<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): FEBRUARY 5, 1997
BOLDER TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-28060 84-1166231
(Commission File No.) (IRS Employer Identification No.)
5181 WARD ROAD
WHEAT RIDGE, CO 80033
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (303) 422-8200
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ITEM 5. OTHER EVENTS.
BOLDER Technologies Corporation ("BOLDER" or the "Company") is filing this
Report on Form 8-K to take advantage of the "safe harbor" provisions of the
Private Securities Litigation Reform Act of 1995.
On February 5, 1997, BOLDER issued a press release concerning the Company's new
strategic partnership with Johnson Controls to accelerate the commercialization
of the Company's TMF battery technology. The press release read in full as
follows:
"JOHNSON CONTROLS AND BOLDER TECHNOLOGIES
ANNOUNCE A NEW STRATEGIC PARTNERSHIP
MILWAUKEE, Wisconsin and DENVER, Colorado - Johnson Controls (NYSE-JCI) and
BOLDER Technologies Corporation (Nasdaq National Market- BOLD), developer and
manufacturer of advanced, high power rechargeable batteries based on its
patented thin metal film (TMF(TM)) technology, today announced a new strategic
partnership to accelerate the commercialization of BOLDER's TMF battery
technology. Both companies will focus on optimizing TMF battery products that
are unique to each parties' specific markets. This new multifaceted
relationship includes product licenses, technology transfer provisions, and
cross-supply agreements.
Although exact terms were not disclosed, BOLDER received a cash payment from
Johnson Controls and, in return, granted Johnson Controls a license to make and
sell TMF battery products in primary auto/truck starting, hybrid electric
vehicles, lawn and garden starting, motorcycling starting and UPS markets.
Bolder will receive royalties on all units sold by Johnson Controls. Both
parties also executed a cross-supply agreement with commitments to supply the
other party with minimum quantities of TMF battery products for several years.
Bolder and Johnson Controls had initially formed the joint venture to develop
high volume manufacturing technology. Having substantially completed this
primary objective, Bolder and Johnson Controls agreed to discontinue the joint
venture and separately implement TMF production facilities to best meet the
unique requirements of the markets addressed by each. The first commercial
production line, which under the terms of the new arrangement BOLDER owns, is
in the initial test phase.
"BOLDER's relationship with Johnson Controls has been very productive," said
Daniel S. Lankford, BOLDER's Chairman and CEO. "The on-going partnership gives
BOLDER strategic access to the multi-billion dollar engine start market for
autos and trucks and improves our market presence in other engine-starting and
standby power applications."
"The continued strategic alliance between Johnson Controls and BOLDER
underscores our strong interest in bringing the TMF technology into the
marketplace, said Michael F. Johnston, Vice President and General Manager of
the Johnson Controls battery business. "We look forward to optimizing this
technology for automotive and other applications."
1.
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Headquartered in the Denver suburb of Wheat Ridge, BOLDER is an energy
technology company that is developing and commercializing advanced, high power,
rechargeable battery systems based on its patented TMF technology. BOLDER's
TMF technology uses proven lead-acid electrochemistry in a proprietary
configuration that has higher power density than any commercially available
rechargeable battery. BOLDER believes that the high power and other
performance characteristics of the TMF technology offer a number of advantages
over existing batteries for a wide range of current and future applications.
Johnson Controls, Inc., with headquarters in Milwaukee, Wisconsin, is a global
market leader in automotive systems and building controls. Through its
Automotive Systems Group, it supplies seating systems, interior systems and
batteries to the automotive original equipment and replacement markets. The
Controls Group serves the nonresidential buildings market with control systems
and services, and integrated facility management. Founded in 1885, it operates
in more than 500 locations worldwide.
Except for the historical information contained herein, the news release
contains forward-looking statements that involve risks and uncertainties,
including manufacturing risks and risks of the implementation of the commercial
production line, product development and the uncertainty of market acceptance,
as well as the other risks detailed from time to time in BOLDER's SEC filings,
including BOLDER's Prospectus, the report on Form 10-QSB for the quarter ended
September 30, 1996 and BOLDER's report on Form 8-K filed on January 3, 1997."
BOLDER wishes to caution readers that the risks detailed from time to time in
the Company's other reports filed with the Securities and Exchange Commission,
including the report on Form 10-QSB for the quarter ended September 30, 1996,
its report on Form S-1 filed on March 18, 1996, as amended, and the report on
Form 8-K filed on January 3, 1997, among others, in some cases have affected,
and in others could cause the Company's results to differ materially from those
expressed in any forward-looking statements made by BOLDER and could otherwise
affect, the Company's business, results of operations and financial condition.
ITEM 7. EXHIBITS.
10.1 Agreement by and among the Registrant, Johnson Controls Battery
Group, Inc. and Johnson Controls/Bolder LLC dated as of July 31,
1996.*
10.2 Cross Supply Agreement between the Registrant and Johnson
Controls Battery Group, Inc. dated as of January 22, 1997.*
__________________________
* The Registrant is applying for confidential treatment with respect to
portions of these Exhibits.
2.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: February 5, 1997 BOLDER TECHNOLOGIES CORPORATION
By: /s/ Joseph F. Fojtasek
------------------------------------
Joseph F. Fojtasek
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
3.
<PAGE> 5
EXHIBIT INDEX
10.1 Agreement by and among the Registrant, Johnson Controls
Battery Group, Inc. and Johnson Controls/Bolder LLC dated
as of July 31, 1996.*
10.2 Cross Supply Agreement between the Registrant and Johnson
Controls Battery Group, Inc. dated as of January 22, 1997.*
__________________________
* The Registrant is applying for confidential treatment with respect to
portions of these Exhibits.
<PAGE> 1
CERTAIN CONFIDENTIAL MATERIAL
CONTAINED IN THIS DOCUMENT, MARKED
BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT
TO RULE 24b-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
AGREEMENT
This Agreement (the "AGREEMENT") is made and entered into as of the
31st day of July, 1996 (the "EFFECTIVE DATE") by and among Bolder Technologies
Corporation, a Delaware corporation ("BTC"), Johnson Controls Battery Group,
Inc., a Wisconsin corporation ("JCI") and Johnson Controls/Bolder LLC, a
Delaware limited liability corporation ("JV") (BTC, JCI and JV are referred to
collectively herein as the "PARTIES" and individually as a "PARTY").
RECITALS
WHEREAS, BTC, JCI and JV were parties to the Joint Venture Agreement
dated as of June 26, 1995 (the "JV AGREEMENT") pursuant to which BTC and JCI
agreed to form the JV for the purpose of (i) manufacturing thin metal film
batteries for resale by BTC and JCI, (ii) developing, manufacturing and selling
thin metal film batteries for electric and hybrid vehicle battery systems and
(iii) otherwise operating for the mutual profit of the Parties;
WHEREAS, pursuant to the terms of the JV Agreement, the parties
entered into the following agreements, the LLC Operating Agreement, the BTC-JCI
License Agreement, the BTC-JV License Agreement, the JV-BTC/JCI License
Agreement, the JV-BTC/JCI Manufacturing and Supply Agreement, Johnson Controls
- - JV Trade Name License Agreement and the BTC-JV/JCI Trademark License
Agreement (collectively with the JV Agreement, the "JV AGREEMENTS");
WHEREAS, BTC, JCI and JV have elected to terminate the JV Agreement and
to dissolve the JV; and
WHEREAS, BTC, JCI and JV desire to finally and fully compromise, settle
and discharge all claims, controversies, demands, actions or causes of action
which any Party to this Agreement may have or claim to have against any other
Party to this Agreement which arises out of or is related to the JV Agreements.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the Parties hereby agree as follows:
1. DEFINITIONS.
1.1 "BTC MARK" shall mean "TMF".
1.2 "CAR AND TRUCK STARTING" shall mean the use of the Product as
a primary starter battery for an internal combustion engine in cars and trucks.
1.3 "CLOSING DATE" shall mean the date on which this Agreement is
signed.
1.4 "CONFIDENTIALITY AGREEMENT" shall mean the Confidentiality
Agreement in the form attached hereto as Exhibit A.
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1.5 "EFFECTIVE DATE" shall mean July 31, 1996.
1.6 "HEV APPLICATIONS" shall mean battery systems based on TMF
Technology for use as a power battery for a hybrid electric vehicle as a
supplement to an internal combustion engine or other coupled energy source.
1.7 "JCI APPLICATIONS" shall mean battery systems based on TMF
Technology for the following uses: (a) Car and Truck Starting, (b) Motorcycle
Starting, (c) Lawn and Garden Starting, (d) uninterruptible power supply (UPS)
and (e) HEV Applications.
1.8 "JCI OTHER DEVELOPMENTS" shall mean, other than JCI TMF
Developments, any and all technology owned or licensed by JCI, including
without limitation any inventions, equipment, modifications of instruments or
equipment, methods, works of authorship, know-how, techniques and other
technology and any improvements thereto, whether or not patentable,
copyrightable, or subject to other forms of protection which were made,
created, developed, written, conceived or first reduced to practice by JCI.
