[GRAPHIC]
EXHIBIT 10.16
LETTER AGREEMENT
This Letter Agreement entered into this 16th day of December, 1998 at Bangalore,
between:
Xxxxxxxxx X. Xxxxx, an Indian citizen, having his addresses at Xxxxx Sadan,
Lavelle Road, Bangalore, acting for himself and
Xxxxx Materials Movement Xxx.Xxx., a company incorporated and registred under
the Companies Xxx, 0000, having its registered office at 000 Xxxxxxxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, and
Xxxxx Precision Products Xxx.Xxx., a company incorporated and registered
under the Companies Act, 1956 and having its registered office at X-00 Xxxxxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxxx,
hereinafter collectively referred to as "Xxxxx" (which expression shall unless
be repugnant to the context or meaning thereof be deemed to include their
successors in interest and permitted assigns) of the FIRST PART.
AND
Amerigon Incorporated, a company incorporated under the laws of the United
States of America, having its principal place of business at 0000, Xxxxxxxxx
Xxxxxx, Xxxxxxxxxx, 00000, X.X.X., hereinafter referred to as "Amerigon", (which
expression shall unless it be repugnant to the context or meaning thereof, be
deemed to include its successors in interest and permitted assigns) of the
SECOND PART.
This letter sets forth our agreement with respect to the formation,
capitalization and operation of a proposed joint venture company ("Newco") which
will design, manufacture, test, distribute, sell, and service Road Worthy (as
defined below) electric powered vehicles (collectively, the "Products") in
India, Sri Lanka, Bangladesh, Pakistan, Nepal, Myanmar, Seychelles and the
Maldives (collectively, the "Territory")
[SEAL]
XXXXX XXXXX
utilizing technology owned by Amerigon Incorporated ("Amerigon"). Road Worthy
vehicles shall mean cars, vans, trucks, busses, 3-wheel and 2-wheel electric
vehicles for on-road use, but excluding industrial, construction, agricultural,
golf and other non-road vehicle types.
Our understanding includes the following terms and conditions to be incorporated
in definitive agreements:
1. Background.
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(a) Amerigon has developed, designed and tested
preproduction prototypes of an electric powered automobile known as the "XXXX"
(the "XXXX") and has manufactured XXXX vehicles is small quantities. Amerigon
owns a variety of technology relevant to the design and manufacturing of
electric automobiles, including a patented energy management system. Amerigon
owns certain tooling for pre-production of the XXXX and has considerable
production know-how. Amerigon will license its technology and know-how for Road
Worthy electric vehicles to Newco which will include: (1) exclusive rights to
manufacture and sell the XXXX in the Territory, (2) exclusive license to all of
Amerigon's patents related to its Energy Management System, Climate Control Seat
System and Electric Vehicle Safety Systems for all electric vehicles
manufactured in the Territory and (3) exclusive license to all of Amerigon's
current and future electric vehicle technology in connection with the
manufacture and sale of electric vehicles in the Territory.
(b) Xxxxxxxxx X. Xxxxx, acting for himself, Xxxxx
Materials Movement (an Indian corporation) and Xxxxx Precision Products, Pvt.
Ltd. (collectively "Xxxxx") manufactures and assembles precision automotive
components, castings and granite tiles. In addition, Xxxxx designs,
manufactures, sells and services in-plant material handling equipment including
electric tow tractors, pallet trucks, stackers and dock levelers. Xxxxx has also
been involved in various aspects of the XXXX project including market research,
vehicle design, vendor development, part costing, homologation and testing.
Xxxxx has land, buildings, equipment, infrastructure, capital and management
expertise that would be valuable to launching Newco and desires to have an
equity stake in Newco. Xxxxx may include as investors in such members of his
family and also such companies or bodies corporate owned and controlled by Xxxxx
and nominated by him to be participants in Newco.
(c) Xxxxxx Xxxxx ("CM") has been an employee of Amerigon
and the program manager for the XXXX project for over four years. He is also
the son of Xxxxxxxxx Xxxxx. It is anticipated that CM will initially serve as
the Managing Director of Newco.
(d) It is contemplated that Newco will be jointly owned by
Amerigon, Xxxxx, XX, Xxxxx Xxxx, Xxx Xxxxxxxxxx and one or more additional
investors (the "Investors") who have yet to be determined.
2. Formation of Newco.
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(a) Newco will be an Indian Private Limited Company registered
under the Companies Act. Xxxxx and Amerigon shall take the necessary steps for
registration of Newco. If legally available, the name of the new company will
be "XXXX Electric Car Company Private Limited". Mutually acceptable charter and
bylaw documents shall be prepared and shall give effect to the terms agreed upon
between Xxxxx and Amerigon in conformity with the terms hereof. Xxxxx shall
take responsibility for securing additional investors and Amerigon shall assist
Xxxxx in the process.
(b) The principal business purposes of Newco will be (i) the
design, manufacture, assembly and testing of the Products(s) throughout the
Territory, (ii) marketing, distributing and selling the Products(s) throughout
the Territory, (iii) servicing the Products(s) sold throughout the Territory,
(iv) developing technology related to electric vehicles, (v) establishing a
manufacturing facility as further described in the mutually agreed upon outline
of the Operating Plan attached hereto as Schedule A and (vi) engaging in such
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other activities as may be incidental or necessary to the foregoing.
