EXHIBIT 10(r)
NON-DISCLOSURE-USE AGREEMENT
This Agreement entered into the 2 day of March 2001 between Bipolar Power
International (hereinafter referred to as "BPI"), a Delaware corporation with
officer at 00000 Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Power Technology,
Inc., (hereinafter referred to as "PTI"), a Nevada corporation, with offices
at 0000 X. Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxx, and BC Research, Inc.
(hereinafter referred to as "BCR"), a Canadian corporation with offices at
0000 Xxxxxxxxx Xxxx, Xxxxxxxxx, XX, Xxxxxx X0X 0X0.
WHEREAS, BPI is a research and development company which as developed certain
proprietary technologies for use in lead-acid batteries, (hereinafter
referred to as the "BPI Technology") and BPI claims this Technology to be
proprietary, confidential, and valuable; and
WHEREAS, PTI is a publicly-traded company which desires to evaluate the BPI
Technology as part of its due diligence in contemplation of acquiring BPI; and
WHEREAS, BCR is an R&D laboratory employed by PTI, and PTI desires to have
BCR evaluate certain aspects of BPI Technology; and
WHEREAS, BPI is willing to provide PTI/BCR with limited access to BPI
Technology for the sole and exclusive purpose of enabling PTI/BCR to evaluate
certain BPI Technology;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, the parties hereby agree as follows:
1. METHOD OF EVALUATION
PTI/BCR shall evaluate the performance of BPI's paste technology by
testing cells fabricated by BPI, using BPI's paste on standard grids and
lead-foam. The procedure and method of fabrication and test shall be
identical to those described in BPI's recent paper, "Increasing the
Specific Energy of Deep-Cycle VRLA Batteries by Improving
Material-Utilization Efficiencies", presented at the 16th Annual Battery
Conference on Applications and Advances.
The evaluation procedure shall consist of the following six steps:
(1) BPI will past grids and foam using BPI's proprietary paste "C"
formulations. PTI/BCR may observe the pasting of grids and foam, and
assembly of cells, and make all measurements necessary to obtain or
confirm the necessary weight and thickness parameters of the pasted grids.
(2) BPI will assemble a minimum of three cells each using the "C" paste
on grids, paste "C" on foam, and also three control cells using Powersonic's
standard pre-pasted grids. PTI/BCR may observe cell assembly, addition of
electrolyte, etc., and may xxxx or identify the cell assemblies in any
manner.
(3) BPI will form the cells using BPI's proprietary formation method, and
PTI/BCR may observe the formation process at anytime.
(4) Upon completion of formation, BPI will conduct a series of
conditioning and discharge tests,
which PTI/BCR may observe at anytime. Upon completion BPI shall deliver
to PTI/BCR the results of these initial discharge tests.
(5) Upon completion of the initial tests, BPI shall deliver a minimum of
six test cells to PTI/BCR for independent testing, together with BPI's
proprietary recharge method.
(6) PTI/BCR shall test BPI's cells and provide BPI with copies of all raw
test data. PTI/BCR shall return the test cells to BPI, intact and unopened,
within 30 days. BPI will dismantle the cells and re-weigh the grids and
active materials and PTI/BCR may observe.
2. NON-USE
PTI/BCR agrees not to use BPI Technology for any purpose whatsoever,
other than the evaluation of Technology. PTI/BCR explicitly agrees not to
manufacture or test cells or batteries using any or all of BPI's Technology.
PTI/BCR agrees not to conduct any independent R&D using any or all BPI
Technology.
3. NON-DISCLOSURE
PTI/BCR agrees not to disclose BPI's Technology to any other
organization, or to any individual which is not a director of PTI/BCR and
then only to the extent reasonably necessary to assist PTI/BCR in the
evaluation, and PTI/BCR further agrees and warrants that any disclosure will
be made only to those individuals who have entered into a written agreement
with PTI/BCR, with such agreement providing BPI at least the same degree of
protection as provided herein. PTI/BCR agrees not to publish any papers,
reports, or announcements regarding PTI/BCR evaluation of BPI Technology,
nor respond to inquiries by third parties, except with express written
permission of BPI.
