CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE
SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH
ASTERISKS.
Exhibit 10.19
A COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT
Between
PLUG POWER, L.L.C.
and
U. S. ARMY BENET LABORATORIES
A. Whereas, the Federal Technology Transfer Act of 1986, 15 USC3710a,
provides each Federal agency with the authority to permit the Directors of
Government-operated Federal Laboratories to enter into Cooperative Research and
Development Agreements (CRADA's) with Federal and non-Federal entities,
including private firms and organizations. This authority allows Federal
laboratories to accept, retain, and use funds, personnel, services, and property
from collaborating parties and to provided personnel services, and property to
collaborating parties. This authority also includes the disposition of patent
rights in any inventions, which may result from such collaboration, or by
delegation of the Assistant Secretary of the Army for Research, Development and
Acquisition, other patent rights which are owned by the Government.
B. Whereas, the U.S. Army BENET Laboratories (BENET) has an installation
and extensive state-of-the art infrastructure required to support an array of
unique technologies, in Armaments, Munitions and in enabling technologies.
BENET has the responsibility to make its procedures, processes and technologies
available for use and transfer to the private sector. BENET has unique
technologies and facilities in specialized materials, simulation and analysis
for prototype fabrication, which PLUG POWER desires to adapt for commercial
application.
C. Whereas, PLUG POWER, L.L.C. (PLUG POWER) desires to collaborate with
BENET in the business of research, development, and engineering for the purpose
of transferring unique process technologies from the United States Army for use
and application by PLUG POWER for a commercial application.
NOW, THEREFORE, the parties agree as follows:
Article 1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings, and such meanings should be equally applicable to both the singular
and plural forms of the terms defined:
1.1 "Agreement" means this Cooperative Research and Development
Agreement.
1.2 "Invention" means any invention or discovery, which is or may be
patentable or otherwise protected, under Title 35 of the United States Code.
1.3 "Made" in relation to any Invention means the conception or first
actual reduction to practice of such Invention.
1.4 "Proprietary Information" means any patent rights, copyrights,
trademark rights, trade secrets, mask works, proprietary information or data,
moral rights, and know-how developed by PLUG POWER prior to, in the course of or
subsequent to, this Agreement that: (i) is not generally known or available from
other sources without obligation concerning its confidentiality; (ii) has not
been made available by the owners to others without obligation concerning its
confidentiality; and (iii) is not already available to the Government without
obligation concerning its confidentiality, and does not constitute a Subject
Invention, Subject Data or Protected CRADA Information.
1.5 "Subject Data" means all recorded information first produced in the
performance of this Agreement.
1.6 "Subject Invention" means any invention made in the performance of
work under this Agreement.
1.7 "Protected CRADA Information" means any patent rights, copyrights,
trademark rights, trade secrets, mask works, proprietary information or data,
moral rights, and know-how, developed in the course of this Agreement and
directly related to the Statement of Work, by a BENET or PLUG POWER employee
assigned to this project by his or her employer.
Article 2. Cooperate Research.
2.1 Statement of Work. Cooperative research performed under this Agreement
shall be performed in accordance with the Statement of Work (SOW), incorporated
as a part of this Agreement as Appendix A. Each party agrees to participate in
the cooperative research and to utilize such personnel, resources, facilities,
equipment, skills, know-how and information, as it considers necessary,
consistent with its own policies, missions, and requirements. Work tasks will be
added to Statement of Work and will become part of this Agreement and recorded
as part of Appendix A. The work will be task-or-performance oriented.
2.2 Multiple Parties and Separate Technologies: BENET has unique
technologies in several related but distinct areas to include, but not limited
to: Mounts, Fire Control, and the enabling sciences and discipline. In
addition, BENET has expertise located within Watervliet Arsenal.
2.3 Review of Work. Periodic conferences shall be held between BENET
personnel and PLUG POWER personnel for the purpose of reviewing the progress of
the work. It is understood that the nature of this cooperative research is such
that completion within the limit of financial support allocated, cannot be
guaranteed. Accordingly, it is agreed that all sponsored research is to be
performed on a best efforts basis. It is agreed that individual work
2
tasks incorporated into the Statement of Work will make use of project
management techniques detailing where appropriate, cost, schedule and technical
milestone considerations to mitigate and control risk.
2.4 Change in Scope. The parties shall make a good faith effort to agree
on any necessary changes to the SOW and make the changes by written notice. The
parties agree that increases and decreases in effort may by mutual agreement
not be considered a change in scope, minimizing administrative delays in the
execution of effort.
2.5 Research and Development (R&D) Team. To the extent that the conduct
of sponsored research requires a joint technical effort, PLUG POWER and BENET
agree to establish a joint research and development team (the "TEAM"). The Team
shall conduct cooperative research in accordance with the SOW. Each party shall
pledge to make available to the Team such resources, facilities, equipment,
skills, know-how, and information, as it considers necessary and appropriate.
Both parties pledge to support the Team in a mutually cooperative manner, on a
best effort basis, consistent with their respective policies, missions, and
requirements. Each party may support changes to the SOW or to the scope and
direction of the effort which, if agreed to by the other party, shall first be
made to the SOW, and then implemented by the Team. While assigned to the Team,
members shall continue to remain employed by their respective employers with
full benefits and salary, and will not be considered to be employees of the
other party for any reason. Each parties shall be solely responsible for the
composition their of Team members.
Article 3. Reports.
3.1 Progress Reports. After this Agreement enters into force, BENET and
PLUG POWER shall exchange periodic written reports during the term of this
Agreement on the progress of their work, and the results being obtained, and
shall make available to the extent reasonably requested, other project
information in sufficient detail to explain the progress of the work. Specific
report content and timing will be defined in the Statement of Work.
