Technology Transfer and Service Agreement Among
Technology
Transfer and Service Agreement
Among
1.
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Sunfilm
AG registered at the Commercial Register of the local court of
Charlottenburg (Berlin),
HRB 103822 B ("Sunfilm"
or "Company");
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2.
|
Southwall
Europe GmbH, a subsidiary company of Southwall Technologies, Inc.,
registered at
the Commercial Register of the local court of Xxxxxxx, XXX 00000
("SEG");
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3.
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Southwall
Technologies Inc., a company duly incorporated and legally existing
under
the laws
of Delaware, USA
("STI");
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4.
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Xxxxxxxx
Xxxxxx, with his business address at XxxxxxxxxxxxxXx 0, 00000
XxxXxxxxxxxxx ("Xxxxxx");
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5.
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Xxxxx
Xxxxxx, with his business address at 0000 Xxxxxx Xxx, Xxxx Xxxx XX
00000,
XXX ("Xxxxxx")
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-
hereinafter referred to collectively as "the
Parties" -
Preamble
The
Company's business purpose as resolved by the shareholders of the Company on
December 14, 2006 is the development, manufacturing and distribution of solar
modules. The Parties have worked on a concept for a photovoltaic thin film
manufacturing venture. The solution is based on silicon in amorphous
and micro-crystalline forms deposited on coated glass substrate using Thin
Film
Technology.
The Company intends to establish production facilities in GroBrohrsdorf, Saxony
and bring photovoltaic applications based on Thin Film Technology into large
scale production for the photovoltaic
industry. Applied Materials Inc., a company incorporated in Delaware
("Applied"),
USA
is
willing to supply equipment for such technology and the production facilities.
STI and SEG, a
wholly
owned subsidiary of STI, are willing to make contributions to the above project
(the "Sunfilm
Venture") and
to
assist in the startup of the Sunfilm Venture upon the terms and conditions
of this Agreement.
Definitions:
"Class
1-Know-how" shall
mean the Know-how defined and identified in Appendix
A which
materials
include data on general photovoltaic applications in addition to those specific
to Solar Module
Products. Class 1 Know-how was developed by STI and SEG for a potential
investment in Photovoltaic
Facilities and on the production of Solar Module Products.
"Class
2-Know-how" shall
mean the Know-how defined and identified in Appendix
B which
relates to certain specifics of Thin Film Technology developed over the course
of STI's business history
which are judged by STI and SEG, using all reasonable diligence, to be directly
applicable tothe
production of Solar Module Products. Class 2 Know-how is utilized in SEG's
or
STI's present business
but not in connection with Solar Module Products.
"Know-how"
shall
mean the secret technical information relating to the design, building, and
startup of the Photovoltaic Facilities, and related to the manufacture and
use
of Photovoltaic Applications
based on Thin Film Technology, as more closely defined and identified in
Appendices
A and B, and
in
each case which Know-how is owned by SEG and STI.
"Photovoltaic
Applications" shall
mean instruments for the generation of electrical power through the
exposure to light.
"Photovoltaic
Facilities" shall
mean all facilities, including but not limited to building, infrastructure,
utilities and production equipment for the production of Solar Module
Products.
"Solar
Module Products" shall
mean Photovoltaic Applications in relation to which amorphous and
microcrystalline silicon deposition on coated glass substrates based on Thin
Film Technology is used.
"Signing
Date" shall
mean the date of this Agreement
"Site"
shall mean the premises registered in the land register of the local court
of
Kamenz, Page 2010
for
GroBrohrsdorf, site no: 1656/29 (64,791 sqm) and no: 1656/30 (6,266 sqm) which
has been first
acquired by SEG and will subsequently be transferred by SEG to the Company
for
the construction
and operation of the Photovoltaic Facilities.
"Subsidy"
shall
mean the financial means to be provided by the State of Saxony, Germany in
the
amount
of
approximately EUR 25 million as a non-refundable grant for the establishment
of
the Sunfilm
Venture, applied for by SEG on the basis of the business plan submitted to
the
Sachsische Aufbaubank
("SAB") and to be transferred to the Company.
"Technical
Area" shall
mean the use of Thin Film Technology for Solar Module Products.
"Territory"
shall
mean Germany.
"Thin
Film Technology" shall
mean a generic term describing a technology used by Applied, ST1 and
SEG,
and many other companies in vacuum deposition of materials on flexible and
rigid
substrates.
Section
1
Technology
Transfer
1.1
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SEG
and STI will, in accordance with the provisions of this Agreement,
transfer to the Company
all of their Class 1 -Know-how and knowledge associated with their
past
work on Photovoltaic
Facilities and the production of Solar Module Products in the Technical
Area and
grant to the Company a perpetual, royalty-free license for its use
by the
Company to design,
build and operate Photovoltaic Facilities in the Territory, to develop
and
manufacture
Solar Module Products in the Territory, and to distribute the Solar
Module
Products worldwide. The Parties acknowledge that SEG and STI do not
have
patents or patent
applications or licenses that relate to Class 1- Know-how, The technology
transfer is done by transmitting documents in binders and files and
digital data on media, A listing of these
documents and media is given in Appendix A. These documents and media
shall be made
available to Sunfilm by SEG on the Signing Date. Xx. Xxxxx Xxxxxx
(see
3.1.5 below) is
responsible for the preparation and transfer of Class 1-Know-how
to the
Company.
