Certain portions of this exhibit have been omitted pursuant to Rule 24b-2 and are subject to a confidential treatment request. Copies of this exhibit containing the omitted information have been filed separately with the Securities and Exchange...
Exhibit
10.1
Certain
portions of this exhibit have been omitted pursuant to Rule 24b-2 and are
subject to a confidential treatment request. Copies of this exhibit containing
the omitted information have been filed separately with the Securities
and
Exchange Commission. The omitted portions of this document are marked with
a
***.
AGREEMENT
made
this 8th
day of
January, 2007 (the “Commencement Date”), between Altairnano,
Inc.,
a
Nevada corporation, with its principal place of business at 000 Xxxxxx
Xxx,
Xxxx, Xxxxxx 00000 ("Altairnano") and Phoenix
Motorcars, Inc.,
a
California corporation, with its principal place of business at 0000 Xxxxx
Xxx
Xxx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Phoenix").
WHEREAS,
Phoenix
is engaged in the manufacture of electric vehicles; and
WHEREAS,
Altairnano is the sole and exclusive developer and manufacturer of nano
titanate
batteries; and
WHEREAS,
the
parties desire to enter into an agreement pursuant to which Altairnano
will
supply Phoenix with Altairnano nano titanate batteries; and
NOW
THEREFORE,
it is
agreed as follows:
|
1.
|
Definitions:
For purposes of this agreement, the following terms shall have
the
meanings set forth below:
|
|
(a)
|
“Affiliate”
shall mean, with respect to a specified Person, a Person that
directly or
indirectly through one or more intermediaries, controls, or is
controlled
by, or is under common control with, the Person
specified.
|
|
(b)
|
“Annual
Period” shall mean each twelve-month period commencing on January 1 of
each Contract Year.
|
|
(c)
|
“Blanket
Purchase Order” shall mean the number of Products Phoenix is required to
order during the upcoming Annual Period.
|
|
(d)
|
“CARB
type III XXX” shall mean a full function battery electric vehicle as
defined by California Air Resources Board regulation.
|
|
(e)
|
“Commencement
Date” shall have the meaning set forth in the Preamble of this Agreement.
|
|
(f)
|
“Contract
Year” shall mean each calendar year during the term of this Agreement
beginning with the Commencement
Date.
|
|
(g)
|
“Down
Payment” with respect to any Purchase Order shall mean ***% of the
Purchase Price for the entire Purchase
Order.
|
|
(h)
|
“Estimated
Range” shall mean Phoenix’s nonbinding good faith estimate of the number
of Products it expects to order during the second Annual Period
following
the Blanket Purchase Order.
|
|
(i)
|
“Field”
shall mean the Permitted Use of the Products for on-road battery
electric
passenger vehicles with a gross weight of less than 6,000 pounds
and 4
wheels (and shall not include hybrid electric vehicles or plug-in
hybrid
electric vehicles).
|
|
(j)
|
“Initial
Term” shall mean the period commencing on the date first set forth
above
and terminating on December 31, 2009.
|
|
(k)
|
"Permitted
Use" shall mean the incorporation and use of the Product in CARB
type II
XXX and CARB type III XXX electric motorcars manufactured by
or for
Phoenix. For purposes of clarification, Permitted Use does not
extend to
use in hybrid electric vehicles of any kind.
|
|
(l)
|
"Person"
shall mean any individual, entity, corporation, partnership,
limited
liability company, association, trust or
organization.
|
|
(m)
|
“Product”
or “Products” shall mean a battery pack(s) manufactured by Altairnano for
use in CARB type II XXX and CARB type III XXX electric vehicles,
using
Altairnano titanate battery materials and incorporating Altairnano
technology and know-how, together with developments, modifications,
improvements, enhancements and implementations of the application
and
technology in future battery pack
design.
|
|
(n)
|
“Release
Notice” shall mean the written notification by Phoenix to Altairnano
providing non-cancelable delivery orders for the number of products
identified in the Release Notice subject to terms contained in
the then
applicable Blanket Purchase Order.
|
|
(o)
|
“Subsequent
Term” shall mean any one-year (1-year) renewal term of this Agreement
following the Initial Term.
|
|
(p)
|
“Territory”
shall mean the United States of America.
|
|
(q)
|
“Term”
shall mean the Initial Term and any Subsequent Term, subject
to early
termination pursuant to Section 25.
|
|
(r)
|
“Zero
Emission Credits” or “XXX Credits” shall mean credits for zero emission
vehicles as defined by California Air Resources Board
regulation.
|
|
2.