1.9 "JCI TMF DEVELOPMENTS" shall mean from the period of June 26,
1995 until July 30, 1996 any and all technology owned or licensed by JCI and
related to thin metal film batteries, including without limitation any
inventions, equipment, modifications of instruments or equipment, methods,
works of authorship, know-how, techniques and other technology and any
improvements thereto, whether or not patentable, copyrightable or subject to
other forms of protection which were made, created, developed, written,
conceived or first reduced to practice by JCI.
1.10 "JOINT VENTURE" or "JV" shall mean the joint venture company,
Johnson Controls/Bolder LLC, formed by the Parties hereto pursuant to the
Delaware Limited Liability Company Act.
1.11 "JV AGREEMENTS" shall have the meaning set forth above.
1.12 "JV TECHNOLOGY" shall mean from June 26, 1995 up to and
including July 30, 1996, any inventions, equipment, modifications of
instruments or equipment, methods, works of authorship, know-how, techniques
and other technology, whether or not patentable, copyrightable, or subject to
other forms of protection, which were made, created, developed, written,
conceived or first reduced to practice by the JV. This shall include, but not
be limited to [
]*
1.13 "LAWN AND GARDEN STARTING" shall mean the use of the Product
as a starter battery for internal combustion engines in lawn and garden
equipment or tools.
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
2
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1.14 "MOTORCYCLE STARTING" shall mean the use of the Product as a
starter battery for internal combustion engines in motorcycles.
1.15 "NET SALES" shall mean gross revenues from sales or other
dispositions of Products less credits for returned Products, rebated discounts,
other trade discounts, freight and shipping allowances, applicable sales taxes
actually paid, and ordinary trade and promotional allowances. Net Sales shall
not, however, include the sales price of any Product sold as a replacement item
for a defective Product hereunder and on which JCI is paying or has paid
royalties to BTC under any prior agreement.
1.16 "PRODUCTS" shall mean batteries based on TMF Technology.
1.17 "PRODUCTION LINE TECHNOLOGY" shall mean technology related to
the design and implementation of the first sub-C cell automated production line
which was made, created, developed, written, conceived or first reduced to
practice by BTC from July 31, 1996 to 90 days after the Successful
Implementation of such line.
1.18 "SUCCESSFUL IMPLEMENTATION" or "SUCCESSFULLY IMPLEMENTED"
shall mean that [
]*
1.19 "TECHNOLOGY" shall mean TMF Technology, Production Line
Technology and JV Technology.
1.20 "TMF TECHNOLOGY" shall mean any and all technology owned or
licensed by BTC (including the TMF Technology patents attached as Exhibit I to
the JV Agreement), with the right to sublicense, related to thin metal film
batteries, including, without limitation, any inventions, equipment,
modifications of instruments or equipment, methods, works of authorship,
know-how, techniques and other technology, whether or not patentable,
copyrightable, or subject to other forms of protection, which were made,
created, developed, written, conceived or first reduced to practice by BTC
before July 31, 1996.
1.21 "AFFILIATE" shall mean any corporation, company, partnership,
joint venture or other entity which controls, is controlled by or is under
common control with a party. For purposes of this Section 1.21, "control"
shall mean (a) in the case of corporate entities, the direct or indirect
ownership of at least one-half of the stock or participating shares entitled to
vote for the election of directors, and (b) in case of a partnership, the power
to direct the management and policies of such partnership.
2. TERMINATION OF THE JV; DISTRIBUTION OF TANGIBLE AND INTANGIBLE ASSETS.
The Parties hereby agree to terminate the JV Agreements pursuant to
Section 13.2(b) of the JV Agreement as of the Effective Date. As of such time
all operations of the JV shall terminate. JCI hereby relinquishes its rights
to any of the tangible assets of the JV, including the $1,000,000 which it has
invested to date, as well as the JV machinery and equipment, if
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
3
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any, located at BTC or at Wright Industries. The Parties each acknowledge and
agree that the JV Technology shall be jointly-owned.
3. DISSOLUTION OF THE JV.
The Parties hereby agree to take such actions as are necessary to
wind-up and dissolve the JV in accordance with Section 11 of the LLC Operating
Agreement (subject to the amendments to the Joint Venture Agreement set forth
herein) in a timely manner.
4. LICENSES.
4.1 BTC LICENSE TO JCI. Subject to the terms and conditions
contained in this Agreement, BTC hereby grants to JCI, and JCI hereby accepts
from BTC, the royalty-bearing, worldwide license and rights to the TMF
Technology and Production Line Technology during the term set forth in Section
4.1(d) hereof to make, have made, use and sell Products for JCI Applications.
(a) Sublicensing Rights. Except as set forth in
subsection (b) below, the licenses granted to JCI in this Section 4.1 may not
be sublicensed, sold, conveyed, assigned or in any way transferred by JCI,
other than to a parent or subsidiary of JCI or an affiliated company of JCI in
which JCI owns 50% or more of such affiliated company. Any proposed transferee
must agree to be bound by the terms and conditions of this Agreement. Any
transfer contrary to this Section shall be void and of no effect and BTC may in
its sole discretion elect to terminate the licenses granted pursuant to Section
4.1.
(b) Limitation on Right to Have Made. JCI's right to
"have made" is subject to the prior written approval by BTC of all proposed
sublicensees of JCI who will be performing manufacturing services for JCI. BTC
agrees that it will not withhold its approval unreasonably; however, BTC may
refuse to approve any sublicensee who BTC considers to be a direct competitor,
including but not limited to Saft, Masushita, Yuasa, Sanyo, Powersonic, Varta,
Hawker and any other NiCd battery manufacturer, as well as any battery
manufacturer located in the Far East and Asia Pacific regions. If JCI desires
to subcontract with any manufacturers on the aforementioned list, BTC agrees to
consider approving such manufacturer; provided, however, BTC may withhold its
approval in its sole discretion. In addition, JCI agrees to indemnify, defend
and hold harmless BTC from and against any claims which may arise, directly or
indirectly, as a result of JCI engaging a sublicensee to perform manufacturing
services. In addition, any proposed sublicensees must enter into the
Confidentiality Agreement with BTC.
(c) Exclusivity and Minimum Performance.
(i) Subject to JCI meeting the minimum sales
requirements set forth in subsections (c) (vi) and (e) below, the license
granted to JCI in Section 4.1 for Car and Truck Starting shall be exclusive for
a 6 year period beginning June 26, 1995. Beginning June
4
<PAGE> 5
26, 2001, the license shall be exclusive except as to BTC for the remainder of
the license term set forth in subsection (d) below.
(ii) The license granted in Section 4.1 for
Motorcycle Starting shall be non-exclusive. BTC may terminate this license if
JCI does not ship commercial products for sale in the Motorcycle Starting
market by June 25, 2001 or if JCI fails to pay BTC the royalties set forth in
subsection (e) below beginning no later than June 25, 2001 and continuing for
each year of the license term thereafter.
(iii) Subject to the payment of the royalties set
forth in subsection (e) below, the license granted in Section 4.1 for Lawn and
Garden Starting shall be exclusive except as to BTC.
(iv) The license granted to JCI in Section 4.1 for
uninterruptible power supply (UPS) shall be non-exclusive.
(v) The license granted to JCI in Section 4.1 for
HEV Applications shall be non-exclusive.
(vi) In order to continue the exclusive nature of
the license granted to it under subsection (c)(i) above, JCI must achieve and
must continuously maintain a minimum of a 35% unit market share of the top 10
car and truck manufacturer's demand for small format, lead acid starting
batteries in each of the following territories: Europe, and Asia/Pacific
(Asia/Pacific includes the following countries: China, Japan, Hong Kong,
Taiwan, Singapore, South Korea, Australia, New Zealand, Thailand and
Malaysia)(Europe and Asia/Pacific are referred to collectively herein as the
"MINIMUM TERRITORIES"). "Small format is defined as batteries of 5 amp hours
or less. This minimum performance criteria shall become effective in a
territory as of the date when 25,000 kilowatt hours of such small format, lead
acid starting batteries have been sold into that territory for use in that
territory in any one calendar year. In the event that JCI fails to meet the
performance criteria set forth in this subsection (c)(vi) in a specific
territory in the Minimum Territories, then the exclusive license under Section
4.1(c)(i) shall automatically revert to a non-exclusive license for that
territory.
(d) License Term. The term of the licenses granted
pursuant to Section 4.1 shall commence on the Effective Date and continue as
long as any of the issued TMF Technology and Production Line Technology patents
remain valid, unless sooner terminated pursuant to Section 12 below.
(e) Minimum Royalties and Earned Royalties. In
consideration of the rights and licenses granted to JCI pursuant to this
Agreement, JCI shall pay BTC the minimum royalties and the earned royalties set
forth in this subsection (e). If JCI fails to pay the minimum royalties with
respect to a market then the licenses granted with respect to that market, will
be automatically deemed to have terminated. If JCI fails to pay the earned
royalties with respect to sales of Products, then this Agreement, at BTC's
election, shall terminate (and this shall be considered a termination because
of JCI's breach). BTC warrants and represents that the royalty percentages and
corresponding sales break points set forth in
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this subsection (e) will never be less favorable than the royalty percentages
and corresponding sales break points paid to BTC by any other BTC licensee for
any product in the corresponding JCI Applications. If, at any time during the
term of this Agreement, BTC offers a lower percentage to another licensee of a
product in a JCI Application on the same terms and conditions, BTC shall revise
the royalty schedules so that JCI receives that lower percentage.
