Exhibit 10.2
FINAL
CONFIDENTIAL
LICENSE &
TECHNOLOGY TRANSFER
AGREEMENT
BY AND BETWEEN
EVERGREEN SOLAR, INC.
AND
EVERQ GMBH
TABLE OF CONTENTS
ARTICLE 1 Definitions................................................................................................ 1
1.1 Construction....................................................................................... 1
1.2 Definitions........................................................................................ 1
ARTICLE 2 Rights and Licenses........................................................................................ 5
2.1 E License Grant to VentureCo....................................................................... 5
2.2 VentureCo License Grant to E....................................................................... 5
2.3 Reservation of Rights; No Implied Licenses......................................................... 5
ARTICLE 3 Technology Transfer........................................................................................ 5
3.1 Quarterly Meetings................................................................................. 5
3.2 Delivery of Technical Deliverables................................................................. 5
3.3 Copies............................................................................................. 6
ARTICLE 4 Consideration and Payment.................................................................................. 6
4.1 Material New IP - VentureCo Request................................................................ 6
4.2 VentureCo Request for MNIP......................................................................... 6
4.3 Exclusion.......................................................................................... 6
4.4 Royalty on MNIP.................................................................................... 7
4.5 Royalty Evaluation by Experts...................................................................... 9
4.6 Tax Authority Challenges........................................................................... 10
4.7 Royalty Calculations............................................................................... 10
4.8 Payment............................................................................................ 10
4.9 Currency........................................................................................... 10
4.10 Taxes.............................................................................................. 10
4.11 Audit.............................................................................................. 10
4.12 Separate Agreements................................................................................ 11
4.13 Prospective Basis.................................................................................. 11
4.14 Waiver............................................................................................. 11
ARTICLE 5 Intellectual Property Rights............................................................................... 11
5.1 Ownership.......................................................................................... 11
5.2 Enforcement of Jointly Owned Intellectual Property Rights.......................................... 13
5.3 Third Party Licenses............................................................................... 14
5.4 Further Cooperation................................................................................ 14
ARTICLE 6 Warranties................................................................................................. 14
6.1 Representations and Warranties..................................................................... 14
6.2 Remedy............................................................................................. 15
6.3 Disclaimer......................................................................................... 15
-i-
TABLE OF CONTENTS
ARTICLE 7 Confidential Information................................................................................... 15
7.1 Confidential Information........................................................................... 15
ARTICLE 8 Term....................................................................................................... 15
8.1 Term............................................................................................... 15
8.2 Effect of Termination.............................................................................. 16
ARTICLE 9 General Provisions......................................................................................... 16
9.1 Limitation of Liability............................................................................ 16
9.2 Notices............................................................................................ 16
9.3 Language........................................................................................... 17
9.4 Amendments and Waivers............................................................................. 18
9.5 Assignment......................................................................................... 18
9.6 Entire Agreement; Severability..................................................................... 18
9.7 Other Remedies; Specific Performance............................................................... 18
9.8 Governing Law and Dispute Resolution............................................................... 18
9.9 Compliance with Laws and Regulations............................................................... 19
9.10 Export............................................................................................. 19
9.11 Force Majeure...................................................................................... 19
9.12 Independent Contractors............................................................................ 19
9.13 Third Party Beneficiaries.......................................................................... 19
9.14 Counterparts....................................................................................... 19
-ii-
CONFIDENTIAL
LICENSE &
TECHNOLOGY TRANSFER
AGREEMENT
This License & Technology Transfer Agreement (this "AGREEMENT") is made by
and between Evergreen Solar, Inc., a Delaware corporation ("E"), and EverQ GmbH,
a limited liability company (GmbH), incorporated under the laws of the Federal
Republic of Germany ("VENTURECO"), as of the Signing Date. E and VentureCo are
hereinafter referred to individually by their respective names or as "PARTY" and
collectively as "PARTIES."
RECITALS:
WHEREAS, as of the Signing Date, E and Q-Cells AG ("Q") entered into that
certain Master Joint Venture Agreement (Notarial Deed nr. 7/2005 of the Berlin
notary public Xx. Xxxxxx xxx Xxxxxxxx, the "MASTER AGREEMENT") which is deemed
to be incorporated into this Agreement where this Agreement refers to the Master
Agreement (and remains incorporated notwithstanding termination of the Master
Agreement), pursuant to which, among other things, the Parties have agreed to
enter this Agreement;
WHEREAS, as of the Signing Date, Q and VentureCo are entering into that
certain License and Technology Transfer Agreement (the "Q LICENSE AGREEMENT");
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and accepted, and intending to be legally bound hereby, the
Parties hereto hereby agree as follows:
ARTICLE 1
Definitions
1.1 Construction. Capitalized terms not defined herein shall have the
meanings set forth in the Master Agreement. The interpretation of this Agreement
shall be governed by those principles set forth in SECTION 1.2 (Headings and
Other Interpretation) of the Master Agreement.
1.2 Definitions. As used herein:
"ADDED VALUE" means increased value through sale of a Licensed
Product attributable [*] incorporated into or used to manufacture that Licensed
Product, calculated with reference to [*].
----------
[*] This provision is the subject of a Confidential Treatment Request.
-1-
CONFIDENTIAL
"DIRECT PRODUCTION COSTS" means all [*] required for the production
of a Licensed Product, and [*] associated with manufacturing a Licensed Product
incorporating MNIP.
"E IP" means the E Technology and E Intellectual Property Rights.
"E INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property
Rights owned or Licensable by E or its Affiliates during the Initial Period and
(with respect to certain MNIP and other Intellectual Property Rights as
described in this Agreement) 2 Year Post Termination Period, that relate to the
manufacture, production, assembly, use or sale of Licensed Products, or which
would, without the licenses herein, be infringed or violated by the operation of
VentureCo's business or its commercialization of products as contemplated in the
Master Agreement. "E INTELLECTUAL PROPERTY RIGHTS" includes those Intellectual
Property Rights listed in PART 1 of EXHIBIT A and (once available for commercial
use), in PART 2 OF EXHIBIT A but excludes those Intellectual Property Rights
listed in PART 3 of EXHIBIT A ("EXCLUDED E INTELLECTUAL PROPERTY RIGHTS"). For
the avoidance of doubt, "E Intellectual Property Rights" excludes (i) other
MNIP, but does not exclude MNIP identified and made available to VentureCo
subject to royalty terms stated in ARTICLE 4 (Consideration and Payment), (ii)
other Intellectual Property Rights for improvements or other inventions that are
made after the Initial Period (except to the extent regulated in the context of
support services to VentureCo pursuant to an applicable agreement), and (iii) in
the event of an acquisition of E, Intellectual Property Rights of the acquirer
of E.