3.2 Final Report. BENET and PLUG POWER shall prepare a written report
within three (3) months after expiration of this Agreement. This report shall
set forth the technical progress made, identifying such problems as may have
been encountered, and establishing goals and objectives requiring further
effort. Inclusion of Proprietary Information or Subject Information in
deliverable reports shall be subject to the provisions of Article 7.2. In
addition, a portion of the results not including Proprietary Information, may be
prepared for publication in a journal or conference, as appropriate, by BENET or
PLUG POWER, with co-authorship, as appropriate, subject to the provisions of
7.4.
Article 4. Financial Obligation
Salary and Travel. BENET and PLUG POWER shall provide support to their
respective personnel in performance of this Agreement. Attached Statements of
Work set forth
3
in Appendix A will detail financial terms and conditions. If or when appropriate
and required by a scope of work, reimbursement required by BENET will be
provided by PLUG POWER. It is noted that reimbursement does not constitute a
sale or transfer of ownership of property.
Article 5. Title to Property.
5.1 Equipment. All equipment first acquired under this Agreement, and
all Government Furnished Equipment (GFE), if any, shall be the property of BENET
except that title to items of equipment developed or purchased by PLUG POWER, or
provided to BENET by PLUG POWER or acquired by BENET with funds supplied by PLUG
POWER, shall remain or vest in PLUG POWER. ANY GFE shall be used solely for the
performance of the effort contemplated by this Agreement. Upon completion of
research under this Agreement, PLUG POWER shall be responsible for all costs
attendant to the maintenance, removal, storage, and shipping of their equipment
to their own facility. Prototype hardware, designed, produced and transferred by
the Government to PLUG POWER will be considered GFE, with the Government
retaining title. The applicable sections of Part 45 of the Federal Acquisition
Regulations shall apply to PLUG POWER's management and disposition of GFE
furnished under this Agreement.
5.2. Software
5.2.1. PLUG POWER Employee Software. Title to any copyright in
software written by PLUG POWER employees necessary to perform this Agreement
shall be held by PLUG POWER. PLUG POWER agrees to grant to the U.S. Government a
non-exclusive, irrevocable, paid-up license for military applications only, to
use or have used, throughout the world by, or on behalf of the U.S. Government,
the copyright covering said software.
5.2.2. Joint Employee Software. Title to any copyright in software
written jointly by BENET and PLUG POWER employees in the course of performance
of this Agreement, shall be held by PLUG POWER. PLUG POWER agrees to grant to
the U.S. Government a nonexclusive, irrevocable, paid-up license for military
applications only, to use or have used, throughout the world by, or on behalf of
the U.S. Government, the copyright covering said software.
5.2.3 Limited Scope. PLUG POWER shall retain ownership in any
software or algorithms to which PLUG POWER has title prior to this Agreement, or
written for its own requirements during the course of this Agreement which are
not necessary for the performance of work under this Agreement.
5.2.4. BENET Employee Software. The U.S. Government hereby grants to
PLUG POWER an exclusive, irrevocable, transferable, worldwide, paid-up license
to make, use or sell any software written by BENET employees in the performance
of this Agreement.
4
5.2.5 BENET Laboratories may provide interface drawings and other
technical data to collaborators as required or negotiated for purposes other
than for production of Large Caliber ▇▇▇▇▇▇. In this instance ▇▇▇▇▇▇ is defined
as consisting of the ▇▇▇▇▇▇ Tube, to include thermal management assembles, the
Breech, Mechanism, to include breech actuation assemblies, the Bore evacuator
and the Muzzle Break.
Article 6. Inventions and Patents.
6.1 Reporting. The parties shall promptly report to each other all Subject
Inventions made in the performance of work under this Agreement. All Subject
Inventions made in the performance of work under this Agreement shall be listed
in the Final Report required by this Agreement.
6.2 Employee Inventions. ▇▇▇▇▇, on behalf of the U.S. Government, agrees
that PLUG POWER shall retain title to any PLUG POWER employee Subject Invention.
PLUG POWER may file patent applications on such Subject Inventions at its own
expense. PLUG POWER further agrees to grant to the U.S. Government on PLUG POWER
Subject inventions a nonexclusive, irrevocable, paid-up license in the patents
covering a Subject Invention, to practice or have practiced, throughout the
world by, or on behalf of the U.S. Government, the Subject Inventions which are
covered by a resulting patent except for any application related to fuel cells.
Such non-exclusive license shall be evidenced by a confirmatory license
agreement prepared by PLUG POWER in a form satisfactory to BENET.
6.3. BENET Employee Inventions. ▇▇▇▇▇, on behalf of the U.S. Government,
shall have the initial option to retain title to, and file patents on, each
Subject Invention made by its employees. BENET may file patent applications
thereon at its own expense. BENET, on behalf of the U.S. Government, agrees to
grant to PLUG POWER on those BENET employee Subject Inventions upon which the
U.S. Government has exercised the option to retain title to, a nonexclusive,
irrevocable, transferable, paid-up license in the patents covering a Subject
Invention, to practice or have practiced, throughout the world by, or on behalf
of PLUG POWER, the Subject Inventions, which are covered by a resulting patent.
The license on Subject Inventions excludes the right to produce or have produced
Large Caliber ▇▇▇▇▇▇ at any facility other than Watervliet Arsenal.
6.4 Joint Employee Inventions. PLUG POWER have the initial option to file
patent applications at its own expense on joint inventions, subject to the
conditions specified in Paragraph 6.5. PLUG POWER is hereby granted all rights
to patents filed in its name for joint inventions for all applications related
to fuel cells, and the U.S. Government is hereby granted an exclusive,
irrevocable, paid-up U.S. Government license to practice or have practiced,
throughout the world by, or on behalf of the U.S. Government, the invention
which is covered by a resulting patent for all applications except those related
to fuel cell applications.
5
6.5 Filing of Patent Applications. The party having the right to retain
title and file patent applications on a specific Subject Invention may elect not
to file patent applications, provided it so advises the other party within 300
days from the date it reports the Subject Inventions to the other party.