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1.2
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SEG
and STI will, in accordance with the provisions of this Agreement,
transfer to the Company
their Class 2-Know-how and grant to the Company a perpetual, royalty-free
license
for its use by the Company to develop and manufacture Solar Module
Products in the Territory, and to distribute the Solar Module Products
worldwide. The Class 2-Know-how is listed
in Appendix B and will be transferred by documents and digital media
on
the Signing Date.
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1.3
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The
transfer of the Class 1- Know-how shall be exclusive to the Company
in the
Territory
for a period of 18 months from the Signing Date. During this period,
SEG
and STI shall
not be permitted to use the Class 1 -Know-how in the Technical Area
or to
license the Class
1-Know-how in the Technical Area to third parties for the design
and
building of Photovoltaic
Facilities for Solar Module Products, even if the respective design
and
building or
manufacture and use of solar modules is planned to take place outside
the
Territory.
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1.4
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The
transfer of the C lass 2-Know-how shall be exclusive to the Company
for a
period of 18
months from the Signing Date for Solar Module Products. SEG and STI
shall
be at all times
entitled to use the Class 2- Know-how outside the Technical Area
without
any restrictions
by this Agreement.
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1.5
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After
the expiry of the 18 month-period, (i) the Company shall be entitled
to
use the Know-how
as at the date it was transferred on a non-exclusive basis worldwide
and
royalty- free;
(ii) the Company will be permitted to use and license the Class 1-Know-how
and knowledge
without any further restriction; and (iii) the Company will be permitted
to use and
license the Class 2-Know-how and knowledge without any further
restriction, provided the
use or license of the Class 2- Know-how is for Photovoltaic Applications
only; and (iv) STI
and SEG will be permitted to use and license the Know-how and knowledge
without any
restriction. The Know-how shall be maintained as confidential by
the
Parties for a period
of 18 months from the Signing Date, and the Company shall keep for
a
period of three years
the Class 2- Know-how confidential to the extent the Class 2-Know-how
is
not related to
Photovoltaic Applications, in each case, on the terms and conditions
set
out in Section 7 of this
Agreement.
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1.6
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For
the avoidance of doubt, any patents or patent applications of SEG
or STI
which make
use of any of the Know-how licensed under this Agreement to the Company
shall in no way
restrict the Company's rights to use the Know-how as provided for
in this
Agreement.
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1.7
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The
Company acknowledges that pursuant to the terms of a Confidentiality
Agreement between
the Parties of even date, it has gained knowledge of the Know-how
as
defined in Appendix
A and B and has checked the listing of the Documents in Appendix
A and B
and has determined that these materials when delivered include the
relevant information for the design,
building and operation of the Photovoltaic Facilities and the relevant
information related
to the manufacture and use of Solar Module Products. The Company
confirms
that any knowledge of the Know-how received by Good Energies Investments
BV and Norsun AS was subject to obligations of
confidentiality.
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Section
2
Improvements
and new developments
2.1
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The
Company shall not be obligated to inform SEG and STI of any improvements
and new developments in respect of or otherwise connected to the
Class 1
Know-how and shall not
be obligated to assign or license such improvements to SEG or
STI.
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2.2
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The
Company shall be the sole owner of such improvements to Class 1 Know-how
and shall
be entitled to solely apply for patent protection in its
discretion.
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2.3
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SEG
and STI shall inform the Company of all improvements achieved in
connection with
the Class 2-Know-how listed in Appendix B in the Technical Area during
the
18 month period
following the Signing Date and shall license such improvements to
the
Company subject
to the terms and conditions of this Agreement applicable to Class
2-Know-how.
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2.4
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The
Company shall inform SEG and STI of all improvements which are achieved
by
the Company
(i) during the 18 month period following the Signing Date; and (ii)
which
are in respect of the Class 2-Know-How transferred to the Company
under
this Agreement; and (iii)
which are related to STI and SEG's on-going businesses (other than
improvements exclusively
related or connected to Solar Module Products) (the "Class
2-Improvements") The
Company shall license Class 2-Improvements to STI and SEG royalty-free
and
on a non-exclusive
basis for use in STI's and SEG's on-going businesses (other than
business
related
or connected to Solar Module Products). The Company, SEG and STI
shall be
jointly entitled
to apply for patent protection regarding Class 2-Improvements, provided
patent protection
is not related exclusively to Solar Module Products and the Parties
will
take all actions
and execute all documents necessary or appropriate to enable such
application. In all other cases of improvements to Class 2-Know-how,
the
Company shall be the sole owner of such
improvements and shall be entitled to solely apply for patent protection
in its discretion.
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2.5
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For
the avoidance of doubt, nothing in Sections 2.3 or 2.4 shall require
STI,
SEG or Sunfilm
to disclose or grant rights in respect of any know how or information
in
respect of which the respective party is under an obligation of
confidentiality to a third party.
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2.6
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If
it turns out that SEG and/or STI possess know-how on the Signing
Date,
including patents
or patent applications on or relating to Thin Film Technology which
are
not subject to
this Agreement, but which the Company considers useful for the
establishment of the Photovoltaic Facilities or the development and
manufacturing of Solar Module Products, SEG
and STI agree to license such know-how, patents or patent applications
to
the Company
on a restricted, non-exclusive basis for use in the development and
manufacture of
Solar Module Products and for a royalty to be concluded at fair market
conditions. This right
to license extends through June 30,
2008.
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Section
3
Services
3.1
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SEG
and STI shall provide the following services to the
Company:
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3.1.1
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SEG
shall apply for the Subsidy, conduct the application procedure, undertake
the steps and
measures required for the approval of the Subsidy, and assess the
conditions of the approval.