|
Sales:
|
|
(a)
|
During
the Term, Altairnano hereby agrees to sell and Phoenix hereby
agrees to
purchase from Altairnano the Product solely for the Permitted
Use.
|
|
3.
|
Purchases
and Ordering:
|
|
(a)
|
Subject
to the terms and conditions of this Agreement, during each Annual
Period
during the Term, Phoenix shall submit Blanket Purchase Orders
for and
purchase, and Altairnano shall supply and sell, a number of Products
as
set forth on Schedule
B
attached hereto. Commencing with the Annual Period commencing
on January
1, 2007, no later than 45 days prior to the end of each Annual
Period
during the Term:
|
(i)
Phoenix
shall provide Altairnano with written notice of (a) its Blanket Purchase
Order
and Estimate Range for the next Annual Period, and (b) its Forecast Release
Order and Delivery Schedule dates, expressed on a monthly basis, for each
of the
Blanket Purchase Order and the Estimated Range. By way of example, Schedule
B
with
respect to the Annual Period commencing on January 1, 2007, is attached
hereto.
Commencing with the Annual Period commencing on January 1, 2007, no later
than
45 days prior to the end of each Annual Period during the Term Phoenix
and
Altairnano shall revise Schedule B.
-2-
(ii)
In
the
event Altairnano cannot deliver the Blanket Purchase Order or Delivery
Schedule
dates noticed by Phoenix, within 15 days of receiving the Phoenix notice,
Altairnano shall provide a written estimate of the Blanket Purchase Order
and
Delivery Schedule Altairnano is capable of delivering. Altairnano shall
then be
restricted from sales of Product to any party other than Phoenix for the
remainder of that Annual Period.
(iii) Altairnano
shall provide Phoenix written notice of: (i) its Firm Pricing for the next
Annual Period for Release Orders within the Blanket Purchase Order; and,
(ii)
its estimated price range for the next Annual Period for Purchase Orders
within
the Estimated Range.
(iv) Commencing
on February 15, 2007, and continuing on or about each May 15, August 15
and
February 15 during the Term, Phoenix and Altairnano shall review Schedule
B
together in order to discuss proposed modifications to Schedule B. If Altairnano
and Phoenix mutually agree to changes in Schedule B affecting current Blanket
Purchase Order or Release Order amounts, or delivery schedule, such changes
will
be effective only if mutually agreed in writing.
|
(b)
|
If
Phoenix has not submitted Release Orders during any Annual Period
for a
number of Products equal to its Blanket Purchase Order, in lieu
of
submitting Release Orders for the number of Products equal to
its Blanket
Purchase Order , Phoenix shall have the right to pay to Altairnano
the
amount of fifty percent (50%) of the Purchase Price for the number
of
Products equal to the number by which such Blanket Purchase Order
exceeds
the number of Products subject to Release Orders submitted during
such
Annual Period (the “Extension Payment”). Upon payment of the Extension
Payment, Phoenix shall be deemed to have purchased the Blanket
Order
Amount with respect to such Annual Period, and Phoenix shall
have the
option to extend the Term as provided in Section 25
below.
|
4. Price:
The
“Purchase Price” with respect to any Purchase Order, shall be equal to the
number of Products subject to such Purchase Order multiplied by the price
per
unit of Product set forth in the applicable pricing notice from Altairnano.
In
addition, during calendar years 2007 and 0000 Xxxxxxxxxx shall receive
a
Technology Fee equal to the monetized value of *** XXX Credits per Product,
provided such Products meet the CARB type III XXX criteria.
5. Altairnano
Equity Investment in Phoenix.
As
partial compensation for entering into this Agreement, Phoenix shall issue
within five days of the date hereof *** (***) shares of common stock of
Phoenix
(the “Shares”). Phoenix represents and warrants that it has *** shares
outstanding on the date hereof and that the Shares, when issued, will be
fully
paid, validly issued and nonassessable. Altairnano shall be responsible
for all
tax consequences associated with the issuance of the Shares. In connection
therewith, Altairnano represents and warrants as follows to Phoenix:
|
(a)
|
The
Shares to be acquired by Altairnano will be acquired for investment
for an
indefinite period for its own account and not with a view to
the sale or
distribution of any part thereof. Altairnano has no present intention
of
selling or otherwise distributing the same. By executing this
Agreement,
Altairnano further represents that it does not have any contract,
undertaking, agreement or arrangement with any person to sell
or transfer
any of the Shares.
|
-3-
|
(b)
|
Altairnano,
its agents or representatives (i) have been given a reasonable
opportunity
to review information pertaining to the Shares and (ii) have
had a
reasonable opportunity to ask questions of and receive answers
from
Phoenix or its representatives concerning this investment, and
that all
such questions have been answered to the full satisfaction of
Altairnano.
