Contract
EXHIBIT
10.12
5
July
2004
Jiri
Nor
Chairman
and President
Astris
Energi, Inc.
0000-0
Xxxxxx Xxxxx
Xxxxxxxxxxx,
Xxxxxxx, Xxxxxx
Dott.
Ing. Massimo Luminari
Direttore
Generale
Electronic
Machining s.r.l.
38068
Rovereto (Tn)
Xxx
X.
Xxxx, 0
XXXXXXXXXXX
AGREEMENT
Whereas:
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I.
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Astris
Energi, Inc. (ASTRIS) is a Canadian based, publicly traded (ASRNF.OB)
company with corporate offices in Xxxxxxxxxxx, Xxxxxxx, Xxxxxx and
an
affiliated technology center (Astris s.r.o.) located in the Czech
Republic, and
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II.
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ASTRIS
is a world leader in the development and practice of alkaline fuel
cell
(AFC) technology with more than twenty years of progressive experience,
and
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III.
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ASTRIS
is intent on moving towards full commercialization of AFC technology
with
a key next step of developing pilot and then full scale manufacturing
lines, and
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IV.
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Electronic
Machining s.r.l. (XXXX) ia an Italian based privately held company
with
corporate offices and technical development facilities in and around
Roverto, Trento, Italy, and
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V.
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XXXX
has an established record of achievement in research activities and
in the
advancement of manufacturing processes,
and
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VI.
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XXXX
desires to expand its field of interest to become a hydrogen/fuel
cell
center of expertise in
Trento/Italy/Europe.
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Therefore:
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1.
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Cooperation.
ASTRIS and XXXX (together, the Parties) agree to cooperate in the
area of
AFC technology. Such cooperation shall include, but not be limited
to:
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a.
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ASTRIS
will licence the use of AFC technology by, and provide support for
the AFC
technology to, XXXX in the forms of documentation, technical services,
equipment and materials (the “Confidential
Information”)
as determined by ASTRIS, with an objective of quickly and continuously
bringing XXXX to an advanced state of AFC technical
readiness.
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b.
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XXXX
will put in place facilities, equipment and personnel whereby a capability
is established for working on specified research and development
tasks
(tasks to be recommended by ASTRIS and mutually agreed to by the
Parties)
related to AFC technology broadly, AFC electrode and stack issues,
AFC
power plant issues, manufacturing and assembly processes for AFC
components and AFC testing equipment for manufactured AFC
products.
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c.
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ASTRIS
and XXXX will work together/cooperatively to develop an AFC marketing
and
sales plan targeted to the Italian market; such a plan to include
educational materials and promotional materials. The intent of the
Parties
is to cooperatively produce demonstration products and install them
across
several appropriately selected market applications (stationary,
transportation, and portable).
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2.
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Coordination.
The Parties recognize the capabilities of Energie Rinnovabili Italia
srl(ERI), based in Genova Via Sat’Xxxx 45-52, Italy, a privately held
company focused on energy technology and whose Principal is Xx. Xxxxxxx
Xxxxx (an experienced fuel cell practitioner). The Parties agree
to engage
ERI as the coordinator of activity between ASTRIS and
XXXX.
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3.
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Compensation/Costs.
The Parties agree that XXXX will be the beneficiary of ASTRIS’ licence of
AFC technology and that compensation for such licence is due to ASTRIS
as
the licensor and to ERI as the
coordinator.
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| a. |
XXXX
agrees to purchase from ASTRIS at market competitive prices mutually
agreed on between the Parties, goods (products and equipment) and
services
(consultancy based and task specified). ASTRIS agrees to provide
such
goods and services in a prompt and professional manner. See Annex
1 for
further details.
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| b. |
All
local XXXX program costs (to include but not limited to personnel
and
facilities) are the sole responsibility of
XXXX.
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| c. |
ASTRIS
agrees to compensate ERI (Xx. Xxxxxxx Xxxxx) via an award of 50,000
Astris
shares in the form of options (strike price determined by the average
share price of ASTRIS shares in the thirty day period immediately
preceding the effective date of this agreement; vesting period one
year;
term being the shorter of five years or the term of this
agreement).
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| d. |
XXXX
agrees to compensate ERI (Xx. Xxxxxxx Xxxxx) on terms and conditions
to be
mutually established between XXXX and
ER.
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-2-
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4.
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Intellectual
Property.
The Parties agree that all intellectual property created or established
at
XXXX or at ASTRIS as a result of this Agreement shall be owned by
ASTRIS.