"E PERCENT REDUCTION DATE" means [*];
"E TECHNICAL DELIVERABLES" means any reasonably available
documentation, records and other tangible items constituting E Technology and E
Intellectual Property Rights, including any such items specified in PART 1 of
EXHIBIT A.
"E TECHNOLOGY" means all Technology owned or Licensable by E or its
Affiliates during the Initial Period and (with respect to certain MNIP and other
Technology as described in this Agreement) [*] Post Termination Period, that
relates to the manufacture, production, assembly, use or sale of Licensed
Products and the operation of VentureCo's business and commercialization of
products as contemplated in the Master Agreement. "E TECHNOLOGY" includes
Technology relating to items described in PART 1 of EXHIBIT A ("INCLUDED E
TECHNOLOGY") and (once available for commercial use) relating to MNIP described
in PART 2 OF EXHIBIT A, but excludes Technology relating to items described in
PART 3 of EXHIBIT A ("EXCLUDED E TECHNOLOGY"). For the avoidance of doubt, E
Technology excludes (i) other MNIP, but does not exclude Technology identified
and made available to VentureCo as MNIP subject to royalty terms stated in
ARTICLE 4 (Consideration and Payment), (ii) other Technology created after the
Initial Period (except to the extent regulated in the context of support
services to VentureCo pursuant to an applicable agreement), and (iii) in the
event of an acquisition of E, Intellectual Property Rights of the acquirer of E.
"EXCLUDED E TECHNOLOGY" has the meaning set forth in SECTION 1.2(G)
(E Technology).
----------
[*] This provision is the subject of a Confidential Treatment Request.
-2-
CONFIDENTIAL
"INITIAL PERIOD" means the time period commencing on the License
Effective Date and ending on the Termination Date.
"INTELLECTUAL PROPERTY RIGHTS" means all rights in, to, or arising
out of: (i) any Patents; (ii) inventions, discoveries (whether patentable or not
in any country), invention disclosures, improvements, trade secrets, proprietary
information, know-how, technology and technical data; (iii) copyrights,
copyright registrations, mask works, mask work registrations, and applications
therefor in the U.S. or any foreign country, and all other rights corresponding
thereto throughout the world; and (iv) any other proprietary rights in or to
Technology anywhere in the world.
"JOINTLY OWN" has the meaning set forth in SECTION 5.1(A)(I)
(Definition).
"LICENSABLE" means possession of the ability to grant a license or
sublicense of, or within, the scope provided for in this Agreement without
payment of any fee to, or violating the terms of any agreement or other
arrangements with a Third Party and without violating any applicable laws, rules
or regulations.
"LICENSE EFFECTIVE DATE" means the Second Capital Contribution Date.
"LICENSED PRODUCTS" means Wafers, Cells, and/or Modules, as the case
may be, in which the Wafers are made using String Ribbon Technology.
"MARKET RATE" means [*].
"MATERIAL NEW IP" or "MNIP" means Intellectual Property Rights and
Technology developed or Licensable by E only after the License Effective Date
(and involving certain levels of investment or achievement by E), that
substantially and materially reduce Direct Production Costs of Licensed Products
or substantially increase the output, effectiveness, utility or value of
Licensed Products, including, without limitation, Intellectual Property Rights
and Technology developed by or Licensable by E listed in PART 2 of EXHIBIT A. To
avoid doubt, MNIP comprises, without limitation, Intellectual Property Rights
and Technology that reduce Direct Production Costs of Licensed Products by [*].
Notwithstanding anything to the contrary, MNIP shall not include any Excluded E
Intellectual Property Rights or, in the event of an acquisition of E,
Intellectual Property Rights of the acquirer of E.
"PATENTS" means any U.S., international or foreign patent or any
application therefor and any and all reissues, divisions, continuations,
renewals, extensions and continuations-in-part thereof.
----------
[*] This provision is the subject of a Confidential Treatment Request.
-3-
CONFIDENTIAL
"PHASE 2 ROYALTY" means (with respect to the use of MNIP) the
quantum of royalty or equivalent fees (called "royalty") including rate and
formula for calculating actual royalty payable, based on [*].
"POST TERMINATION PERIOD" means the time period commencing
immediately after the Termination Date. "[*] POST TERMINATION PERIOD" means the
[*] period commencing immediately after the Termination Date. "[*] POST
TERMINATION PERIOD" means the [*] period commencing immediately after the
Termination Date.
"REGISTERED E INTELLECTUAL PROPERTY RIGHTS" means all E Intellectual
Property Rights (including Patents) that have been registered, filed, issued or
otherwise perfected or recorded with or by any state, government or other public
or quasi-public legal authority, including any applications for filings for any
such rights.
"STRING RIBBON" means [*].
"TECHNOLOGY" means information and technology in tangible and/or
intangible form and materials, embodiments, implementations or improvements of
any technology, including, but not limited to: software, media, data
collections, databases, techniques, methods, processes, formulae, systems,
hardware, equipment, prototypes, proofs of concept, apparatuses, hardware,
software, algorithms, files, routines, documents, designs, drawings, plans,
specifications and the like.
"TERMINATION DATE" means the date on which the Master Agreement is
terminated in accordance with its terms.
"VENTURECO INTELLECTUAL PROPERTY RIGHTS" means all Intellectual
Property Rights developed after the Closing Date and owned (solely or jointly)
by VentureCo that relate or which would, without the licenses set forth herein,
be infringed or violated by making, using, selling, importing or otherwise
exploiting Wafers, Cells and Modules.