As a result of the foregoing, and Altairnano’s education, business
experience and prior investments, Altairnano has such knowledge
and
sophistication, generally and with respect to Phoenix, as are
necessary in
order to permit Altairnano to evaluate and understand the merits
and risks
associated with an investment in the Shares. Without limiting
the
generality of the foregoing, Altairnano is an “accredited investor,” as
defined in Rule 501 under the Securities Act of 1933, as amended
(the
“Act”).
|
|
(c)
|
Altairnano
understands that (i) it must bear the economic risk of the investment
in
the Shares for an indefinite period of time because the Shares
have not
been registered under the Act, or qualified under the Act or
the
securities laws of any other jurisdiction and (ii) its investment
in
Phoenix represented by the Shares is highly speculative in nature
and is
subject to a high degree of risk of loss in whole or in part.
Altairnano
has adequate means of providing for its current needs and possible
contingencies, and is able to bear the high degree of economic
risk of
this investment, including, but not limited to, the possibility
of the
complete loss of Altairnano’s entire investment and the limited
transferability of the Shares, which may make the liquidation
of this
investment impossible for the indefinite future.
|
|
(d)
|
Altairnano
understands that the Shares are not and may never be registered
under the
Act or any other state securities laws. Altairnano understands
that the
Shares or any interest therein may not be resold or otherwise
disposed of
by Altairnano unless (i) the Shares are subsequently registered
under the
Act and under appropriate state securities laws or (ii) such
disposition
is made in reliance upon exemptions from registration for non-public
secondary transfers of Phoenix’s securities; provided that Phoenix shall
cooperate with Altairnano as requested in connection with any
secondary
placements under the so-called 4(1)(1/2) re-sale exemption. Altairnano
understands that certificates representing the shares will contain
a
standard restrictive legend consistent with this subsection (d).
|
6. Terms
of Sale:
All
prices are FOB Altairnano plant, initially Anderson, Indiana. Altairnano
agrees
to properly pack all items for shipment in accordance with the packing
specifications as mutually agreed periodically. Risk of loss due to damage
or
destruction of Products shall be borne by Phoenix after delivery to the
carrier
for shipment. Altairnano will ship Product using only the carrier selected
by
Phoenix.
7. Payment:
Altairnano shall invoice Phoenix upon delivery of the Product to the carrier
designated by Phoenix pursuant to Section 6 above. Payment with respect
to
Release Orders for Product to be delivered during 2007 shall be made as
follows:
the Down Payment shall be transmitted to Altairnano upon placement of the
Release Order; the remainder of the difference between *** percent (***%)
of the
Purchase Price and the Down Payment shall be transmitted to Altairnano
within
thirty (30) days of Phoenix’s receipt of the invoice therefor and the remaining
*** percent (***%) shall be evidenced
by a Note Payable substantially in the form attached hereto as Schedule
C. The
Note Payable shall provide for payment within three-hundred and sixty (360)
days
of the delivery date but require full or partial payments upon the sale
by
Phoenix of Zero Emission Credits associated with the sale of the motorcar
containing the delivered Product. The Note Payable shall carry interest
in an
amount equal to the prime lending rate plus 1% set forth in the Wall Street
Journal with respect to the week the applicable invoice was received.
|
(a)
|
Payment
with respect to Release Orders for Products to be delivered subsequent
to
2007 shall be paid as follows: the Down Payment upon placement
of the
Release Order and all remaining amounts within thirty (30) days
of
Phoenix’s receipt of the invoice therefor. All invoices shall be
transmitted to Phoenix in accordance with Section 17 below.
|
-4-
|
(b)
|
Altairnano
shall invoice Phoenix with respect to Technology Fee upon delivery
of the
Product. Phoenix shall maintain a record of XXX Credits earned,
sold
(monetized) and transferred; such record to contain adequate
detail to
determine details of each transaction and status of remaining
inventory of
unsold XXX Credits. At least monthly, Phoenix shall report to
Altairnano
regarding the status of XXX Credits sales activities and Altairnano
shall,
at its discretion, participate in the XXX Credits sales activities.
|
|
(c)
|
Altairnano
shall have the right, at its sole expense, to audit and review,
after
reasonable notice and during business hours at Phoenix’s notice for
address specified herein, Phoenix’s records relating to the sale of the
Zero Emission Credits (including items to which the Product has
been
applied or into which the Product has been incorporated) in order
to
verify Zero Emission Credit sales.
|
|
8.