SEG and the Company will mutually agree whether the conditions of
the
approval of the Subsidy are acceptable and if not, whether to appeal
SEG
shall conduct the procedure of
the appeal, if any, and shall, to the extent permitted by the appeal
process, take into
account the reasonable comments of the Company in conducting the
appeal.
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3.1.2
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Shortly
after the approval of the Subsidy has become legally binding, SEG
shall
procure the
transfer of the Subsidy from SEG to the Company. The Parties acknowledge
mat SAB has
verbally advised SEG that a transfer of the Subsidy from SEG to the
Company is permitted.
The Company shall file the necessary documents for the transfer with
the
SAB. SEG
shall assist in this process. SEG shall use its best reasonable efforts
to
ensure that the Company
finally receives the Subsidy. The Company shall use its best reasonable
efforts to co-operate
in this process. SEG, STI, and the Company shall strictly adhere
to the
Subsidy regulations
at all times during this process.
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3.1.3
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SEG
shall arrange and close the Site purchase and shall transfer the
Site to
the Company (i)
as soon as possible after the approval of the transfer of the Subsidy
to
the Company has become
legally effective and (ii) upon written request of the Company. SEG
shall
apply for and
shall take all necessary steps to obtain any official permits needed
by
the Company for the
construction of the Photovoltaic Facilities on the Site. It will
be a
condition to the transfer
of ownership of the Site to the Company that ground assessments must
be
undertaken
to a commercially reasonable extent, including without limitation
analysis
of potential
contamination of the soils or other materials comprising the Site.
For the
avoidance of
doubt, SEG shall be required to transfer the Site to the Company
before
the approval of the
transfer of the Subsidy to the Company if the conditions of the Subsidy
approval so require
and the Company has requested the transfer in
writing.
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3.1.4
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Subject
to Sections 3.1.5 and 3.1.6, and until Xxxxx 00, 0000, XXX shall
supervise
and oversee
the engineering, design, and ground assessment of the Site, building,
purchasing, hiring,
and other work needed to establish the Photovoltaic Facilities on
the
Site, in particular
SEG shall supervise the engineering process for the construction
of the
Photovoltaic
Facilities and related processes in cooperation with Applied and
with
other contractors
of the Company. After March 31, 2007, STI and SEG will continue to
provide
services to the company as outlined above, subject to Section
4.6.
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3.1.5 |
EG
shall make available the human resources, in particular Xx. Xxxxxx
and Xx.
Xxxxxx,
as reasonably needed to effect SEG's obligations in setting-up
the Sunfilm
Venture, and
shall also facilitate and transfer certain human resources to
the Company
as outlined below.
Until the full transfer of the required human resources to the
Company has
been accomplished,
the services to be rendered by SEG and STI shall be in particular
undertaken by
Xx. Xxxxxx and Xx Xxxxxx (to which they agree) with support from
other SEG
staff and the
Company as required. STI has made and shall continue to make
Xx Xxxxxx, an
employee of
STI, available on a full time basis to the Company from the Signing
Date
to assist in accomplishing
the tasks required to meet STI and SEGs' commitments under this
Agreement,
to establish the Photovoltaic Facilities and to commence working
on the
Company's
behalf as needed to set up the Sunfilm Venture. The Parties shall
co-operate (together
with Xx Xxxxxx) to agree on the terms of relocation of Xx Xxxxxx
to
Dresden as soon as reasonably practicable after the Signing Date,
but in
any event, it is anticipated by the
Parties that he will be based in Dresden for a material period
before
1st
April 2007 to facilitate
the start up of the Sunfilm
Venture.
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3.1.6
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SEG
and STI shall also make available in particular Xx. Xxxxxx to the
Company
as required
to accomplish the tasks to meet STI and SEGs' commitments outlined
in this
Agreement
and to establish the Photovoltaic Facilities and work on the Company's
behalf as needed
to set up the Sunfilm Venture. SEG shall make available Xx. Xxxxxx
Xxxxxx
and Xx. Xxxxxxx
Xxxx, both currently employees of SEG, to assist Xx. Xxxxxx in rendering
these services
(subject always to Xx Xxxxxx and Xx Xxxx consenting to undertaking
this
work).
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With
effect from Xxxxx 0, 0000, Xx. Xxxxxx shall be allowed to resign from his
position as managing
director of SEG, shall be released from his employment with SEG by STI and
he
shall enter into an employment relationship with the Company. Xxx Xxxxxx Xxxxxx
and Xx. Xxxxxxx
Xxxx shall be released by SEG to enter into an employment relationship with
the
Company
as soon as possible, however no later than April 1, 2007, provided they consent
to their
transfer of employment to the Company. With effect from April 1, 2007, Xx.
Xxxxxx shall
be
allowed to resign from his position with STI, Xx. Xxxxxx shall be released
from
his employment
by STI and he shall enter into an employment relationship with the Company.
Each
release shall be covered by a letter outlining the terms of the release to
each
of the individuals
mentioned above allowing them to pursue their duties under this Agreement and
the
employment agreements to be entered into by Sunfilm. It is anticipated by
January 31, 2007
that
each of Messrs Xxxxxx and Xxxxxx shall separately enter into an employment
contract
with the Company. Each contract of employment will only become effective in
accordance
with its terms and conditions, but shall become effective no later than April
1,
2007.
