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EXHIBIT 10.72
PORTIONS OF THIS EXHIBIT HAVE BEEN FILED
CONFIDENTIALLY PURSUANT TO RULE 24b-2
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EXHIBIT 10.72
AMENDMENT NO. 2 TO USABC AND ENERGY CONVERSION DEVICES, INC./OVONIC BATTERY
COMPANY, INC. DEVELOPMENT AGREEMENT UNDER PRIME COOPERATIVE AGREEMENT
NO. DE-FC02-91CE50336
This Amendment is effective the latter of the date of DOE approval or the date
of last signature by the parties hereto, and is by and between United States
Advance Battery Consortium, a general partnership organized under the laws of
the State of Michigan (USABC) and, collectively, Energy Conversion Devices,
Inc., a Delaware Corporation (ECD) and Ovonic Battery Company, Inc., a Delaware
Corporation (OBC), with ECD and OBC being one party to this Agreement and
hereafter collectively referred to as "ECD/OBC".
USABC and ECD/OBC have entered into a Development Agreement for Nickel Metal
Hydride Electric Vehicle batteries, dated May 4, 1992, that covers an
anticipated 38 month program, extended by Amendment No. 1 to add 16 months for
work on the Phase IV development program as described therein. It is mutually
agreed by and between the parties thereto, USABC and ECD/OBC, to amend each
indicated Article and Appendix of the Development Agreement and confirm the
Agreement as follows:
(1) Article II, Statement of Work and Deliverables, is amended as follows:
Add: Art. 2.3 Appendix A-2, Statement of Work, January 16, 1996, is
hereby incorporated by reference. ECD/OBC agrees to perform the tasks
and provide deliverables on the schedule specified in the Statement of
Work, Xxxxxxxx X-0, and agrees to use its best efforts to meet and
attempt to exceed the technical goals of the program. It is agreed that
items delivered under this contract are delivered for experimental use
only. This Art. 2.3 applies only to Appendix A-2; Articles 2.1 and 2.2
herein do not apply to Appendix A-2.
(2) Amend Article III, Funding, Costs, and Recoupment, as follows:
The fixed price limitation in 3.1 is changed to .
Add Article 3.6 as follows:
3.6. The following payment and continuation/termination provisions
apply to the work authorized in Appendix A-2. Costs will be reported
and invoice to USABC/DOE in the same format previously set forth in this
Agreement.
3.6.1. ECD/OBC will receive payment not to exceed
as soon as administratively possible upon receipt of
invoices for actual costs incurred by ECD/OBC in the performance of
work described in Appendix A-2 subsequent to October 31, 1995. Upon
receipt of the Phase IV A deliverables described in Appendix A-2, and
receipt of invoices for actual costs incurred by ECD/OBC for work
thereon, ECD/OBC will receive a second
OMITTED INFORMATION FILED
SEPARATELY WITH THE COMMISSION
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payment not to exceed which payment shall constitute
full and final settlement of all obligations of USABC
and DOE with respect to all work performed under Appendix A-1 (Phase IV
Statement of Work incorporated into the Agreement under Addendum I to
Amendment 1) and work associated with the production of Phase IV A
deliverables.
3.6.2 USABC will, upon receipt of Phase IV A deliverables, issue notice
to . If warranted
USABC will, not later than the close of business on
Phase IV B deliverables. ECD/OBC .
If notified to proceed, payment of not-to-exceed will be
made to ECD/OBC on the basis of costs incurred to produce the Phase IV B
deliverables. That payment will be payable by USABC on the date Phase
IV B and related cost invoices are delivered and submitted, will be
actually paid as soon as administratively possible thereafter, and shall
constitute full and final settlement of all contractual obligations of
USABC and DOE in respect of Phase IV B deliverables. If requested by
ECD/OBC and supported by actual cost invoices in proper form, progress
payments will be made to ECD/OBC as of
and, .
3.6.3 After the date of delivery of the Phase IV B
deliverables, payment of not to exceed will
be made to ECD/OBC on the basis of costs incurred to produce the Phase
IV C Deliverables and that payment will be payable by USABC on the
date Phase IV C and related cost invoices are delivered and submitted,
and will be actually paid as soon as administratively possible
thereafter. That payment shall constitute full and final settlement of
all contractual obligations of USABC and DOE as of the date of Phase IV
C delivery. If requested by ECD/OBC and supported by an actual cost
invoice in proper form, a progress payment will be made to ECD/OBC as
of .
(3.) The total contract price is in order to reimburse
ECD/OBC for in-vehicle testing
of Phase III deliverables, as specified in Xxxxxxxx X-0, Xxxxx IV D.
Reimbursement to ECD/OBC of not to exceed will be made upon completion
of work and submission of appropriate invoices.
OMITTED INFORMATION FILED
SEPARATELY WITH THE COMMISSION
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their respective authorized representatives.
Ovonic Battery Company, Inc.
By:/s/ Xxxxxxx X. Xxxx
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Title: PRESIDENT & COO
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Date: MARCH 4, 1996
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Energy Conversion Devices, Inc.
By:/s/ Xxxxxxxx X. Xxxxxxxxx
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Title: PRESIDENT & CEO
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Date: FEBRUARY 26, 1996
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United States Advanced Battery Consortium
By:/s/ Xxxxxx X. Xxxxx
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Title: USABC CHAIRMAN
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Date: MARCH 8, 1996
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