|
Exclusivity:
|
(a) Subject
to the terms of the Agreement, and provided that Phoenix issues Release
Orders
for at least *** vehicles by April 30, 2007, Altairnano hereby grants to
Phoenix
the sole and exclusive right to purchase, incorporate into Phoenix final
products and sell as a part of the Phoenix final products, the Products,
in the
Field and for delivery to end-customers located within the Territory until
December 31, 2009. Phoenix shall have the right but not the obligation
to grant
exceptions to this exclusivity back to Altairnano; any exception must be
agreed
in writing by both parties. Notwithstanding the Phoenix exclusive right
to
purchase set forth in this Section 8, Altairnano shall have the right to
enter
into agreements for assessment of the Product and engineering and design
associated with incorporating the Product into other final motorcar products
in
the Field and Territory, and during the period December 31, 2007 through
December 31, 0000, Xxxxxxxxxx may supply Products in the Field and Territory
for
demonstration and prototype purposes only. Following December 31, 2009,
there
shall be no restrictions on Altairnano’s marketing, sale or productions of the
Products.
(b) Subject
to the terms of the Agreement, Phoenix hereby agrees that Altairnano shall
be
the sole and exclusive supplier to Phoenix (including any affiliates or
joint
ventures partially owned by Phoenix) of batteries and battery
pack(s) for use in the Field until December 31, 2009. Altairnano shall
have the right but not the obligation to grant exceptions to this exclusivity
back to Phoenix; any exception must be agreed in writing by both parties.
|
9.
|
Indemnification:
|
|
(a)
|
Subject
to any limitations set forth in Section 12 hereof, Altairnano
agrees to
protect Phoenix and hold Phoenix harmless from any loss or claim
arising
out of each breach or violation of or default under any representation,
warranty, covenant or obligation of Altairnano under this Agreement
by
Altairnano, or any of its agents, employees or representatives;
provided
that Phoenix gives Altairnano notice of any such loss or claim
promptly
upon Phoenix’s discovery of such loss or claim and cooperates fully with
Altairnano in the handling thereof.
|
|
(b)
|
Subject
to any limitations set forth in Section 12 hereof, Phoenix agrees
to
protect Altairnano and hold Altairnano harmless from any loss
or claim
arising out of the negligence of Phoenix, Phoenix's agents, employees
or
representatives in the installation, application, use or sale
of the
Products or arising out of the breach of any representation,
warranty or
covenant made by Phoenix, its agents, employees or representatives
with
respect to the products that exceeds Altairnano's limited warranty;
provided that Altairnano gives Phoenix notice of any such loss
or claim
promptly upon Altairnano's discovery of such loss of
claim.
|
-5-
|
10.
|
Order
Processing and Returns:
|
|
(a)
|
All
Product provided by Altairnano shall conform to the Product functional
specifications set forth on Schedule D attached hereto and incorporated
herein by this reference (the "Functional Specifications") at
the time
such Product is delivered to Phoenix pursuant to Section 6 above.
The
Product's conformity to the Functional Specifications as set
forth herein
is a material term of this Agreement. Except for Altairnano's
products
that do not conform to the Functional Specifications, Altairnano
shall not
be obligated to accept any of Altairnano's products that are
returned. In
the event the return of Product that conforms to the Functional
Specification is accepted, Altairnano may impose a reasonable
restocking
charge.
|
|
11.
|
Financial
Policies:
|
|
(a)
|
Phoenix
acknowledges the importance to Altairnano of Phoenix's sound
financial
operation and Phoenix expressly agrees that it
will:
|
|
(i)
|
Pay
promptly all amounts due Altairnano in accordance with terms
of sale set
forth in this Agreement;
|
|
(ii)
|
Furnish
Altairnano with annual audited financial statements of Phoenix
and with
quarterly financial statements certified as complete and correct
by
Phoenix, each of such statements to be furnished without delay
upon
completion of such statements;
|
In
addition to any other right or remedy to which Altairnano may be entitled,
shipments may be suspended at Altairnano's discretion in the event that
Phoenix
fails to discharge Phoenix’s obligations under Section 11(a) above.
|
(b)
|
Altairnano
acknowledges the importance to Phoenix of Altairnano's sound
financial
operation and Altairnano expressly agrees that it will furnish
Phoenix
with financial statements filed by Altairnano with the Securities
and
Exchange Commission pursuant to the quarterly and annual filing
requirements of the Securities Exchange Act of 1934, as
amended.
|
|
12.