3.1.7
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STI,
SEG, Xx. Xxxxxx, and the Company, after consulting with Good Energies
Investments
BV and Norsun AS, shall jointly determine if other SEG employees
should be
transferred
to the Company (subject always to such employees consenting in advance
to
such
transfer of employment and that such action does not compromise SEG's
business commitments).
These discussions and determinations should be completed by August
31,
2007.
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3.2
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SEG,
STI, Xx. Xxxxxx and Xx. Xxxxxx shall act in good faith and use their
best
reasonable
efforts to facilitate the progress of the Sunfilm Venture and shall
keep
the Company
informed of all material developments relevant to the Sunfilm
Venture.
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3.3
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SEG
shall pay the installments of the purchase price for the Site when
due
under the Site purchase
agreement and shall transfer the Site to the Company as outlined
in
Section 3.1.3 above.
Upon transfer of the Site, the Company shall reimburse SEG for the
purchase price (or
part thereof) for the Site to the extent such price has already been
paid
by SEG. However, the Company shall not be obligated to take over
the Site
and SEG will remain responsible for the
Site purchase agreement and the obligations, in particular the payment
obligations, contained therein, if (i) the Site turns out to be materially
contaminated or the grounds assessments
have not been undertaken to the satisfaction of the Company; or (ii)
the
Subsidy is
not validly transferred to the Company; or (iii) if the Sunfilm Venture
does not proceed for any
other reason; or (iv) if the Sunfilm Venture is terminated on or
before
September 1, 2007. SEG may only withdraw from the Site purchase agreement
if (i) this Agreement is terminated
in accordance with its terms (including failure to achieve any of
the
conditions set
out in Section 6.1; or (ii) the Subsidy is not validly transferred
to the
Company by August 31,
2007; or (iii) the Company agrees in writing that SEG may so withdraw.
In
all other cases,
SEG may only withdraw from the Site purchase agreement, if simultaneously
a Site purchase agreement is concluded between the seller of the
Site and
the Company.
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Section
4
Consideration
4.1
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The
Company shall pay to SEG and STI for the transfer of the Know-how
and the
services
to be rendered pursuant to this Section and Section 3 above an amount
totaling:
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USD
3,000,000 plus statutory German VAT
(in
words: US Dollar three million)
(hereinafter:
the "Consideration")
The
payment of the Consideration shall be made in installments which are linked
to
the achievement
of milestones as set out below. Failure to achieve any one of the milestones
does not
jeopardize any proceeding or previous payment of installments save as set out
in
Section 4.3.
Further,
if one or more of the dates for completion of a milestone in the table below
changes due
to
reasons which are beyond the control of STI and SEG, provided that such date
change does
not
jeopardize the realization of the Sunfilm Venture, then the payment of the
relevant installment
shall be made at the completion of the process for which the payment of
the
installment
was due to be made, subject always to the overriding principle that all of
milestones
4.1.1 to 4.1.4 must be accomplished in all material respects by August 31,
2007
at the
latest.
Failure
to achieve any one of the milestones also does not jeopardize any subsequent
payment of
funds
to STI and SEG to the extent that the other milestones listed at 4.1.1 through
4.1.4 are
achieved in accordance with this clause 4.1 and are all achieved in all material
respects before
August 31, 2007. If any milestones (other than the milestone item set out in
4.1.2.2 -Applied
Contract- and the milestone set out in Section 4.1.5) are completed after August
31, 2007,
SEG
and/or STI are not entitled to any payment in respect of those milestones unless
the
Company agrees otherwise in writing.
Milestones
|
Amount
(in
USD)
|
Dates
|
|
4.1.1.1 |
Execution
of satisfactory documentation
(including Appendix A and
B); and
|
1,000,000
|
Signing
Date of this Agreement
|
4.1.1.2 |
Approval
of the Subsidy for SEG ("Fordermittelzusage");
and
|
|
|
4.1.1.3 |
Conclusion
of the Site purchase agreement
by SEG and payment of the first
installment of the purchase price by
SEG.
|
|
|
4.1.2.1 |
Approval
of the Subsidy for the Company
("Fordermittelzusage")
including
completion of all transfer requirements
by SEG; and
|
500,000
|
1
April 2007
|
4.1.2.2 |
Conclusion
of an equipment purchase and
development roadmap contract between
the Company and Applied; and
|
|
|
4.1.2.3 |
Site
transfer to the Company and preparatory
work for the construction of
the Photovoltaic Facilities Finished.
|
|
|
4.1.3 |
Entering
into an employment relationship
between the Company and
Messrs, Heinze, Westra, and Xxxx and
Xx. Xxxxxx and transfer to the Company.
|
500,000
|
1
April 2007
|
4.1.4.1 |
All
permits for the construction and operation
of the Photovoltaic Facilities granted;
and
|
500,000
|
30
June 2007
|
4.1.4.2 |
Design
of the Photovoltaic Facilities finished.
|
|
|
4.1.5 |
Start
of production of PV thin film tandem
modules at the Photovoltaic Facilities.
|
500,000
|
31
March 2008
|
4.2
|
If
the transfer of the Subsidy to the Company is not received due to
reasons
which are outside
the control of SEG and STI, installments of the Consideration already
paid
in respect of
achievement of relevant milestones will not be required to be
repaid.
|
4.3
|
If
SEG withdraws from the Site purchase agreement in violation of this
Agreement, all Consideration is deemed to be fully forfeited and
the
Company is released from any further payment
obligations under this Agreement and any installments of the Consideration
and the purchase price for the Site already paid by the Company will
be
immediately due and owing
for repayment by STI or SEG (as the case may be) to the Company.
