Group additional CIGS PV Products to expand such
Purchased CIGS Facilities.
(b) Amelio
shall have the right, but not the obligation, to participate in up to
twenty-five percent (25%) of the equity of any one or more of the Purchased
Facilities on the same terms as STF. Amelio shall also have the right to
purchase or otherwise participate in up to twenty-five percent (25%) production
output from any one or more of the Purchased CIGS Facilities on the same terms
and conditions as STF.
(c) The
Purchase Price for any Purchased CIGS Facilities shall include a discount to
give effect to the Commission that the STF Group would otherwise receive if
the
sale were to a STF Group Customer.
(d) This
provisions of this Section
3.4
is
subject to the capacity restrictions of Section
3.2
hereof.
ARTICLE
IV
PREFERRED
VENDOR RELATIONSHIPS
4.1 Core
CIGS Equipment.
(a) For
a
period of seven (7) years from the Commencement Date, the Amelio Group shall
purchase from the STF Group one hundred percent (100%) of the Amelio Group’s
total requirements for all Core CIGS Equipment that is to be sold by the Amelio
Group to any one or more STF Group Customers.
(b) With
respect to Core CIGS Equipment that is not
to be
sold by the Amelio Group to any one or more STF Group Customers:
(i) for
a
period of eighteen (18) months from the Commencement Date, the Amelio Group
shall purchase from the STF Group thirty five percent (35%) of the Amelio
Group’s total requirements for all Core CIGS Equipment; and
(ii) for
the
subsequent thirty (30) months, the Amelio Group shall purchase from the STF
Group twenty-five percent (25%) of the Amelio Group’s total requirements for all
Core CIGS Equipment.
10
4.2 Core
a-Si Equipment.
For a
period of eighteen (18) months from the Commencement Date, the STF Group shall
be a preferred vendor (but not an exclusive supplier) of Core a-Si Equipment
(including Turnkey PV Module Manufacturing Facilities utilizing a-Si Equipment);
provided,
however,
that
the Amelio Group shall provide to the STF Group purchase orders for not less
than fifty percent (50%) of the Amelio Group’s total requirements for its Core
a-Si Equipment.
4.3 Limitation
on Percentage Purchase Requirements. The
percentage of the Amelio Group’s purchase requirements set forth in Section
4.1(b)
and
Section
4.2
above
shall continue until such time as the STF Group shall have been awarded purchase
orders from the Amelio Group for such Core a-Si Equipment and/or Core CIGS
Equipment that is not sold by Amelio to STF customers aggregating Fifty Million
Dollars ($50,000,000).
4.4 Collateral
Manufacturing Equipment.
The
Amelio Group shall be free to purchase Collateral Manufacturing Equipment from
any source(s), including, without limitation, the STF Group, at such prices
as
the Amelio Group and such vendor(s) may negotiate from time to
time.
4.5 Profit
Margin to STF.
(a) CIGS
Equipment.
Under
the terms of its preferred vendor relationship, the STF Group shall be entitled
to charge, as subcontractor to the Amelio Group (who shall serve as general
contractor) for the production and sale of all Core CIGS Equipment (including
Turnkey PV Module Manufacturing Facilities utilizing CIGS Equipment), such
prices for Core CIGS Equipment as shall provide to the STF Group a “Profit
Margin” of forty percent (40%) on the first order of Core CIGS Equipment, and
thirty-five percent (35%) on all subsequent orders. As used in this Section
4.4(a),
the
term “Profit
Margin”
shall
mean:
(i) for
the
first order of such CIG Equipment, an amount, payable in U.S. Dollars, as shall
be equal to 1.66666 times the sum of the actual costs incurred by the STF Group
for (A) labor, (B) materials (including parts, components and other materials
supplied by subcontractors), and (C) indirect manufacturing costs (which
indirect manufacturing costs shall not exceed 35% of labor costs) in connection
with the manufacture and delivery of such CIGS Equipment to the Amelio Group
or
its customers, and
(ii) for
all
subsequent orders of such CIGS Equipment following the First Anniversary Year,
an amount, payable in U.S. Dollars, as shall be equal to 1.53846 times the
sum
of the actual costs incurred by the STF Group for (A) labor, (B) materials
(including parts, components and other materials supplied by subcontractors),
and (C) indirect manufacturing costs (which indirect manufacturing costs shall
not exceed 35% of labor costs) in connection with the manufacture and delivery
of such CIGS Equipment to the Amelio Group or its customers.