3. Capitalization of Newco.
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(a) The parties will seek to capitalize Newco as described in
Schedule B attached hereto. Amerigon's capital contribution to Newco shall
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consist of (1) the license to Newco of its electric vehicle ("EV") technology on
an exclusive basis for the manufacture, distribution, sale and servicing of the
Products in the Territory, (2) the contribution in-kind of certain tangible
assets (electric vehicles and manufacturing kits as set forth on Schedule A),
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and (3) those other assets described in Schedule A attached hereto. Maini's
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capital contribution will consist of (1) the homologation certification of the
earlier version of the XXXX and any other exemptions/concessions including sales
tax and road tax exemptions/concessions, (2) market research and studies for the
XXXX, (3) supplier information and test results and (4) cash and in-kind capital
contribution as described in Schedule A attached hereto and shall be made at the
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times and in the manner specified in Schedule A hereto. CM, Xxx Xxxxxxxxxx and
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Xxxxx Xxxx will each receive equity as set forth on Schedule B in the form of a
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restricted stock grant for services rendered in the past and future. Such
restricted stock will be non-transferable until vested. 30% of such stock for
each will vest immediately and the remainder will vest in equal monthly amounts
over a three year period from the formation of Newco or earlier upon such person
completing providing services to Newco as specified in the Schedule A. Failure
to provide ----------
services as contemplated by the Operating Plan will result in a forfeiture
of the restricted stock grant. In addition, US$2.67 million is intended to
be raised from Investors. A portion of the equity (4.5%) will be reserved
for future issuance for purposes including a stock option plan (which may
not exceed 2% of the total capital), raising additional capital, and
issuance to employees in exchange for salary reductions (for such purpose,
at a price of 50% of the then fair market value of the equity). Except as
set forth in the preceding sentence, all future non-cash contributions
shall be valued at fair market value or other mutually agreeable valuation
method.
(b) The charter documents of Newco will contain effective
prohibitions on Xxxxx and CM individually or collectively having 50% or
greater ownership of Newco or having the right to appoint a majority of the
members of the Board of Directors of Newco. It is understood that if at
start-up we do not have all the investors, and hence there exists
unclassified shares, Xxxxx Group and CM will not be allowed to purchase
additional shares such that their cumulative ownership in the company
exceeds 50%. Notwithstanding the previous sentences, under the following
conditions Xxxxx and CM, collectively or individually can be allowed to
have greater than 50% ownership and consequently rights to appoint a
majority of the Board of Directors: (1) if Amerigon sells more than half of
its initial equity holding in Newco to Xxxxx or any other third party,
excluding transfers to persons as required by contracts existing on the
date hereof, (2) if future additional financing is required and approved by
the Board of Directors, and Amerigon or other investors do not invest
additional funds to maintain their proportionate ownership, and Xxxxx
provides financing and obtains a 50% or greater ownership interest in
Newco, (3) per section 6 (c), if a third party sells its interest in Newco,
and Xxxxx participates in such a sale that its ownership exceeds 50% and
(4) if financial guarantees are required as per section 13 (c), then the
resultant compensation for providing such guarantees may result in Xxxxx
and CM owning greater than 50%.
(c) No party to Newco shall have any obligation to contribute
additional capital to Newco unless agreed upon by such party.
4. Newco Governance.
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(a) Newco shall have a Board of Directors (the "Board")
consisting of not more than fifteen (15) directors, with at least one
director to be selected by each of Xxxxx, Amerigon and the Investors. The
Board will also have outside directors. One director shall be the Managing
Director of Newco. The Managing Director shall be appointed by the mutual
consent of Amerigon and Xxxxx and shall be a professionally qualified
person. The Managing Director shall serve at the pleasure of the Board of
Directors and be appointed upon such terms and conditions as the parties
may mutually agree upon. Xxxxxx Xxxxx shall be the first Managing Director
of the company. The Chairman of the Board shall
be a director appointed by Xxxxx and the Vice-Chairman shall be a director
appointed by Amerigon. The term of each of the other directors, except the
Chairman, shall be for three (3) years. A director appointed by a particular
party may be replaced at any time by such party upon notice to the other
parties. Any replacement director shall be satisfactory to the other parties. A
director may be removed only by the party appointing such director or by a
majority vote of the other directors, but only for cause (e.g. breach of
fiduciary duty or malfeasance). In the event that the number of directors is
increased, the number of directors a party will appoint in general will be
proportionate to its ownership interest in Newco. For every Amerigon director,
Amerigon will and for every Xxxxx director, Xxxxx may, appoint an alternate
director resident in India, approved by the Board of Directors of Newco as
required by The Companies Act of India. The attendance of at least one Amerigon
director or his alternate and at least one Xxxxx director or his alternate shall
constitute a quorum.
(b) Except for the actions described in the immediately succeeding
sentence or as may otherwise be agreed upon, all actions of Newco require the
affirmative vote of a majority of the directors present and voting at the
meeting. Certain actions (including without limitation amendments or changes to
the charter documents of Newco, liquidation or winding-up of Newco, merger of
Newco with another entity, sale or transfer of all or substantially all of the
business or of certain key assets of Newco, changes in capital structure of
Newco, recapitalization, restructuring or stock reclassification of Newco,
issuance of additional equity interests in Newco, admittance of new investors or
shareholders into Newco, amendment of the Operating Plan, borrowing of monies or
granting of loans to third parties, undertaking any substantial expansion of
Newco operations, any related party transactions, declaration of dividends,
etc.) will be regarded as Reserved Matters. Reserved Matters require (i) at
least one affirmative vote from each of Amerigon and Xxxxx and (ii) the approval
of at least 75% of the directors constituting a quorum.