|
Warranties:
|
|
(a)
|
Altairnano
hereby represents and warrants to Phoenix the
following:
|
(i) Product
Warranties. In addition to the other provisions of this Agreement, Altairnano
warrants that for a period of *** following the earlier of (A) the Product
being
placed into service by the customers of Phoenix, and (B) six months follow
delivery to Phoenix:
1)
the
Product does and shall conform to the Functional Specifications;
2)
the
Product shall be free of defects in material and workmanship;
|
3)
the Product shall comply with shelf life, charging cycle, stability
and
other performance guarantees set forth in Schedule D, subject
to the
usages assumptions and limitations set forth in Schedule D and
in this
Agreement.
|
-6-
(ii) Neither
the execution nor delivery of this Agreement, nor the consummation of the
transactions provided for herein, will violate any agreement, lien, instrument,
decree, order or judgment to which Altairnano or any of its officers or
directors is a party or by which it or they are bound. Altairnano has the
authority to enter into this Agreement and consummate the transactions
contemplated hereby. The Person executing this Agreement on behalf of Altairnano
is duly authorized to execute and deliver this Agreement on Altairnano's
behalf
and to consummate the transactions contemplated hereby. This Agreement
and all
of the agreements and obligations contemplated hereby are and shall be
the
legal, valid and binding obligations of Altairnano, enforceable in accordance
with their terms.
(iii) Altairnano
will transfer all Product hereunder to Phoenix free and clear of all liens,
pledges, charges, security interests, restrictions or encumbrances of any
nature
whatsoever arising by, through or under Altairnano. Neither the sale of
Product
under this Agreement nor the use of the Product by Phoenix as contemplated
by
this Agreement will violate the intellectual property rights or other rights
of
any third party.
(iv) Altairnano
is, and during the Term hereof shall remain, in compliance with applicable
federal, state and local governmental laws, regulations and ordinances
relating
to its production and sale of the Product.
| (b) |
Limitations
on Warranties. Notwithstanding any representation, warranty,
covenant or
remedy set forth in this Agreement, all remedies shall be subject
to the
following limitations:
|
(i) Product
Warranty Remedies. If at any time during the *** warranty period any Product
does not meet any of the product warranties specified herein, Phoenix may
require Altairnano to promptly replace or correct at no cost to Phoenix
any
Product in breach of warranty. [Subject to normal product use and deterioration,
to be determined when Schedule D is completed, with the parties agreeing
to use
commercially reasonable efforts to finalize Schedule D within 30 days of
the
Commencement Date.] This shall be Phoenix’s exclusive remedy for the delivery of
nonconforming Product.
(ii) ALTAIRNANO'S
WARRANTY SET FORTH IN SECTION 12(A) ABOVE IS EXPRESSLY IN LIEU OF ANY OTHER
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALTAIRNANO NEITHER
ASSUMES
NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION
WITH THE SALE OR USE OF THE MATERIALS SOLD HEREUNDER, AND THERE ARE NO
OTHER
AGREEMENTS OR WARRANTIES, EITHER ORAL OR WRITTEN, COLLATERAL TO OR AFFECTING
THIS AGREEMENT.
(iii) Neither
party to this Agreement shall be liable to the other for special, consequential
or punitive damages of any kind, whether or not such damages were
foreseeable.
|
13.
|
Trademarks
and Trade Names: Phoenix
hereby confirms that, as between Phoenix and Altairnano, Altairnano
has
and shall retain sole right, title and interest in each Product,
including
all patents, patent applications, copyrights, trademarks, trade
secrets,
know-how or other proprietary rights of Altairnano relating to
or embodied
therein and all improvements, modifications and upgrades
thereto.
|
|
Altairnano
hereby appoints Phoenix as an authorized user of the Product
for the
Permitted Use in the Field in the Territory. Phoenix is hereby
authorized
to identify itself as such and use the trademarks, trade names,
service
marks and trade dress in connection with the Permitted Use, subject
to
Altairnano's consent to such use.
|
-7-
Phoenix
shall provide copies of a form of all marketing materials to be used by
Phoenix
and/or its Affiliates in connection with Product to Altairnano for Altairnano’s
review. Altairnano may require modifications to such marketing
materials.