(b) Core
a-Si Equipment.
Under
the terms of its preferred vendor relationship, the STF Group shall be entitled
to charge, as subcontractor to the Amelio Group (who shall serve as general
contractor) for the production and sale of all Core a-Si Equipment (including
Turnkey PV Module Manufacturing Facilities utilizing a-Si Equipment), such
prices for such a-Si Equipment as shall provide to the STF Group a “Profit
Margin” of twenty five percent (25%) on all orders of such Core a-Si Equipment.
As used in this Section
4.4(b),
the
term “Profit
Margin”
shall
mean an amount, payable in U.S. Dollars, as shall be equal to 1.33333 times
the
sum of the actual costs incurred by the STF Group for (A) labor, (B) materials
(including parts, components and other materials supplied by subcontractors),
and (C) indirect manufacturing costs (which indirect manufacturing costs shall
not exceed 35% of labor costs) in connection with the manufacture and delivery
of such CIGS Equipment to the Amelio Group or its customers.
11
4.6 Purchase
Orders and General Terms.
(a) Each
purchase by the Amelio Group from the STF Group pursuant to this Article IV
shall be evidenced by a written purchase order containing delivery, service
and
quality requirements as shall be acceptable to Amelio and which are consistent
with the price, performance, specifications, and quality provided by
state-of-the-art providers within the industry; provided that such delivery
terms and quality requirements imposed upon the STF Group shall not,
individually or in the aggregate, be less favorable to the STF Group than those
then being imposed by the Amelio Group upon other third Person vendors or
suppliers who are not part of the STF Group.
(b) All
of
the foregoing purchase orders shall be subject to the STF Group general vendor
terms and conditions, substantially in the form of Exhibit
A
annexed
hereto and made a part hereof (the “STF
Group Terms and Conditions”).
4.6 Favored
Nations Terms.
(a) As
a
preferred supplier the STF Group will supply Amelio a-Si Core Equipment and
CIGS
Core Equipment at prices and terms that are competitive with arm's length prices
and other terms and conditions for identical or functionally equivalent
quantities and types of a-Si Core Equipment or CIGS Core Equipment that may,
from time to time, be available to the Amelio Group from other technically
and
financially credible third Person suppliers who are not Affiliates of the Amelio
Group or any Affiliate of the Amelio Group (the “Unaffiliated
Suppliers”).
(b) In
connection with the foregoing, unless the payment terms and other terms and
conditions demanded by such Unaffiliated Supplier shall be less favorable to
the
Amelio Group than those then available from the STF Group, in no event shall
the
STF Group pricing exceed one hundred and ten percent (110%) of the pricing
offered from time to time by any such Unaffiliated Supplier(s). In the event
that Amelio receives and wishes to accept a proposed purchase order for any
a-Si
Core Equipment or CIGS Core Equipment from an Unaffiliated Supplier that is
(i)
less than ninety percent (90%) of the pricing for such a-Si Core Equipment
or
CIGS Core Equipment then the prices then being offered by the STF Group, and
(ii) on payment and other terms and conditions no less favorable to the Amelio
Group then the payment and other terms being offered to Amelio by the STF Group,
Amelio will forward such proposed purchase order to the STF Group with a request
that the STF Group reduce its pricing to within one hundred and ten percent
(110%) of such Unaffiliated Supplier’s pricing. In the event that STF declines
to reduce its pricing accordingly, Amelio shall be free to accept such
Unaffiliated Supplier’s offer.
(c) The
Parties acknowledge that each operates in a highly dynamic and competitive
marketplace. The Parties agree to meet and confer on a periodic basis to
discuss the margin structures each is targeting for its various business
initiatives, and the cost structure imposed by this Agreement, and to revisit
these terms in good faith in light of changing market circumstances, to the
extent appropriate and by mutual agreement.