(i) Minimum Royalties. JCI shall pay BTC the
following minimum royalties with respect to each application in order to
continue the licenses granted to it under this Agreement:
<TABLE>
<CAPTION>
YEAR
--------------------------------------------------------
APPLICATION 1997 1998 1999 2000
- ------------------------ --------------------------------------------------------
<S> <C> <C> <C> <C>
Car and Truck Starting [ ]*
Lawn and Garden Starting [ ]*
UPS [ ]*
</TABLE>
(ii) Earned Royalties. In order to continue the
licenses granted to it under this Agreement, JCI shall pay BTC the following
earned royalties with respect to Net Sales of Products which accrue in a
calendar year (except Net Sales of Products for HEV Applications):
<TABLE>
<CAPTION>
Net Sales % of Net Sales
--------------------------------------------------------------
<S> <C>
On amounts up to [ ]*
On amounts between [ ]*
On amounts between [ ]*
On amounts over [ ]*
</TABLE>
For example, if JCI's annual Net Sales of Products are [ ]* then JCI
shall pay BTC royalties in the amount of [
]*
(iii) Earned Royalties on HEV Sales. In order to
continue the licenses granted to it under this Agreement for HEV Applications,
JCI shall pay BTC the following earned royalties with respect to Net Sales of
Products for such applications which accrue in a calendar year:
<TABLE>
<CAPTION>
Net Sales % of Net Sales
--------------------------------------------------------------
<S> <C>
On amounts up to [ ]*
On amounts between [ ]*
On amounts between [ ]*
On amounts over [ ]*
</TABLE>
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
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For example, if JCI's annual Net Sales of HEV Products are [
]*
(iv) Manner of Payment.
(1) Except with respect to the first
minimum royalty payment which shall be payable in cash upon execution of this
Agreement, minimum royalties are payable in cash in equal calendar quarterly
installments due no later than 15 days in advance of the commencement of the
quarter. For example, the minimum royalty payment for the quarter ended June
30, 1997 will be payable March 15, 1996.
(2) All earned royalties shall accrue as
of the end of each calendar quarter. All earned royalties on Net Sales payable
hereunder shall be credited in full against the minimum royalties due to BTC
pursuant to this Agreement. All earned royalty payments shall be paid, and
shall be accompanied by a written statement showing in reasonable detail the
basis and computation of the relevant royalty payment, including the credit of
any minimum royalty payment, within thirty (30) days of the end of each
quarter.
(v) JCI shall keep adequate books and records in
sufficient detail to enable the earned royalties to be readily determined. BTC
shall be entitled to have an independent accounting firm, reasonably acceptable
to JCI, audit the relevant books and records of JCI for the purpose of
confirming the accuracy of the calculation of the royalties and royalty
payments made hereunder. Any such audit shall be performed at BTC's expense
(except if such audit reveals an underpayment by JCI of more than 5% of the
correct amount of royalties due hereunder, then such audit shall be at the
expense of JCI), during normal business hours after reasonable notice and, at
the request of JCI shall be subject to the independent agent's execution of a
reasonable confidentiality agreement. Such audits shall be conducted no more
frequently than once every year.
(f) Exclusive and Sole Licenses.
(i) BTC acknowledges and agrees that it will not
directly or indirectly by way of licensing, sublicensing or otherwise
authorizing any third party to use or sell Product or otherwise authorizing
such third party to compete with JCI in connection with such third party's use
of the TMF Technology in markets where JCI has been granted exclusive licenses
under this Agreement for the term of such licenses, except to the extent
specifically provided to the contrary in this Agreement.
(ii) BTC acknowledges and agrees that it will not
sublicense or authorize [
]* or any of
these entities' parent corporations, subsidiaries, Affiliates, successors or
assigns, to make or sell Products in markets where JCI has been granted a sole
license under this Agreement for the term of such licenses. BTC further
acknowledges and agrees that it will not sublicense or authorize any single
third party
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
7
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to both make and sell Products in markets where JCI has been granted a sole
license under this Agreement for the term of such licenses. Except as set
forth in subsection (iii) below, BTC further acknowledges and agrees that it
will not sublicense or authorize any third party to sell Products in markets
where JCI has been granted a sole license under any trademark other than
exclusively under a BTC trademark for the term of such licenses.
(iii) JCI acknowledges and agrees that BTC will be
sublicensing value added distributors [
]* or any of these entities' parent corporations, subsidiaries,
Affiliates, successors or assigns) to make and distribute products which
incorporate the Products or to distribute Products under a private label in
markets where JCI has been granted a sole license.
(g) No Implied License or Other Rights. No license or
right is granted by implication or otherwise, with respect to the TMF
Technology or the Production Line Technology or any invention, technical
information, know-how, patent, patent application or any other intellectual
property or technology except as specifically set forth in this Agreement. JCI
covenants that it will not use the TMF Technology or the Production Line
Technology for any applications outside of the JCI Applications. JCI
understands and agrees that this Agreement does not grant JCI or any affiliate
of JCI any right, title or interest of ownership in the TMF Technology or the
Production Line Technology and that BTC considers the TMF Technology and the
Production Line Technology to be and intends that it remain the intellectual
property of BTC.
4.2 JCI LICENSE TO BTC. Subject to the terms and conditions
contained in this Agreement, JCI hereby grants to BTC, and BTC hereby accepts
from JCI, a perpetual, fully-paid, worldwide, non-exclusive license, including
the right to sublicense, to make, have made, use and sell, for any purpose
(except as restricted by Section 4.1(f) hereof), any and all of the JCI TMF
Developments. No license or right is granted by implication or otherwise to
BTC by JCI with respect to the JCI Other Developments except as specifically
set forth herein. BTC covenants that it will not use the JCI Other
Developments for any applications outside of the applications, if any,
specifically designated herein. BTC understands and agrees that this Agreement
does not grant to BTC any right, title or interest of ownership in the JCI
Other Developments and that JCI considers the JCI Other Developments to be and
intends that they remain the intellectual property of JCI. JCI agrees that it
will not disclose to BTC any JCI Other Developments without identifying them as
such in advance of disclosure. In addition, JCI acknowledges that as of the
Closing Date, JCI has not disclosed to BTC any JCI Other Developments.
4.3 OTHER LICENSES. It is understood by the Parties that advances
made by BTC or JCI to the TMF Technology, JV Technology or JCI TMF Developments
after the Effective Date, or to the Production Line Technology beginning 91
days after the Successful Implementation of the first sub-C cell automated
production line may, at the advancing Party's option, be made available to the
other Party through additional licenses, including appropriate license fees and
royalties.
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
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4.4 INTELLECTUAL PROPERTY INDEMNIFICATION AND LIMITATIONS.
(a) INFRINGEMENT INDEMNITY BY BTC. BTC will defend JCI
against and indemnify JCI for any damages finally awarded or settlement amounts
paid (including costs and reasonable fees of attorneys and other professionals)
in respect of a claim that the TMF Technology or Production Line Technology
furnished and used within the scope of the licenses under this Agreement
infringes any patent, copyright, trade secret or other intellectual property or
proprietary information of a third party, provided that: (i) JCI notifies BTC
in writing within sixty (60) days of its receipt of any such claim, (ii) BTC
has sole control over the defense and all related settlement negotiations, and
(iii) JCI provides BTC with the assistance, information and authority necessary
to perform the above. Reasonable out-of-pocket expenses incurred by JCI in
providing such assistance will be reimbursed by BTC.
(b) REMEDIAL MEASURES BY BTC. In the event that the TMF
Technology or the Production Line Technology is infringing, or is believed by
BTC to infringe rights of a third party, BTC shall be obligated to either, at
its option and at its expense (i) modify the TMF Technology and/or the
Production Line Technology to be noninfringing without affecting the
performance, size, weight, cost or other material quality of the TMF Technology
and/or the Production Line Technology, or (ii) obtain for JCI a license or the
right to continue using the TMF Technology and/or the Production Line
Technology. This Section 4.4(b) shall not be construed as JCI's exclusive
remedy in such situations.
(c) INFRINGEMENT INDEMNITY BY JCI. JCI will defend BTC
against and indemnify BTC for any damages finally awarded or settlement amounts
paid (including costs and reasonable fees of attorneys and other professionals)
in respect of a claim that the JCI TMF Developments, when used in connection
with the manufacture, use or sale of batteries based upon the TMF Technology,
infringes any patent, copyright, trade secret or other intellectual property or
proprietary information of a third party, provided that: (i) BTC notifies JCI
in writing within sixty (60) days of its receipt of any such claim, (ii) JCI
has sole control over the defense and all related settlement negotiations, and
(iii) BTC provides JCI with the assistance, information and authority necessary
to perform the above. Reasonable out-of-pocket expenses incurred by BTC in
providing such assistance will be reimbursed by JCI.
(d) REMEDIAL MEASURES BY JCI. In the event that the JCI
TMF Developments are infringing, or are believed by JCI to infringe rights of a
third party, JCI shall be obligated to either, at its option and at its expense
(i) modify the JCI TMF Developments to be noninfringing without affecting the
performance, size, weight, cost or other material quality of the JCI TMF
Developments, or (ii) obtain for BTC a license or the right to continue using
the JCI TMF Developments. This Section 4.4(d) shall not be construed as BTC's
exclusive remedy in such situations.