ASTRIS and XXXX will establish within three months of the effective
date
of this agreement a formal intellectual property program whereby
discovery
and registration by ASTRIS of intellectual property produced is
facilitated. Such program shall, among other things, describe the
process
by which XXXX shall be compensated via royalties and/or otherwise
recognized for intellectual property that it creates under this Agreement.
XXXX agrees at all times, before and after the termination of this
Agreement, to assist, and shall cause its officers, directors, employees,
representatives, agents and advisors at all times to assist, ASTRIS
or its
designate, at ASTRIS’ expense, to secure ASTRIS’ rights in such
intellectual property rights relating thereto in any and all countries.
The obligations of XXXX out in this section shall survive termination
of
this Agreement indefinitely.
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| 5. |
Terms/Conditions.
The Parties agree as follows regarding the term of this Agreement
and
conditions associated with this
Agreement:
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a.
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Subject
to prior termination of this Agreement pursuant to paragraph f below,
the
term of this Agreement is three years commencing on its effective
date.
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b.
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The
term of this Agreement may be extended for an additional term or
terms
under arrangements and conditions mutually agreed to by the Parties
in
writing.
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c.
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That
so long as this Agreement is effective, ASTRIS’ AFC based technical
development and market development efforts in Italy shall be exclusively
through ER and with XXXX.
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d.
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That
so long as this Agreement is effective, ELMA’s AFC based technical
development and market development relationship will be exclusively
through ERI and with ASTRIS.
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e.
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That
the Parties will negotiate in good faith to expand the role of XXXX
as a
key ASTRIS representative (technically and in a marketing sense)
in
Europe.
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f.
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Provisions
for termination of this Agreement include the
following:
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I.
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Either
party shall have the right to terminate the Agreement upon delivery
or
prior written notice of not less than 60
days.
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II.
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ASTRIS
may terminate this Agreement immediately upon delivery of written
notice
where XXXX is in breach of its obligations under this Agreement and
has
not remedied such default within 15 days of delivery of written notice
by
ASTRIS or XXXX specifying such
breach.
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| 6. |
Confidentiality
and Restricted Use of Confidential Information.
XXXX shall treat all Confidential Information furnished, or to
be
furnished, to XXXX in any medium whatsoever in accordance with
the
provisions of this Agreement, and to take, or abstain from taking,
the
other actions as set forth in this paragraph. The Confidential
Information
shall be used by XXXX solely for the purpose of performing ELMA’s
obligations under this Agreement and absolutely for no other
purpose
whatsoever, and will be kept strictly
confidential
by
XXXX and its officers, directors, employees, representatives,
agents and
advisors; provided
that
(i) any of such Confidential Information may be disclosed to
ELMA’s
officers, directors, employees, representatives, agents and advisors
who
need to know such Confidential Information for the purpose of
performing
ELMA’s obligations under this Agreement (ii) such Confidential Information
may be otherwise disclosed to the extent that ASTRIS has expressly
given
its prior written consent and (iii) such Confidential Information
may be
disclosed to the extent required by law. The obligations set
out in this
section shall survive the termination of this Agreement indefinitely.
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| 7. |
Public
Announcements. The
parties hereto agree that neither they nor any of their respective
subsidiaries, officers, directors, employees or agents shall disclose
to
any third party or publicly announce this Agreement until such time
as the
parties hereto agree in writing to make such disclosure or announcement
or
unless otherwise required by law or regulation. Any public announcement
concerning the Agreement shall be approved in advance by appropriate
officers of parties hereto.
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8.
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Survival.
If
this Agreement is terminated in accordance with Section 5 above,
it shall
become void and of no further force and effect, except for the provisions
of Sections 4, 6, 7, 8 and 9 which shall survive such termination
indefinitely; provided that the foregoing shall not relieve any party
from
liability for damages actually incurred as a result of any breach
of
Sections 4, 6, 7, 8 or 9 of this Agreement.
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9.
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General
Provisions
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| (1) |
No
party hereto may transfer or assign its rights or obligations hereunder
without prior written consent of the other party
hereto.
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| (2) |
This
Agreement may be executed and delivered in counterparts by facsimile.
An
executed counterpart of this Agreement is transmitted by facsimile
bearing
the signatures of an authorized signing officer shall be as enforceable
as
if an originally executed copy of same had been signed and
delivered.
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This
Agreement is subject to the approvals of the respective Boards of Directors
of
the Parties.
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FOR
ASTRIS:
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FOR
XXXX:
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/s/
Jiri Nor
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/s/
Massimo Luminari
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Jiri
Nor, Chairman and President
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Massimo
Luminari, Direttore Generale
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15
October, 2004
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11
October, 2004
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