EXHIBIT 10.9
DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT ("Agreement") dated and effective as of
November 18, 2002 ("Effective Date"), is entered into between Nanosys, Inc.
("Nanosys"), a Delaware corporation having offices at 0000 Xxxxxxx Xx., Xxxx
Xxxx, XX 00000, and Matsushita Electric Works, Ltd. ("MEW"), a Japanese
corporation having offices at 1048, Xxxxxx, Xxxxx 000-0000, Xxxxx.
WITNESSETH:
WHEREAS, Nanosys possesses certain proprietary technology, know how and
experience relating to the design, prototype development, development and
manufacture of nanotechnology enabled systems in the field of solar cells;
WHEREAS, MEW possesses certain proprietary technology, know how and
experience relating to the development, manufacture and commercialization of
Building Materials (as defined below) in Asia;
WHEREAS, both parties desire to collaborate to investigate developing
OPVs for use in Building Materials in Asia, as set forth herein;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties hereby agree as follows:
ARTICLE 1 -- DEFINITIONS
For purposes of the Agreement, the terms defined in this Article I
shall have the respective meanings set forth below:
1.1 "Asia" shall mean the countries of: China (including Hong Kong and
Macau), Indonesia, Japan, Malaysia, Singapore, South Korea, Taiwan and
Thailand.
1.2 "Background Technology" shall mean each party's technology, know-how,
information and intellectual property rights disclosed, embodied or
incorporated in the items provided by one party to the other party
hereunder, which had existed prior to the Effective Date or were
conceived, developed or otherwise made during the term of this
Agreement outside of the Development Project and independent of the
other party's Background Technology.
1.3 "Building Materials" shall mean materials primarily directed for use in
the construction or fabrication of commercial, residential or other
buildings or similar outdoor structures. Notwithstanding the foregoing,
Building Materials shall exclude without limitation materials primarily
directed for use in consumer products, portable and/or mobile power
sources or structures, commercial power generation or supply, or for
extraterrestrial applications.
1.4 "Development Goals" shall mean the development goals for each party
under Development Project as set forth in Appendix A attached hereto.
1.5 "Development Period" shall mean the period commencing upon Nanosys'
receipt of the Two Million United States Dollars (U.S. $2,000,000)
payment set forth in Section 3.1, and unless terminated earlier upon
termination of this Agreement pursuant to Article 6 or extended by the
mutual written agreement of the parties, expiring fifteen (15) months
after the Effective Date.
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1.6 "Development Project" shall mean the activities undertaken by each
party during the Development Period that it reasonably determines, in
consultation with the other party, are necessary and/or appropriate for
achieving its Development Goals.
1.7 "FTE" shall mean a full-time employee, or in the case of less than a
full-time dedicated person, a full-time equivalent person-year, based
upon the total of one thousand eight hundred thirty two (1,832) hours
per year.
1.8 "OPV" shall mean any photovoltaic device which incorporates
Nanostructures or Nanocomposites as part of an active component. It is
understood that OPVs shall include the primary encapsulation around
such photovoltaic device.
1.9 "Phase I Technology" shall mean all materials, technology, know-how and
information conceived, developed or otherwise made by either party
during the term of this Agreement (i) in the course of performing the
Development Project, or (ii) using the confidential or proprietary
Background Technology of the other party. It Is understood that Phase I
Technology shall include all patent, copyright, trade secret,
confidential information and other intellectual property or proprietary
rights therein and thereto.
1.10 "Nanocomposite" shall mean any material comprising a [*** Redacted] and
a [*** Redacted] or composition, said [*** Redacted] acting as a matrix
in which the Nanostructure is embedded or otherwise [*** Redacted].
Nanocomposites can be [*** Redacted] or [*** Redacted] and include
without limitation mixtures of [*** Redacted] and [*** Redacted] or
[*** Redacted] and/or [*** Redacted] or [*** Redacted]. Appendix B
attached hereto illustrates the Nanocomposite of one potential OPV.
1.11 "Nanostructure" shall mean any material, structure or composition with
any single dimension less than [*** Redacted]. Nanostructures include,
but are not limited to semiconductors, metals, semimetals and
insulators, and include, but are not limited to [*** Redacted], [***
Redacted], [*** Redacted] and [*** Redacted].