Phoenix
shall not register or, except as expressly authorized by this Agreement,
use any
trademark or trade name for the Product or any other Altairnano product
or any
articles made there from owned by Altairnano without Altairnano's prior
written
approval or except in accordance with the terms and conditions of this
Agreement. Except as provided in the License, upon the expiration or termination
of this Agreement, Phoenix shall immediately cease using such trademarks
and
trade names for any purpose and Phoenix shall not operate or do business
under a
name which gives or tends to give the impression that Phoenix is the
manufacturer, seller or distributor of Altairnano products.
|
|
14.
|
Proprietary
Information:
The parties acknowledge and confirm the continuing validity and
effectiveness of the Mutual Nondisclosure Agreement dated June
23, 2006
between Altairnano and Phoenix.
|
|
|
15.
|
Force
Majeure:
In
the event that the performance by either party hereto is rendered
impossible or impracticable, either directly or indirectly, under
this
Agreement due to causes not foreseen nor reasonably foreseeable
and beyond
its reasonable control, such as acts of God or public enemy,
governmental
authority, compliance with any governmental request, rule or
regulation,
accidents, fires, labor troubles, floods, epidemics, quarantine
restrictions, wars, riots, delays in transportation, then performance
by
that party shall be excused to the extent such performance is
impossible
or impracticable. The delayed party shall promptly notify the
other party,
indicating the nature of the delay and the anticipated duration
of the
delay.
|
|
|
16.
|
Assignment
and Continuing Obligations:
Subject to provisions herein to the contrary, this Agreement
shall inure
to the benefit of and be binding upon the parties hereto and
their
respective legal representatives, successors and assigns; provided,
however, that no party may assign this Agreement without the
prior written
consent of the other party, which consent shall not be unreasonably
withheld. This Agreement is intended solely for the benefit of
the Parties
hereto and is not intended to, and shall not, create any enforceable
third
party beneficiary rights. In the event of a change of control
in the
ownership of Phoenix, Altairnano may terminate this agreement,
except that
Phoenix may seek consent from Altairnano to continue the agreement,
which
consent shall not be unreasonably withheld. Altairnano may not
unilaterally modify or terminate this Agreement in the event
of a change
in control in the ownership of any of its Affiliates or Altair
Nanotechnologies Inc.
|
|
|
17.
|
Notices:
All notices hereunder to be effective (a) if related to an alleged
breach,
default, claim, arbitration or litigation, must be sent by certified
or
registered mail, return receipt requested and postage prepaid
to the names
and addresses set forth below, or (b) if not related to an alleged
breach,
default, claim, arbitration or litigation, may be sent by regular
mail,
express courier, certified or registered mail or facsimile, to
the names
and addresses set forth below. The names and addresses for any
notices
shall initially be as follows:
|
If
to
Altairnano:
Xxxx
Xxxxxxx, CEO
Altairnano,
Inc.
000
Xxxxxx Xxx
Xxxx,
Xxxxxx 00000
Facsimile:
(000) 000-0000
-8-
If
to
Phoenix:
Xxxxxx
Xxxxxxx, Chief Executive Officer
Phoenix
Motorcars, Inc.
0000
Xxxxx Xxx Xxx Xxxxx
Xxxxxxx,
Xxxxxxxxxx 00000
Facsimile:
(000) 000-0000
Provided,
however, each party may change the name or address for notice upon delivery
of a
notice specifying such change of address in accordance herewith. All notices
shall be effective as of the date of arrival at the office of the receiving
party; provided that notices sent via regular, registered or certified
mail
shall be effective on the fifth (5th) business day following the deposit
of such
notice in the U.S. mails.
|
|
18.
|
Waivers:
It
is mutually agreed that the failure of either party at any time
to enforce
any provision hereof shall in no way affect the right thereafter
to
require performance thereof, nor shall the waiver of any breach
of any
provision hereof be taken or held to be a waiver of any succeeding
breach
of any such provision or as a waiver of the provision
itself.
|
|
19.
|
Consumer
Issues:
Phoenix shall notify Altairnano in writing of any customer or
other
complaints, governmental inquires, quality issues or product
liability
issues relating to Product or any of components thereof, within
ten (10)
days following its becoming aware, after the ongoing exercise
of
reasonable diligence, of the same.
|
|
20.
|
|
|
21.
|
Insurance:
|
(a) Altairnano
represents and warrants that it is currently insured and covenants that
at all
times during the Term, it will maintain a comprehensive general liability
insurance policy (including products liability coverage and payment of
attorneys
fees coverage) with a financially sound and reputable insurer which is
sufficient to adequately protect against the risks associated with its
ongoing
business, including the risks which might possibly arise in connection
with the
transactions contemplated by this Agreement, and including without limitation,
products liability insurance, with minimum coverage amounts of $2,000,000.00
per
occurrence and in the aggregate. Altairnano agrees to provide Phoenix a
copy of
its insurance policy upon request.
(b) Additional
Insured.
Altairnano shall have Phoenix named as an additional insured beneficiary
on
Altairnano’s comprehensive general liability insurance.
(c) Notification
to Supplier.