(e) DISCOVERING AND REPORTING INFRINGEMENTS. Each party
shall exercise reasonable care and due diligence in discovering (and if it
discovers it shall immediately report to the other party) any infringement, or
attempted infringements, of such other party's rights
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in and to patents, copyrights, trade secrets and other intellectual property
related to the technologies licensed under this Agreement.
(f) INTELLECTUAL PROPERTY NOTICES. Each party shall
place, or shall cause to be placed, all notices relating to any patents,
copyrights, trademarks or other proprietary rights on all Products as are
reasonably requested by the other party or as are otherwise required by law.
4.5 TRADEMARK USAGE.
BTC hereby grants to JCI under the terms hereinafter set forth the
right and license to use the BTC Mark as a trademark until June 30, 1997 (the
"LICENSE"). JCI shall use the BTC Mark solely in connection with the marketing
and distribution of Products and only in the manner prescribed in this
Agreement. Any other proposed use of the BTC Mark must be approved in writing
by BTC in advance of such use. JCI shall only use the BTC Mark in the form(s)
approved in writing by BTC, including the (TM) symbol, and, upon registration
of BTC Mark, the (R) symbol, and an indication that BTC is the owner of the BTC
Mark. JCI shall not use as its company name or a component thereof or on other
products a mark or name identical with or confusingly similar to the BTC Mark
except as permitted herein. JCI shall not attempt to register on its behalf,
or for its benefit, the BTC Mark. JCI agrees that nothing herein shall give
JCI any right, title or interest in the BTC Mark, except the right to use the
BTC Mark in accordance with the terms hereof and that the BTC Mark is the sole
property of BTC, and that any and all uses by JCI of the BTC Mark shall inure
solely to the benefit of BTC. JCI agrees not to raise or cause to be raised
any questions concerning or objections to the validity of the BTC Mark or to
the respective rights of BTC.
Until June 30, 1997, JCI shall promptly notify BTC of any adverse use
by a third party of the BTC Mark of which JCI may become aware, and JCI agrees
to take no action of any kind with respect thereto except with the prior
written authorization of BTC. JCI further agrees to provide BTC with
reasonable cooperation at BTC's request and sole expense with any legal or
equitable action by BTC to protect their respective rights, title and interest
in the BTC Mark.
In the event of infringement of the BTC Mark by a third party, BTC
shall have the sole right to bring proceedings (including notifications to the
Customs Department objecting to the importation of infringing goods) against
the infringing party and to retain any damages recovered in such proceedings.
JCI shall cooperate with BTC in the prosecution of any such infringement
proceedings. BTC shall indemnify and hold harmless JCI against any proceeding
brought by a third party on a claim that the BTC Mark infringe upon the
trademark or other intellectual property rights of such third party. JCI shall
promptly notify BTC in writing of any such proceeding and shall provide
complete authority, information and assistance to BTC in connection with such
proceeding. BTC shall have the sole and exclusive authority and obligation to
defend and/or settle any proceeding with respect to the BTC Mark.
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JCI shall submit to BTC samples of advertising or other items bearing
the BTC Mark prior to the use of such advertising or other items. BTC shall
have the right to make reasonable objections to any such sample within thirty
(30) days of its submission on the grounds that BTC believes in good faith that
the use of such advertising or other items by JCI will be damaging to the
recognition value or reputation for quality associated with the BTC Mark or
that the advertising or other items do not meet the standards of quality
required by BTC. In the event of such an objection, JCI shall modify the
advertising or other items in accordance with the objection of BTC prior to the
use of such advertising or other items.
5. PAYMENT.
In consideration of BTC agreeing to terminate the JV Agreements, to
grant the licenses set forth in Section 4 above and to transfer the technology
set forth in Section 7 below, JCI hereby agrees to pay BTC at the Closing Date
a one-time non-refundable cash payment of [ ]* by wire transfer to the
account designated by BTC to JCI in writing.
6. CROSS-SUPPLY AGREEMENTS.
The parties agree to enter into cross-supply agreements on
most-favored customer terms.
7. TECHNOLOGY EXCHANGE.
7.1 TECHNOLOGY TRANSFER BY BTC. BTC has provided and will provide
any additional drawings, procedures and videotapes of the state of the sub-C
cell pilot manufacturing line at BTC, excluding any TMF Technology which was
developed after the Effective Date. During the period from Closing Date until
April 1, 1997, the following conditions shall apply:
(a) BTC will provide JCI with knowledge of substantive
changes made to the first sub-C cell automated production line which may occur
during the remaining development, construction and installation of such line at
BTC until 90 days after the Successful Implementation of such line;
(b) BTC will permit no more than three JCI employees
(excluding Jerry Bowen) to have three days access to the sub-C cell pilot
production line, excluding any TMF Technology which was developed after the
Effective Date, under the supervision of Mr. Bowen, for orientation to the
sub-C cell pilot manufacturing line, such orientation to take place at a time
agreed to by both Parties, currently expected to be in January 1997. JCI
acknowledges that certain parts of the BTC facility cannot be made available to
the JCI personnel (other than by the videotapes referred to in Section 7.1
above) because of BTC's confidentiality obligations, until BTC is located in
its new facility.
(c) Additional specific information regarding the
Technology requested by JCI will be provided remotely by BTC via telephone and
written reports, as long as such requests do not unreasonably interfere with
BTC's internal timelines. Should JCI identify
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
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specific needs that cannot otherwise be met via the above-described remote
contacts, BTC agrees to give serious consideration to providing JCI with
on-site access to the Technology on a case-by-case basis.
(d) The parties agree to hold quarterly meetings with JCI
representatives to review the Technology and the JCI TMF Developments and to
address questions.
Upon the earlier of May 1, 1997 or such time as the first sub-C cell automated
production line has been Successfully Implemented, BTC shall provide JCI with
reasonable access to such line and to BTC personnel for the purpose of
supporting JCI's implementation of its first automated production line. Such
support shall be provided at no charge for a total of 240 man-hours over a 90
day period after both parties reasonably agree that the automated line has been
Successfully Implemented. In the event the line has not been Successfully
Implemented by May 1, 1997, JCI's access shall be extended to 90 days after
such Successful Implementation. It is understood and agreed that in the event
that the automated production line has not been Successfully Implemented by
such date, access to JCI shall not unreasonably interfere with the attainment
of that objective by BTC.
(e) In order to assure the orderly and complete transfer
of technology hereunder, both parties agree that each will not employ any
member of the other party's technical battery staff during the period beginning
on the Effective Date and ending on the earlier of (i) November 1, 1997 or (ii)
91 days after the date of the Successful Implementation of the automated
production line.
7.2 TECHNOLOGY TRANSFER BY JCI.
(a) GENERAL. JCI agrees to provide to BTC no later than
February 28, 1997, a written summary of the technical and business information
specific to the application and use of the TMF Technology, including any JCI
TMF Developments, that was developed or prepared for or by JCI during the
period from June 26, 1995 to July 30, 1996. In addition, JCI will make Mike
Andrew available for one meeting no later than February 28, 1997, with the
intent of reviewing the summary and answering any questions related thereto.
JCI financial and/or costing information, as well as any information provided
to JCI by its customers or business contacts, which is held proprietary or
confidential by its customers or business contacts, will be excluded from this
disclosure.
(b) FORD HYBRID ELECTRIC VEHICLE CONTRACT. JCI agrees to
provide to BTC any information pertaining to technical activities conducted by
JCI and Ford during the period from June 26, 1995 through July 30, 1996. The
information will be provided subject to the prior review by Ford and the
deletion by Ford of any information at their discretion, including any
information which is specific to the Ford LSR vehicle concept. JCI shall
review such information and delete any information pertaining to any non-TMF
battery product or battery design that is manufactured, marketed or under
development by JCI. The approved reports will be transmitted in hardcopy to
BTC via Airborne delivery by February 28, 1997. JCI also agrees to provide to
BTC all information regarding JCI's HEV contacts, including but not
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limited to those with [
]* related to the TMF Technology or the Products during the period from June
26, 1995 through July 30, 1996.
7.3 TECHNOLOGY EXCHANGE FORUM. The Parties agree to continue a
technology exchange process to be implemented by establishing a forum for
working together on areas of mutual technical interest.
8. PATENT ENFORCEMENT AND COSTS.
8.1 FILING PATENTS ON JV TECHNOLOGY. All costs, fees and expenses
incurred in connection with the filing, prosecution and maintenance of all
United States and foreign patents and patent applications for the JV Technology
(the "JV TECHNOLOGY PATENTS") shall be shared equally by JCI and BTC. BTC
shall initially undertake to prepare and file such JV Technology Patents and
shall pay the costs associated therewith, invoicing JCI for its equal share of
the costs. Should BTC decline to undertake to prepare and file such patents in
a jurisdiction, then BTC shall promptly notify JCI of such decision and the
basis therefor. To the extent that the basis for not proceeding is other than
to protect the proprietary nature of the JV Technology as a trade secret, JCI
may undertake to do so at its expense, invoicing BTC for its equal share of the
costs. If either Party declines to pay its share of the costs with respect to
any particular patent in a particular jurisdiction, then the paying party shall
own the patent in such jurisdiction subject to the non-paying party's option
to acquire a non-exclusive, perpetual, royalty-bearing right and license in
such jurisdiction for the non-paying party to make, use and sell Products which
are covered by such patent. The royalty shall be in an amount which is
sufficient to cover 50% of the paying party's costs and expenses associated
with filing and maintaining the patent.