SEG and
STI will be
jointly and severally liable for the repayment of all such payments
to the
Company.
|
4.4
|
In
respect of milestone 4.1.3 above regarding the transfer of specified
staff
to the Company,
individual employment contracts are scheduled to be concluded by
April 1,
2007. If
Xx. Xxxxxx or Xx. Xxxx do not agree to transfer their employment
to the
Company from SEG,
such refusal will not jeopardize any of the payments of Consideration
already made to STI
or SEG assuming that the Sunfilm Venture still proceeds and such
failure
is not a material
deterrent to the success of the Sunfilm
Venture.
|
4.5
|
The
payments set out in Section 4.1 are to be made in cash to STI to
the Xxxxx
Fargo Bank,
ABA Number 000000000, Swift Code XXXXXX0X Beneficiary Account No:
0000000000 within 10 days after the later of (i) STI or SEG has provided
evidence reasonably
satisfactory to the Company that the respective milestones were properly
fulfilled
and (ii) a respective invoice has been submitted by STL Such invoice
shall
not contain
VAT, but shall make reference to the German reverse charge procedure
as
set out in a
draft invoice the Company shall submit to STI shortly after the Signing
Date. Any payment shall
be deemed a payment to SEG and STI hereunder. The allocation of the
Consideration between SEG and STI shall be the responsibility of
STL
|
4.6
|
After
Xxxxx 00, 0000, XXX and STI shall continue to facilitate the establishment
of the Company
and the Sunfilm Venture at the cost of the Company, on the following
basis: (i) any
services and/or costs incurred by STI or SEG must be approved in
writing
in advance by the Company; and (ii) such services and/or costs will
not
relate to activities to be undertaken and
services to be rendered by SEG and/or STI to achieve the milestones
outlined in Sections
4.1.1.1 to 4.1.1.3, 4.1.2.1, 4.1.2.3, 4.1.4.1, and 4.1.4.2
above.
|
4.7
|
Subject
to the Company's prior approval of all of such costs in writing,
the
Company shall
promptly reimburse SEG and STI (as the case may be) for any payments
made
or other direct
expenses incurred by STI or SEG on the Company's behalf to third
parties
such as contractors, suppliers and other parties for engineering
design
work. Reimbursement shall be
made promptly on provision by STI or SEG of the appropriate copies
of
invoices together with
satisfactory evidence of payment, provided the Site has first been
transferred to the Company.
|
Section
5
Warranties
of SEG and STI
5.1
|
SEG
and STI declare that they are not aware of any legal deficiencies
of the
Know-how. SEG
and STI warrant that (i) they have maintained and will maintain the
secrecy of the Know-how
for the 18-month period provided for herein and (ii) that the Know-how
specified
in Appendices A and B comprises all of their know-how in the Technical
Area which
is relevant for the construction of the Photovoltaic Facilities and
the
development and manufacturing
of the Solar Module Products (such warranties together with the warranty
contained
in Section 5.2 the "Warranties"). STI and SEG declare to
the Company that each of
them will not enter into any other Agreement or carry on any activity
relating to the Know How
during the 18-month period discussed
herein.
|
5.2 |
EG
and STI jointly and severally warrant to the Company, and each of Xx.
Xxxxxx and Xx.
Xxxxxx severally warrant to the Company that as at the date of
this
Agreement, (i) they are
not aware of any information which is materially significant
and which the
Company should
have been made aware of at the time of making its decision to
undertake
the Sunfilm Venture
or which could otherwise materially prejudice the success of
the Sunfilm
Venture; and
(ii) to the best of their knowledge, all information which has
been made
available to the Company
before conclusion of this Agreement is complete and correct in
all
material respects.
|
5.3
|
If
it turns out that any of the above Warranties is not correct, SEG
and/or
STI shall, at the Company's
option, either (i) put the Company in such position as the Company
would
have been in had the Warranties been true, accurate and complete
in every
respect (restitution in kind), or (ii) failing to have cured the
breach of
a Warranty within a period of three months after the notification
of such
breach by the Company, compensate the Company as follows: the
Company is released from any further payment obligations under this
Agreement; and payments
already made pursuant to Section 4 above shall be returned. SEG and
STI
will be jointly
and severally liable for the above payments to the Company. The release
and return of
payments as provided for in this Section 5.3 shall be the sole and
exclusive remedy of Sunfilm
for a breach of the above Warranties in the context of Section 5.3
(ii).
|
Except
as
expressly set forth in this Section 5,
payments
made pursuant to Section 4 are non-refundable. To the extent legally
permissible, STI or SEG's liability for any breach of Warranty,
or for any claim arising out of or related to this Agreement, shall not exceed
the return of payments provided for in Section 4.1 actually received by SEG
or
STL
The
rights and obligations of the Parties under the agreements regarding the
purchase and transfer of the Site remain untouched.
Section
6
Conditions
Precedent
6.1
|
The
Parties agree that this Agreement is subject to the following conditions
precedent:
|
6.1.1
|
Legally
binding approval of the Subsidy to SEG in the amount of approximately
EUR
25
million by the State of Saxony.
|
6.1.2
|
Conclusion
of employment contracts between the Company and Xx. Xxxxxx and Xx.