"VENTURECO IP" means VentureCo Technology and VentureCo Intellectual
Property Rights.
"VENTURECO TECHNOLOGY" means all technology developed after the
Closing Date and owned (solely or jointly) by VentureCo that relates to the
making, using, selling, importing or other exploiting Wafers, Cells and Modules.
----------
[*] This provision is the subject of a Confidential Treatment Request.
-4-
CONFIDENTIAL
ARTICLE 2
RIGHTS AND LICENSES
2.1 E License Grant to VentureCo. Subject to the terms and conditions of
this Agreement, E hereby grants and agrees to grant to VentureCo, effective upon
the License Effective Date, a world-wide, non-exclusive, non-transferable,
perpetual, irrevocable, fully paid-up and royalty-free (except as provided in
ARTICLE 4 (Consideration and Payment)) license, without the right to sublicense,
under the E Intellectual Property Rights, to make (but not have made), use,
sell, offer for sale, import or otherwise commercialize or exploit Licensed
Products, to use the E Technology in connection with the foregoing, and to
otherwise operate VentureCo and commercialize its products as contemplated in
the Master Agreement.
2.2 VentureCo License Grant to E. VentureCo hereby grants and agrees to
grant to E a world-wide, non-exclusive, non-transferable (except pursuant to
SECTION 9.5 (Assignment)), perpetual, irrevocable, fully paid-up, royalty-free,
fully sublicensable, license, under the VentureCo Intellectual Property Rights
developed in the Initial Period and [*] Post Termination Period, to make, use,
sell, offer for sale, import or otherwise commercialize or exploit Wafers, Cells
and Modules.
2.3 Reservation of Rights; No Implied Licenses. All rights not granted
herein are reserved. Nothing in this Agreement shall be deemed to constitute the
grant of any license or other right to a Party's Intellectual Property Rights or
Technology except as expressly set forth herein.
ARTICLE 3
TECHNOLOGY TRANSFER
3.1 Quarterly Meetings.
(a) New Developments. During the Initial Period and [*] Post
Termination Period, the Parties shall meet on a quarterly basis (or as otherwise
agreed upon by the Parties) to discuss (and E shall advise VentureCo of) any
material or other E IP or VentureCo IP that was acquired, developed or became
Licensable since the prior quarterly meeting.
(b) Defining Material New IP. During the quarterly meetings
described above, the Parties shall also determine whether new Intellectual
Property Rights and Technology of or Licensable by E comprise Material New IP.
The Parties intend that if E develops certain valuable MNIP, it may be
appropriate for E to receive royalty for VentureCo's use thereof in accordance
with ARTICLE 4 (Consideration and Payment). The Parties' obligations with
respect to MNIP will be governed by ARTICLE 4 (Consideration and Payment).
3.2 Delivery of Technical Deliverables. E shall deliver to VentureCo at
least one copy of all E Technical Deliverables, in electronic form when
practicable, within [*] after the License Effective Date OR (as applicable),
----------
[*] This provision is the subject of a Confidential Treatment Request.
-5-
CONFIDENTIAL
(a) in the case of MNIP listed in EXHIBIT A PART 2, promptly upon
commercial availability (subject to applicable royalties),
(b) in the case of MNIP available in the Initial Period (other
than that in EXHIBIT A PART 2), promptly after VentureCo's election to acquire
that MNIP (subject to applicable royalties), and
(c) in the case of MNIP available after the E Interest Reduction
Date or Termination Date, promptly after VentureCo's election to acquire that
MNIP and determination of applicable royalties .
Subject to ARTICLE 4 (Consideration and Payment), during the Initial Period and
the Post Termination Period, E shall periodically and promptly deliver to
VentureCo copies of E Technical Deliverables that have not been previously
delivered, including E Technical Deliverables relating to E IP acquired or
Licensable after the License Effective Date.
3.3 Copies. VentureCo may copy, modify and otherwise use the E Technical
Deliverables in accordance with and subject to the restrictions and licenses set
forth herein as necessary to exercise the rights granted hereunder. VentureCo
agrees to maintain a document control system to control copies of such E
Technical Deliverables and otherwise treat such information as E's Confidential
Information subject to the provisions of ARTICLE 7 (Confidential Information).
ARTICLE 4
CONSIDERATION AND PAYMENT
4.1 Material New IP - VentureCo Request. If E has developed Material New
IP in the Initial Period or [*] Post Termination Period, E shall promptly submit
a general, written description of the Material New IP to VentureCo. This does
not apply to Material New IP listed in EXHIBIT A, PART 2 (which is deliverable
pursuant to SECTION 3.2 (Delivery of Technical Deliverables) as set forth
therein).
4.2 VentureCo Request for MNIP. Upon and following the submission of
descriptions of MNIP described in SECTION 4.1 (Material New IP - VentureCo
Request), VentureCo shall be entitled to request from E a license under the MNIP
in writing, subject to the terms and conditions of this Agreement, and subject
to payment of royalties specified in SECTION 4.4 (Royalty on MNIP).
4.3 Exclusion. If VentureCo is not interested in obtaining a license to
Material New IP, then VentureCo shall notify E to that effect within [*] of
receipt of E's description of the relevant MNIP. After receiving such notice, E
may amend Exhibit A to this Agreement to add such MNIP to PART 3 OF EXHIBIT A
(and it shall thereby be excluded from the scope of the license granted in
SECTION 2.1 (E License Grant to VentureCo)).
-6-
CONFIDENTIAL
4.4 Royalty on MNIP. Upon and following VentureCo's request to acquire
MNIP (or at other relevant times as stated below), the Parties will promptly
determine or (as applicable) enter into arm's length negotiations in good faith
to determine the royalty applicable to that MNIP, as stated in the following
paragraphs,
(a) ROYALTY - MNIP DEVELOPED AND AVAILABLE IN INITIAL PERIOD PRIOR TO
[*]
The royalty and other fees (if any) (collectively "ROYALTY") payable for
the use of MNIP including that in EXHIBIT A PART 2, that is developed and
commercially available in the Initial Period prior to [*], is the
following:
[*]
The royalty will be calculated on a quarterly basis on all Licensed
Products for which the MNIP was used, that were sold in the relevant
quarter. MNIP or (as applicable) E IP was "USED FOR" Licensed Products
(for purposes of SECTION 4.4 (Royalty on MNIP)) if incorporated into or
used in the manufacture of those Licensed Products.