(c) The Board shall appoint the officers of the Newco, which
shall include a Managing Director, a Chief Operating Officer, a Chief Financial
Officer and a Secretary. The same person may hold more than one officer
position. Officers shall serve at the pleasure of the Board and may be removed
by the Board at any time. The Board shall meet on a regular basis (not less
frequently than quarterly) and, in the first two years after the formation of
the JV, management shall have monthly meetings and subsequent telephonic
conference calls with the members of the Board to discuss Newco's operations and
progress relative to the Operating Plan. The shareholders of Newco shall meet at
least once per year at a time and place to be determined by the Board. All Board
members are to be notified on the agenda to be discussed at the board meeting,
at least one week prior to the Board meeting unless mutually agreed upon in
writing by Amerigon and Xxxxx.
(d) Newco shall maintain true and accurate books of accounts and
records in accordance with generally accepted accounting principles in India
consistently applied. Subject to Indian law, Xxxxx, Amerigon and the Investors
shall be provided with monthly, quarterly and annual financial reports, which
shall include income statements, balance sheets and cash flow statements.
Xxxxx, Amerigon and the Investors shall also receive from Newco projected cash
flow reports, sales and marketing reports, production and quality control
reports, annual budgets, business plans and such other information and reports
as may be agreed upon and at such times as may be agreed upon. Newco shall hire
an internationally recognized "Big Five" independent accounting firm,
satisfactory to Amerigon and Xxxxx, to audit the annual financial statements.
Such auditor's report shall be supplied to all shareholders. The books and
records of Newco shall be accessible to the Xxxxx, Amerigon and the Investors
and their representatives.
(e) It is understood that section 4(a), 4(b), 4(c) and 4(d) may
possibly need to be modified to conform to existing company laws in India. It
is anticipated that such changes will not significantly alter the content of the
above.
5. Transactions between Newco and Amerigon or Xxxxx or Others.
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(a) Concurrently with formation and capitalization of a Newco, Amerigon
will enter into a royalty bearing license (the "EV License") with Newco pursuant
to which Amerigon will license Amerigon's EV technology on an exclusive basis in
the Territory. Newco will have no right to sublicense and no rights to the EV
technology outside the Territory; provided, however, that with Amerigon's prior
written consent, which will not be unreasonably withheld, Newco may manufacture
products in the Territory for export outside the Territory in order to fulfill
commitments given to the Indian government and outlined in the Operating Plan
(currently, 15%-20% of vehicles manufactured). The parties recognize that
Amerigon retains all rights to the technology outside the Territory and may
limit or restrict Newco's exports of finished products incorporating the
technology. Amerigon intends to enter into additional joint ventures with other
parties outside the Territory and may grant to such parties exclusive rights
which would prevent Newco from exporting products to certain areas. Prior to
making any significant investments to modify the XXXX for export outside the
Territory, Newco will consult with Amerigon to determine appropriate terms and
conditions on such exports to assure minimum export time period and volume.
Newco will pay Amerigon royalties of 5% on domestic sales and 8% on export sales
for a period of 5 years (commencing with the first year of operating profit,
which the parties anticipate to be year 3). Royalty payments will be calculated
per the Indian Industrial Policy. Royalties will be paid no less frequently
than annually and once a quarter in the 3rd, 4th and 5th year of royalty
payment, and the EV License will contain other customary terms and conditions
acceptable to Amerigon. If in year 3 Newco has an operating profit but would
have a net loss if it paid Amerigon the required royalty, Newco will have an
option to defer payment of such party of the royalty for year 3 as would cause
it to have a net loss and pay such portion of the royalty the following year,
without interest.
(b) Amerigon will enter into an exclusive, royalty-free,
nontransferable license with Newco to manufacture and sell Amerigon's
proprietary Climate Control Seat system ("CCS") in the Territory, but only for
electric vehicles manufactured in the Territory (the "CCS License"). The CCS
License will contain other terms and conditions acceptable to Amerigon. In
connection with the CCS License, Newco will send one engineer to visit
Amerigon's offices to learn more about the CCS for the purpose of integrating it
into the XXXX. It is anticipated that this process would take about 6 weeks. It
is also anticipated that Newco will select one of Amerigon's existing CCS models
for integration into the XXXX. If Newco desires to purchase finished CCS modules
from Amerigon, Amerigon will supply them, regardless of quantity ordered, at the
same price that Amerigon charges its principal customer for the same model. If
Newco assembles CCS units in the Territory but desires to purchase parts from
Amerigon, Amerigon will attempt to supply Newco with parts and will charge Newco
cost plus 10% (plus all applicable taxes, duties, etc.), FOB Amerigon's facility
in Irwindale, California. All sales of products will be made pursuant to
Amerigon's standard terms and conditions of sale. In Newco desires to
manufacture the CCS in the Territory, Amerigon will cooperate with Newco and
provide technical assistance; provided, however, that Newco will reimburse
Amerigon for all direct costs associated with such assistance.