Xxxxxx.
|
6.1.3
|
Approval
of Good Energies Investments BV's Investment Committee, and of the
respective
boards of directors of each of STI, Good Energies Investments BV
and
Norsun AS,
and Sunfilm's supervisory board.
|
6.1.4
|
Conclusion
of the Site purchase by SEG for the Photovoltaic
Facilities.
|
6.2
|
Either
of the Company or SEG may terminate the Agreement if the conditions
precedent have not been fulfilled by April 15, 2007 or by such a
later
date SEG and the Company agree upon.
In addition, the Company may terminate the Agreement on or prior
to
September 1, 2007,
if:
|
- |
the
Site turns out to be materially
contaminated;
|
- |
the
Site cannot be transferred to the Company under the same terms and
conditions concluded
between SEG and the seller of the
Site;
|
- |
the
application to transfer the Subsidy to the Company is rejected or
for any
reason the Company is not entitled to receive approval of the transfer
of
the Subsidy, regardless of whether
the application to transfer the Subsidy has been filed or
not;
|
- |
an
equipment purchase and development roadmap contract between the Company
and Applied
has not been concluded and negotiations on the conclusion of such
contract
have
been terminated;
|
- |
Xx.
Xxxxxx and /or Xx. Xxxxxx (i) are, for any reason, not available
and do
not work on the
Company's behalf as needed to set up the Sunfilm Venture with effect
from
the Signing
Date; or (ii) do not enter into an employment relationship with the
Company as provided
for in their respective employment agreements; or (iii) materially
breach
or have
breached their duties under this Agrement or their employment
agreements;
|
- |
the
key permits for the construction and operation of the Photovoltaic
Facilities at the Site
have not been granted;
|
- |
SEG
or STI has disclosed the Know-how or SEG or STI starts to establish
its
own Photovoltaic Facilities, in each case prior to the expiration
of the
18 months period;
|
- |
SEG
or STI commits any material breach of this Agreement, in particular
in the
case of any
breach of Warranty as set out in Section 5, and fails to remedy such
breach (if capable
of remedy) within 14 days of receipt of written notice of such breach
from
the Company;
|
- |
in
the case that the Know-how turns out to be subject to third party
rights;
the
realization of the Sunfilm Venture fails for any other reason;
or
|
- |
insolvency
proceedings have been initiated regarding the business or assets
of SEG or
STI and have not been dismissed within three months of their initiation
or
if either of SEG or STI ceases to conduct business or becomes unable
to
pay its debts as they fall due.
|
6.3
|
SEG
and/ or STI may terminate the Agreement if insolvency proceedings
have
been initiated
regarding the business or assets of the Company and have not been
dismissed within three months of their initiation or if the Company
ceases
to conduct business or becomes
unable to pay its debts as they fall
due.
|
6.4 |
In
the event of termination, this Agreement shall forthwith become
void and
there shall be
no liability on the part of the Company, its respective officers
or
directors, or shareholders,
except that the stipulations contained in Section 6.5 shall survive
the
termination
hereof. The same shall apply to the payment obligations of SEG
in the
context of the
Site purchase which shall survive termination of this Agreement,
unless
SEG withdraws from
the Site purchase in accordance with this
Agreement.
|
6.5
|
If
this Agreement is terminated for any reason whatsoever, each party
will
return to the other
party on a timely basis all documents, agreements, instruments or
other
written information
concerning the other parties that was obtained from such other
party.
|
Section
7
Confidentiality
7.1
|
The
Parties have already signed confidentiality agreements in respect
of the
Sunfilm Venture.
The Parties agree to keep confidential, and to not make available
to any
third party, information
of any kind obtained in connection with the proposed Sunfilm Venture,
in
particular
the Know-how. This shall include any technical, financial or any
other
information
relevant for the business operations as well as details of the clients
of
the Parties or
any other details regarding business operations of the Parties
(hereinafter referred to as the
"Information").
This
shall also include the terms and conditions of this Agreement and
any
other agreement concluded in respect of the Sunfilm
Venture.
|
7.2
|
The
Parties shall not use the Information obtained under this Agreement
or
during the negotiation
of this Agreement for any purposes other than the purpose(s) set
out in
this Agreement
and otherwise for the establishment, creation and operation of the
Sunfilm
Venture.
|
7.3
|
Any
information rightfully obtained by a party from another source or
already
known to a
party before the conclusion of this Agreement or already state of
the art
or otherwise publicly
available prior to the signing of this Agreement shall be excluded
from
the above confidentiality
obligations. The obligations of confidentiality, non-use and nondisclosure
under
this Agreement shall also not apply to such portions of the Information
that (a) are or become
generally available to the public other than as a result of a disclosure
by the receiving
party or its permitted disclosees in breach of this Section 7; (b)
become
available to
the receiving party or its representatives on a non-confidential
basis
from a source other than
the disclosing party or its representatives, provided that such source
is
not to the receiving
party's knowledge bound by a obligation of confidence to the disclosing
party; or (c)
were known to the receiving party on a non-confidential basis prior
to
their disclosure to the
receiving party or its representatives by the disclosing pary or
its
representatives; or (d) is independently developed or generated by
the
receiving party or its
representatives.