1.12 "Nanotechnology" shall mean all materials, technology, know-how and
information relating to, or useful for the exploitation of
Nanostructures, Nanocomposites or properties thereof, or standalone
functional devices incorporating or based on such Nanostructures,
Nanocomposites or properties thereof, or components of such devices,
including without limitation the properties, design and architecture
(including without limitation [*** Redacted]), development (including
without limitation methods and tools tor modeling and prototyping),
manufacturing, synthesis, packaging, applications and commercialization
thereof and interfaces therewith (including without limitation [***
Redacted], electrical and/or optical and/or magnetic contacts and
integration components, methodologies). Nanotechnology shall exclude
technology for integrating OPVs into surrounding Building Materials.
For the avoidance of doubt, in no event shall Nanotechnology include
inventions conceived after the end of the Development Period.
1.13 "Option Period" shall mean a period commencing upon the conclusion of
the Election Period, and ending nine (9) months thereafter, unless
terminated earlier by MEW upon written notice.
ARTICLE 2 -- DEVELOPMENT PROJECT
2.1 Conduct Of the Development Project. Subject to the terms and conditions
of this Agreement, Nanosys and MEW each shall use commercially
reasonable efforts to conduct its activities under the Development
Project. Nanosys and MEW each shall conduct its activities under the
Development Project in good scientific manner and in compliance in all
material respects with requirements of any applicable laws and
regulations. It is understood that consistent with the
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requirements of this Agreement, each party shall determine in its sole
discretion the manner and means by which it performs its activities
under the Development Project.
2.2 Contemplated Allocation of Responsibilities and Level of Efforts. It is
contemplated that Nanosys' activities under the Development Project
will be primarily directed to the development of OPVs, which will
ultimately meet the specifications of the Development Goals for such
use in Building Materials and MEW's activities under the Development
Project will be primarily directed to developing technology and
manufacturing strategies for incorporating into Building Materials the
OPVs developed by Nanosys hereunder, and performing market research
relating thereto. Details in this connection shall be described in
Appendix A attached hereto. During the Development Period, Nanosys will
dedicate, the equivalent of [*** Redacted] FTEs on activities under the
Development Project, and at least another [*** Redacted] FTEs on
programs outside of the Development Project relating to core
nanotechnologies which would be available to the development of OPVs
under the Development Project if applicable. It is presently
contemplated that MEW will expend Two Million United States Dollars
(U.S. $2,000,000) on performing its activities under the Development
Project.
2.3 Communications; Coordination. Nanosys and MEW each shall keep the other
generally informed from time to time during the Development Period of
any results from the Development Project. Without limiting the
generality of the foregoing the parties shall hold during the
Development Period a technical meeting every month, and a managerial
meeting every three (3) months. Unless otherwise agreed such meeting
shall be held at Nanosys' facilities. Each party shall appoint a
"Project Manager," who shall oversee such party's efforts on the
Development Project and any meetings, exchanges, visits and
collaboration between the parties hereunder. The initial Project
Manager for Nanosys is [*** Redacted]; the initial Project Manager for
MEW is [*** Redacted]. The parties may from time to time change the
identity of its Project Manager upon written notice. At any time upon
the request of MEW, but in no event more frequent than once per
calendar quarter, Nanosys will prepare a written report summarking the
work done to-date and the results meeting the specifications of the
Development Goals.
2.4 Visiting and Collaborating Personnel. During the Development Period,
each party shall make its personnel available to visit with and
collaborate with the other party's personnel in carrying out the
Development Project, for the benefit of the collaboration upon a
mutually agreeable schedule. Such activities may Include prototyping,
testing and evaluation of devices developed under the Development
Project, but shall not include any synthesis of Nanostructures or
associated [*** Redacted] interface [*** Redacted]. In the event one
party's personnel is performing or observing the performance of the
Development Project at the other party's facilities, such visiting
personnel shall agree to be bound by all reasonable orders, rules and
regulations pertaining to the hosting party's facilities while at such
facilities, including reasonable confidentiality obligations, In case
of any direct conflict between the terms of the Agreement and such
facilities' orders, rules, and regulations, the terms of this Agreement
shall prevail.