[*]
(b) ROYALTY - MNIP DEVELOPED AND AVAILABLE IN PERIOD AFTER [*]
The royalty payable for the use of MNIP that is developed and commercially
available after the [*] is the Phase 2 Royalty. [*] Either Party may
initiate valuation/determination of the Phase 2 Royalty by experts subject
to SECTION 4.5 (Royalty Evaluation by Experts).
----------
[*] This provision is the subject of a Confidential Treatment Request.
-7-
CONFIDENTIAL
That royalty agreed or determined (as applicable) shall be the Phase 2
Royalty that applies to MNIP described in this paragraph (b) [*]. The
royalty will be calculated on a quarterly basis on all Licensed Products
for which the MNIP was used, that were sold in that quarter, subject to
SECTION 4.7 (Royalty Calculations).
(c) ROYALTY - ON MNIP USED PRIOR TO AND AT TERMINATION DATE, IN POST
TERMINATION PERIOD - [*]
[*]
(d) ROYALTY - ON E IP AND MNIP USED PRIOR TO AND AT TERMINATION DATE, IN
[*] POST TERMINATION PERIOD - [*]
VentureCo shall pay E royalty for E IP and MNIP [*].
[*] Either Party may initiate determination or valuation of the [*]
royalty by experts subject to SECTION 4.5 (Royalty Evaluation by Experts).
The agreed or (as applicable) specified royalty shall be the [*] royalty.
The royalty will be calculated on a quarterly basis on all Licensed
Products for which the E IP or MNIP was used, that were sold in that
quarter, subject to SECTION 4.7 (Royalty Calculations).
(e) ROYALTY - ON E IP AND MNIP USED PRIOR TO AND AT THE TERMINATION
DATE, AFTER [*] POST TERMINATION PERIOD - [*]
VentureCo shall pay E royalties for E IP and MNIP (available prior to and
at the Termination Date) used for Licensed Products sold in volumes [*],
after the [*] Post Termination Period. [*]
----------
[*] This provision is the subject of a Confidential Treatment Request.
-8-
CONFIDENTIAL
[*] Either Party may initiate determination or valuation of the [*]
royalty by experts subject to SECTION 4.5 (Royalty Evaluation by Experts).
The agreed or (as applicable) specified royalty shall be the [*] royalty.
The royalty will be calculated on a quarterly basis on all Licensed
Products for which the E IP or MNIP was used, that were sold in that
quarter.
(f) ROYALTY - MNIP DEVELOPED AND AVAILABLE IN THE [*] POST TERMINATION
PERIOD (NOT AVAILABLE IN THE INITIAL PERIOD)
The royalty payable for the use of MNIP developed and commercially
available in the [*] Termination Period is [*] royalty. [*] Either Party
may initiate valuation/determination of [*] royalty by experts subject to
SECTION 4.5 (Royalty Evaluation by Experts).
[*] The royalty will be calculated on a quarterly basis on all Licensed
Products for which the MNIP was used, that were sold in that quarter.
4.5 Royalty Evaluation by Experts. If the Parties cannot agree on the
Phase 2 Royalty, [*] royalty, or Added Value for MNIP within [*] after
initiation or commencement of negotiations to determine such royalty or value,
then the following applies: Each Party shall retain at its expense an
independent professional Third Party expert with expertise evaluating licenses
in the photovoltaic industry.
(a) Subject to execution of customary confidentiality agreements by the
independent experts, VentureCo and E shall provide or cause to be provided to
each expert all material information, including any material changes in such
information, reasonably necessary to make the determination or reasonably
requested by the experts.
(b) Within [*] after the [*] period referenced above, each Party shall
submit a final proposal for the relevant Phase 2 Royalty, [*] royalty, or Added
Value for MNIP with a supporting analysis prepared in writing by its retained
expert, to the other Party and to the "Arbitrator." The Arbitrator shall be a
person with expertise in evaluating licenses in the photovoltaic industry, shall
not have a material business relationship with either Party and shall be
reasonably acceptable to both Parties. If the Parties have not agreed on an
Arbitrator, the Parties will each select an Arbitrator (within the stated [*]
period) satisfying the above criteria and the selected Arbitrators will select a
third. In that case, the decision of a majority of the Arbitrators will control
and shall be final and binding on both Parties.
----------
[*] This provision is the subject of a Confidential Treatment Request.
-9-
CONFIDENTIAL
(c) If one Party does not submit in a timely manner a final proposal,
then the proposal of the other Party shall be used to establish the relevant
Phase 2 Royalty, [*] royalty, or Added Value for MNIP.
4.6 Tax Authority Challenges. In the event that the tax authority
successfully challenges the adequacy or amount of the royalty or the applicable
tax provisions change, then the parties will use best reasonable efforts to
renegotiate to establish a royalty rate consistent with the requirements of
applicable law in a manner that does not adversely affect or increase the
financial burden on VentureCo.
4.7 Royalty Calculations. Royalties shall not be due with respect to
Licensed Products for which all or part of the purchase price has been refunded
[*] of delivery (and such refunded amounts will be deducted from amounts to
which the relevant royalty rate is applied).
4.8 Payment. To the extent applicable, VentureCo shall, within thirty
(30) days after the end of each calendar quarter during the term of this
Agreement, prepare a report summarizing the royalty payable to E pursuant to
ARTICLE 4 (Consideration and Payment) including a description and basis of the
calculation thereof. VentureCo shall provide copies of such report to E, and
VentureCo's payment to E shall accompany such report.