12
(d) Notwithstanding
the foregoing, the “favored nation” and other provisions of this Section
4.6
shall
not
apply to
any a-Si Core Equipment or any CIGS Core Equipment that is to be sold by the
Amelio Group to any one or more STF Group Customers, provided
that,
this
provision shall not have the affect of reducing Amelio’s gross margin by more
than five percent (5%) as compared to transactions of similar terms, size and
structure.
ARTICLE
V
ACCOUNTING
AND AUDIT
5.1 Accounting
and Audit.
With
respect to the payments, capacities and other financial terms described in
Articles III and IV, the Parties shall keep full, clear and accurate records
and
accounts regarding such payments, capacities and other financial terms for
a
period of three (3) years. Each Party shall have the right through a person(s)
appointed by the Party to audit, not more than once a year and during normal
business hours, all such records and accounts to the extent necessary to verify
such payments, capacities and other financial terms and to verify no
underpayment has been made hereunder. Such audit shall be conducted at each
Party’s own cost and expense, provided that if any discrepancy or error
exceeding five percent (5%) of the money actually due is found through the
audit, the cost of the audit shall be born by the other Party.
ARTICLE
VI
ADDITIONAL
AGREEMENTS OF THE PARTIES
6.1 Limited
Scope of Agreement.
Notwithstanding anything to the contrary, express or implied, contained in
this
Agreement or in any Exhibit hereto, the rights and obligations of the Parties
contained in Article II of this Agreement apply only to CIGS Technology and
CIGS
PV Products, and shall not be applicable to any PV Equipment, PV Modules,
Turnkey PV Module Manufacturing Facilities or power plants or projects, that
use
PV Technologies, other than CIGS Technology. It is expressly understood and
agreed among all Parties hereto that each of the Amelio Group and the STF Group
may individually (a) engage, directly or with third Persons, in the development,
design and exploitation of a-Si Technology, microcrystalline a-SI Technology
or
any development, improvements, additions or technologies now or hereafter
developed (other than CIGS Technology) that are used as a coating or other
material to deposit the active layer on PV Modules or in PV Equipment; and
(b)
manufacture, sell, distribute or otherwise deal in PV Equipment, PV Modules,
Turnkey PV Module Manufacturing Facilities or power plants or projects, that
use
any PV Technologies, other than CIGS Technology, without regard to this
Agreement or any obligation to any other Party or Parties to this Agreement.
6.2 Competition.
Except
only with respect to CIGS Technology and CIGS PV Products, and then only to
the
extent expressly provided in Articles III and IV, it is expressly understood
and
agreed that each of the Amelio Group and the STF Group are free to engage in
activities that may or shall compete with the other throughout the
world.
13
ARTICLE
VII
TERM
AND TERMINATION
7.1. Term.
Unless
terminated earlier, this Agreement shall expire seven (7) years following the
Commencement Date (“Term”).
7.2. Termination.
(a) Either
Party may, at its option, terminate this Agreement in the event the other Party
breaches any material obligation under this Agreement and fails to cure such
breach within thirty (30) days from the date of receipt of notice of such breach
given by the non-breaching party.
(b) Either
Party may, at its option, immediately terminate this Agreement by written notice
to the other, in the event either Party: (i) files a petition in bankruptcy,
(ii) enters into an agreement with its creditors, (iii) applies for or consents
to the appointment of a receiver or trustee, (iv) makes an assignment for the
benefit of creditors, (v) becomes subject to an attachment of, execution upon,
or other judicial seizure of, all or substantially all of its assets, or (vi)
becomes subject to involuntary proceedings under any bankruptcy or insolvency
law (which proceedings are not dismissed within sixty (60) days.
7.3. STF
Obligations upon Termination.
Any
licenses to Amelio Group Intellectual Property that Amelio Group granted to
STF
Group hereunder shall terminate, and STF Group shall discontinue the use of
the
Amelio Group’s licensed Intellectual Property.
7.4. Survival.
Upon
expiration of this Agreement, Article XI (Confidentiality) and the STF
Selenization Equipment License in Section
2.1(b)
shall
survive and the duties and obligations under that Article and Section shall
continue.
ARTICLE
VIII
REPRESENTATIONS AND
WARRANTIES
8.1. Mutual
Representations and Warranties.