Thereafter, the other party may elect to file patent applications on the Subject
Invention and the party initially reporting the Subject Invention agrees to
assign its right, title, and interest in the Subject Invention to the other
party. The assignment of the entire right, title, and interest to the other
party, pursuant to this paragraph, shall be subject to the retention by the
party assigning title of a nonexclusive, irrevocable, transferable, paid-up
license to practice, or have practiced, the Subject Invention the world.
6.6 Patent Expenses. The expenses attendant to the filing of patent
applications shall be borne by the party filing the patent applications. Each
party shall provide the other party with copies of the patent applications it
files on any Subject Invention along with the power to inspect and make copies
of all documents retained in the official patent application files by the
applicable patent office. The parties agree to reasonably cooperate with each
other in the preparation and filing of patent applications resulting from this
Agreement.
6.7 Maintenance Fees. The fees payable to the U.S. Patent and Trademark
Office, in order to maintain the patent's enforcement, will be payable by the
owner of the patent, at that party's option. In the event that BENET is the
owner of the patent and PLUG POWER holds an exclusive license in said patent,
PLUG POWER shall pay all maintenance fees for said patent, but shall not be
required to pay any litigation fees for said patent. If deciding not to pay the
maintenance fee, PLUG POWER must relinquish their exclusive license rights in
said patent and must give BENET reasonable notification so as to permit BENET
the option of paying said fee. In the event that PLUG POWER elects not to pay
the maintenance fees and BENET elects to exercise it's option to pay said fee,
PLUG POWER will retain a non-exclusive, irrevocable, transferable, paid-up
license in said patent
6.8 Exclusive License
6.8.1 BENET, on behalf of the U.S. Government, agrees to grant
to PLUG POWER a limited term exclusive, transferable, worldwide license in each
U.S. patent application, and patents issued thereon, covering a BENET employee
Subject Invention, which is filed by BENET on behalf of the U.S. Government
subject to the reservation of a non-exclusive, irrevocable, paid-up license to
practice and have practiced the Subject Invention on behalf of the U.S.
Government.
6.8.2 Exclusive License Terms. PLUG POWER shall elect or decline
to exercise its rights to acquire a limited term exclusive license to any
Subject Invention(s) within six (6) months of being informed by BENET of the
Subject Invention(s). A reasonable royalty rate and other terms of license
shall be negotiated promptly in good faith and in conformance with the laws of
the United States. Such exclusive license shall be for an initial term ending
seven (7) years from the date of each patent and with respect to each such
patent shall be
6
automatically renewable for successive seven (7) year periods provided PLUG
POWER or any PLUG POWER sublicensee:
(i) is then conducting related research, or
(ii) continues to commercialize the subject matter covered by
such patent(s).
6.8.3 Other BENET Inventions. This Agreement does not grant an implied
license to PLUG POWER with respect to any other government inventions, including
any BENET inventions not covered by Article 6.8.2. BENET agrees to grant an
exclusive, transferable, worldwide license to PLUG POWER to such other BENET
Inventions if requested by PLUG POWER at fair and reasonable terms, if such an
exclusive license is necessary for PLUG POWER to practice, or have practice, any
BENET Subject Invention under this Agreement, but only to the extent that BENET
has an unencumbered right and/or authority to do so. Nothing in this Agreement
shall be construed as a grant or an agreement to grant any license with respect
to any invention made by any other U.S. Army laboratory or any other Government
agency or laboratory.
6.8.4 Subsidiaries and Affiliates. The license to PLUG POWER under
this Agreement also extend to PLUG POWER's United States subsidiaries.
6.8.5 Other PLUG POWER Inventions. This Agreement does not grant an
implied license to BENET with respect to any other PLUG POWER inventions,
including any PLUG POWER inventions not covered by Section 6 of this Agreement.
PLUG POWER agrees to grant a nonexclusive, transferable, worldwide license to
BENET to such other PLUG POWER inventions if requested by BENET at fair and
reasonable terms, if such an nonexclusive license is necessary for BENET to
practice, or have practiced, any PLUG POWER Subject Invention under this
Agreement, but only to the extent that PLUG POWER has an unencumbered right
and/or authority to do so. Nothing in this Agreement shall be construed as a
grant or an agreement to grant any license with respect to any invention made by
PLUG POWER.
Article 7. Data and Publication
7.1 Rights. Subject Data shall be individually owned by the parties
hereto. Either party shall, upon request, have the right to review all Subject
Data first produced under this Agreement which has not been delivered to the
other party, except to the extent that such Subject Data is subject to a claim
of confidence or privilege by a third party.
7.2 Proprietary Information. ▇▇▇▇▇ agrees that any Proprietary
Information furnished by PLUG POWER to BENET under this Agreement, or in
contemplation of this Agreement, shall be used, reproduced and disclosed by
BENET only for the purpose of carrying out this Agreement, and shall not be
released by BENET to third parties unless
7
consent to the release is obtained from PLUG POWER. Proprietary Information
which is disclosed verbally by PLUG POWER shall be identified as proprietary at
the time of disclosure and then summarized in writing. Such summary shall be
marked as Proprietary information and provided to BENET within ten (10) days
after the verbal disclosure. PLUG POWER shall place a proprietary notice on all
information it delivers to BENET under this Agreement which it asserts is
proprietary. All Proprietary Information shall be protected for a period of five
(5) years from disclosure to BENET.
7.3 Release Restrictions. BENET shall have the right to use all Subject
Data for military purposes only, and shall not release such Subject Data
publicly except when: (i) BENET in reporting results of sponsored research, may
publish Subject Data in technical articles and other documents to the extent it
determines to be appropriate unless such disclosure will adversely affect PLUG
POWER's rights; and (ii) BENET may release such Subject Data where such release
is required by law or court order provided that prior notice is provided to PLUG
POWER to allow Plug POWER to obtain a Protective Order.