4.9 Currency. All payments hereunder shall be made in Euros.
4.10 Taxes. With respect to royalties payable by VentureCo to E under
this Agreement, VentureCo shall promptly notify E of any requirement under
applicable law to deduct or withhold an amount on behalf of E on account of any
tax and, if so required under applicable law, VentureCo shall: (i) pay to the
relevant authorities the full amount required to be deducted or withheld
promptly upon determination by VentureCo that such deduction or withholding is
required; and (ii) promptly forward to E an official receipt (or certified
copy), or other documentation reasonably acceptable to E, evidencing such
payment to such authorities. To the extent that E cannot or will not be able to
take a full credit against its tax liability for the current or prior taxable
years for the full amount of the withholding tax deducted or withheld by
VentureCo and is otherwise unable to reduce or eliminate such withholding tax
liability on its own, then the Parties shall cooperate with each other and use
all reasonable efforts to reduce or eliminate such tax liability in a lawful and
appropriate manner to the extent such does not result in additional liability to
VentureCo.
4.11 Audit. Each Party shall maintain complete and accurate accounting
records, in accordance with sound accounting practices, to support and document
the royalties or payments payable in connection with this Agreement. Such
records shall be retained for a period of at least three (3) years after the
royalties which relate to such records have been accrued and paid. Each Party
shall, upon written request from the other, provide access to such records to
such Party for the purposes of audit. If any such audit discloses a shortfall in
payment (or an overcharge, as the case may be) of more than [*] for any quarter,
the audited Party agrees to pay or reimburse the other Party for the expenses of
such audit, and the Parties shall reconcile payments in accordance with the
results of the audit.
----------
[*] This provision is the subject of a Confidential Treatment Request.
-10-
CONFIDENTIAL
4.12 Separate Agreements. MNIP shall be licensed pursuant to a separate
written agreement between the Parties (which incorporates the terms of this
Agreement as supplemented by royalties applicable to the relevant MNIP). No
license to Material New IP is granted under this Agreement; provided, however,
that MNIP listed in EXHIBIT A PART 2 shall be licensed to VentureCo (subject to
applicable royalty) immediately on commercial availability pursuant to this
Agreement.
4.13 Prospective Basis. Any royalties or payments agreed upon by the
Parties for MNIP shall be owed on a prospective basis, and not for any products
made, used, sold, offered for sale, or imported prior to VentureCo's receipt of
the written description from E referred to in SECTION 4.1 (Material New IP -
VentureCo Request).
4.14 Waiver. Notwithstanding the foregoing, if E discloses any Material
New IP prior to the Parties' final agreement pursuant to ARTICLE 4
(Consideration and Payment), and VentureCo has used, incorporated or relied on
such Material New IP in a manner that cannot be readily ceased or undone without
additional cost or adversely affecting its operations, then such Material New IP
shall be deemed to be included within the scope of the license grant hereunder
and E shall waive its rights under SECTION 4.1 (Material New IP - VentureCo
Request) with respect thereto.
ARTICLE 5
INTELLECTUAL PROPERTY RIGHTS
5.1 Ownership.
(a) Joint Inventions. E and VentureCo shall Jointly Own all right,
title and interest in all Intellectual Property Rights that personnel of E and
VentureCo (including third parties working on each Party's behalf) jointly
create.
(i) Definition. For purposes of this SECTION 5.1
(Ownership), "JOINTLY OWN" means that, subject to the terms of the licenses
granted and other provisions of this Agreement, each Party or owner thereof is
free to exploit such rights and, subject to SECTION 5.2 (Enforcement of Jointly
Owned Intellectual Property Rights), authorize others to do so, with no
obligation to account to the other Party or owner, for profits or otherwise, and
each Party hereby waives any right it may have under the laws of any country to
require such consent or accounting. In the event that either or both Parties are
pursuing enforcement pursuant to SECTION 5.2 (Enforcement of Jointly Owned
Intellectual Property Rights), any licensing of the respective Jointly Owned
Intellectual Property Right to the alleged Third Party infringer shall be
pursued (with the intent that the actual or alleged infringement is regularized
by appropriate license terms) by the Party or Parties pursuing the action until
the conclusion of the respective action.
(ii) Prosecution and Maintenance By VentureCo. Subject to
SECTION 5.1(C) (Expenses and Assistance), VentureCo shall have the initial
right, at its option, to control the filing for, prosecution and maintenance of
any Intellectual Property Rights that claim or disclose inventions that the
Parties Jointly Own pursuant to SECTION 5.1(A) (Joint Inventions), provided that
-11-
CONFIDENTIAL
VentureCo shall consult with and keep E reasonably informed on matters regarding
such filing, prosecution and maintenance. In such case, subject to 5.1(C)
(Expenses and Assistance), E shall reasonably assist VentureCo, as VentureCo
reasonably requests, in VentureCo's efforts to file for, prosecute and/or
maintain the Jointly-Owned Intellectual Property Rights. For purposes of this
SECTION 5.1(A) (Joint Inventions), "PROSECUTION AND MAINTENANCE" of Intellectual
Property Rights shall be deemed to include, without limitation, responding to
office actions, payment of maintenance and annuity fees, and conduct of
interferences or oppositions, and/or requests for re-examinations, reissues or
extensions of patent terms.
(iii) By the Jointly Owning Party. To the extent that
VentureCo elects not to file, prosecute or maintain any Intellectual Property
Right jointly owned by VentureCo and E and not Q, or pay any fee related
thereto, E shall have the right, at its option, to control the filing,
prosecution and/or maintenance of any such Intellectual Property Right, provided
that E shall consult with and keep VentureCo reasonably informed of matters
regarding such filing, prosecution and maintenance. To the extent that VentureCo
elects not to file, prosecute or maintain any Intellectual Property Right
Jointly Owned by VentureCo, E and Q, or pay any fee related thereto, VentureCo
shall notify Q and E, and Q and E shall have the right, at their option, to
jointly control the filing, prosecution and/or maintenance of any such
Intellectual Property Right, provided that Q and E shall consult with and keep
VentureCo reasonably informed of matters regarding such filing, prosecution and
maintenance. To the extent that E or Q elects not to file, prosecute or maintain
any such Jointly Owned Intellectual Property Right, or pay any fee related
thereto, it shall inform the other, and such other Party shall have the right,
at its option, to control the filing, prosecution and/or maintenance of any such
Intellectual Property Right, provided that such Party shall consult with the
other Party and VentureCo and keep such parties reasonably informed of matters
regarding such filing, prosecution and maintenance.