Each
Party represents and warrants:
(a) It
has
the right and power to enter into this Agreement,
(b) It
has
the right and authority to grant the assignments and licenses granted
herein,
(c) It
is not
aware of any assertion that its Intellectual Property infringes any granted
patent, trademark or copyright of any person,
(d) It
is not
aware of any pending or threatened claims before any governmental authority,
which claim would likely affect or would give rise to litigation concerning
the
Intellectual Property licensed or assigned hereunder, and
14
(e) It
is not
a party to any other licensing or other agreement or arrangement, besides this
Agreement, that relates to the Intellectual Property licensed or assigned
hereunder and it has not granted any rights to any person with respect to the
Intellectual Property licensed or assigned hereunder.
8.2. DISCLAIMERS.
(a) NOTHING
CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED AS A WARRANTY OR REPRESENTATION
THAT ANY MANUFACTURE, SALE, LEASE, USE OR IMPORTATION OF STF SELENIZATION
EQUIPMENT OR AMELIO CIGS TECHNOLOGY WILL BE FREE FROM INFRINGEMENT OF PATENTS,
COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF OTHERS, SAID WARRANTIES
BEING HEREBY DISCLAIMED, AND IT SHALL BE THE SOLE RESPONSIBILITY OF EACH PARTY
TO MAKE SUCH DETERMINATION AS IS NECESSARY WITH RESPECT TO THE ACQUISITION
OF
LICENSES UNDER PATENTS AND OTHER INTELLECTUAL PROPERTY OF THIRD
PARTIES.
(b) EXCEPT
AS
UNAMBIGUOUSLY AND EXPRESSLY SET FORTH IN THIS AGREEMENT OR ANY EXHIBIT, THE
PARTIES SPECIFICALLY DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE (WHETHER EXPRESS, IMPLIED, OR STATUTORY) REGARDING, RELATING TO,
CONNECTED WITH OR ARISING OUT OF STF SELENIZATION EQUIPMENT AND AMELIO CIGS
TECHNOLOGY OR ANY OTHER MATERIALS OR SERVICES FURNISHED OR PROVIDED TO EACH
PARTY UNDER THIS AGREEMENT AND WITH RESPECT TO THE USE OF ANY OF THE
FOREGOING.
ARTICLE
IX
INDEMNIFICATION
9.1. Mutual
Indemnification.
Each
Party shall, at its cost and expense, indemnify, defend, and hold harmless
the
other Party and its and their respective agents from and against any Claims
(as
defined below in Section
9.6)
based
upon, arising out of or otherwise related to:
(a) any
breach by such Party or any of its agents of any obligation, representation,
or
warranty of such Party under this Agreement,
(b) any
act,
negligence, error, or omission by such Party or any of its agents with respect
to its or their obligations under or by reason of this Agreement,
(c) any
violation of applicable law, or
(d) any
claim
against a Party that the other Party’s licensed Intellectual Property described
in Article II infringes any other person’s patents, trademarks or
copyrights.
15
9.2. Liability
Limitation.
Neither
Party shall have any obligation under the prior Section 9.1 with respect to
any
Claims resulting from the negligent or intentionally wrongful act or omission
of
the other Party or their respective officers, directors, representatives, agents
or employees.
9.3. STG
Group Indemnification.
The STF
Group shall, at its sole cost and expense, indemnify, defend, and hold harmless
each member of the Amelio Group and its and their respective agents from and
against any Claims based upon, arising out of or otherwise related to any claim
against the Amelio Group based on the manufacture or sale of the Amelio CIGS
Technology manufactured or used by STF Group, including, without limitation,
any
Claims based upon, arising out of or otherwise related to any death or injury
to
any person or damage to any property to the extent caused by defective
manufacture or sale of such Amelio CIGS Technology or by the negligent
manufacture or sale of such Amelio CIGS Technology.
9.4 Amelio
Group Indemnification. The
Amelio Group shall, at its sole cost and expense, indemnify, defend, and hold
harmless each member of the STF Group and its and their respective agents from
and against any Claims based upon, arising out of or otherwise related to any
claim against the STF Group based on the Amelio CIGS Technology infringing
any
Intellectual Property rights of any Unaffiliated Person.