7.4 Publication. BENET and PLUG POWER agree to confer prior to the
publication of Subject Data to assure that no Proprietary Information or
protected CRADA information are released and that patent rights are not
jeopardized. Prior written approval is required from the other party before a
party hereto can submit a manuscript for review, which contains the results of
the research under this Agreement, or prior to publication if no such review is
made. Each party shall be offered an ample opportunity to review such proposed
manuscript and to file patent applications in a timely manner.
7.5 Obligations as to Protected CRADA Information. Each party hereto may
designate as Protected CRADA Information, as defined in Article 1, any Subject
Data produced by its employees, and with the agreement of the other party, mark
any Subject Data produced by the other party's employees. All such designated
Protected CRADA Information shall be appropriately marked.
For a period of five (5) years from the date Protected CRADA Information is
produced, the parties hereto agree not to further disclose such Protected CRADA
Information except:
(1) as necessary to perform this CRADA;
(2) as necessary for PLUG POWER to conduct its business;
(3) as necessary for BENET to provide to other Government facilities, and
only at those Government facilities with the same protection in place,
or
(4) as mutually agreed by the parties hereto in advance in writing.
The obligations of the parties with respect to Protected CRADA Information,
shall end sooner for any Protected CRADA Information which shall: (1) become
publicly known without fault
8
of either party; (2) come into a party's possession without breach by that party
of the obligations set forth in this Article; or (3) be independently developed
by a party's employees who did not have access to the Protected CRADA
Information.
Article 8. Representations and Warranties.
8.1 Representations and Warranties of BENET. BENET hereby represents and
warrants as follows:
8.1.1 Organization. BENET is a federal laboratory and is wholly
owned by the Government of the United States and whose substantial purpose is
the performance of research, development, and engineering.
8.1.2 Mission. The performance of the activities specified by
this Agreement are consistent with the mission of BENET.
8.1.3 Authority. All prior reviews and approvals required by
regulations or law have been obtained by BENET prior to the execution of this
Agreement. The BENET official executing this Agreement has the requisite
authority to do so. Notwithstanding the delegation of authority to execute this
Agreement to the individual designated, that is the Director of BENET, the
Secretary of the Army has reserved to the Assistant Secretary of the Army
(Research, Development and Acquisition) the opportunity provided by 15 USC Sect.
3710a(c)(5)(A), to disapprove or require the modification of this Agreement
within 30 days of the date it is presented to him or her by ▇▇▇▇▇.
8.1. Statutory Compliance. The BENET Director, prior to entering into this
Agreement, has given special consideration to entering into CRADA's with small
business firms and consortia involving small business firms.
8.2 Representations and Warranties. PLUG POWER hereby represents and
warrants to BENET as follows:
8.2.1 Organization. PLUG POWER as of the date hereof, is duly
organized, and incorporated in the state of Delaware, is in good standing and
has the authority to operate as an entity;
8.2.2 POWER of Authority. PLUG POWER has the requisite power and
authority to enter into this Agreement- and to perform according to terms
thereof;
8.2.3 Due Authorization. PLUG POWER has taken all actions
required to be taken by law, to authorize the execution and delivery of this
Agreement;
8.2.4 No Violation. The execution and delivery of this Agreement
does not contravene any material provision of, or constitute a material default
under any material agreement binding on PLUG POWER or any valid order of any
court, or any regulatory agency or other body having authority to which PLUG
POWER is subject.
9
Article 9. Termination.
9.1 Termination by Mutual Consent. PLUG POWER and BENET may elect to
terminate this Agreement, or portions thereof, at any time by mutual consent.
9.2 Termination by Unilateral Action. Either party may unilaterally
terminate this entire Agreement at any time by giving the other party written
notice, no less than 30 days prior to the desired termination date. Termination
will consider any work in process and the financial effects on the parties.
9.3 Termination Procedures. In the event of termination, the parties
shall specify by written notice the disposition of all property, patents, and
other results of work accomplished or in progress, arising from or performed
under this Agreement. Upon the receipt of written termination notice, the
parties shall not take any new commitments that relate to this Agreement.
Article 10. Disputes.
10.1 Settlement. Any dispute arising under this Agreement which is not
disposed of by agreement of the co-principal investigators, shall be submitted
jointly to the signatories of this Agreement. A joint decision of the
signatories or their designees shall be the disposition of such dispute.
However, nothing in this section shall prevent any party from pursuing any and
all administrative and/or judicial remedies, which may be allowable.
Article 11. Liability.
11.1 Property. Neither party shall be responsible for damages to any
property provided to, or acquired by, the other party pursuant to this
Agreement.
11.2 PLUG POWER Employees. PLUG POWER agrees to indemnify and hold
harmless the U.S. Government for any loss, claim, damage, or liability of any
kind involving any employee of PLUG POWER arising in connection with this
Agreement, except to the extent that such loss, claim, damage, or liability is
due to the negligence of BENET under the provision of the Federal Torts Claims
Act.
11.3 No Warranty. Except as specifically stated elsewhere in this
Agreement, BENET makes no express or implied warranty as to any matter
whatsoever, including the conditions of the research or any invention or
product, whether tangible or intangible; made, or developed under this
Agreement, or the ownership, merchantability, or fitness for a particular
purpose of the research or any invention or product.
11.4 Product and Other Liability as to the U.S. Government. PLUG POWER
holds the U.S. Government harmless and indemnifies the U.S. government for all
liabilities, demands, damages, expenses, and losses arising out of use by PLUG
POWER of BENET's
10
research and technical developments or out of any use, sale, or other
disposition by PLUG POWER of products made by the use of BENET's technical
developments.
11.5 Indemnification. The U.S. government and PLUG POWER makes no express
or implied warranty as to the conditions of the research or any intellectual
property or product made, or developed under this Agreement, or the ownership,
merchantability or fitness for a particular purpose of the research or resulting
product. Neither the U.S. Government or PLUG POWER shall be liable for special,
consequential, or incidental damages.