(c) Except as otherwise provided herein, all services, parts,
components, supplies and other materials and services provided to Newco by
Amerigon or Xxxxx or any other owner of Newco shall be valued at prevailing
world market rates or such other mutually acceptable valuation method. All
agreements, contracts or other arrangements between Newco and Xxxxx, Amerigon,
the Investors or any other third party shall be at arms-length and the valuation
of the services or goods subject to such agreements, contracts or arrangements
shall be at fair market value or such other valuation method unanimously
approved by the Board. Any non-fair market value valuation is subject to
independent verification by independent accountants approved by the Board.
(d) Upon the formation of Newco, Newco will be responsible to
complete all design and development activity to take the XXXX to production.
All technology developed by Newco will belong to Newco.
(e) Newco shall be formed and capitalized and the Technology
License Agreement between Amerigon and Newco shall be concluded latest by
31st March 1999.
6. Transfer of Shares: Shareholder Protection.
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(a) No shareholder may sell, assign, pledge, offer, transfer or
otherwise dispose of or encumber any shares of Newco or any title or rights
to such shares in Newco owned by such shareholder without the prior written
consent of the Board of Newco and by each of Amerigon and Xxxxx; provided
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that Amerigon or Xxxxx may transfer its shares to third parties in
accordance with its presently existing contractual commitments and provided
that such commitments are made known in advance to the Board of Newco.
Notwithstanding anything contained in clause (b) of paragraph 3, in the
event of a permitted transfer of shares of Newco, such permitted transferee
may be required to enter into an agreement, in form and substance
satisfactory to Newco, with Newco and the non-transferring shareholders
whereby such permitted transferee agrees to take the place of the
transferring shareholder with respect to, and to be bound as a party to,
the joint venture agreement and to assume such of the rights and
obligations of the transferring shareholder. All permitted transfers shall
be subject to terms and conditions agreed upon by the parties to Newco.
(b) In the event that Newco must raise additional funds, per
Indian Company Laws, all shareholders will have pre-emptive rights to
subscribe for pro rata and purchase additional shares and contribute
additional capital to maintain its then existing owenership interest in
Newco. Such pre-emptive rights shall be on terms and conditions agreed upon
by Amerigon and Xxxxx in the definitive agreements.
(c) Amerigon and Xxxxx shall have the right to participate, pro
rata, with respect to the any sale by an party of its interest in Newco. In
the event that the Board of Newco has approved a sale of Newco, each
shareholder shall be required to participate in such sale and sell its
shares of Newco on the terms approved by the Board.
7. Liquidity.
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The definitive agreements shall include reasonable provisions
for Amerigon, Xxxxx and the Investors to sell and/or obtain liquidity with
respect to their investment in Newco after a five to ten year holding period.
Subject to approval of the Indian Foreign Investment Promotion Board and any
other Indian governmental authority, possible provisions include (i) the right
to participate in public offerings by Newco, (ii) the right to require Newco or
other shareholders of Newco to purchase their equity interests in Newco (which
may
be satisfied by a down payment and payments over time), and (iii) the right
to cause a sale of Newco.
8. Definitive Agreements.
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The definitive agreements shall contain terms, conditions,
representations, warranties, covenants and indemnities customary and
appropriate for a transaction of the type contemplated, including those
summarized herein.
9. Expenses.
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Each party shall bear its own expenses in connection with the
preparation, negotiation and execution of this letter agreement (except the
Newco will reimburse Amerigon for travel expenses related to the execution
of this letter agreement). Following execution of this letter agreement, all
expenses related to Newco and which are approved by CM (such approval not to
be unreasonably withheld), including its formation, registration,
preparation of definitive documentation, travel expenses, and other expenses
directly related to the business of Newco (including planning, organization,
kiting, technical development, etc.) shall be borne by Newco. If initially
expended by a party hereto, such expenses will be reimbursed by Newco
promptly (but in no event later than two weeks) upon such party submitting
appropriate documentation; provided, however, that the first reimbursement
to Amerigon may take up to four weeks because of the time needed to obtain
the required government approvals to transfer funds. However, if any party
shall require separate legal advice, such expenses will be borne by such
party and not Newco. Until Newco is formed and capitalized, Xxxxx will
reimburse such expenses and provide all monetary payments on behalf of
Newco, which shall be treated as capital contributions to Newco by Xxxxx.
The parties hereto recognize that projected expenses in the U.S. by Amerigon
and the key employees relating to Newco are approximately $115,000 for the
first three months following execution hereof.
10. Confidentiality.
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Each party hereto shall agree to keep confidential certain
confidential information obtained by it in connection with this agreement,
any related agreements or the management and operation of Newco, except as
otherwise required by law.
11. Dispute Resolution.
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Any disagreement, dispute, controversy or claim (a "Dispute")
arising out of or relating to Newco, this agreement or any related
agreements, the obligations of the shareholders of Newco or the parties to
this agreement, shall be
resolved first through friendly consultations among the parties in
dispute and if such Dispute is not resolved through friendly
consultations, then through binding arbitration conducted by the
International Chamber of Commerce (Paris), in accordance with its
International Arbitration Rules. The arbitral panel shall consist of a
single arbitrator who is independent of the shareholders and such
arbitration shall be conducted in London, England, or any other location
agreed to in writing by the parties. The language to be used in the
arbitration shall be English, although documentary evidence may be in
other languages. The decision of the arbitration panel shall be final and
binding on all the shareholders and may be entered in any court having
jurisdiction and enforced against the shareholders. The arbitration
provisions shall not preclude in any way a shareholder from seeking or
obtaining preliminary or injunctive or other equitable relief from court
of competent jurisdiction. If the subject matter of the Dispute relates
to the infringement or misappropriation of copyrights, patents, trade
secrets or other proprietary rights, the party alleging such infringement
or misappropriation may elect to institute an action in a court of
competent jurisdiction without using the arbitration provisions set forth
herein.