9.5 Notice
of Claims and Assistance.
A Party
shall, within three (3) Business Days from the date of receipt of notice of
any
Claim, furnish to the other Party a copy of such notice and inform the other
Party of all known facts relating to such Claim. The indemnifying Party shall
have the right, at its cost and expense, to defend, negotiate, and otherwise
resolve any Claim; provided, however, that the indemnified Party shall have
the
right, at its cost and expense, to participate in such Claim and to employ
counsel of its choice. Each Party shall provide all information in its
possession and all reasonable assistance to the other Party as necessary to
enable the other Party to defend any Claim.
9.6 Assistance.
Each
Party shall provide all information in its possession and reasonable assistance
to the other Party as necessary to enable the other Party to defend any such
Claim.
ARTICLE
X
REMEDIES
10.1. Remedies.
STF
Group agrees and acknowledges Amelio Group does not have any adequate remedy
at
law for STF Group’s breach or threatened breach of the Limited STF Group License
in Section
2.2(b)
or of
Article XI (Confidentiality) of this Agreement, and STF Group agrees, if STF
Group breaches, or threatens to commit such a breach of this Agreement, then
Amelio Group shall have the following rights and remedies, in addition to,
and
not in lieu of, any other rights and remedies available to Amelio Group under
law or in equity (including, but not limited to, the recovery of damages):
the
right and remedy to have the provisions of this Agreement specifically enforced
(without posting bond or other security and without the need to prove damages)
by any court having equity or other appropriate jurisdiction, including, but
not
limited to, the right to an entry against STF Group of restraining orders and
injunctions (preliminary, mandatory, temporary and permanent) against
violations, threatened or actual, and whether or not then continuing, of such
provisions.
16
10.2. LIMITATIONS
ON KINDS OF DAMAGES.
IN NO
EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY PUNITIVE, EXEMPLARY,
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING
LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA OR COSTS
OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGIES OR SERVICES OR COST OF COVER)
IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, WHETHER ALLEGED AS A BREACH
OF
CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS
BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3. LIMITATION
ON AMOUNT OF DAMAGES.
EACH
PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT OR THE TERMINATION OF THIS
AGREEMENT FOR DIRECT DAMAGES, WILL NOT, IN ANY EVENT, EXCEED, IN THE AGGREGATE,
THE FEES AND PAYMENTS PAID PURSUANT TO THIS AGREEMENT PROVIDED THAT THE
FOREGOING LIMITATION SHALL NOT APPLY TO EITHER PARTY’S LIABILITY FOR DIRECT
DAMAGES FOR BREACH OF ARTICLE XI (CONFIDENTIALITY).
ARTICLE
XI
CONFIDENTIALITY
11.1. Confidentiality.
During
the Term and for a period of ten (10) years after the expiration or termination
of this Agreement (“Confidentiality Term”), the Receiving Party shall (as used
in this Article XI, (as used in this Article XI, “Disclosing Party” shall mean a
Party that discloses Confidential Information under this Agreement. “Receiving
Party” shall mean a party that receives Confidential Information under this
Agreement.):
(a) protect
and hold in confidence a Disclosing Party’s Confidential Information (as defined
below in Section
11.7);
(b) not
disclose or use, or cause to be disclosed or used, the Confidential Information
of the Disclosing Party to or by any person except with the prior written
consent of the Disclosing Party and in accordance with this
Agreement;
(c) handle,
preserve, and protect the Confidential Information of the Disclosing Party
with
at least the same degree of care the Receiving Party affords its own
Confidential Information; and
(d) use
diligent efforts to ensure that each of its agents preserves and protects the
confidentiality of all Confidential Information of the Disclosing
Party.