4. DEFINITION OF TECHNOLOGY
BPI Technology shall mean any and all information obtained by PTI/BCR
regarding BPI's paste and its use, including but not limited to, raw
materials, material specifications, processes for preparation and
application (onto battery plates), formation, recharge, performance, test
results, recipes, and like information. Technology may or may not be
patented by BPI; or may be licensed to BPI. Technology may be disclosed
by written specifications, recipes, instruction, drawings, charts, and
graphs; or orally by technical briefings, explanations, phone
conversations, and the like; or by demonstration of processes and
materials; or by providing samples of materials. Technology shall also
include any information obtained by PTI/BCR from third sources, including
(for example) analytical laboratories, contact or discussion with BPI's
suppliers or customers. BPI Technology shall not include information
which, at the time of disclosure, is in the public domain or which, after
disclosure, becomes part of the public domain by publication or otherwise
through no fault of PTI/BCR; or information which PTI/BCR can show through
contemporaneous written record was in PTI's/BCR's possession on a
non-confidential basis at the time of disclosures; or information which
is received by PTI/BCR without restriction from a third-party having the
legal right to transmit the same.
5. SAFEGUARDING
PTI/BCR agrees to safeguard all tangible materials regarding BPI
Technology including written information, materials, samples provided by
BPI, and test batteries, by (a) stamping or labeling
"Confidential/Proprietary" (b) restricting the number of document copies
produced to the minimum required, and (c) storing materials securely.
PTI/BCR agrees that upon BPI's request, PTI/BCR will return to BPI all
written materials and copies thereof, and all sample materials and
test batteries.
6. TERM AND TERMINATION
This Agreement shall remain in full force and effect for a term of
fifteen (15) years from the date of execution.
7. RECIPIENT'S OBLIGATIONS AND WARRANTIES
Recipient hereby agrees that any termination of Recipient's employment
with PTI/BCR will not relieve Recipient of his obligations hereunder, and
specifically, Recipient agrees he will not disclose nor use any BPI
Technology, as provided in paragraphs 2, 3, and 4 herein, until the
expiration date of this agreement. Recipient warrants that he is
explicitly authorized to enter into this agreement on behalf of PTI/BCR,
and this agreement contains no provision which is a conflict of interest
between Recipient and PTI/BCR.
8. MISCELLANEOUS
PTI/BCR and Recipient acknowledge that BPI's Technology is secret,
unique, valuable, and essential to the business of BPI. PTI/BCR and
Recipient further acknowledge that use or disclosure of BPI Technology in
breach of this agreement may cause BPI irreparable damage, and that BPI
shall have the right to equitable and injunctive relief to prevent the
unauthorized use or disclosure, and to such damages as are occasioned by
such unauthorized use or disclosure. This agreement shall be binding upon
and inure to the benefit of the respective parties hereto, their
respective successors, assigns, legal representatives, heirs, and
beneficiaries. If any part, term or provision of this agreement shall be
held illegal, unenforceable, or in conflict with any law of a government
having jurisdiction over this agreement, the validity of the remaining
portions or provisions shall not be affected thereby. This agreement
shall be construed in accordance with the laws of the State of California
without regard to conflict-of-laws rules. Any disputes shall be adjudicated
in a court in Orange County, California.
PTI Recipient: BCR Recipient: For BPI
/s/ Xxx Xxxxx /s/ Elod Gyange
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On behalf of himself On behalf of himself
/s/ Xxx Xxxxx /s/ Elod Gyange /s/ Xxxx Xxxxx
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On behalf of PTI On behalf of BCR On behalf of BPI
Xxx Xxxxx Elod Gyange Xxxx Xxxxx
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Name Name Name
President Senior Consultant President 3/2/01
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Title Date Title Date Title Date