8.2 PATENT ENFORCEMENT. BTC shall initially be responsible for
defending and enforcing the JV Technology Patents. Should BTC decline to
defend or enforce such patents, then JCI may undertake to do so. All costs,
fees and expenses incurred in connection with enforcing such patents shall be
shared equally by BTC and JCI and all recoveries, if any, shall be shared
equally. Should either Party decline at any point of an enforcement proceeding
to share the costs of such enforcement the other Party may continue such
enforcement at its sole expense and retain for itself all recoveries, if any.
9. REPRESENTATIONS AND WARRANTIES OF THE PARTIES.
9.1 REPRESENTATIONS AND WARRANTIES. Each Party hereby represents
and warrants to the other Party as follows:
(a) Such Party is a corporation duly organized, validly
existing and in good standing under the laws of its state of incorporation, and
has the corporate power and authority to carry on its separate business, to
enter into this Agreement and to perform its obligations hereunder;
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
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<PAGE> 14
(b) The execution and performance of this Agreement and
the performance of the activities contemplated hereby have been duly authorized
by all necessary corporate action of such Party, and such execution and
performance does not violate such Party's Certificate of Incorporation, bylaws,
or any agreement (including any other research and development agreement),
order, restriction or injunction by which it is a party or to which it is
bound;
(c) Such Party has not received notice of a pending claim
of misappropriation of any trade secret, improper disclosure of any
confidential information, or infringement of any patent, copyright, trademark
or other intellectual property right of any other person or entity which is
related to the subject matter of this Agreement;
(d) Such Party has no knowledge that any licenses, other
than licenses previously obtained, are required from any other person or entity
to perform its obligations under this Agreement;
(e) This Agreement constitutes a valid and binding
obligation of each Party, enforceable against such Party in accordance with its
terms; and
(f) Such Party possesses all right, title and interest in
and to all assets, and property such Party licenses hereunder. In particular,
BTC represents and warrants that it possesses all right, title and interest in
and to the TMF Technology.
9.2 SURVIVAL. The representations and warranties of each Party
hereunder are true and correct as of the Closing Date and shall survive the
execution hereof.
10. WARRANTIES, DISCLAIMERS AND GENERAL INDEMNITIES.
10.1 LICENSE WARRANTY. BTC possesses all right, title and interest
in and to the TMF Technology and Production Line Technology with full right and
power to grant the licenses under this Agreement. JCI possesses all right,
title and interest in and to the JCI TMF Developments with full right and power
to grant the licenses under this Agreement.
10.2 DISCLAIMER.
(a) BTC does not and cannot guarantee the performance or results
that may be obtained by use of the TMF Technology or the Production Line
Technology, or the appropriateness of JCI's selection of the TMF Technology or
the Production Line Technology to achieve JCI's intended results. It is
expressly agreed that BTC shall not be liable, or in any way responsible for
the commercial success of any Product embodying or employing the TMF Technology
or the Production Line Technology. Accordingly the TMF Technology and the
Production Line Technology are licensed to JCI "as is". THEREFORE, BTC MAKES
NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING
WITHOUT LIMITATION, ANY WARRANTY OF
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<PAGE> 15
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
(b) JCI does not and cannot guarantee the performance or
results that may be obtained by use of the JCI TMF Developments, or the
appropriateness of BTC's selection of the JCI TMF Developments to achieve BTC's
intended results. It is expressly agreed that JCI shall not be liable, or in
any way responsible for the commercial success of any Product embodying or
employing the JCI TMF Developments. Accordingly the JCI TMF Developments are
licensed to BTC "as is". THEREFORE, JCI MAKES NO WARRANTIES, EITHER EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING WITHOUT LIMITATION, ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
10.3 GENERAL INDEMNITY.
(a) BTC shall, at BTC's expense, indemnify, defend and
hold harmless JCI and JCI's directors, officers, employees, and agents from and
against any and all losses, costs, liabilities or expenses (including costs and
reasonable fees of attorneys and other professionals) arising out of or in
connection with BTC's performance under or breach of this Agreement to the
extent caused by, in whole or in part, any negligent act or omission or willful
misconduct of BTC or BTC's employees or agents, including but not limited to
any act or omission that contributes to (i) any personal injury, sickness,
disease or death; (ii) any damage to or destruction of any property of JCI; or
(iii) any violation of any statute, ordinance or regulation.
(b) JCI shall, at JCI's expense, indemnify, defend and
hold harmless BTC and BTC's directors, officers, employees, and agents from and
against any and all losses, costs, liabilities or expenses (including costs and
reasonable fees of attorneys and other professionals) arising out of or in
connection with JCI's performance under or breach of this Agreement to the
extent caused by, in whole or in part, any negligent act or omission or willful
misconduct of JCI or JCI's employees or agents, including but not limited to
any act or omission that contributes to (i) any personal injury, sickness,
disease or death; (ii) any damage to or destruction of any property of BTC; or
(iii) any violation of any statute, ordinance or regulation.
10.4 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY,
WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING UNDER THIS AGREEMENT, EVEN IF
THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
10.5 PRESERVATION OF TMF TECHNOLOGY, PRODUCTION LINE TECHNOLOGY AND
JCI TMF DEVELOPMENTS.
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(a) BTC agrees to use commercially reasonable efforts to
preserve the patent, copyright, trade secret and other proprietary rights which
comprise the TMF Technology and the Production Line Technology such that the
licenses granted to JCI pursuant to Section 4.1 above will not be materially
limited. In addition, in the event BTC decides to abandon any of the TMF
Technology patents listed on Exhibit I to the JV Agreement, BTC shall give JCI
advance written notice thereof and shall authorize JCI at JCI's option and
expense to pay maintenance fees or take such other actions it may deem
advisable to maintain such patents in force.
(b) JCI agrees to use commercially reasonable efforts to
preserve the patent, copyright, trade secret and other proprietary rights which
comprise the JCI TMF Developments such that the licenses granted to BTC
pursuant to Section 4.2 above will not be materially limited.
(c) Neither party shall be entitled to make a claim of
breach against the other party with respect to Section 10.5 (a) or (b) until
there has been a final adjudication that the actions of the party allegedly in
default were commercially unreasonable and did result in a material limitation
of the rights of the party alleging breach.
11. CONFIDENTIALITY.
11.1 OBLIGATION OF CONFIDENTIALITY. Without the prior written
consent of the disclosing party, no receiving party, its officers, directors,
agents or employees shall, in the case of Confidential Information (as defined
below), both during the term of this Agreement and until five years after the
expiration of the last to expire of the patents licensed hereunder, in any
manner whatsoever disclose or communicate such information to a third party,
except as legally required by any governmental or judicial agency, and each
Party agrees to keep such Confidential Information strictly confidential. For
the purpose of this Agreement, the term "CONFIDENTIAL INFORMATION" shall mean
and include any and all business and financial information relating to the
Parties or the JV (including, without limitation, customer lists), all
technical information (including, without limitation, design specifications,
instructions, know-how, and inventions claimed by TMF Technology patents)
relating to the Technology, the JCI TMF Developments and the Products,
information concerning this Agreement and its terms and conditions, information
received from a third party who is not a party to this Agreement under an
obligation of confidentiality, and all information which a Party should
reasonably expect to be considered Confidential Information. Confidential
Information may be communicated orally, in writing or in any other recorded or
tangible form. "CONFIDENTIAL INFORMATION" shall not include any information
which:
(a) has become or entered the public domain through no
act or omission of the receiving party;
(b) was in the possession of the receiving party prior to
or at the time of receipt hereunder, which possession the receiving party can
demonstrate through competent written records;
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(c) was or has been obtained lawfully from a third party;
provided, however, that such third party shall not include any Party to this
Agreement;
(d) has been independently developed by the receiving
party without violation of its obligation under this Agreement, which
independent development the receiving party can demonstrate through competent
written records.
11.2 OBLIGATION NOT TO USE. Each Party agrees that it shall not
use any Confidential Information obtained from the other Party or the JV for
any purpose whatsoever except in the manner expressly provided for in this
Agreement; provided, however, that BTC and JCI may disclose information about
this Agreement if legally required to do so in order to comply with securities
laws, as well as to customers and to existing and potential investors in, or
acquirors of, BTC and JCI. In the event JCI breaches this Section 11.2, BTC
may in its sole discretion elect to terminate the license granted pursuant to
Section 4.1. In addition, JCI may disclose information about the Technology to
its equipment, material and "have made" suppliers strictly on a need-to-know
basis; provided, however, that such suppliers shall enter into a
Confidentiality Agreement.