Notwithstanding
the foregoing, information shall not be deemed the Confidential Information
of
the Disclosing Party for purposes of this Agreement, if such
information:
(i) is
or
becomes public knowledge through no act or omission of the Receiving Party
in
violation of this Agreement, as established by documentary evidence; provided,
however, that such information shall not be deemed a matter of public knowledge
merely because it (A) is embraced by more general information in the prior
possession of a Party or any other person or (B) is expressed in public
literature in general terms not specifically in accordance with such
information;
17
(ii) is
lawfully received by, or otherwise made available to, the Receiving Party from
an independent Person who does not owe a duty of confidentiality to the
Disclosing Party, as established by documentary evidence;
(iii) is
already in the possession of the Receiving Party at the time of receipt from
the
Disclosing Party, as documented by pre-existing records of the Receiving Party
and came into the possession of the Receiving Party from an independent person
who did not owe a duty of confidentiality to the Disclosing Party in connection
with the Confidential Information disclosed;
(iv) is
developed independently by the Receiving Party without any breach of this
Agreement, as established by documentary evidence; or
(v) subject
to the following Section
11.2,
is
required to be disclosed by the Receiving Party pursuant to any applicable
law.
11.2. Disclosure.
(a) The
Receiving Party shall immediately notify the Disclosing Party of receipt by
the
Receiving Party of any process, subpoena, demand, or request by any Person
to
disclose the Confidential Information of the Disclosing Party, and shall, as
soon as practicable but in no event later than three (3) Business Days from
the
date of such receipt, furnish to the Disclosing Party a copy of such process,
subpoena, demand, or request and inform the Disclosing Party of the
circumstances relating thereto. The Receiving Party shall, at its cost and
expense, take all reasonable steps to maintain and protect the confidentiality
of the Confidential Information of the Disclosing Party, including, but not
limited to, making a motion to quash or seeking a protective order against
the
disclosure of such Confidential Information; provided, however, that (i) nothing
in this Agreement shall be deemed to require the Receiving Party to violate
any
law or judicial order and (ii) if a disclosure order is not quashed or a
protective order is not obtained, then in response to such disclosure order,
the
Receiving Party may disclose only such Confidential Information of the
Disclosing Party that, based upon the advice of the Receiving Party’s counsel,
is legally required to be disclosed; provided, however, that within ten (10)
Business Days from the date of such disclosure, the Receiving Party shall
furnish to the Disclosing Party a copy of the Confidential Information disclosed
and all correspondence and communications relating to such disclosure. The
Disclosing Party also shall have the right to take any legal action to prevent
disclosure of its Confidential Information, including, but not limited to,
the
right to appear on behalf of the Receiving Party as its attorney in fact, to
represent the Receiving Party, and to employ counsel of its choice for these
purposes, all at its cost and expense, and the Receiving Party shall assist
and
cooperate with the Disclosing Party in those efforts.
18
(b) If
the
Disclosing Party elects to exercise its rights under this Section
11.2,
it
shall do so: (i) at its cost and expense, and (ii) shall hold harmless, defend,
and indemnify the Receiving Party from and against any and all legal
responsibility or liability from the exercise of these rights (except if caused
by the negligence or willful misconduct of or breach of this Agreement by the
Receiving Party).
11.3. Confidentiality
of Agreement.
The
provisions of this Article XI also shall apply to the contents of this
Agreement; provided, however, that the contents hereof may be disclosed only
on
a confidential basis and pursuant to a confidentiality or secrecy agreement
acceptable to the Disclosing Party (a) as required by applicable laws, (b)
in
connection with the enforcement of this Agreement, or (c) to such agents,
professional advisors, and lenders of a Receiving Party who have a need to
know
such information.
11.4. Limitation
on Use of Confidential Information.
(a) Except
as
provided in Section
11.2,
each of
the Parties shall: (a) limit disclosure of any Confidential Information
received by it under this Agreement to only those of its agents who are directly
involved with this Agreement; (b) upon such disclosure, advise such agents
of
the proprietary nature of such Confidential Information; and (c) be responsible
for any breach of this Agreement by its agents.
(b) Except
as
provided in Section
11.2,
each of
the Parties shall advise subcontractors and customers purchasing PV Equipment,
PV Modules or Turnkey PV Module Manufacturing Facilities of the provisions
of
this Article XI and require such subcontractors and customers to agree to the
terms of this Article XI.
11.5. Notification
of Breach.