2.5 Records. Nanosys and MEW each shall maintain records in English, in
sufficient detail and in good scientific manner, which shall reflect
work done and results achieved in the performance of the Development
Project. Each party shall provide the other party with written
disclosure describing each invention developed during the Development
Project in which such other party has an ownership interest hereunder,
upon the receipt of an invention disclosure from its personnel.
2.6 Formal Review Meeting. On or about nine (9) months after the Effective
Date, the parties shall hold a meeting in person at Nanosys' facilities
to formally review the results of the Development Project as of the
date of such meeting. At such meeting each party shall have at least
one representative who is at the director level or higher, and the
parties shall make a joint formal presentation describing the outcomes
and results of its activities to date. Additionally if MEW has not
previously exercised its option pursuant to Section 3.2 below, at such
meeting the parties
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shall discuss MEW's desire to exercise such option, provided such early
discussion shall not shorten MEW's Election Period as defined in Section
3.2 below. It is understood that the meeting described in this Section
2.6 shall be in lieu of any meeting to be held pursuant to Section 2.3
above for such month.
2.7 Final Report. Promptly upon expiration of the Development Period, each
party shall provide the other party with a final report describing the
results of its activities under the Development Project, including the
extent to which it has met its Development Goals (each, the "Final
Report").
2.8 Testing of Deliverables. Promptly upon the conclusion of the
Development Period, Nanosys shall make available to MEW for testing a
reasonable number of sample units of the OPVs created by Nanosys meeting
or most closely meeting the Development Goals(or components if a
complete OPV has not been created). Such testing shall take place at
Nanosys' facilities, or may be conducted jointly by the parties at MEW's
facilities.
ARTICLE 3 -- PAYMENTS/EXCLUSIVITY
3.1 Payments. In consideration of Nanosys' performance of its activities
under the Development Project, MEW shall pay Nanosys Two Million United
States Dollars (U.S. $2,000,000) within fifteen (15) days of execution
of this Agreement. It is contemplated that such amount shall be in
consideration for the efforts undertaken and be partial reimbursement
for the costs and expenses incurred by Nanosys in performing its
activities hereunder. As additional consideration, within thirty (30)
days of the conclusion of the Development Period, provided that Nanosys
has met its Development Goals or MEW provides or has provided Nanosys
with an Exercise Notice pursuant to Section 3.2 or MEW elects in its
discretion to make such payment, MEW shall pay Nanosys an additional
Five Hundred Thousand United States Dollars (U.S. $500,000). MEW shall
make all payments hereunder by check or wire transfer in immediately
available funds to an account designated by Nanosys. All amounts payable
hereunder shall be paid in United States Dollars, and shall be net of
any sales, use, withholding or other taxes. Except as set forth in this
Section 3.1, each party shall be responsible for and bear its own costs
for carrying out its activities under the Development Project.
3.2 Option to Negotiate Additional Development. At any time after the
commencement of the Development Period and prior to a lapse of thirty
(30) days after Nanosys provides its Final Report under Section 2.7 (the
"Election Period"), MEW may provide Nanosys with written notice (the
"Exercise Notice"), stating that MEW desires to negotiate the terms and
conditions under which the parties would continue the development of
OPVs for use in Building Materials ("Phase II") and would commercialize
such OPVs and Building Materials in Asia, including Nanosys supplying
certain components thereof ("Phase III") (collectively, the Phase II/III
Projects"). Promptly after Nanosys' receipt of the Exercise Notice as
set forth above, the parties shall meet to negotiate in good faith the
terms and conditions of the Phase II and/or Phase III Projects for a
period of sixty (60) days (the "Negotiation Period"). The Negotiation
Period shall be extended to the extent mutually agreed between the
parties. Such terms and conditions may include: (i) Nanosys having a
nonexclusive, worldwide license under subject matter developed by MEW
relating to Nanotechnology under mutually agreeable terms and
conditions, and (ii) other customary and reasonable terms and conditions
standard for development, supply and commercialization arrangements of
the type contemplated above. If the parties have not mutually agreed on
the terms and conditions for the Phase II/III Projects for any reason by
the expiration of the Negotiation Period, neither party shall have any
further obligation to the other party under this Section 3.2 thereafter.
It is understood that Phase II/III Projects may include additional Asian
countries as mutually agreed between the parties.