|
7.4
|
The
receiving party shall be entitled to disclose Information to the
extent
required by (a) an
order of any court of competent jurisdiction or competent judicial,
regulatory or government
body; (b) the rules of any listing authority or stock exchange; or
(c) law
or regulation. In the event that the receiving party or anyone to
whom the
receiving party transmits
the Information pursuant to this Agreement becomes compelled (including
without
limitation by oral question, interrogatories, requests for information
or
documents, subpoena,
civil investigative demand or otherwise) to disclose any of the
Information, the receiving party will, if so allowed by the terms
of the
requirement to disclose, provide the disclosing
party with prompt written notice so that the disclosing party may
seek a
protective order
or other appropriate remedy, or waive compliance with the provisions
of
this Section. In
the event that such protective order or other remedy is not obtained,
or
that the disclosing party
waives compliance with the provisions of this Section 7, the receiving
party or its representatives
will furnish only that portion of the Information which is legally
required and
the receiving party will exercise its best efforts to obtain reasonable
assurances that confidential
treatment will be accorded to such
Information.
|
7.5
|
The
Parties shall ensure that its staff and employees as well as any
other
persons who are granted
access to Information on behalf of one of the Parties shall be informed
of
and understand
the above confidentiality
obligations.
|
7.6
|
The
confidentiality obligations shall remain in force for a period of
18
months from the Signing Date, unless otherwise provided for in this
Agreement.
|
7.7
|
Until
March 31, 2008 neither party will actively solicit the employment
of the
employees of the
other party, unless otherwise stated in this Agreement or agreed
between
the Company and
SEG, The placing of an advertisement of a post available to a member
of
the public generally
shall not constitute a breach of this Section 7.7, save that this
exception shall not apply
in the cases of Xx Xxxxxx, Xx. Xxxxxx, Xx Xxxxxx or Xx Xxxx once
their
employment has
transferred to Sunfilm as contemplated in this
Agreement.
|
Section
8
Costs
Except
as
otherwise set out in this Agreement each party shall bear its own expenses
in
connection with
this
Agreement and the negotiations of the agreements, including costs of
consultants, advisors,
attorneys and travel expenses.
Section
9
Final
Provisions
9.1
|
The
statements contained in this Agreement have been agreed upon by the
Parties and, therefore,
shall constitute binding obligations of either
Party.
|
9.2
|
For
the avoidance of doubt, this Agreement neither constitutes an employment
relationship
with the Company and Xx. Xxxxxx and Xx. Xxxxxx, nor does it refer
any
rights to
Mr, Xxxxxx and Xx. Xxxxxx to enter into an employment relationship
with
the Company,
|
9.3
|
Alterations
and amendments to the Agreement must be in writing. This will also
apply
to a
waiver of the requirement for written
form.
|
9.4
|
The
Parties will mutually agree upon the wording and structure of any
public
announcement
or press release regarding this
Agreement.
|
9.5 |
The
Parties agree that this Agreement is a license of intellectual
property
subject to section
365(n) of the United States Bankruptcy Code. The Parties further
agree
that upon any
election by the Company pursuant to section 365(n)(l)(B) of the
United
States Bankruptcy
Code, the Company shall be entitled to, on its own or through
employees,
contractors,
agents, or otherwise, upgrade, modify and develop derivative
works based
upon the
rights transferred hereunder, and upon the Know-how associated
with STI's
and SEG's past
work on Photovoltaic Facilities and the production of Solar Module
Products, subject to the
terms of this
Agreement.
|
9.6
|
If
a provision of this Agreement should be or become partially or entirely
invalid or unenforceable,
the validity of the remaining provisions hereof shall not be affected
thereby. The
Parties shall be obligated to replace the invalid or unenforceable
provision with aprovision
which comes closest to the economic purpose originally intended by
the
Parties with
the invalid or unenforceable provision. The same shall apply in the
event
of any omissions
in this Agreement. Section 139 German Civil Code is expressively
waived.
|
9.7
|
The
statements and agreements contained in this Agreement and all rights
and
obligations
in connection therewith shall be subject to German
law.
|
9.8 |
Unless
settled amicably, any dispute in respect to this Agreement shall
be
finally settled by
international arbitration. Unless otherwise agreed by the Parties
the
dispute shall be finally
settled under the Rules of Arbitration of the International Chamber
of
Commerce. The dispute shall be settled by three arbitrators appointed
in
accordance with these rules. The arbitration shall be conducted in
the
English language. The arbitration panel shall be situated
in Frankfurt Germany.
|
/s/
illegible
|
/s/
illegible
|
|
Sunfilm
AG
|
Southwall
Europe GmbH,
|
|
represented
by
|
represented
by
|
|
Name:
Xxxxxxxx Xxxxxx and Klaus
|
Name:
Xxxxxxxx Xxxxxx
|
|
Tonnesmann
|
Function:
Geschaftsfuhrer
|
|
Function:
Vorstand and
|
|
|
Name:
Xxxx Xxxxxx
|
||
Function:
Chairman of the
|
||
Supervisory
Board
|
/s/
Xxxxxxxx Xxxxxx
|
||
Xxxxxxxx
Xxxxxx
|
Southwall
Technologies Inc.,
|
|
represented
by
|
||
|
Name:
R. Xxxxxx Xxxxxxx
|
|
|
Function:
CEO and President
|
|
/s/
Xxxxx Xxxxxx
|
||
Xxxxx
Xxxxxx
|
||
9.7
|
The
statements and agreements contained in this Agreement and all rights
and
obligations
in connection therewith shall be subject to German
law.
|
9.8 |
Unless
settled amicably, any dispute in respect to this Agreement shall
be
finally settled by
international arbitration. Unless otherwise agreed by the Parties
the
dispute shall be finally
settled under the Rules of Arbitration of the International Chamber
of
Commerce. The dispute shall be settled by three arbitrators appointed
in
accordance with these rules. The arbitration shall be conducted in
the
English language. The arbitration panel shall be situated
in Frankfurt Germany.