12. Governing Law.
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This letter of intent and the legal relations between the
parties shall be governed by the law of India.
13. General.
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(a) Upon execution of this document, Amerigon shall not
solicit or engage in negotiations with any entity other than Xxxxx for
the purpose of such entity becoming an operating partner (in place of
Xxxxx) in a joint venture to produce electric vehicles in the Territory;
provided, however, that this shall not restrict Amerigon from having
discussions with possible investors in Newco consistent with terms
hereof.
(b) Amerigon shall use commercially reasonable efforts to
retrieve all information Amerigon has provided to various parties in
India regarding the XXXX project, such as KPMG, SIL, BEML, C&L and
others, and to cause such parties to maintain the confidentiality of such
information.
(c) As per the Operating Plan, it is anticipated that Newco
will require additional funds in year 2001. However, Newco may need
additional funds before 2001 to cover unforeseen circumstances. It is
recognized that if such funding is sought from financial institutions
that require guarantees, all promoter and shareholders in Newco holding
more than 5% of equity in Newco may be requested to provide such
guarantees to the financial institutions. Promoters and shareholders with
more than 5% equity in Newco that provide such guarantees will receive
fair compensation, for every time such a guarantee
in undertake, in the form of additional stock (maximum of 2% of the
guarantee amount) for taking on the additional liability associated with such
financial guarantees. In addition, in order to prevent dilution to smaller
shareholders in Newco, the parties will consider offering to them the
opportunity to provide financial guarantees and to receive the same
proportionate compensation therefor as is given to the larger shareholders.
(d) If any party hereto breaches or fails to perform its
obligations under this letter agreement, it shall be liable to the other party
for such party's actual damages, in addition to any other rights it may have.
Furthermore, Amerigon's obligations under Sections 5(a) and 5(b) hereof are
conditioned upon continued compliance and performance by Xxxxx of its
obligations hereunder. The license under Section 5(a) and 5(b) shall not be
affected by a breach by Amerigon and will survive such breach by Amerigon. The
obligation of Amerigon hereunder shall survive and be otherwise unaffected by
any change of control or merger transactions.
(e) This letter agreement shall be binding upon and inure to
the benefit of each party and its respective successors and permitted assigns,
and nothing herein, express or implied, is intended to confer upon any other
person any rights or remedies of any nature whatsoever.
(f) This letter agreement constitutes and contains the entire
agreement concerning the subject matter hereof between the parties and may only
be amended or superseded by a written agreement signed by both parties. This
letter agreement supersedes and replaces all prior negotiations and all
agreements proposed or otherwise, whether written or oral, concerning the
subject matter hereof. This is a fully integrated agreement.
(g) The responsibility to prepare all legal documents will be
Newco's and such documents will be prepared in India.
IN WITNESS WHEREOF, THE PARTIES HEREUNTO HAVE AFFIXED THEIR RESPECTIVE HANDS AND
SEALS, THE DATE AND YEAR, FIRST HEREINABOVE WRITTEN.
SIGNED AND DELIVERED
ON BEHALF OF:
AMERIGON INCORPORATED ("AMERIGON")
By Xx. Xxx X. Xxxx
/s/ Xxx X. Xxxx
Name: Xxx X. Xxxx
Designation: Chairman and Chief Executive Officer.
SIGNED AND DELIVERED TO
XX. XXXXXXXXX X. XXXXX
ON BEHALF OF:
HIMSELF AND
XXXXX MATERIALS MOVEMENT XXX.XXX.
XXXXX PRECISION PRODUCTS XXX.XXX.
(collectively "XXXXX")
by: Xx. Xxxxxxxxx X. Xxxxx
/s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Designation: Chairman
SCHEDULE A
OPERATING PLAN
I) Amerigon's Contribution
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Amerigon shall transfer all of its right, title and interest (for the Territory
only) in and to the following as it exists on the date hereof to Newco as part
of its capital contribution:
1. All CAD models, drawings, electrical schematics for the XXXX design
2. All software and hardware information for the REVA's EMS
3. Test reports, XXXX specific test software, test results etc.
4. Database of all information about suppliers, part cost, weight, build level,
BOM etc.
5. All interior and exterior concept sketches related to XXXX design
6. Exterior pictures and masters of the XXXX
7. XXXX 1/4 scale mold
8. 5 complete vehicles (yellow, green, 2 white and red). Amerigon will
transfer lease arrangements with CALSTART (for the XXXX used in Alameda) and
WINROCK (for the 2 REVA's used in Delhi. The Newco will keep one vehicle at
all times at Amerigon.
9. 3 aluminum running chassis and 16 vehicle kits
10. Prototype tooling and fixtures for the XXXX including all body, chassis,
interior, door frame, seats.
11. Electric Vehicle Test equipment used by the XXXX program: IPS bench tester
(including dedicated computer), data acquisition, harness tester, specific
electronic testing and assembly tools.
12. All specific equipment including computers for assembly, programming,
debugging and testing of the EMS and IPS for the XXXX.