Article 12. Miscellaneous
12.1 No benefits. No member of, or delegate to the United States
congress, or resident commissioner, shall be admitted to any share or part of
this Agreement, nor to any benefit that may arise therefrom; but this provision
shall not be construed to extend to this Agreement, if made with a corporation
for its general benefit.
12.2 Governing Law. This Agreement shall be governed by the laws of the
United States Government.
12.3. Fair Access. This Agreement shall not restrict either party from
entering into similar agreements.
12.4.a Notices. All notices pertaining to or required by this Agreement,
shall be in writing and shall be signed by an authorized representative, and
shall be delivered by hand or sent by certified mail, return receipt requested,
with postage prepaid.
12.4.b Independent Contractors. The relationship of PLUG POWER to BENET/to
this Agreement is-that of independent contractors and not as agents of-each or
as joint ventures or partners.
12.5 Use of Name or Endorsement: (i) PLUG POWER shall not use the name of
BENET, BENET Laboratories, Watervliet Arsenal or the Department of the Army, on
any product or service which is directly or indirectly related to either this
Agreement or any patent license or assignment agreement, which implements this
Agreement without the prior approval of BENET; (ii) by entering into this
Agreement, BENET does not directly or indirectly endorse any product or service
provided, or to be provided, by PLUG POWER, its successors, assignees, or
licensees. PLUG POWER shall not in any way imply that this Agreement is any
endorsement of such products or service.
12.6 The rights specified in provision of this Agreement covering
Inventions and Patents", "Exclusive License", "Data and Publication", "Product
and Other Liability as to the U.S. Government" and "Indemnification" shall
survive the termination or expiration of this Agreement.
11
Article 13. Duration of Agreement and Effective Date
13.1 Expiration of Agreement. This Agreement will automatically expire on
1 December 2003, unless it is revised by written notice and mutual consent.
13.2 Effective Date. This Agreement shall enter into force as of the date
it is signed by -the last authorized representative of the parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly authorized representatives as follows:
For: PLUG POWER, L.L.C.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Date:_______________________
For: BENET and the U.S. Government
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Acting Director
US Army BENET Laboratories
Date:_______________________
12
APPENDIX A
STATEMENT OF WORK (SOW)
The overall purpose of this CRADA is for PLUG POWER, L.L.C. to acquire from the
US Army BENET Laboratories unique technology and services which will be applied
by PLUG POWER for commercial applications.
PLUG POWER desires to work with scientists and engineers of BENET to develop and
commercialize new and innovative energy products. BENET scientists have unique
knowledge in simulation and analysis, design and the application of- advanced
materials. PLUG POWER is engaged in a commercial enterprise, which can apply
BENET's technology to enhance product functionality, reliability and durability.
This Agreement does not commit PLUG POWER to any expenditure of funds. Detailed
work tasks and associated costs will be agreed to by the parties in advance of
commencing work. Increases or decreases to this Agreement will be accomplished
by a written amendment to this statement of Work, authorized by representatives
of both PLUG POWER and BENET.
13
STATEMENT OF WORK
Modification Number 001
Composite Plate Development
Version 1.0
January 12, 1998
Background:
PLUG POWER is investigating the use of conductive composite materials for
commercial fabrication of PEM Fuel cell plates. Conductive plates can
potentially offer the following benefits:
. Low weight
. Low piece cost
. Corrosion resistance
. Higher volume capability
. Established manufacturing process and infrastructure
. Ability to attain elaborate geometric features
PLUG POWER has developed certain requirements and designs for the
composition and geometry of composite plates and is progressing toward their
development and eventual commercialization.
PLUG POWER seeks to discover the material composition and molding process
best suited for these composite plates. A successful composite plate design will
have to attain acceptable electrical conductivity and mechanical properties.
Short Term Test Plan
1 - To mold blocks of various material compositions for subsequent material
property testing
▇. ▇▇▇▇▇ Labs will fabricate a [***] simple mold plate.
▇. ▇▇▇▇▇ Labs will use the mold plate to mold 4 plates from each of the
following 6 composition formulas:
MIX 1 MIX 2 MIX 3 MIX 4 MIX 5 MIX 6
-------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------
c. Determine physical properties of the molded plates.
d. PLUG POWER will perform conductivity and permeability tests on the
plates.
▇. ▇▇▇▇▇ Labs will perform mechanical testing on the plates including such
tests as strength, toughness, creep, thermal expansion and thermal
conductivity.
▇. ▇▇▇▇▇ Labs will deliver to PLUG POWER all fabricated plates and test
results.
STATEMENT OF WORK
Modification Number 001
Composite Plate Development
Version 1.0
January 12, 1998
2 - Mold Plates using the material selected in the block testing
a. PLUG POWER will fabricate low production volume molds.
▇. ▇▇▇▇▇ Labs will use the PLUG POWER supplied molds to fabricate at least
04 plates using a PLUG POWER specified material formulation.
▇. ▇▇▇▇▇ Labs will perform requested geometric and surface measurements of
the formed plates.
d. PLUG POWER will test plates and identify areas of improvement.
▇. ▇▇▇▇▇ Labs will deliver to PLUG POWER all fabricated plates and test
results.
STATEMENT OF WORK
Modification Number 001
Estimate of required time and materials
Version 1.0
January 15, 1998
BENET Laboratories will assist PLUG POWER in investigating the use of [***]
for commercial fabrication of PEM fuel cell plates.
Reference PLUG POWER "[***] and Testing Version 1.0 Dated January 12,
1998." The following is an estimate of time and material costs required by BENET
Laboratories to perform the work.