11.3 INDEMNITY; INJUNCTIVE RELIEF. Each Party shall indemnify and
hold the other harmless from any loss, liability and expenses suffered by the
other Party as a result of any unauthorized disclosure, communication or use of
any Confidential Information by the receiving Party, its officers, directors,
employees or agents. Each Party acknowledges that irreparable injury will
result to the other in the event of a breach or threatened breach of any of the
provisions of this Section and agrees that in the event of a breach or
threatened breach, the complaining Party shall be entitled, in addition to any
other available remedy, to seek injunctive and other equitable relief from a
court of competent jurisdiction.
11.4 SURVIVAL OF CONFIDENTIALITY. The obligations contained in
this Section 11 shall survive the termination of this Agreement.
12. TERMINATION.
This Agreement may be terminated as follows:
12.1 TERMINATION; TERMINATION FOR BREACH. Notwithstanding anything
herein contained to the contrary, either Party shall have the right, in
addition and without prejudice to any other rights or remedies, to terminate
this Agreement immediately upon notice to the other Party if:
(a) the other Party commits any material breach of the
terms of this Agreement which, in the case of a breach capable of remedy, shall
not have been remedied within thirty (30) days of the receipt by the Party in
default of notice specifying the breach and requiring its remedy, and in the
case of a breach incapable of remedy, no remedial period shall be required or
permitted;
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(b) (i) all or a substantial portion of the assets of the
other Party are transferred to an assignee for the benefit of creditors, to a
receiver or to a trustee in bankruptcy, (ii) a proceeding is commenced by or
against the other Party for relief under bankruptcy or similar laws and such
proceeding is not dismissed within 60 days, or (iii) the other Party is
adjudged bankrupt; or
(c) the other Party (i) has publicly announced that it is
discontinuing, or (ii) has discontinued for three consecutive months, its
business that is directed to the TMF Technology or the sale of Products.
12.2 TERMINATION FOR CONVENIENCE. This Agreement may be terminated
by mutual agreement of the Parties at any time and as provided in any such
agreement.
12.3 EFFECT OF TERMINATION OR EXPIRATION. Termination or
expiration of this Agreement shall not affect any rights or obligations of
either Party which may have accrued up to the effective date of such
termination, shall not prejudice any rights or remedies of either Party under
this Agreement, at law or in equity, and the Parties shall not be relieved of
any confidentiality obligation under Section 11 of this Agreement.
13. MUTUAL AND GENERAL RELEASE.
13.1 RELEASE BY JCI. Except as to the obligations which survive
the termination of the JV as expressly set forth in this Agreement, JCI hereby
forever generally and completely releases and discharges BTC and the JV and
their servants, agents, directors, officers and employees, of and from any and
all claims and demands of every kind and nature, in law, equity or otherwise,
known and unknown, suspected and unsuspected, disclosed and undisclosed, and in
particular of and from all claims and demands of every kind and nature, known
and unknown, suspected and unsuspected, disclosed and undisclosed, for damages
actual and consequential, past, present and future, arising out of or in any
way related to their respective obligations, activities and/or dealings under
the JV Agreements with one another or any third party at any time prior to the
date of this Agreement, including (without limitation) all such claims and
demands arising out of or in any way related to the aforesaid circumstances.
13.2 RELEASE BY BTC. Except as to the obligations which survive
the termination of the JV as expressly set forth in this Agreement, BTC hereby
forever generally and completely releases and discharges JCI and the JV and
their servants, agents, directors, officers and employees, of and from any and
all claims and demands of every kind and nature, in law, equity or otherwise,
known and unknown, suspected and unsuspected, disclosed and undisclosed, and in
particular of and from all claims and demands of every kind and nature, known
and unknown, suspected and unsuspected, disclosed and undisclosed, for damages
actual and consequential, past, present and future, arising out of or in any
way related to their respective obligations, activities and/or dealings under
the JV Agreements with one another or any third party at any time prior to the
date of this Agreement, including (without limitation)
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all such claims and demands arising out of or in any way related to the
aforesaid circumstances.
13.3 RELEASE BY JV. Except as to the obligations which survive the
termination of the JV as expressly set forth in this Agreement, JV hereby
forever generally and completely releases and discharges BTC and JCI and their
servants, agents, directors, officers and employees, of and from any and all
claims and demands of every kind and nature, in law, equity or otherwise, known
and unknown, suspected and unsuspected, disclosed and undisclosed, and in
particular of and from all claims and demands of every kind and nature, known
and unknown, suspected and unsuspected, disclosed and undisclosed, for damages
actual and consequential, past, present and future, arising out of or in any
way related to their respective obligations, activities and/or dealings under
the JV Agreements with one another or any third party at any time prior to the
date of this Agreement, including (without limitation) all such claims and
demands arising out of or in any way related to the aforesaid circumstances.
13.4 EXCEPTION TO GENERAL RELEASE. This Agreement and the mutual
releases set forth in Sections 13.1, 13.2 and 13.3 above shall not compromise
and release the right of each party to enforce this Agreement.
13.5 COMPLETE RELEASE. It is understood and agreed that, except as
set forth in Section 13.4, this is a full, complete and final general release
of any and all claims described as aforesaid, and each party agrees that it
shall apply to all unknown, unanticipated, unsuspected and undisclosed claims,
demands, liabilities, actions or causes of action, in law, equity or otherwise,
as well as those which are now known, anticipated suspected or disclosed.
13.6 COMPROMISE SETTLEMENT. It is understood and agreed that this
is a compromise settlement of disputed claims and that the promises and other
consideration for this Agreement shall not be construed to be an admission of
any liability or obligation whatsoever by either party to the other party or to
any other person whomsoever.
13.7 DISMISSAL OF CLAIMS. Each party hereby authorizes a dismissal
with prejudice of any and all causes of action hereafter brought by it and
arising out of or related to any matter released herein to be entered on its
behalf without further notice by any other party hereto.
13.8 NO LIENS. Each party warrants and represents that there are
no liens or claims of lien or assignments in law or equity or otherwise of or
against any of the claims or causes of action released herein and, further,
that each party is fully entitled and duly authorized to give this complete and
final general release and discharge.
13.9 INDEMNITY. Each party will indemnify and save harmless the
other party hereto from any loss incurred directly or indirectly by reason of
the falsity or inaccuracy of any representation made herein by it.
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14. GENERAL TERMS.
14.1 SURVIVAL. Notwithstanding language in the JV Agreements to
the contrary, none of the terms of the JV Agreements shall survive. The
following terms and conditions of this Agreement shall survive: Section 1
(Definitions); Section 4.4 (Intellectual Property Indemnification and
Limitations); Section 9 (Representations and Warranties of the Parties);
Section 10 (Warranties, Disclaimers and General Indemnities); Section 11
(Confidentiality); Section 13 (Mutual and General Release); and Section 14
(General Terms).
14.2 PUBLICITY. Except as otherwise required by law including,
without limitation, any disclosure required under federal or state securities
laws, and except as may be reasonably necessary in connection with financing or
credit arrangements, all notices to third parties and all other publicity
concerning the transactions contemplated by this Agreement shall be jointly
planned and coordinated by and between the Parties. BTC, and JCI shall not act
unilaterally in this regard without the prior written approval of the other,
which approval shall not be unreasonably withheld. Upon the execution this
agreement, the parties agree to issue a mutually agreeable joint press release.
14.3 DISPUTES/GOVERNING LAW. The validity, interpretation and
performance of this Agreement and any dispute connected herewith shall be
governed and construed in accordance with the laws of Colorado. All disputes
not settled by negotiation or other method of alternative dispute resolution
mutually agreeable to the parties shall be resolved by arbitration in
accordance with the then-prevailing Commercial Rules of the American
Arbitration Association. All disputes shall be decided by a single arbitrator,
and an award shall be issued within 90 days of the date of filing of the demand
for arbitration. The award rendered shall be final, and judgment may be
entered upon it in accordance with the applicable law in any court having
jurisdiction.
14.4 SEVERABILITY. In the event that any provision of this
Agreement shall be unenforceable or invalid under any applicable law or be so
held by applicable court decision, such unenforceability or invalidity shall
not render this Agreement unenforceable or invalid as a whole, and in such
event, such provision shall be changed and interpreted so as to best accomplish
the objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
14.5 RIGHTS AND REMEDIES CUMULATIVE. Except as expressly provided
herein, the rights and remedies provided in this Agreement shall be cumulative
and not exclusive of any other rights and remedies provided by law or
otherwise.
14.6 THIRD PARTIES. Nothing in this Agreement is intended, nor
shall be deemed to confer any rights or remedies upon any person or legal
entity not a Party hereto.
14.7 ASSIGNMENT. The rights, duties and obligations under this
Agreement shall not be assignable by any Party without the prior written
consent of the other Parties, except as provided by this Agreement. Any
attempted assignment without the required consent will be void.
Notwithstanding the foregoing, all rights, duties and obligations under this
Agreement may be
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<PAGE> 21
assigned to an affiliate of a Party ("affiliate" is identified as a company in
which a Party owns 50% or more of that company) without the prior written
consent of the other Parties.
14.8 ENTIRE AGREEMENT, AMENDMENT. This Agreement, along with the
exhibits attached hereto, embodies the final, complete and exclusive
understanding between the Parties, and replaces and supersedes all previous
agreements, understandings or arrangements between the Parties with respect to
the subject matter contained herein. No modification or waiver of any terms or
conditions hereof nor any representations or warranties shall be of any force
or effect unless such modification or waiver is in writing and signed by an
authorized officer of each Party hereto.