13. Library of all books, magazines, technical papers and supplier catalogs
related to XXXX.
14. Miscellaneous EV equipment that is required by the XXXX program. This would
include floor chargers, motors, controllers, spare parts, etc.
Other
1. Space Requirements: It is anticipated that approximately 4-6 months of
design effort will be required in the US prior to transferring the
information to India. To allow smooth continuation of the program, Amerigon
will allow Newco, the continued use of the current EV office, infrastructure
(computers, phones, fax etc.) and shop space for a period of 6 months. The
EMS development for the XXXX may continue for 2 additional months and would
require a small work place for 2-3 people and shop space to test the
vehicle. During this period, Amerigon will bear all expenses related to
rent, utilities, etc., but not any marginal out of pocket costs (e.g. phone
charges).
2. Computers: Amerigon will allow Newco use of IDEAS and CATIA stations that
originally belong to the XXXX program for a period of 6 months. In addition,
Amerigon will transfer 1 CATIA computer station and 1 IDEAS computer station
with all software and accessories to Newco, if permitted by the terms of the
software licenses.
3. Employees: To enable the program to continue smoothly, Amerigon will
continue to employ Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxx and Xxxxxx
Xxxxxx for a period of 4-6 months on its payroll. Newco will reimburse
Amerigon for all direct employee costs including benefits (20% of base
salary). Amerigon will be liable for all previously accrued vacation cost
and severance costs. If the period exceeds 6 months, Amerigon and Newco will
need to re-discuss this issue. Amerigon will also allow the use of Xxxxx
Xxxxxxx for the EV program on a priority basis. It is anticipated that Newco
will require his services for 8-10 hrs a week. Xxxxx Xxxx is key to the
proper execution of the REVA's electrical system and EMS and hence the
technical success of the program. Upon signing of the MOU, Xxxxx Xxxx will
be immediately allowed to work on the XXXX Program for a minimum of 25% of
his time. It is understood that it would take Xxxxx Xxxx approximately 10
weeks to transition the radar program responsibility to another person. It
is expected that his time commitment to the XXXX program will gradually
increase to 75% by the end of 10 weeks, and to 100% in less than 18 weeks.
Amerigon will do its best to make sure that this happens. During this
period, Amerigon will continue to employ Xxxxx Xxxx and be reimbursed by
Newco for his direct costs including benefits.
II) Maini's contribution
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1. Indian component costing and supplier information and quotations.
2. Marketing studies, research including all results of India 2010 Exhibition.
3. Test results including Shaker tests conducted at ARAI, safety tests and road
tests in Bangalore.
4. Homologation and roadworthiness certification for the earlier XXXX prototype
5. Transfer of employees to the JV, that are currently employed by the Xxxxx
Group and that worked on the XXXX program.
6. US $ 1 million in new cash. A significant portion will be invested in
Indian Rupees.
7. Land, buildings and infrastructure for the first 3 years. Sufficient land
and building space would be provided so as to accommodate the production per
the current business plan. This would work out to approximately 1000 cars
per single shift. Infrastructure support would include use of Xxxxx group's
current power and generator system, water, security, canteen services etc.
The JV will pay monthly costs for all utility services such as power, water
etc. The JV will pay monthly costs for all utility services such as power,
water etc. to Xxxxx Group. Where costs are difficult to determine, a fair
market value will be assessed.
8. Xxxxx Group will provide the JV a 15 acre plot of land in Malur, for
production expansion. Although the business plan required the use of the
additional land in 2001, it is free to use it prior to that for the
expansion of its manufacturing facilities.
9. Xxxxx group will assist in hiring required personnel operations,
engineering, vendor development, purchasing, administration, vehicle
assembly, accounting etc. Xxxxx Group will also transfer a few people from
its other divisions to the JV, so as to provide the JV with a start-up
team. This would include people with experience in operations, planning and
vendor development.
10. Xxxxx Group will allow the JV the use of its Pro-E computer stations for
production development of the XXXX. In addition, it will provide
engineering support required to go to production on a actual cost basis.
11. Xxxxx Group will be responsible for arranging any additional initial
financing required to get into production as per the current business plan.
III) Time and manner of contribution
-------------------------------
Subject to government approvals, all in-kind contributions by Xxxxx and
Amerigon shall be made before March 31st 1999 or no later than 3 weeks
after the formation of Newco, which ever occurs earlier.
Cash commitments by Xxxxx and other investors are laid out in the table
below. It is anticipated that all the investors will be finalized prior to
March 31st 1999.
----------------------------------------------------------
X0-00 X0-00 X0-00 X0-00 X0-0000 Total
----------------------------------------------------------
Xxxxx 160 160 300 230 150 1000
Investors 870 670 670 460 2670
Total 160 1030 970 900 610 3670
----------------------------------------------------------
All amounts are in thousands of US dollars
Conversion rate assumed at Rs 42.5 equals US $1
IV) Employee stock plan
-----------------------
Per the operating plan it is anticipated that the services Xxxxx Xxxx will be
required to transfer all the technology related to the EMS, IPS as well as the
entire XXXX electrical system. It is anticipated that Xxxxx Xxxx will need to
spend 2-4 months in India and that his task will be completed by September 1999.
It is anticipated that Xxxxxx Xxxxx and Xxx Xxxxxxxxxx would assist the Newco to
productionise the XXXX and that their efforts would be required for a maximum
period of 3 years.