3.3 Exclusivity. During the period ("Exclusive Period") beginning upon the
commencement of the Development Period and ending (i) upon the
expiration of the Negotiation Period, if MEW provides the Exercise
Notice in accordance with Section 3.2, or (ii) upon expiration of the
Election Period, if MEW fails to provide the Exercise Notice in
accordance with Section 3.2, each party
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agrees not to enter into any written agreement with any third party
with respect to the development, commercialization or other
exploitation of OPVs containing inorganic Nanostructures for use in
Building Materials in Asia. Each party remains free to enter into
collaborations with third parties relating to OPVs containing
Nanostructures other than inorganic Nanostuctures.
3.4 Other Opportunities. Nanosys and MEW may discuss the possibility of and
terms and conditions for the parties collaborating together with
respect to the development and commercialization in Asia of the OPVs
developed hereunder, other than for use in Building Materials.
3.5 Option to License Phase I Technology. Provided that MEW has made the
Five Hundred Thousand Dollars ($500,000) payment to Nanosys pursuant to
Section 3.1, if thereafter during the Option Period Nanosys enters into
a written agreement ("Third Party Agreement") with a third party
("Third Party") with respect to the Field (as defined below) granting
such Third Party license rights which includes a material portion of
Phase I Technology, Nanosys shall notify MEW and disclose the scope of
such license rights in the Field and the terms and conditions agreed to
by such Third Party for such license rights ("Notice of Third Party
Agreement"). Upon written request of MEW received by Nanosys within
thirty (30) days after the Notice of Third Party Agreement, Nanosys
shall enter into a written agreement with MEW ("Written License)
granting to MEW the same license rights in the Field as set forth in
such Notice of Third Party License, on the same terms and conditions as
agreed to by the respective Third Party. The license rights offered to
MEW in the Notice of Third Party Agreement shall include all
intellectual property rights that Nanosys grants to the Third Party
that relate directly to the Field; provided however, that the Written
License is not required to grant MEW any rights with respect to any
intellectual property (i) which has been funded by or in conjunction
with such Third Party to the Third Party Agreement or created during
the course of such Third Party Agreement, or (ii) for any use outside
the Field. During the Option Period, MEW agrees not to enter into any
written agreement with any third party with respect to the Field. As
used herein, the "Field" shall mean commercialization in Asia of OPVs
containing inorganic Nanostructures specifically for use in Building
Materials. Each party remains free to enter into collaborations with
third parties relating to OPVs containing inorganic Nanostructures
other than inorganic Nanostuctures.
ARTICLE 4- CONFIDENTIALITY/HANDLING OF MATERIALS
4.1 Confidential Information. Except as provided herein, each party shall
maintain in confidence, and shall not use for any purpose or disclose
to any third party, information that is disclosed by the other party in
writing and marked "Confidential," or that is disclosed orally and
identified as or should reasonably be considered confidential, or that
is obtained through inspection of tangible items marked or located in a
area designated as confidential (collectively, "Confidential
Information"). Confidential Information shall not include any
information that the receiving party can demonstrate was: (i) already
known to the receiving party at the time of disclosure hereunder, or
(ii) now or hereafter becomes publicly known other than through acts or
omissions of the receiving party, or (iii) is rightfully disclosed
without restriction to the receiving party by a third party or (iv)
independently developed by the receiving party without use of or
reference to the Confidential Information of the disclosing party. The
obligations of this Section 4 shall survive for five (5) years after
any termination or expiration of this Agreement.
4.2 Permitted Usage. Notwithstanding the provisions of Section 4.1 above,
the receiving party may use or disclose Confidential Information of the
disclosing party solely to the extent necessary to exercise the rights
granted to it or perform its obligations hereunder (provided it uses
commercially reasonable efforts to protect such information
commensurate with the efforts used to protect its own information of a
similar nature) or in prosecuting or defending litigation, filing for
patent rights with respect to Phase I Technology, complying with
applicable governmental regulations and/or submitting information to
tax or other governmental authorities; provided that if the receiving
party is required by law to make any public disclosures of Confidential
Information of the disclosing party, to the extent it may legally do
so, it will give reasonable advance notice to
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the disclosing party of such disclosure and will use its reasonable
efforts to secure confidential treatment of Confidential Information
prior to its disclosure (whether through protective orders or
otherwise).