(b) Sole Inventions. Subject to the foregoing, each Party shall
own all right, title and interest in all Intellectual Property Rights invented
or authored solely by such Party's personnel (including third parties working on
such Party's behalf). For purposes of clarification, E retains ownership of
Intellectual Property Rights developed as of the License Effective Date and
otherwise developed outside of its cooperation with VentureCo, including without
limitation any E Technology and E Intellectual Property Rights relating to
String Ribbon Technology.
(i) Prosecution and Maintenance; Sole Inventions Related to
E Technology. Each Party shall have sole right, at its option, to control the
filing for, prosecution and maintenance of any Intellectual Property Rights that
claim or disclose inventions that the Party solely owns, subject to the
following. To the extent that VentureCo elects not to file, prosecute or
maintain any Intellectual Property Right relating to VentureCo's solely-owned
Intellectual Property Rights relating to the E IP provided under this Agreement,
or pay any fee related thereto, VentureCo shall notify E, and E shall have the
right, at its option, to control the filing, prosecution and/or maintenance of
any such Intellectual Property Right, and VentureCo, at E's written request,
shall transfer and assign all of its right, title and interest to such
Intellectual Property Right to E. In the event of such transfer, VentureCo
retains a world-wide, non-exclusive, non-transferable, perpetual, irrevocable,
royalty-free, sublicensable license of such transferred Intellectual Property
Rights.
-12-
CONFIDENTIAL
(ii) Other Prosecution and Maintenance. To the extent that
VentureCo elects not to file, prosecute or maintain any Intellectual Property
Right relating solely to VentureCo's solely-owned Intellectual Property Rights
other than Intellectual Property Rights relating to improvements to the E IP
provided under this Agreement or the Q IP provided under the Q License
Agreement, VentureCo shall notify E and Q, and E and Q shall have the right to
jointly control the filing, prosecution and/or maintenance of any such
Intellectual Property Right, and VentureCo, at E and Q's written request, shall
transfer and assign all right to such Intellectual Property Right to the joint
ownership of E and Q. In the event that either E or Q elects not to participate
in the filing, prosecution or maintenance of any Right, the other Party shall
have the right, at its option, to control the filing, prosecution and/or
maintenance of such Intellectual Property Right, and VentureCo shall, at such
Party's request, transfer and assign all of its right, title and interest to
such Party. In the event of such transfer, VentureCo retains a world-wide,
non-exclusive, non-transferable, perpetual, irrevocable, royalty-free,
sublicensable license of such transferred Intellectual Property Rights which
were originally solely owned by VentureCo.
(c) Expenses and Assistance. To the extent a Party controls the
foregoing filing, prosecution and maintenance activities of any Jointly Owned
Intellectual Property Rights (or, pursuant to SECTION 5.1 (Ownership), another
Party's Intellectual Property Right), such controlling entity shall be
responsible for all costs and expenses incurred in connection therewith. In such
cases, subject to the foregoing, VentureCo shall reasonably assist the Jointly
Inventing Parties, as the Jointly Inventing Parties reasonably request, in
Jointly Inventing Parties' efforts to file for, prosecute and/or maintain the
Jointly Owned Intellectual Property Rights.
(d) Employee Inventors. VentureCo shall take all necessary
measures to secure all right, title and interest in inventions that are made by
its employees under the regulations of the German Employee Inventor Law
(Arbeitnehmererfindergesetz) to the maximum extent available under applicable
law such that VentureCo may carry out its obligations of this ARTICLE 5
(Intellectual Property Rights) and the Parties may obtain and exercise their
rights to the applicable Intellectual Property Rights to the full extent and
term available under applicable law. In connection therewith, VentureCo will
comply with all applicable laws including without limitation any obligations to
employees under applicable law with respect to employee inventions.
5.2 Enforcement of Jointly Owned Intellectual Property Rights. Each
Party shall promptly notify the other Party if it becomes aware of a possible
infringement by a Third Party of any Jointly Owned Intellectual Property Rights.
If either Party desires to take any action against such an infringing or
misappropriating Third Party, such Party shall first notify the other Party
hereto and consult with such notified Party regarding such action. If the
notified Party desires to participate in such action, the Parties shall then
jointly and cooperatively pursue such action, in which event they shall bear all
costs equally and share in any damages, royalties, license fees or other
recoveries equally, provided that either Party may at any time decide not to
participate further in such action, in which case any further costs shall be
borne by and all damages, royalties, license fees and other recoveries shall be
received by the Party which continues to pursue such action. If a Party declines
to participate in such action, the other Party shall then have the right to
pursue such action alone, and shall bear all costs of and receive all damages,
royalties, license fees and other recoveries from such
-13-
CONFIDENTIAL
action. Notwithstanding the foregoing, if a Party declines to participate in
such an action or withdraws from such an action, such Party shall nevertheless,
at the request of the other Party, cooperate with the other Party, at the cost
of the other Party and subject to any reasonable conditions (including
indemnification against counterclaims by the third party), to the extent which
may be necessary to enable the other Party to pursue such action effectively,
including without limitation joining such action as an indispensable party.
5.3 Third Party Licenses. To the extent that VentureCo may desire or
need rights with respect to any Intellectual Property Rights not licensed
hereunder or covered by the representations or warranties of ARTICLE 6
(Warranties), VentureCo shall be solely responsible for obtaining such licenses
and paying the associated costs.
5.4 Further Cooperation. Each of the Parties hereto agrees, upon the
reasonable request of the other Party, to the extent consistent with this
Agreement, to deliver to the other such records, data or other documents
reasonably requested by the other, and to take or cause to be taken all such
other actions as are reasonably necessary or desirable in order to permit the
other to obtain the full benefits of this Agreement (including the execution of
any documents required in connection therewith).
ARTICLE 6
WARRANTIES
6.1 Representations and Warranties. E hereby represents and warrants to
VentureCo that:
(a) Registered E Intellectual Property. EXHIBIT B is a complete
and accurate list of all Registered E Intellectual Property Rights. E will
supplement EXHIBIT B bi-annually during the Initial Period and (with respect
MNIP used by VentureCo in the Post Termination Period) Post Termination Period,
as additional Registered E Intellectual Property Rights are applied for or
obtained.