Task ID Task Name Materials Labor Estimate
------- --------------------- --------- --------------
2 Generate [***] mold drawing $ [***] [***]
3 Fabricate [***] mold $ [***] [***]
4 Procure Materials $ [***] [***]
5 Mold [***] trial plate $ [***] [***]
6 Mold [***] plates $ [***] [***]
7 Fabricate Property $ [***] [***]
Specimens
8 Perform property tests $ [***] [***]
9 Specify property tests $ [***] [***]
10 Procure mold materials $ [***] [***]
12 Generate final mold drawings $ [***] [***]
13 Fabricate final molds $ [***] [***]
14 Inspect molds (WVA) $ [***] [***]
15 Mold Final plates $ [***] [***]
16 Inspect final plates (WVA) $ [***] [***]
Total labor [***]
Labor rate $ [***]
Total Labor $ [***]
Total Material $ [***]
Grand Total $ [***]
Expenditures in excess of $ [***] by BENET Laboratories shall not be
reimbursable unless authorized in advance by a written amendment to this
Modification No. 1, executed by a representative of PLUG POWER.
Approvals to Commence Work:
For PLUG POWER: For BENET Laboratories
___________________________ ________________________________
___________________________ ________________________________
STATEMENT OF WORK
Modification Number 002
Plate Corrosion Investigation
Version 1.0
February 17, 1998
Background:
PLUG POWER is investigating the cause(s) of corrosion witnessed on fuel
cell plates. Although the plates are fabricated from [***], a significant amount
of "contamination" has been found on certain areas of cell plates. To ensure
reliable fuel cell operation, the source(s) of this "contamination" must be
identified and mitigated.
PLUG POWER consequently seeks to enlist the assistance of BENET
Laboratories to determine the origins and causes of this observed
"contamination."
Scope of Work
BENET Laboratories personnel will utilize a variety of their metallurgical
examination techniques, failure analysis skills, and analysis equipment to
identify the species and causes of the observed contamination.
a. PLUG POWER will provide to BENET Labs several contaminated fuel cell
plates along with water samples and other components required to
facilitate the investigation.
b. PLUG POWER will familiarize BENET Labs personnel in the various
functional aspects of the contaminated plates to permit comprehensive
understanding of the potential corrosion mechanisms.
▇. ▇▇▇▇▇ Labs will inspect the plates using non-destructive techniques in
an effort to determine the origins and causes of the plate
contamination.
d. Only after receiving permission from PLUG POWER will BENET Labs be
permitted to perform destructive examinations of the fuel cell plates.
▇. ▇▇▇▇▇ Labs will provide interim reports of findings on an as required
basis.
▇. ▇▇▇▇▇ Labs will deliver to PLUG POWER an informal final of findings,
along with all plate samples and associated materials upon completion of
the investigation.
STATEMENT OF WORK
Modification Number 002
Estimate of required time and materials
Version 1.0
January 15, 1998
BENET Laboratories will assist PLUG POWER in investigating the causes of
contamination found on fuel cell plates.
Reference PLUG POWER "Plate Corrosion Investigation Version 1.0 Dated February
17, 1998." The following is an estimate of time and material costs required by
BENET Laboratories to perform the work.
Task ID Task Name Materials Labor Estimate
------- --------- --------- --------------
1 Analyze plates and write report $ [***] [***]
Total Labor [***]
Labor rate $ [***]
Total Labor $ [***]
Total Material $ [***]
Grand Total $ [***]
Expenditures in excess of $[***] by BENET Laboratories shall not be reimbursable
unless authorized in advance by a written amendment of this Modification No. 2,
executed by a representative of PLUG POWER
Approvals to Commence Work:
For PLUG POWER: For BENET Laboratories
___________________________ ____________________________________
Date:______________________ Date:_______________________________
STATEMENT OF WORK
Modification Number 003
Estimate of required time and materials
Version 1.0
February 18, 1998 (modified 20 Feb 98; BENET estimates added)
BENET Laboratories will assist PLUG POWER in analyzing components of the [***]
test fuel cell.
Reference PLUG POWER "[***] Test Study, Version 1.0 Dated February 18, 1998."
The following is an estimate of time and material costs required by BENET
Laboratories to perform the work.
Task ID Task Name Materials Labor Estimate
--------- ---------------------------------- --------- --------------
1 Support and witnessing disassembly $[***] [***]
2 Analysis of Water Samples $[***] [***]
3 Analysis of Hardware Components $[***] [***]
Total Labor [***]
Labor rate $[***]
Total Labor $[***]
Total Material $[***]
Grand Total $[***]
Expenditures in excess of $[***] by BENET Laboratories shall not be reimbursable
unless authorized in advance by a written amendment to this Modification No. 3,
executed by a representative of PLUG POWER
Approvals to Commence Work:
For PLUG POWER: For BENET Laboratories
___________________________________ ________________________________
Date:______________________________ Date:_______________________________
STATEMENT OF WORK
Modification Number 003
[***] Test Study
----------------
Version 1.0
February 18, 1998 (modified 20 Feb 98; BENET estimates added)
Background:
PLUG POWER is investigating the effects of [***] on fuel cell components. To
begin the study, PLUG POWER will be conducting a series of [***] long tests
[***]. Each fuel cell will be operated under controlled conditions, and
periodically monitored for electrical performance. Additionally, water samples
from the fuel cell exhaust ports will be gathered on a periodic basis. At the
conclusion of the [***], the fuel cell will be disassembled and inspected for a
variety of mechanical, and electrochemical attributes. PLUG POWER wishes to
enlist the assistance of BENET Laboratories in performing metallurgical and
other physical analysis procedures.
Scope of Work
Following the conclusion of the first [***] test, PLUG POWER will disassemble
the fuel cell. Components of the fuel cell, and a collection of water samples
will be delivered to BENET Laboratories personnel for their examination and
analysis as described below.