4.3 Materials. Each party may in the course of performance of the
Development Project transfer Materials that are necessary for the other
party's performance of its duties under the Development Project. As
used herein, a party's "Materials" shall refer to such materials and
any other proprietary materials, compositions or software, provided by
such party to the other party hereunder. Notwithstanding, Nanosys'
Materials shall include any and all OPVs, Nanostructures,
Nanocomposites and components or parts thereof created during the
course of the Development Project. Each party shall retain all of its
right, title and interest in and to its Materials.
a. Use. A party shall use the other party's Materials for the
sole purpose of conducting the Development Project, and not
for any other study or purpose without the prior written
consent of providing party. Each party shall only allow its
employees who are working on activities under the Development
Project, who have agreed to be bound by obligations of
confidentiality and non-use restrictions as materially
protective as this Agreement, to have access to the other
party's Materials.
b. Restrictions. Each party agrees to retain control over the
Materials of the other party and not to transfer such
Materials to any third party without the prior written consent
of the other party. Except as expressly provided, neither
party shall reverse engineer, disassemble or decompile any of
the Materials of the other party.
c. Markings. Each party agrees not to remove any markings on any
Materials of the other party.
d. Unknown Characteristics. Each party acknowledges that the
Materials are experimental in nature and may have unknown
characteristics and therefore agrees to use prudence and
reasonable care in the use, handling, storage, transportation
and disposition and containment of the Materials.
e. Limitations. Notwithstanding the foregoing, nothing in this
Article 4 shall be construed (1) to impose any obligations on
MEW with respect to MEW's Materials, and on Nanosys with
respect to Nanosys' Materials, (ii) as a grant by either party
to the other party of any license or other rights in or to the
Materials, (iii) to require either party to transfer any
Materials to the other party.
ARTICLE 5 -- INTELLECTUAL PROPERTY
5.1 Phase I Technology. Nanosys shall solely own all Phase I Technology
created by either party constituting Nanotechnology. MEW hereby
irrevocably assigns, and agrees to assign, to Nanosys Phase I
Technology created by MEW constituting Nanotechnology, and agrees to
assist Nanosys, upon Nanosys' reasonable request, to secure or perfect
any or all such rights without MEW assuming any financial obligation.
Except as set forth in this Article 5, the ownership of any Phase I
Technology shall be determined by inventorship under the intellectual
property laws of the country where the technology is created. It is
understood that neither party shall have any obligation to account to
the other party for profits, or to obtain any approval of the other
party to license or exploit any jointly owned Phase I Technology, by
reason of their joint ownership thereof, and each party hereby waives
any right it may have under the laws of any country to require such
accounting or approval. During the term of this Agreement and one (1)
year thereafter, Nanosys shall inform MEW reasonably promptly following
the filing of any patent applications regarding Phase I Technology. In
the event that Nanosys files a patent application for Phase I
Technology in the United State, Nanosys shall file a counterpart
application for the same technology in each country in Asia in a timely
fashion in accordance with international conventions or treaties at
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Nanosys' expense, but only provided that the Option Period has not
expired or the parties proceed with a Phase II/III Project.
ARTICLE 6 -- TERMINATION
6.1 Expiration. Unless terminated earlier or extended by the mutual written
agreement of the parties, this Agreement shall expire upon the later of
(i) the expiration of the Development Period, or (ii) the expiration of
the Exclusive Period (as defined in Section 3.3).
6.2 Termination. Either party may terminate this Agreement upon written
notice in the event of material breach of this Agreement by the other
party, which breach is not cured within thirty (30) days days after
written notice specifying such breach and the notifying party's
intention to terminate.
6.3 Obligations Surviving Expiration or Termination. Expiration or earlier
termination of this Agreement shall not relieve the parties of any
obligation accruing prior to such expiration or termination, and the
provisions of Articles and Sections 2.5, 2.7, 3.1, 4, 5, 6 and 7 shall
survive any expiration or termination of this Agreement. Upon
termination or expiration of this Agreement (or earlier request of the
other party), each party shall promptly return any and all Confidential
Information and Materials of the other party. Section 3.5 shall survive
the termination or expiration of this Agreement with respect to
Nanosys' obligations, except in the case of termination due to MEW's
breach. Section 3.5 shall survive the termination or expiration of this
Agreement with respect to MEW's obligations, except in the case of
termination due to Nanosys' breach.