The
Receiving Party shall (a) notify the Disclosing Party in the event there is
any
breach of this Article XI, including, but not limited to, conditions or
circumstances that indicate Confidential Information of the Disclosing Party
has
been or may have been compromised or improperly disclosed or used and (b) upon
request of the Disclosing Party, take all steps reasonably necessary to recover
any and all Confidential Information that has been or may have been compromised
or improperly disclosed or used. The cost and expense of taking such steps
shall
be borne solely by the Receiving Party.
11.6. Return
of Confidential Information.
All
Confidential Information shall be and remain the sole property of the Disclosing
Party, and the Receiving Party shall have no rights or interests to or in such
Confidential Information (except as provided in this Agreement). Immediately
upon the expiration or termination of this Agreement, the Receiving Party shall
(a) discontinue the use of the Confidential Information of the Disclosing Party,
and (b) take reasonable steps to destroy all Confidential Information of the
Disclosing Party that Receiving Party may not retain under this Agreement,
including, but not limited to, all copies and originals of such Confidential
Information in any medium and any material derived from or incorporating
Confidential Information, accompanied by a written confirmation that all copies
have been destroyed and all electronic memories, including archival media,
have
been purged of such Confidential Information.
19
11.7. Confidential
Information.
“Confidential
Information”
means
any and all information and know-how in any form, whether of a technical,
financial, business or other nature, including, but not limited to, information
relating to a Party’s research, development, inventions, products, production,
manufacturing, finances, marketing, customers, or business plans, including,
but
not limited to, trade secrets, know-how, data, formulas, processes, other
intellectual property, or confidential communications, that (i) is or has been
disclosed to or otherwise received or obtained by a Receiving Party, whether
or
not in connection with or pursuant to this Agreement and (ii) has been marked
by
the Disclosing Party as “Confidential” or, if disclosed orally, has been
confirmed in writing (including, but not limited to, letter, facsimile, E-mail)
by the Disclosing Party to be “Confidential” within ten (10) Business Days from
the date of such disclosure.
ARTICLE
XII
MISCELLANEOUS
12.1. Expenses.
Whether
or not the transactions contemplated hereby are consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by (a) the Amelio Group, with respect to
such
costs and expenses incurred by it, and (b) the STF Group, with respect to such
costs and expenses incurred by the STF Groups.
12.2. Construction
of this Agreement.
All of
the Parties to this Agreement have participated jointly in the negotiation
and
drafting of this Agreement. In the event any ambiguity or question of
interpretation arises, this Agreement and the other documents and instruments
executed in connection with this Agreement shall be construed as if drafted
jointly, and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any provision of this
Agreement or such other documents and instruments. Any item disclosed on a
disclosure schedule to this Agreement shall be deemed disclosed for and
incorporated into all other disclosure schedules to which such item is
applicable. The term “including” in this Agreement shall mean “including without
limitation”. All references to immediately available funds or dollar amounts
contained in this Agreement shall mean United States dollars. The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. References to
“Schedules,” “Articles” or “Sections” herein shall be deemed to refer to the
applicable disclosure schedule, article or section of this
Agreement.
12.3. Assignment.
Except
in connection with a Sale of Control by either the Amelio Group or the STF
Group
(or any member thereof), this Agreement and the respective rights and
obligations of the Amelio Group and the STF Group hereunder shall not be
assigned, delegated or otherwise transferred by either the Amelio Group or
the
STF Group without the prior written consent of the other.
12.4. Successors
and Assigns.
This
Agreement shall inure to the benefit of, and be binding upon and enforceable
against, the successors and permitted assigns of the respective Parties hereto.
12.5. Amendments.
No
amendment to or modification of this Agreement shall be effective unless it
shall be in writing and signed by Amelio, acting on behalf of all of the members
of the Amelio Group, and by the Company, acting on behalf of all members of
the
STF Group.