14.9 FORCE MAJEURE. No Party shall be liable to any other Party
for its failure to perform any of its obligations under this Agreement, other
than the failure to pay any sums when due, during any period in which such
performance is delayed because rendered impracticable or impossible due to
circumstances beyond its reasonable control, provided that the Party
experiencing the delay promptly notifies the other Parties of the delay.
14.10 NOTICES. All notices, consents, agreements, communications,
requests and the like required or permitted under this Agreement will be in
writing and will be deemed given and received (a) when delivered personally,
(b) when sent by confirmed telecopy, (c) three days after having been duly
mailed by first class, registered or certified mail, postage prepaid, or (d)
two days after deposit with a commercial overnight carrier, with written
verification of receipt. All notices will be addressed as follows:
21
<PAGE> 22
If to BTC:
Bolder Technologies Corporation
5181 Ward Road, Suite 230
Wheat Ridge, Colorado 80033
ATTN: Chairman and Chief Executive Officer
Phone: (303) 422-8200
Fax: (303) 422-8180
with a copy to:
Cooley Godward LLP
2595 Canyon Boulevard, Suite 250
Boulder, Colorado 80302
ATTN: James C.T. Linfield, Esq.
Phone: (303) 546-4000
Fax: (303) 546-4099
If to JCI:
Johnson Controls Battery Group, Inc.
P.O. Box 591
5757 North Green Bay Avenue
Milwaukee, WI 53201
ATTN: Vice President and General Manager
Johnson Controls Battery Group, Inc.
with a copy to:
Johnson Controls Battery Group, Inc.
P.O. Box 591
5757 North Green Bay Avenue
Milwaukee, WI 53201
ATTN: Vice President and General Counsel
or to such other address as the person to whom notice is to be given may have
furnished to the other in writing in accordance herewith.
14.11 WAIVER. The failure of any Party to enforce the provisions of
this Agreement shall not be deemed a waiver of such provisions or of the right
of such Party thereafter to enforce such provisions.
14.12 COUNTERPARTS. This Agreement may be executed in counterparts
with the same force and effect as if each of the signatories had executed the
same instrument.
14.13 PARTIES ADVISED BY COUNSEL -- NO INTERPRETATION AGAINST THE
DRAFTER. This Agreement has been negotiated between unrelated parties who are
sophisticated and knowledgeable in the matters contained in this Agreement and
who have acted in their own self interest. In addition, each Party has been
represented by legal counsel. Accordingly, the
22
<PAGE> 23
provisions of this Agreement shall be interpreted in a reasonable manner to
effect the purpose of the Parties and this Agreement shall not be interpreted
or construed against any Party to this Agreement because that Party or any
attorney or representative for that Party drafted this Agreement or
participated in the drafting of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the Effective Date.
BOLDER TECHNOLOGIES CORPORATION
By: /s/ Daniel S. Lankford
----------------------------------------
Daniel S. Lankford
Chairman and Chief Executive Officer
JOHNSON CONTROLS BATTERY GROUP, INC.
By: /s/ Michael F. Johnston
----------------------------------------
Michael F. Johnston,
Vice President -- Battery Group
JOHNSON CONTROLS/BOLDER LLC
By: /s/ Sandra D. Schreiber
----------------------------------------
Sandra D. Schreiber
Managing Director
23
<PAGE> 1
CERTAIN CONFIDENTIAL MATERIAL
CONTAINED IN THIS DOCUMENT, MARKED
BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT
TO RULE 24b-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
CROSS SUPPLY AGREEMENT
This Cross Supply Agreement (the "Agreement") is made and entered into
as of the 22nd day of January, 1997 (the "Effective Date") by and between
Bolder Technologies Corporation, a Delaware corporation ("BTC"), and Johnson
Controls Battery Group, Inc., a Wisconsin corporation ("JCI").
RECITALS
WHEREAS, BTC and JCI are entering into an Agreement of even date
herewith (the "Main Agreement") pursuant to which BTC will grant certain rights
to make, have made, use and sell battery products based upon BTC's TMF
Technology and Production Line Technology and JCI will grant certain rights to
make, have made, use and sell battery products based on JCI's TMF Developments;
and
WHEREAS, BTC and JCI desire to enter into a cooperative agreement
whereby each will manufacture and supply such battery products to the other.
NOW, THEREFORE,in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions set forth
herein, the parties hereby agree as follows:
AGREEMENT
1. DEFINITIONS
Unless otherwise defined elsewhere herein, capitalized terms used in
this Agreement shall have the meanings specified in the Main Agreement. Where
JCI or BTC is purchasing Products manufactured by the other party under this
Agreement, each shall be referred to herein as "the purchasing party." Where
JCI or BTC is supplying Products to be purchased by the other party under this
Agreement, each shall be referred to herein as "the supplying party."
2. ENGAGEMENT OF MANUFACTURER
2.1 MANUFACTURE OF PRODUCTS FOR JCI APPLICATIONS. JCI hereby
engages BTC as a non-exclusive supplier to manufacture, assemble, test, label,
and package Products for sale by JCI for JCI Applications.
2.2 MANUFACTURE OF PRODUCTS FOR BTC. BTC hereby engages JCI as a
non-exclusive supplier to manufacture, assemble, test, label, and package
Products for sale by BTC.
<PAGE> 2
2.3 QUALITY OF PRODUCTS. All Products manufactured by BTC and JCI
shall be, in every material respect, substantially identical with no lesser
quality or performance to other Products which meet the equivalent quality
acceptance criteria for the supplying party's other customers (the "Product
Specifications").
2.4 EXCLUDED PRODUCTS. Notwithstanding anything to the contrary
herein or in the Main Agreement, this Agreement shall not apply to, and the
supplying party shall have no obligation with respect to the supply of, any
private label product which the supplying party is manufacturing on a custom
basis for a customer.
3. FORECASTS AND PURCHASE OF PRODUCTS
3.1 FORECASTS. In order to assist each party with meeting its
manufacturing and supply obligations hereunder, BTC and JCI shall each provide
the other party with a rolling one year forecast of monthly requirements for
the Products, updated quarterly, delivered to the other within forty-five (45)
days after the end of each such quarter. These forecasts shall represent a
good faith estimate of each party for the one year period. The supplying party
shall review the forecast and notify the purchasing party if it does not
believe that it will be able to satisfy the purchasing party's forecast for
products as set forth in the forecast for any period. The purchasing party
agrees that it will provide a minimum of 6 months advance notice of any 20%
increase or decrease in its forecast for products from quarter to quarter.
3.2 PURCHASE OF PRODUCTS AND FIRM PURCHASE ORDERS. JCI and BTC
each undertake to purchase the Products in their own name and for their own
account. JCI and BTC shall each purchase Products on a quarterly basis (or
such other period as agreed upon by the parties) by delivering to the other
party, ninety (90) days before the first day of the succeeding quarter for any
orders placed in the first Year of Commercial Production (as defined below) and
one hundred eighty (180) days before the first day of the succeeding quarter
for orders placed in any subsequent Year of Commercial Production, a firm
written purchase order for Products ("PURCHASE ORDER"). Each such Purchase
Order shall be considered a release for shipment, and shall be legally binding
on both the purchasing party and the supplying party upon its acceptance by the
supplying party. The supplying party can reject within fourteen (14) days of
receipt of such Purchase Order any Purchase Order in excess of the minimum
quantities set forth in Section 3.3 below in whole or in part. JCI and BTC
each agree to submit such orders on a Purchase Order form containing no term or
condition other than the quantity requested, requested delivery dates and
shipment location. The delivery dates requested on the Purchase Order may vary
from those set forth in the annual forecast, but the supplying party shall in
no event be obligated to deliver any Products on less than one hundred eighty
(180) days lead time unless otherwise agreed to in advance in writing by BTC
and JCI. Any term or condition set forth in JCI's or BTC's Purchase Order
which is inconsistent with or in addition to the terms and conditions of this
Agreement shall have no force or effect unless otherwise agreed to in writing
by the supplying party for each Purchase Order.
2.
<PAGE> 3
3.3 MINIMUM QUANTITIES. Subject to the purchasing party's
compliance with Sections 3.1 and 3.2 above, the supplying party agrees to
supply to the purchasing party the minimum quantities of Products set forth
below:
<TABLE>
<CAPTION>
Year of
Commercial Production Minimum Quantity
--------------------- ----------------
<S> <C>
[ ]* [
]*
[ ]* [
]*
[ ]* [
]*
[ ]* [
]*
</TABLE>
The "Year of Commercial Production" shall mean [
]* The
supplying party agrees to negotiate with the purchasing party in good faith to
increase the Minimum Quantity for each one hundred eighty (180) days additional
notice which the purchasing party gives the supplying party.
A Force Majeure affecting the supplying party shall relieve the
supplying party of any liability for failure to supply the Minimum Quantity.