ARTICLE 7 -- ADDITIONAL PROVISIONS
7.1 Notices. Any consent, notice, or report required or permitted to be
given or made under this Agreement by one party to the other party
shall be in writing, delivered personally or by facsimile (receipt
confirmed), first class mall postage prepaid, or internationally
recognized courier or delivery service, and addressed to.the other
party at its address indicated below, or to other such address as the
addressee shall have last furnished in writing to the addressor. Except
as otherwise provided in the Agreement, such consent, notice, or report
shall be effective upon receipt by the addressee.
If to Nanosys: If to MEW:
Attn: Xxxxxx X.X. Xxxx Attn: Xxxxx Xxxxxx
Nanosys, Inc. Matsushita Electric Works, Ltd.
0000 Xxxxxxx Xxxxxx, Advanced Technology Research Laboratory
Xxxx Xxxx, XX 00000 1048, Xxxxxx, Xxxxx 000-0000
Xxxxxx Xxxxxx of America Japan
7.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, United States of
America, without regard to the conflicts of law principles thereof. The
parties disclaim any application of the U.N. Convention on Contracts
for the International Sale of Goods to this Agreement.
7.3 Arbitration. Any dispute or claim arising out of or in connection with
this Agreement or the performance, breach or termination thereof, shall
be finally settled by binding arbitration in Santa Xxxxx County,
California. U.S.A., in accordance with the rules then obtaining of the
International Chamber of Commerce by three (3) arbitrators appointed in
accordance with said rules, unless the parties have agreed on one (1)
arbitrator. The decision and/or award rendered by the arbitrator(s)
shall be written, final and non-appealable and may be entered in any
court of competent jurisdiction. The arbitral proceedings and all
pleadings and evidence shall be in the English language. Any evidence
originally in a language other than English shall be submitted
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with an English translation accompanied by an original or true copy
thereof. The costs of any arbitration, including administrative fees
and fees of the arbitrator(s), shall be shared equally by the parties,
unless otherwise determined by the arbitrator(s). Each party shall bear
the cost of its own attorneys' and expert fees. The parties agree that,
any provision of applicable law notwithstanding, they will not request,
and the arbitrator shall have no authority to award, punitive or
exemplary damages against any party.
7.4 Independent Contractors. The relationship of MEW and Nanosys
established by this Agreement is that of independent contractors. This
Agreement shall not constitute, create, or otherwise imply a joint
venture, pooling arrangement, partnership, or formal business
organization of any kind. The parties agree that the obligations and
duties of each party arising under this Agreement regardless of whether
shared, identical, or otherwise similar, are separate and distinct from
the obligations and duties of the other party. Actions or failures to
act by one party shall not confer joint and several liability to the
other party.
7.5 Language. This Agreement is in the English language only, which
language shall be controlling in all respects, and all versions hereof
in any other language shall not be binding on the parties hereto. All
communications and notices to be made or given pursuant to this
Agreement shall be in the English language.
7.6 U.S. Export Laws and Regulations. Each party hereby acknowledges that
the rights and obligations of this Agreement are subject to the laws
and regulations of the United States relating to the export of products
and technical information. Each party shall comply with all such laws
and regulations.
7.7 Force Majeure. Except with respect to payment of amounts due hereunder,
neither party shall be held liable or responsible to the other party
nor be deemed to have defaulted under or breached this Agreement for
failure or delay in fulfilling or performing any term of the Agreement
to the extent, and for so long as, such failure or delay is caused by
or results from causes beyond the reasonable control of the affected
party including but not limited to fires, earthquakes, floods,
embargoes, wars, acts of war (whether war is declared or not),
insurrections, riots, civil commotions, strikes, lockouts or other
labor disturbances, acts of God or acts, omissions, or delays in acting
by any governmental authority or other person. The term of the
Development Period shall be extended by the number of days of any delay
or interruption.