(b) Completeness. The E IP constitutes all (or a copy of all) of
the Intellectual Property owned or Licensable by E that is related to or
reasonably necessary for the conduct and operations of VentureCo as currently
contemplated to be conducted, including, without limitation, the design,
development, manufacture, use, marketing and sale of Licensed Products.
(c) Non-Infringement. To the knowledge of E, VentureCo's use of
the E IP pursuant to this Agreement in the operation of VentureCo as it is
contemplated to be conducted following the Closing, including but not limited to
the design, development, manufacture, use, marketing and sale of Licensed
Products does not, and will not, infringe or misappropriate any Intellectual
Property Rights of any Third Party, violate any right of any Third Party
(including any right to privacy or publicity), or constitute unfair competition
or trade practices under the laws of any jurisdiction. Without limiting the
foregoing, E has not received notice from any Person claiming that such
operation or any act, product, Intellectual Property Rights, Technology or
service by E
-14-
CONFIDENTIAL
(including products, Intellectual Property Rights, Technology or services
currently under development) infringes or misappropriates any Intellectual
Property rights of any Person, violates any right of any Person or constitutes
unfair competition or trade practices under the laws of any jurisdiction (nor
does E have knowledge of any basis therefor). To the knowledge of E, no Person
is infringing or misappropriating any E IP.
(d) Contracts. EXHIBIT C lists all contracts, licenses and
agreements under which both (1) E has been granted Intellectual Property Rights
or rights to Technology from Third Parties and (2) such rights are Licensable
and constitute E IP licensed hereunder.
6.2 Remedy. E's sole obligation and liability for E's breach of the
representations and warranties provided in this ARTICLE 6 (Warranties) shall be
pursuant to ARTICLE 8 (Liability and Limitations of Liability) of the Master
Agreement.
6.3 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS ARTICLE 6
(WARRANTIES) OR EXPRESSLY PROVIDED IN THE MASTER AGREEMENT, THE PARTIES MAKE NO
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT AND TITLE. NEITHER PARTY MAKES ANY GUARANTEES TO THE OTHER
CONCERNING THE SUCCESS OR POTENTIAL SUCCESS OR COMMERCIAL VIABILITY OF THE
ACTIVITIES CONTEMPLATED UNDER THIS AGREEMENT.
ARTICLE 7
CONFIDENTIAL INFORMATION
7.1 Confidential Information. Any Confidential Information exchanged
pursuant to this Agreement (and the terms of this Agreement itself) will be
governed by SECTION 9.5 (Confidentiality) of the Master Agreement, with the
Parties hereunder deemed the Disclosing Party and/or Receiving Party as
applicable, provided that, notwithstanding anything to the contrary, each Party
may use and distribute any such confidential or proprietary information as
reasonably required to exercise its rights under the licenses granted pursuant
to ARTICLE 2 (Rights and Licenses).
ARTICLE 8
TERM
8.1 Term. This Agreement shall become effective as of the Signing Date.
The license of SECTION 2.1 (E License Grant to VentureCo) becomes effective only
as of the License Effective Date. This Agreement may be terminated only as
follows:
-15-
CONFIDENTIAL
(a) This Agreement shall terminate automatically and without
further action on the part of E or VentureCo in the event that the Termination
Date occurs prior to the License Effective Date.
(b) This Agreement may terminate in the event that E and VentureCo
mutually agree in writing to terminate this Agreement (subject to the Master
Agreement).
8.2 Effect of Termination. Upon any termination or expiration of this
Agreement, any licenses granted to VentureCo hereunder shall terminate. SECTIONS
2.2 (VentureCo License Grant to E), 2.3 (Reservation of Rights), ARTICLE 7
(Confidential Information), SECTION 8.2 (Effect of Termination) and ARTICLE 9
(General Provisions) shall survive any termination or expiration of this
Agreement. SECTION 5.1 (Ownership) shall survive any termination or expiration
of this Agreement.
ARTICLE 9
GENERAL PROVISIONS
9.1 Limitation of Liability.
(a) IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY FOR ANY
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOSS OF PROFITS) THAT RELATE IN ANY WAY TO THIS
AGREEMENT, HOWEVER CAUSED ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND
WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH
DAMAGES.
(b) This SECTION 9.1 (Limitation of Liability) shall not limit the
remedies that may be available to the Parties pursuant to the Master Agreement
or Concurrent Agreements. To the extent required by applicable law, nothing in
this SECTION 9.1 (Limitation of Liability) shall limit the remedies that may be
available to the Parties for fraud, bodily injury or death.
9.2 Notices. All notices, requests and other communications to any Party
hereunder shall be in writing (including facsimile transmission) and shall be
given as set forth in the Master Agreement as follows:
As to VentureCo:
As to E, Inc.:
Evergreen Solar, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
-16-
CONFIDENTIAL
Attention: Xxxxxxx Xxxxx
Xxxxxxx Xxxxxxxxx
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 XXX
Attention: Xxxxxx Xxxxxxx
Xxxxxx X'Xxxxxx
Phone: 1 212 999-5800
Fax: 0 000 000-0000
With a copy to: Xxxxxx Xxxxxxx
Xxxxxxxxx(xxxx)x 00
X-00000 Xxxxxx, Xxxxxxx
Attention: Xx. Xxxxxxxxx Xxxxx
Xxxxxxx xxx Xxxxxxxxxxx
Phone: xx00 00 000000 0
Fax: xx00 00 000000 00
In both cases with a copy to Q-Cells AG
Xxxxxxxxxxx. 00
X-00000 Xxxxxxxx
Attention: Xxxxx Xxxxxx
Xx. Xxxxxxx Xxxxxxxxx
Phone: +49-34 94-66 8-60
Fax: x00-00 00-00 8-777
with a copy to: XXX XXXXX Rechtsanwaelte
Xxxxxxxxxx. 00
X-00000 Xxxxxx, Xxxxxxx
Attention: Xx. Xxxxxx xxx Xxxxx
Phone: +49-30-31 51 90 0
Fax: +49-30-31 51 90 90
or, in each case, at such other address as may be specified in writing to
the other Parties hereto.