Part 1 - Support and witnessing of the disassembly
▇. ▇▇▇▇▇ laboratory personnel will attend the disassembly of the [***]
test cell. By witnessing the disassembly, they will gain better
first-hand knowledge of the condition of the assembly, and be able
to advise potential analysis options on a "real-time" basis.
b. PLUG POWER will provide to BENET labs the following:
1 - Water samples as defined below
2 - Two reactant flow field plates (anode and cathode)
Part 2 - Analysis of Water samples
▇. ▇▇▇▇▇ Labs personnel will analyze water samples provided to them by
PLUG POWER for chemical content. The samples will consist of:
1 - [***]
2 - [***]
3 - [***]
4 - [***]
Using appropriate techniques, BENET personnel will test each water
sample for evidence of [***]. [***] will also be documented.
Part 3 - Analysis of hardware components
▇. ▇▇▇▇▇ Labs personnel will inspect the reactant flow field plates
using non-destructive techniques in an effort to determine the
origins and causes of any potential plate contamination. Plates will
be provided to BENET Labs with components attached, and careful
disassembly will be required. Plug Power will provide disassembly
guidance as required. Photographs of the plates should be made
documenting any areas of interest during the disassembly process.
▇. ▇▇▇▇▇ Labs personnel will inspect the plates and components for
unusual conditions (i.e., corrosion, pitting, stains, etc.) as
required, using electron microscopic and other surface examination
techniques.
▇. ▇▇▇▇▇ Labs will provide interim reports of findings on an as
required basis.
▇. ▇▇▇▇▇ Labs will deliver to PLUG POWER an informal final report of
findings, along with all plates and materials upon completion of the
investigation.
STATEMENT OF WORK
Modification Number 004
[***] STUDY
Version 2.0
June l, 1998
(Revised per May 29, 1998 Meeting)
Background:
PLUG POWER is investigating the effects of [***] on fuel cell components. To
begin the study, PLUG POWER will be conducting a series of [***], long tests of
[***] fuel cells. Each fuel cell will be operated under controlled conclusions,
and periodically monitored for electrical performance. At the conclusion of the
[***], the fuel cell will be disassembled and inspected for a variety of
mechanical, and electrochemical attributes. PLUG POWER wishes to enlist the
assistance of BENET Laboratories in performing chemical analysis procedures on
the [***], and [***] components of one such test cell.
Scope of Work
Following the conclusion of the first [***] test, PLUG POWER will disassemble
the fuel cell. Components of the fuel cell. ([***] material will be delivered
to BENET Laboratories personnel for their examination and analysis as described
below.
Part 1 - [***] Level Analysis of the [***]
▇. ▇▇▇▇▇ laboratory personnel will utilize [***] (or other appropriate)
techniques to analyze the content of [***] supplied by PLUG POWER. Each
sample must be properly [***]. All samples must be [***]. The
instrument must be calibrated to include the expected level of [***] for
the samples.
b. PLUG POWER will provide to BENET labs the following:
1- Two (2) sample [***] each measuring approximately [***]. The
total expected [***]. And the total expected [***] on each
sample. One sample is labeled the "Control" [***], and the
second [***] is labeled the Test Sample."
Part 2 - [***] Analysis
a. Sub-task a. is no longer needed and has been deleted.
b. Sub-task b. is no longer needed and has been deleted.
▇. ▇▇▇▇▇ Labs personnel will then determine the weight of [***] present in
each sample of the [***] provided by PLUG POWER.
d. PLUG POWER will provide to BENET labs the following:
1 - [***] labeled "[***]."
2 - [***] labeled "[***]."
3 - [***] labeled "[***]."
STATEMENT OF WORK
Modification Number 004
ESTIMATE OF REQUIRED TIME AND MATERIALS
Version 1.0
February 18, 1998
BENET Laboratories will assist PLUG POWER in analyzing components of the
[***] test fuel cell.
Reference PLUG POWER "[***] Study, Version 1.0 Dated March 2, 1998." The
following is an estimate of time and material costs required by BENET
Laboratories to perform the work.
Task ID Task Name Materials Labor Estimate
------------------ ----------------------------- ----------- --------------
1 [***] level analysis $ [***] [***]
2 [***] analysis $ [***] [***]
3 Additional water sample tests $ [***] [***]
Total Labor [***]
Labor rate $[***]
Total Labor $[***]
Total Material $[***]
Grand Total $[***]
Expenditures in excess of $[***] by BENET Laboratories shall not be
reimbursable unless authorized in advance by a written amendment of this
Modification No. 4, executed by a representative of PLUG POWER
Approvals to Commence Work:
For PLUG POWER: For BENET Laboratories
___________________________ ________________________________
Date:______________________ Date:_______________________________
STATEMENT OF WORK
Task Number 005
WATER SAMPLE ANALYSIS
August 10, 1998
Background:
PLUG POWER is developing PEM fuel cell systems for residential application. In
this work, water samples will be collected and analyzed at various locations in
a residential fuel cell system to identify contamination sources in water.
Scope of Work
Plug Power will provide BENET lab with the following water samples for [***] and
[***] analysis
1. Plug Power [***] water
2. [***] water from the [***]
3. [***] in the [***]
4. water from [***]
5. water from the [***] in the [***]
6. [***] water
[***] should be used for [***] analysis, while [***] should be used for [***]
analysis
STATEMENT OF WORK
Task Number 005
ESTIMATE OF REQUIRED TIME AND MATERIALS
August 10, 1998
BENET Laboratories Will assist PLUG POWER in analyzing the water samples
provided. The following is an estimate of time and material costs required by
BENET Laboratories to perform the work.
Task ID Task Name Materials Labor Estimate
--------- --------- --------- --------------
0 [***] [***] [***]
1 [***] [***] [***]
Total Labor [***]
Labor rate $[***]
Total Labor $[***]
Total Material $[***]
Grand Total $[***]
Expenditures in excess of $[***] by BENET Laboratories shall not be reimbursable
unless authorized in advance by a written amendment to this Statement of Work,
Task Number 5, executed by a representative of PLUG POWER.