The definitive agreements will contain detail clauses that better define the
time periods of vesting and commitments of Xxxxxx Xxxxx, Xxx Xxxxxxxxxx and
Xxxxx Xxxx that allow vesting of their respective options.
V) Key highlights of the Implementation Plan
---------------------------------------------
A. Project Schedule and Start up Plan
A summary of the project schedule and key milestones is shown below. Based on
finalizing financing by the end of December 98, production will commence by Feb
1, 2000. The critical path item is testing which is a 1-year period for the
prototype vehicles and 3 month period for pre-production vehicles. This is
essential to ensure that the quality and reliability of the vehicle is to the
highest standards.
The start-up plan would include detail project planning supported by a key
person in India. Simultaneously, an organizing and operating team in India will
be formed. In the US, the focus on the first 3 months will be data compilation,
shipping of kits, and working on key long term items-body panels, transmission
and electrical system.
The production design effort will be for 5 months and all tools and fixtures
should be completed by October 99, giving 2 months for tooling verification and
pilot production run.
B. Organization and Staffing Plan
For the first year (prior to production), the JV would employ a team of 55
people as shown in the table below. The proposed organization chart is shown as
two phases: Phase One for initial start-up and Phase Two as the company matures.
Xxxxx Group will be able to transfer a skeleton staff of 15 people for start-up
that are ideally suited for the project. The remaining to be hired. The company
will recruit 8-10 people who have previously worked on the XXXX project. The
recruitment process will take 2-4 months. Work using the skeleton team will
start prior to that. Candidates who potentially fit the roles of key managers
have been identified and will be recruited.
In addition to regular employees, 4 consultants are required to assist in the
body development, interior surfacing and suspension optimization. Parametric
Technologies (creators of Pro-E software and consultants with extensive
automotive experience) have assured the company that they can provide all
required support.
------------------------------------------------------------------------------------------------------------------------------------
Task Name XXXX IMPLEMENTATION PLAN
------------------------------------------------------------------------------------------------------------------------------------
1998 1999
-------------------------------------------------------------------------------------------
Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb
------------------------------------------------------------------------------------------------------------------------------------
1 JV Kickoff & Capitalization --------------------
2 Start-Up Acitivities -------------------------
3 Production - Upgrades --------
4 Procurement - BETA --------------
5 Procurement - Pre-Production ----------------
6 Procurment - Production -----------------
7 Supplier Tooling ------------------------------
8 Assemble BETA Vehicles --------
9 Assemble Pre-Prod. Vehicles -----------
10 Testing ------------------------------------------------------------------
11 Production Readiness --------------------------------------------------------
12 Facilitization --------------------------------------------
13 Marketing/Distribution Planning ----------------------------------------
14 Marketing Implementation --------------------------
15 Quality Plan ----------------------------------------
16 Quality Implementation --------------------------
17 Design for Production -------------------------------
18 Production Start (125 Vehicle/Month) ------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Page 1
------------------------------------------------------------------------------------------------------------------------------------
Org. Chart for Proposed India JV thru Year 2
October 19, 1998
--------------------
BOARD OF
DIRECTORS ----------------------
-------------------- -------------------
MANAGING
DIRECTOR
-------------------
-------------------------------------------------------------------------------------------
------------------- ------------------ ---------------- --------------------
CFO QUALITY OPERATIONS SALES & MARKETING
ASSURANCE
-------------------- ------------------- ----------------- ---------------------
- Investor Relations - Standards - Distribution
- MIS - Benchmarking - Service
- Administration - Communicate Standards - Warranty
- Accounting/Payroll - Assure Conformance - Training
- Gov't. Cert/Subsidy - Vendor Quality - Publication of Manuals
- Human Resources - Quality Systems
---------------- -------------------- ----------------------
----------------- ------------------- PURCHASING MANUFACTURING PRODUCTION
ENGINEERING VENDOR ----------------- -------------------- ---------------------
DEVELOPMENT - Supplier Certi- - Tooling - Assembly Process
---------------- -------------------- fication - Vacuum Form - Production Planning
- Testing - Certify Suppliers - Better Target Price - Chassis - Facility Planning
- Beta Assembly - Select Suppliers - Part Deliver, - Manufacturing - Parts Receiving
- Configuration - Negotiate contracts Quality Documents - Storage
Control - Continuous Improvement - Kitting
- Production - Cost Reduction
Engineering
Org. Chart for Proposed India JV after Year 2
October 19, 1998
BOARD OF
DIRECTORS
MANAGING
DIRECTOR
CFO RESEARCH & DEVELOPMENT QUALITY ASSURANCE OPERATION SALES & MARKETING
--- ---------------------- ----------------- --------- -----------------
-Investor Relations -Product Support -Standards -Distribution
-MIS -New Product Development -Benchmarking -Service
-Administration -Product Evolution -Communicate Standards -Warranty
-Accounting/Payroll -Assure Conformance -Training
-Gov't. Cert/Subsidy -Vendor Quality -Publication of Manuals
-Human Resources -Quality Systems
ENGINEERING PURCHASING MANUFACTURING PRODUCTION
----------- ---------- ------------- ----------
-Product Modification -Supplier Certification -Tooling -Assembly Process
-Continuous Improvement -Part Delivery, Quality -Vacuum Form -Production Planning
-Cost Reduction -Cost Reduction -Chassis -Facility Planning
-Configuration Control -Manufacturing Documents -Parts Receiving
-Storage
-Kitting
To assist in administration set up, accounting, payroll, purchasing (not vendor
development), housekeeping, etc., Xxxxx Group will provide the required
resources.