9.3 Language. All documentation, communication and services in
connection with this Agreement in shall be in English.
-17-
CONFIDENTIAL
9.4 Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived if,
but only if, such amendment or waiver is in writing and is signed, in the case
of an amendment, by each Party to this Agreement, or in the case of a waiver, by
the Party against whom the waiver is to be effective.
(b) No failure or delay by any Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any or other further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
9.5 Assignment. Other than as expressly otherwise provided herein, this
Agreement shall not be assignable or otherwise transferable by any Party hereto
without the prior written consent of the other Party hereto and the prior
written consent of Q; provided, however, that neither Party shall be obligated
to obtain the consent of the other Party under this SECTION 9.5 (Assignment)
solely by virtue of a Change of Control of such Party, and such Party shall have
the right to assign this Agreement, in its entirety including all rights and
obligations, to such Party's successor in such Change of Control. Subject to the
foregoing, the provisions of this Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors and assigns.
Any assignment or transfer (including through a change of control) of this
Agreement in violation of this SECTION 9.5 (Assignment) shall be null and void.
9.6 Entire Agreement; Severability. This Agreement, together with the
Master Agreement and Concurrent Agreements, constitutes the entire agreement
between the Parties hereto and any of such Parties' respective affiliates with
respect to the subject matter of this Agreement and supersedes all prior
communications, agreements and understandings, both oral and written, with
respect to the subject matter of this Agreement. In the event any provision of
this Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision, and the Parties agree to negotiate, in good
faith, a legal and enforceable substitute provision which most nearly effects
the Parties' intent in entering into this Agreement.
9.7 Other Remedies; Specific Performance. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a Party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby or
by law or equity upon such Party, and the exercise by a Party of any one remedy
will not preclude the exercise of any other remedy. The Parties hereto agree
that irreparable damage may occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the Parties may be
entitled to seek an injunction to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in a German court, this
being in addition to any other remedy to which they are entitled at law or in
equity.
9.8 Governing Law and Dispute Resolution. This Agreement shall be
construed in accordance with and governed by the laws of the Federal Republic of
Germany.
-18-
CONFIDENTIAL
All disputes arising in connection with this Agreement or its validity or
any agreement provided herein which cannot be resolved by mutual agreement of
the Parties shall be finally settled in accordance with the Arbitration Rules of
the German Institution of Arbitration e.V. (DIS) without recourse to the
ordinary courts of law (except for challenges to the validity of shareholder
resolutions which shall be submitted to the competent court in Berlin). The
place of arbitration is Berlin, Germany. The arbitral tribunal consists of three
arbitrators. The arbitrators must be capable of being appointed a judge in
accordance with the relevant German legal rules. The substantive law of the
Federal Republic of Germany is applicable to the dispute. The language of the
arbitral proceedings is English.
9.9 Compliance with Laws and Regulations. Each Party will comply with
all applicable laws, regulations and ordinances.
9.10 Export. No Party shall export or re-export, directly or indirectly,
any technical information disclosed hereunder or direct product thereof to any
destination prohibited or restricted by the applicable export control
regulations, including the U.S. Export Administration Regulations and
regulations of Germany, without the prior authorization from the appropriate
governmental authorities. Without limiting the foregoing, E shall be responsible
for obtaining government approvals, permits or the like necessary for the export
of its technology from the United States to VentureCo in Germany, and VentureCo
shall be responsible for obtaining all government approvals, permits or the like
required for the import of any technology to VentureCo and into Germany and for
the export of any technology or products by VentureCo from Germany.
9.11 Force Majeure. No Party shall be liable to another Party for failure
to perform its obligations under this Agreement if such failure is caused by any
event or condition not reasonably within the control and anticipation of the
affected Party, including, without limitation, by fire, flood, typhoon,
earthquake, explosion, strike, labor trouble or other industrial disturbance,
unavoidable accident, war (declared or undeclared), act of terrorism, sabotage,
embargo, riot, or any other cause beyond the control of the Parties, provided
that the affected Party promptly notifies the other Party of the occurrence of
such event or condition and takes reasonable steps necessary to resume
performance of its obligations so interfered with.
9.12 Independent Contractors. The Parties hereto are independent
contractors. Nothing contained herein or done pursuant to this Agreement shall
constitute either Party the agent of the other Party for any purpose or in any
sense whatsoever, or constitute the Parties as partners or joint venturers.
9.13 Third Party Beneficiaries. No provision of this Agreement is
intended to confer upon any person or entity other than the Parties hereto (and
their permitted assigns) any rights or remedies hereunder.
9.14 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each Party hereto shall have received a counterpart
hereof signed by the other Party hereto.
-19-
CONFIDENTIAL
(The remainder of this page is intentionally left blank.)
-20-
CONFIDENTIAL
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Evergreen Solar, Inc.
By: /s/ Xxxxxxx X Xxxxx
------------------------------------------
Name: Xxxxxxx X Xxxxx
Title: Pres & CEO
EverQ GmbH
By: /s/ Xxxxx Xxxx /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxx Xxxxxxx Xxxxxxxx
Title: Managing Director Managing Director
EXHIBIT A
E INTELLECTUAL PROPERTY RIGHTS & E TECHNOLOGY
PART 1 - INCLUDED ITEMS
[*]
----------
[*] This provision is the subject of a Confidential Treatment Request.
PART 2 - ITEMS WHICH MAY BECOME MATERIAL NEW IP
[*]
----------
[*] This provision is the subject of a Confidential Treatment Request.
PART 3 - EXCLUDED ITEMS
[*]
----------
[*] This provision is the subject of a Confidential Treatment Request.
[*]
----------
[*] This provision is the subject of a Confidential Treatment Request.
EXHIBIT B
REGISTERED E INTELLECTUAL PROPERTY RIGHTS
[*]
----------
[*] This provision is the subject of a Confidential Treatment Request.
EXHIBIT C
CONTRACTS INCLUDED AS LICENSABLE E IP
[*]
----------
[*] This provision is the subject of a Confidential Treatment Request.