7.8 Representations and Warranties. Each party represents, warrants and
covenants to the other party that (i) it has the power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder, and (ii) the execution, delivery and performance of this
Agreement by such party has been duly authorized by all requisite
corporate action, and this Agreement constitutes such party's legal,
valid and binding obligation enforceable against it in accordance with
its term, (iii) to the knowledge of such party, it is the owner or
licensee of all its Background Technology relied upon in its
performance of this Agreement, (iv) to the knowledge of such party, its
performance of this Agreement will not Infringe the intellectual
property rights of any third party, and (v) such party shall not use
any government funds for performance of the Development Project which
would preclude or impair the ability to grant the other party
commercialization rights to the Phase I Technology as contemplated
under Section 3.2.
7.9 Disclaimer. Neither party makes any representation or warranty or
guaranty that the Development Project will be successful, in whole or
part, or that the parties will successfully meet their Development
Goals or develop any OPV (or any other products or intellectual
property) under the Development Project. EXCEPT AS SET FORTH HEREIN,
MEW AND NANOSYS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR
CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO
THE CONFIDENTIAL INFORMATION, MATERIALS, PHASE I TECHNOLOGY AND ANY
OTHER MATERIALS, TECHNOLOGY OR INFORMATION PROVIDED HEREUNDER,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, VALIDITY,
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USEFULNESS OR RELIABILITY OF ANY SUCH INFORMATION AND TECHNOLOGY,
PATENTED OR UNPATENTED, OR NON-INFRINGEMENT OF THE INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES.
7.10 Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES
INCURRED BY SUCH PARTY ARISING UNDER OR AS A RESULT OF THIS AGREEMENT
(OR THE PERFORMANCE, BREACH OR TERMINATION HEREOF) INCLUDING, BUT NOT
LIMITED TO, THE LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES, OR ON
ACCOUNT OF EXPENSES, INVESTMENTS, OR COMMITMENTS IN CONNECTION WITH THE
BUSINESS OR GOODWILL OR OTHERWISE, EVEN IF AN AUTHORIZED REPRESENTATIVE
OF SUCH PARTY IS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SAME.
7.11 Assignment. Except as set forth in this Section 7.11, neither party
shall assign Its rights or obligations under this Agreement, in whole
or in part, by operation of law or otherwise, without the prior written
consent of the nonassigning party. Either party may assign this
Agreement, and all of its rights hereunder, to a person or entity that
acquires all or substantially all of the business or assets of that
party (or that portion thereof to which this Agreement pertains) in
each case whether by merger, acquisition, operation of law or
otherwise, provided that such assignee agrees in writing to be bound by
the terms and conditions of this Agreement. Any purported assignment in
violation of this provision shall be null and void. Subject to the
foregoing, this Assignment shall bind and inure to the benefit of each
party's permitted successors or assigns.
7.12 Entire Agreement. This Agreement, including Appendix A and Appendix B
attached hereto, embodies the entire understanding between the parties
and supersedes any prior understandings and agreements between and
among them respecting the subject matter hereof. There are no
representations, agreements, arrangements or understandings, oral or
written, between the parties hereto relating to the subject matter of
the Agreement which are not fully expressed herein. No change,
modification, extension, termination, or waiver of the Agreement, or
any of the provisions herein contained, shall be valid unless made in
writing and signed by duly authorized representatives of the parties
hereto.
7.13 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties through their duly authorized representatives
have executed the Agreement as of the date first set forth above.
NANOSYS, INC. MATSUSHITA ELECTRIC WORKS, LTD.
By /s/ Xxxxxx Xxxx By /s/ Xxxxxxx Xxxxxxx
--------------------- -----------------------------
Name XXXXXX XXXX Name Xxxxxxx Xxxxxxx
Title CHIEF OPERATING OFFICER Title Senior Managing Director
Nanosys/MEWConfidential
Page 9
APPENDIX A
Development Goals
Nanosys
A proof of concept of an OPV meeting the following specifications:
-Device Size: [*** Redacted].
-Raw Device [*** Redacted]: At least [*** Redacted] and [*** Redacted]
and not including [*** Redacted].
-Device Material: [*** Redacted], or other [*** Redacted] materials
MEW
1. Developing technology and strategies for manufacturing OPVs for use in
Building Materials.
2. Performing market research relating to OPVs for use in Building Materials in
Asia.
Nanosys Confidential
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
APPENDIX B
DEFINITIONS OF WORDS IN THE DEVELOPMENT PROJECT
[*** Redacted]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted portions
have been filed separately with the Commission.