Phoenix
shall promptly notify Altairnano after Phoenix becomes aware of any liability
claims regarding each Product and any customer complaints concerning each
Product.
|
22.
|
Severability:
If
it is found that any provisions of this Agreement are contrary
to, or
inconsistent with, any applicable law, it shall remain in effect
as if
such invalid provisions were
omitted.
|
|
23.
|
General:
This document constitutes the entire Agreement between the parties
with
respect to the purchase and sale of the Product, and there are
no
understandings, representations or warranties of any kind, except
as
expressly set forth herein. No modifications of this Agreement
shall be of
any force and effect unless in writing and signed by both parties.
In
no event shall any modification be effected by the acknowledgement
or
acceptance of purchase order or invoice forms containing terms
or
conditions inconsistent, or in addition to, with those set forth
herein
(which additional and inconsistent terms shall be null and void).
This
Agreement cancels and supersedes any prior written contract between
the
parties covering the sale and purchase of the Product and, in
the event of
a conflict between this Agreement and the Affiliate Agreement
referenced
in the recitals above or any invoice or purchase order terms,
this
Agreement shall prevail.
|
-9-
|
24.
|
Arbitration:
Any controversy or claim arising out of or relating to this Agreement,
or
the breach thereof, shall be settled by arbitration in Reno,
Nevada in
accordance with the Commercial Dispute Resolution Procedures
of the
American Arbitration Association, and judgment upon the award
rendered by
the arbitrator(s), including without limitation an injunction
or any
direction to a Party, may be entered in any Nevada court having
jurisdiction thereof. The arbitrators, in their sole discretion,
may
include an injunction or a direction to any party in their
decision.
|
|
25.
|
Termination:
This Agreement shall be effective for the Initial Term. If the
Blanket
Purchase Order is satisfied, or deemed satisfied pursuant to
Section 3(b),
with respect to each Annual Period during the Initial Term and
any prior
Subsequent Term, Phoenix may renew this Agreement by giving written
notice
at least One Hundred and Twenty (120) days prior to the expiration
of the
Initial Term or Subsequent Term, as applicable, for an additional
one-year
Subsequent Term, subject to a maximum of seven (7) Subsequent
Terms in the
aggregate. Notwithstanding the foregoing, if Phoenix shall (a)
fail to pay
any amount when due and such failure continues for a period of
sixty (60)
days following written notice to Phoenix, (b) fail to place Blanket
Purchase Orders and Release Orders for at least *** Products
during the
Annual Period ending December 31, 2007, or (c) fail to place
Blanket
Purchase Orders and Release Orders for at least *** Products
during each
of the Annual Periods beginning on January 1, 0000, Xxxxxxxxxx
shall have
the right, in addition to any other remedies it may have under
this
Agreement or governing law, to terminate and cancel this Agreement
at any
time and refuse to deliver anymore Product hereunder, but Phoenix
shall
remain liable to Altairnano for all loss and damage sustained
by reason of
such default. Notwithstanding the foregoing, if due to the inclusion
of
the Product (and not other factors), vehicles produced using
the Products
do not satisfy the requirements for a CARB type III XXX, Phoenix
may by
notice delivered prior to December 31, 2007, terminate this Agreement
without further liability or obligation except as provided below.
If the
Agreement is terminated as provided in the prior sentence, Altairnano
shall return the Down Payment applicable to any Product not yet
manufactured, portions of outstanding Purchase Orders for Product
not yet
manufactured shall be canceled, and Phoenix shall be responsible
only for
amounts owed on Product already delivered or manufactured.
|
|
In
addition to the foregoing, either party shall have the right
to terminate
this Agreement upon the occurrence of any of the following events:
(a) if
the other party commits a material breach of this Agreement which
(in the
case of a breach capable of remedy) is not remedied within thirty
(30)
days after receipt by the breaching Party of written notice delivered
by
the non-breaching Party that identifies the breach and requires
its
remedy; or (b) upon the filing or institution of bankruptcy,
reorganization, liquidation or receivership proceedings by or
against the
other Party; provided, however, that in the event of any involuntary
bankruptcy or receivership proceeding, such right to terminate
shall only
become effective if the proceeding is not dismissed within sixty
(60) days
after the filing thereof; or (c) if the other party ceases for
any reason
to carry on its business, or makes an assignment for the benefit
of its
creditors, or is the subject of any proposal for a voluntary
arrangement.
|
-10-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate,
as of the date first above written.
|
Altairnano,
Inc.
|
Phoenix
Motorcars, Inc.
|
|
a
Nevada corporation
|
a
California corporation
|
|
By: /s/
Xxxx
Xxxxxxx
|
By: /s/
Xxxxxx X.