Indian Staff Number
Managing Director 1
Key Managers 9
Engineering Team Leaders 5
Engineers (Design/Production/Test) 12
Automotive Engineering Consultants 4
Sales and Marketing 6
Vendor Development 3
Test Technicians 6
Assembly Technicians 7
Administration Support 2
Total 55
In the US, a skeleton team will assist in completion and compiling of all design
information. This will include Amerigon's current employees as well as key
automotive consultants who have previous experience with the XXXX project. Some
employees from Amerigon will also spend a significant portion of their time in
India to transfer the technology and assist with start-up.
C. Marketing Plan
Based on marketing surveys and work done by the leading marketing agencies in
India, the following attributes of the XXXX are to be marketed.
. Low cost entry
. Low operation and maintenace cost
. Ease of operation
. Environment friendly
. Pleasant, reliable, quiet & clean
. Not a "typical car"
. Battery leasing
The company will engage a highly qualified marketing firm to develop and
implement an aggressive marketing and public relations plan. This will include,
market surveys, detail market strategy for launch, advertisements, printed
material development, road shows etc.
The company will initially focus on high profile cities as well as cities that
are close to the new company so as to be able to better service the customer.
The XXXX will initially launch in Bangalore followed by Pune, Delhi, Agra and
Coimbatore. Market surveys identify showed high sales potential for the XXXX.
Coimbatore is close to Bangalore, so that service can be monitored during the
start-up phase. Delhi and Agra are high profile cities. Agra is the the only
city in India where fossil fuel powered vehicles is banned around the Taj Mahal
area and so is targeted.
The company will target private as well as institutional buyers. Private buyer
demographics will include; young executives, lady drivers, retired persons,
college students, etc. Institution buyer demographics will include Government
offices, hospitals, universities, utility companies, etc.
In addition, the company will also focus on export markets. Initial markets will
include neighboring countries such as Nepal, Bangladesh, Sri Lanka, Pakistan and
Schelles, for example. (Nepal has very favorable tax laws for electric vehicles.
Non-electric vehicles are taxed over 60% well as electric vehicles are only
taxed at less than 5%). Other potential export markets include Southeast Asia,
Africa, Europe and the US. In Europe over 25,000 diesel and electric vehicles
were sold in 1997 that were the size of the XXXX. The XXXX will sell in Europe
for $7000 which compares very favorably with other micro cars that sell for
$9000-$13,000 in Europe. In the US, new legislation introduced in May 98, allows
the use of low speed vehicles on city roads with minimum homologation. The XXXX
can very easily meet the requirements under this classification. Two companies
in Canada and US have started to market Neighborhood electric vehicles (NEV's)
that sell for between $7000-$8000. When compared to the XXXX, these vehicles
have lower range, acceleration, seating capacity and are not enclosed. US
dealers that have seen the XXXX have expressed serious interest in selling the
vehicle and feel that it will compete very favorably against other NEV's.
As mentioned above, battery leasing will be highlighted as part of the marketing
campaign. The batteries for the XXXX will be leased to the end consumer for a
period of 3-4 years. The fuel costs (battery and electricity) with battery
leasing is Re 0.90/km (2.2 cents/km) for the XXXX compared to Rs 2.15/km (5.4
cents) for Maruti 800. Battery leasing has several advantages:
1) The responsibility of the battery warranty lies with the battery
manufacturer. This ensures that operating cost over time will not change and
removes any fear that the customer is liable in case the battery prematurely
fails.
2) The consumer does not have to pay a large amount at purchase or at
replacement time for the batteries. He pays for it "as he uses it".
3) As battery technology changes, it provides the customer options for newer
battery types when replacement is due. For example, a customer could choose
to pay a premium for batteries with greater range.
Based on discussions with dealers and marketing agencies, the car will be
launched at a lower price. In addition a free battery pack will be provided
with the vehicle. The subsidy received form the government will be used to
finance these activities.
D. Quality Philosophy
Making the XXXX reliable and of high quality standards is going to be the key to
success. Sufficient funds have been provided for quality training and engaging
experienced, knowledgeable, Quality Assurance personnel. A detail quality plan
will be established and executed for all components, vendors, in-house
fabrication and assembly, prior to production.
Initial quality perception must be very high to insure customer satisfaction.
This is to be achieved by:
. Ensuring that the design and components have significant performance margins.
. Publicizing test results and other measures of quality as part of the market-
ing program.
. Having measurable quality standards and goals for vendors, internal
manufacturing and after sale service.
. Establishing and tracking customer satisfaction measures.
. Using perceived value measurements to guide product improvement.
In addition, production will only commerce after testing of all components has
been completed and all failures or non-conformance addressed.
SCHEDULE B
----------
-----------------------------------------------------------------
Equity Contribution
------ --------------------------
Stake (%) In Cash
--------- -------
-----------------------------------------------------------------
Xxxxx Group 43.50 US$1 million or equivalent
Indian rupees
Amerigon 25.00 --
Investors 20.00 US$2.67 million
Xxxxxx Xxxxx 4.25 --
Xxx Xxxxxxxxxx 1.55 --
Xxxxx Xxxx 1.20 --
Open Pool 4.50 n/a
TOTAL 100.00