Approvals to Commence Work:
For PLUG POWER: For BENET Laboratories
_________________________ ________________________
Date:____________________ Date:____________________
STATEMENT OF WORK
Mod. 6 & 7
Composite Plate Development
Version 1.0
June 9, 1998
Background:
Plug Power is investigating the use of conductive composite materials for
commercial fabrication of PEM Fuel Cell plates. Composite plates can potentially
offer the following benefits:
. Corrosion resistance
. Low weight
. Low price cost
. High volume capability
. Established manufacturing process and infrastructure
. Ability to attain elaborate geometric features
Plug Power plans to test and fabricate several fuel cell stacks composed of
composite plates. Much research has been spent exploring which material
compositions and molding processes are best suited for composite plates. The
composite plates design must incorporate acceptable electrical conductivity and
mechanical properties in order to function in a fuel cell stack. The information
that has been gathered to date will be utilized to mold a) several small fuel
cell stacks for testing purposes and b) a final [***] stack for automotive
testing in late August. Scope of Work:
1. Replicate LANL's latest material mix:
▇. ▇▇▇▇▇ Laboratories will set-up press
▇. ▇▇▇▇▇ Laboratories will mold [***] using the latest LANL recipe
2. Mold sample plates using- LANL's latest mix:
▇. ▇▇▇▇▇ Laboratories will use large plate mold supplied by Plug Power to
mold sample plate at 3 web thicknesses.
▇. ▇▇▇▇▇ will measure conductivity on molded samples.
▇. ▇▇▇▇▇ Laboratories will perform geometric and surface measurements to
ensure compatibility between plates produced and drawings provided.
3. Molding of [***] plates for testing in final [***] fuel cell stack.
▇. ▇▇▇▇▇ Laboratories will mix the necessary materials based on compositions
and procedure requested.
▇. ▇▇▇▇▇ Laboratories will post-cure the molded plates for the required time
to eliminate any material leakage after delivery to Plug Power.
▇. ▇▇▇▇▇ laboratories will mold [***] with surface and material consistencies
allowing them to be placed in final working fuel cell stack.
STATEMENT OF WORK
Estimate of required time and materials
Version 1.0
June 9, 1998
Task ID Task Name Materials Labor Estimate
--------- ------------------------ --------- --------------
1 Replicate LANL's latest material
mix $[***] [***]
2 Mold Sample [***] Plates $[***] [***]
3 Mold [***] Plates $[***] [***]
Total Labor [***]
Labor rate $[***]
Total Labor $[***]
Total Material $[***]
Grand Total $[***]
Expenditures in excess of $[***] by BENET Laboratories shall not be reimbursable
unless authorized in advance by a written amendment to this Modification,
executed by a representative of PLUG POWER.
Approvals to Commence Work:
For PLUG POWER: For BENET Laboratories
___________________________ _______________________
Date:_____________________ Date:___________________
STATEMENT OF WORK
Task Number 008
ANALYSIS of MEA Surface Contamination
September 24, 1998
Background:
PLUG POWER is developing a series of high performance fuel cell MEAs for
automotive applications. In this work, Plug Power has observed a build up of
foreign matter within fuel cell stacks over a period of time. Plug Power wishes
to get a better understanding of how these foreign materials are deposited onto
the membrane surfaces.
Scope of Work
Plug Power will provide Benet Labs with 20 samples of membranes with that
have been operated within fuel cells for various periods of time. Plug Power
wishes to have an analysis performed on these samples for the following [***].
Additionally, Plug Power wishes [***] for: [***]
The membranes will be scanned in plane and section. Sectional views will
be mounted in plastic and polished. Pictures and trace-scans will be taken for
each scan.
Plug Power Contact
▇▇▇▇▇ ▇▇▇, 782-7700, Ext. 209
STATEMENT OF WORK
Task Number 008
ESTIMATE OF REQUIRED TIME AND MATERIALS
September 24, 1998
BENET Laboratories will assist PLUG POWER in analyzing material from fuel
cells for the presence of various [***] build-ups on [***]
Task ID Task Name Materials Labor Estimate
------- ----------------- --------- --------------
1 2 scans (w/pictures & trace scans) per [***]
sample (Total of 20 samples x 3 hours/
sample)
Total Labor [***]
Labor rate $[***]
Total Labor $[***]
Total Material $[***]
Grand Total $[***]
Expenditures in excess of $[***] by BENET Laboratories shall not be
reimbursable unless authorized in advance by a written amendment to this
Statement of Work, Task Number 8, executed by a representative of PLUG POWER.
Plug Power Project Number: 89,▇▇-▇▇▇▇▇-▇▇▇
Approvals to Commence Work:
For PLUG POWER: For BENET Laboratories
________________________________ ________________________________
Date:___________________________ Date:_______________________________
STATEMENT OF WORK
Modification Number 003 Estimate of required time and materials
Version 1.0
February 18, 1998 (modified 20 Feb 98; Benet estimates added)
BENET Laboratories will assist PLUG POWER in analyzing components of the [***]
test fuel cell.
Reference PLUG POWER "[***] Test Study. Version 1.0 Dated February 18,
1998," The following is an estimate of time and material costs required by BENET
Laboratories to perform the work.
Task ID Task Name Materials Labor Estimate
--------- ---------------------------------- --------- --------------
1 Support and witnessing disassembly [***] [***]
2 Analysis of Water Samples [***] [***]
3 Analysis of Hardware Components [***] [***]
Total Labor [***]
Labor Rate [***]
Total Labor [***]
Total Material [***]
Grand Total [***]
Expenditures in excess of [***] by BENET Laboratories shall not be
reimbursable unless authorized in advance by written amendment to this
Modification No. 3 executed by a representative of PLUG POWER.
Approval to Commence Work:
For PLUG POWER: For BENET Laboratories
--------------------------- --------------------------
Date: Date:
--------------------------- --------------------------
PLUG POWER Proprietary Information