Xxxxxx
|
|
Name: Xxxx
Xxxxxxx
|
Name: Xxxxxx
X.
Xxxxxx
|
|
Title: President
&
CEO
|
Title: Chief
Executive
Officer
|
-11-
Schedule
A
Intentionally
Deleted
Schedule
B
Firm
Commitment, Purchase Order and Delivery Schedule
Schedule
C
Form
of
Note Payable
Schedule
D
Functional
Specifications
-12-
Schedule
B - Firm Commitment, Purchase Order, & Pack Delivery
Schedule
***
-13-
SCHEDULE
C
FORM
OF
NOTE PAYABLE
To
be
supplied by Altairnano.
-14-
Schedule
D
Functional
Specifications
To
be
supplied by Altairnano.
-15-
|
Phoenix
Motorcars, Inc.
1175
N. Del Rio Place
Ontrario,
CA 00000
(000)
000-0000 fax (000) 000-0000
___________________________________
|
Purchase
Order No.
B080107
PURCHASE
ORDER
|
|
Vendor
Name Altair
Nanotechnologies, Inc.
Address 000
Xxxxxx Xxx
Xxxx Xxxx
St
NV Zip
89502
Phone
(000) 000-0000
|
Ship To
Name Phoenix
Motorcars, Inc. (c/x Xxxxxxx Engineering)
Address
0000
X. Xxx Xxx Xxxxx
Xxxx Xxxxxxx
Xx
XX
ZIP
91764
Phone (000)
000-0000
|
|
Qty
|
Units
|
Description
|
Unit
Price
|
TOTAL
|
|
|
500
|
35kW/h
l
l
l
|
35kW/h
NanoSafe Battery Packs / 11ah cells
Terms:
Per 2007 Purchase and Supply
Agreement
***%
Deposit required per release
This
Purchase Order has a guaranteed minimum value
of
*** battery packs per the attached release schedule
Minimum
guaranteed value of $16,250,000
This
Purchase Order requires a separate release order for Each monthly
volume
request
This
purchase order is in reference to Altair / Phoenix
Purchase
and Supply Agreement dated January 8 ,2007
|
$***
|
$***
|
|
|
Payment
Details
·
Check
Cash
Account
No.
Credit
Card
Name
CC#
Exp
Date
|
Sub
Total
Shipping
& Handling
Taxes
___________
___________
TOTAL
|
$***
__________
__________
$***
|
|||
|
Shipping
Date
Per
Request
|
|
Approval
|
Date
1/8/2007
Order
No. B080107
Sales
Rep X. Xxxxxxx
Ship
Via TBD
|
|
Notes/Remarks
Phoenix
Motorcars, Inc. Resale # SR AR 100-098502
California
|
-16-
|
Phoenix
Motorcars, Inc.
1175
N. Del Rio Place
Ontrario,
CA 00000
(000)
000-0000 fax (000) 000-0000
___________________________________
|
Release
Order No.
B080107.01
RELEASE
ORDER
|
|
Vendor
Name
Altair
Nanotechnologies, Inc.
Address
000
Xxxxxx Xxx
Xxxx
Xxxx
St
NV ZIP
89502
Phone
(000)
000-0000
|
Ship To
Name
Phoenix
Motorcars, Inc. (c/x Xxxxxxx Engineering)
Address
0000
X. Xxx Xxx Xxxxx
Xxxx
Xxxxxxx
Xx
XX
ZIP
91764
Phone
(000)
000-0000
|
|
Qty
|
Units
|
Description
|
Unit
Price
|
TOTAL
|
|
|
***
|
35kW/h
***%
|
35kW/h
NanoSafe Battery Packs / 11ah cells
Reference
Blanket Purchase Order # B080107
$***
Order Deposit
This
purchase order is in reference to Altair / Phoenix
Purchase
and Supply Agreement dated January 8 ,2007
|
$***
|
$1,040,000
|
|
|
Payment
Details
·
Check
Cash
Account No.
Credit
Card
Name
CC#
Exp
Date
|
Sub
Total
Shipping
& Handling
Taxes
___________
___________
TOTAL
|
$1,040,000
__________
__________
$1,040,000
|
|||
|
Shipping
Date
Per
Request
|
|
Approval
|
Date 1/8/2007
Order
No. B080107-01
Sales
Rep X. Xxxxxxx
Ship
Via TBD
|
|
Notes/Remarks
Phoenix
Motorcars, Inc. Resale # SR AR 100-098502
California
|
-17-