20
12.6. Notices.
All
notices and other communications given under this Agreement shall be in writing
and shall be deemed duly given (a) on the date of delivery, if delivered
personally, (b) on the date of transmission, if sent via facsimile transmission
to the facsimile number given below, and telephonic or written confirmation
of
receipt is obtained promptly after completion of transmission, (c) the Business
Day after the date of delivery to a reputable and recognized next-day express
courier service, or (d) three (3) Business Days after (or, in the case of a
notice or communication sent overseas, ten (10) Business Days after) being
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the Parties at the following addresses (or at such other address
for
a party as shall be specified by like notice):
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to the STF Group, to:
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with
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to Amelio Group, to:
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▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇ ▇▇▇▇▇, CEO
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Tel:
▇▇▇-▇▇▇-▇▇▇▇
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Facsimile:
▇▇▇-▇▇▇-▇▇▇▇
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email:
▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
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with
a required copy to:
|
▇▇▇
▇▇▇▇▇▇ LLP
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▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Attention:
▇▇▇▇▇▇ (▇▇▇) ▇▇▇▇▇▇▇▇▇, III
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Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
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Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
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||
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email:
▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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Such
addresses may be changed, from time to time by means of a notice given in the
manner provided in this Section
12.6
(provided that no such notice shall be effective until it is received by the
other Parties hereto).
21
12.7. Consent
to Jurisdiction.
Each of
Parties do hereby irrevocably submits to the exclusive jurisdiction of (a)
the
Supreme Court of the State of New York sitting in New York County, and (b)
the
United States District Court for the Southern District of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement
and the Transaction Documents or any transaction contemplated hereby or thereby,
except in each case with respect to any matters related to title or possession
of real property, and any other matters that are justiciable only under the
jurisdiction of another court. Each of the Parties irrevocably consent to
service of process out of such courts in any action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, or by
recognized overnight courier or delivery service, to the Parties at their
respective addresses set forth herein. Each of the Parties irrevocably waives
any objection which it may now or hereafter have to the laying of venue of
any
of the aforesaid actions or proceedings arising out of or in connection with
this Agreement brought in the courts referred to above and hereby further
irrevocably waives and agrees, to the full extent permitted by Applicable Law,
not to plead or claim in any such court that any such action or proceeding
brought in any such court has been brought in any inconvenient
forum.
12.8. Severability.
If any
provision of this Agreement or the application of any such provision to any
Person or circumstance shall be held invalid, illegal or unenforceable in any
respect by a court of competent jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision hereof and the Parties
hereto shall negotiate in good faith to modify this Agreement, so as to effect
the original intent of the Parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby may be
consummated as originally contemplated.
12.9. Waiver.
Waiver
of any term or condition of this Agreement by any Party shall be effective
if in
a writing signed by the Party against whom such waiver is asserted. Any such
waiver shall not be construed as a waiver of any subsequent breach or failure
of
the same term or condition, or a waiver of any other term of this Agreement.
No
failure or delay by any Party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
12.10. Counterparts.
This
Agreement may be executed in any number of counterparts, all of which shall
be
considered one and the same agreement, and shall become effective when one
or
more such counterparts have been signed by each of the Parties to this Agreement
and delivered to the other Parties, it being understood that all Parties need
not sign the same counterpart.
12.11. Entire
Agreement.
This
Agreement, including the disclosure schedules hereto and the other documents
delivered pursuant to this Agreement, contains the entire agreement and
understanding between the Parties hereto with respect to the subject matter
hereof and supersede all prior and contemporaneous agreements, negotiations,
correspondence, undertakings and understandings, oral or written, relating
to
such subject matter.
12.12. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York applicable to agreements made and to be performed
entirely within the State of New York, without regard to the conflicts of law
principles of such state.
22
12.13. Regulatory
Approvals.
The
Parties are responsible for obtaining their own regulatory approvals, including
any necessary approvals for the sale, export or import, of products that
practice Intellectual Property licensed under this Agreement.
12.14. Time
is of the Essence.
Time is
of the essence in the performance of this Agreement.
[the
balance of this page intentionally left blank – signature page
follows]
23
IN
WITNESS WHEREOF,
the
Parties have caused this Agreement to be duly executed as of the date first
written above.
|
AMELIO
SOLAR, INC.
|
||
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇▇▇▇▇
|
||
|
Title:
Chief Executive Officer
|
||
|
By
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
||
|
Title:
Chairman and CFO
|
||
|
KRAFT
ELEKTRONIKAI ZRT
|
||
|
By
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
||
|
Title:
Chairman
|
||
24