|
/s/
illegible
|
/s/
illegible
|
|
Sunfilm
AG
|
Southwall
Europe GmbH,
|
|
represented
by
|
represented
by
|
|
Name:
Xxxxxxxx Xxxxxx and Klaus
|
Name:
Xxxxxxxx Xxxxxx
|
|
Tonnesmann
|
Function:
Geschaftsfuhrer
|
|
Function:
Vorstand and
|
|
|
Name:
Xxxx Xxxxxx
|
||
Function:
Chairman of the
|
||
Supervisory
Board
|
/s/
Xxxxxxxx Xxxxxx
|
||
Xxxxxxxx
Xxxxxx
|
Southwall
Technologies Inc.,
|
|
represented
by
|
||
|
Name:
R. Xxxxxx Xxxxxxx
|
|
|
Function:
CEO and President
|
|
/s/
Xxxxx Xxxxxx
|
||
Xxxxx
Xxxxxx
|
||
9.7
|
The
statements and agreements contained in this Agreement and all rights
and
obligations
in connection therewith shall be subject to German
law.
|
9.8 |
Unless
settled amicably, any dispute in respect to this Agreement shall
be
finally settled by
international arbitration. Unless otherwise agreed by the Parties
the
dispute shall be finally
settled under the Rules of Arbitration of the International Chamber
of
Commerce. The dispute shall be settled by three arbitrators appointed
in
accordance with these rules. The arbitration shall be conducted in
the
English language. The arbitration panel shall be situated
in Frankfurt Germany.
|
/s/
illegible
|
/s/
illegible
|
|
Sunfilm
AG
|
Southwall
Europe GmbH,
|
|
represented
by
|
represented
by
|
|
Name:
Xxxxxxxx Xxxxxx and Klaus
|
Name:
Xxxxxxxx Xxxxxx
|
|
Tonnesmann
|
Function:
Geschaftsfuhrer
|
|
Function:
Vorstand and
|
|
|
Name:
Xxxx Xxxxxx
|
||
Function:
Chairman of the
|
||
Supervisory
Board
|
/s/
Xxxxxxxx Xxxxxx
|
||
Xxxxxxxx
Xxxxxx
|
Southwall
Technologies Inc.,
|
|
represented
by
|
||
|
Name:
R. Xxxxxx Xxxxxxx
|
|
|
Function:
CEO and President
|
|
/s/
Xxxxx Xxxxxx
|
||
Xxxxx
Xxxxxx
|
||
9.7
|
The
statements and agreements contained in this Agreement and all rights
and
obligations
in connection therewith shall be subject to German
law.
|
9.8 |
Unless
settled amicably, any dispute in respect to this Agreement shall
be
finally settled by
international arbitration. Unless otherwise agreed by the Parties
the
dispute shall be finally
settled under the Rules of Arbitration of the International Chamber
of
Commerce. The dispute shall be settled by three arbitrators appointed
in
accordance with these rules. The arbitration shall be conducted in
the
English language. The arbitration panel shall be situated
in Frankfurt Germany.
|
/s/
illegible
|
/s/
illegible
|
|
Sunfilm
AG
|
Southwall
Europe GmbH,
|
|
represented
by
|
represented
by
|
|
Name:
Xxxxxxxx Xxxxxx and Klaus
|
Name:
Xxxxxxxx Xxxxxx
|
|
Tonnesmann
|
Function:
Geschaftsfuhrer
|
|
Function:
Vorstand and
|
|
|
Name:
Xxxx Xxxxxx
|
||
Function:
Chairman of the
|
||
Supervisory
Board
|
/s/
Xxxxxxxx Xxxxxx
|
||
Xxxxxxxx
Xxxxxx
|
Southwall
Technologies Inc.,
|
|
represented
by
|
||
|
Name:
R. Xxxxxx Xxxxxxx
|
|
|
Function:
CEO and President
|
|
/s/
Xxxxx Xxxxxx
|
||
Xxxxx
Xxxxxx
|
||
9.7
|
The
statements and agreements contained in this Agreement and all rights
and
obligations
in connection therewith shall be subject to German
law.
|
9.8 |
Unless
settled amicably, any dispute in respect to this Agreement shall
be
finally settled by
international arbitration. Unless otherwise agreed by the Parties
the
dispute shall be finally
settled under the Rules of Arbitration of the International Chamber
of
Commerce. The dispute shall be settled by three arbitrators appointed
in
accordance with these rules. The arbitration shall be conducted in
the
English language. The arbitration panel shall be situated
in Frankfurt Germany.
|
/s/
illegible
|
/s/
illegible
|
|
Sunfilm
AG
|
Southwall
Europe GmbH,
|
|
represented
by
|
represented
by
|
|
Name:
Xxxxxxxx Xxxxxx and Klaus
|
Name:
Xxxxxxxx Xxxxxx
|
|
Tonnesmann
|
Function:
Geschaftsfuhrer
|
|
Function:
Vorstand and
|
|
|
Name:
Xxxx Xxxxxx
|
||
Function:
Chairman of the
|
||
Supervisory
Board
|
/s/
Xxxxxxxx Xxxxxx
|
||
Xxxxxxxx
Xxxxxx
|
Southwall
Technologies Inc.,
|
|
represented
by
|
||
|
Name:
R. Xxxxxx Xxxxxxx
|
|
|
Function:
CEO and President
|
|
/s/
Xxxxx Xxxxxx
|
||
Xxxxx
Xxxxxx
|
||