4. DELIVERY AND ACCEPTANCE
4.1 DELIVERY. In the absence of specific instructions from the
purchasing party, the shipping and packaging method used will be at the
discretion of the supplying party. Deliveries shall be made FOB the supplying
party's manufacturing facility (ICC Incoterms 1990), and shall be shipped to
the purchasing party's address as set forth in this Agreement unless otherwise
specified in the Purchase Order. Unless a Purchase Order specifies the name of
a carrier, the supplying party will select the carrier. The supplying party
shall bear the risk of loss until such time as shipment has been placed on
board the carrier, at which time the risk of loss shall be borne by the
purchasing party. The parties hereto agree that Title to the Products shall
pass at the time that the supplying party places the Products on board the
common carrier. Any claims for damage or loss in transit shall be placed by
the purchasing party through the carrier. All shipments will be shipped by the
supplying party freight collect, or if prepaid, such freight will be
subsequently billed to the purchasing party and the purchasing party will
reimburse the supplying party for such freight. The supplying party
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
3.
<PAGE> 4
reserves the right to deliver to the purchasing party in advance of estimated
delivery dates with the prior consent of the purchasing party. At the
purchasing party's request and expense, the supplying party will insure the
shipments against damage to or loss of Products. Any shipping insurance so
provided by the supplying party will subsequently be billed to the purchasing
party, and the purchasing party will reimburse the supplying party for such
expense. The purchasing party shall also pay all insurance premiums, packing
charges, inspection fees, duties, tariffs, impost and similar charges as well
as the other amounts due under Section 5 below.
4.2 ACCEPTANCE. The purchasing party shall inspect all goods
promptly upon receipt thereof at the shipping destination and may reject any
goods which fail in any material respect to meet the Product Specifications
prevailing on the date of delivery. Goods not rejected by written notification
to the supplying party within fourteen (14) calendar days of receipt shall be
deemed to have been accepted. Rejected goods shall be shipped freight prepaid
to the supplying party within ten (10) calendar days of receipt from the
supplying party of a return authorization number, which the purchasing party
may obtain from the supplying party by telephone upon proper explanation of the
rejection. As promptly as possible but not later than sixty (60) days after
receipt by the supplying party of properly rejected goods, the supplying party
shall, at its option and expense, either repair or replace rejected goods. The
party shipping the goods pursuant to this Section 4.2 shall bear the entire
risk of loss for goods during shipment. Any insurance proceeds payable in
respect of any loss incurred shall be paid to the party bearing the risk of
loss for such goods to the extent of the loss incurred therefor. The supplying
party will prepay transportation charges back to the purchasing party and shall
reimburse the purchasing party for any costs of transportation incurred by the
purchasing party in connection with the return to the supplying party of
properly rejected goods; otherwise, the purchasing party shall pay
transportation charges in both directions.
5. PRICE AND PAYMENT TERMS
5.1 [
]* The supplying
party shall notify the purchasing party of the prices for the Products
immediately prior to the time of the purchasing party's initial order for
Products and shall provide notice of any price changes. Price changes shall
not apply to any Purchase Orders which the supplying party has already
accepted.
* Indicates portions of text that have been omitted. A separate
filing of such omitted text has been made with the Commission as
part of Registrant's application for confidential treatment.
4.
<PAGE> 5
5.2 PAYMENT TERMS. Payment for all Products ordered hereunder
shall be in U.S. Dollars. JCI and BTC shall pay the supplying party the
purchase price for the Products as stated on the supplying party's invoice for
each shipment within thirty (30) days from the date of the invoice.
5.3 TAXES. Any and all amounts due to the supplying party from
the purchasing party under this Agreement are exclusive of, and the purchasing
party shall pay and shall indemnify and hold the supplying party harmless
against (a) any liability for any sale, use, property license, value added,
withholding, import excise or similar tax, federal, state or local, that may be
imposed upon or with respect to the Products or their delivery, sale,
licensing, use, ownership or possession, and (b) any insurance premiums,
packing charges, inspection fees, duties, tariffs, impost and similar charges,
exclusive of taxes based on the supplying party's net income.
6. PRODUCT WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY
6.1 PRODUCT WARRANTY. The supplying party warrants solely to the
purchasing party that each Product shall be free from defects in workmanship
and materials under ordinary and proper use for ninety (90) days from the
Product ship date (the "PRODUCT WARRANTY"). The Product Warranty shall not
apply to Product defects caused by misuse or use not in accordance with the
instructions of the supplying party, unauthorized modifications, neglect,
improper installation or testing, attempts to repair, abuse, damage, or alter
the Product by a party other than the supplying party, or Product damaged by
external causes not directly contributed to by the supplying party, including
without limitation, damage by fire, accident, power surge, power failure or
other hazard.
6.2 DISCLAIMER. THE EXPRESS WARRANTY ABOVE IS IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR THAT THE
PRODUCTS ARE FREE FROM THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF
INFRINGEMENT OR THE LIKE. THE EXPRESS OBLIGATION STATED ABOVE IS IN LIEU OF
ALL LIABILITIES OR OBLIGATIONS OF THE SUPPLYING PARTY FOR DAMAGES, INCLUDING
BUT NOT LIMITED TO LOSS, DAMAGE OR INJURY, DIRECT OR CONSEQUENTIAL, ARISING OUT
OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF THE PRODUCTS, AND
IT IS AGREED THAT REPAIR OR REPLACEMENT IS THE PURCHASING PARTY'S SOLE REMEDY
FOR SUCH LOSS, DAMAGE OR INJURY. IN NO EVENT WILL EITHER PARTY HERETO BE
LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.3 NO WARRANTY PASS-THROUGH. The purchasing party hereunder
shall not pass through to its customers or any other third party the warranties
made by the supplying party under this Agreement or make other representations
to its customers or any other third party on behalf of the supplying party, and
the purchasing party shall expressly indicate that they
5.
<PAGE> 6
must look solely to the purchasing party in connection with any problems,
warranty claim or other matters concerning the product sold by such party. No
warranty, representation or agreement herein shall be deemed to be made for the
benefit of any customer of the purchasing party or any other third party.
6.4 WARRANTY SERVICE. The supplying party's sole obligation under
this Agreement shall be to either repair or replace, at the supplying party's
option, or by mutual agreement of the parties, credit the purchasing party, for
any Products found to be defective during this warranty period. This remedy is
made on the condition that (a) the supplying party is promptly notified of the
defect; (b) the defects were not the result of misuse or use not in accordance
with the instructions of the supplying party, accident, neglect, improper
alteration or improper testing, storage, installation, attempt to repair,
abuse, damage, alterations or damaged by external causes not directly
contributed to by the supplying party, including without limitation, damage by
fire, accident, power surge, power failure or other hazard; (c) such Products
are returned to the supplying party FOB the purchasing party's manufacturing
facility (ICC Incoterms 1990). The Product Warranty referred to in this
Section 6 shall apply to all Products supplied to replace defective Products.
Repaired Products will be returned to the purchasing party FOB the supplying
party's shipping point (ICC Incoterms 1990), within ninety (90) days after
receipt of the defective Products by the supplying party; however, the
supplying party will use reasonable efforts to return repaired Products within
forty-five (45) days.
7. INDEMNIFICATION
7.1 INDEMNIFICATION BY THE SUPPLYING PARTY. The supplying party
shall indemnify and hold harmless the purchasing party and the purchasing
party's managers, officers, employees, and agents from and against any and all
losses, costs, liabilities or expenses (including court costs and reasonable
attorney's fees) arising out of or in connection with the supplying party's
performance under or breach of this Agreement to the extent that such claims
arise out of or result from (a) claims by third parties or (b) claims by the
purchasing party for personal injury or property damage which arise out of (i)
a defect (as determined in accordance with the Product Warranty set forth in
Section 6.1 hereof) in the manufacture of any Products by the supplying party
or (ii) the negligent act or omission of the supplying party.
7.2 INDEMNIFICATION BY THE PURCHASING PARTY. The purchasing party
shall indemnify and hold harmless the supplying party and the supplying party's
managers, officers, employees, and agents from and against any and all losses,
costs, liabilities or expenses (including court costs and reasonable attorney's
fees) arising out of or in connection with the purchasing party's performance
under this Agreement to the extent that such claims arise out of or result from
(a) claims by third parties or (b) claims by the supplying party for personal
injury or property damage which arise out of (i) the sale or other distribution
of Products by the purchasing party, (ii) any representation made or warranty
given by the purchasing party with respect to any Product, (iii) the sale or
use of any product which is not supplied by the supplying party and which is
sold or combined with a Product supplied by the supplying party,
6.
<PAGE> 7
(iv) repairs or services rendered by the purchasing party or (v) the negligent
act or omission of the purchasing party.
7.3 INDEMNIFICATION PROCEDURE. The party seeking indemnification
(the "INDEMNIFIED PARTY") shall (a) give the other party (the "INDEMNIFYING
PARTY") notice of such claim, (b) cooperate with the Indemnifying Party, at the
Indemnifying Party's expense, in the defense of such claim, and (c) give the
Indemnifying Party the right to control the defense and settlement of any such
claim, except that the Indemnifying Party shall not enter into any settlement
that affects the Indemnified Party's rights or interest without the Indemnified
Party's prior written approval. The Indemnified Party shall have no authority
to settle any claim on behalf of the Indemnifying Party.
8. CONFIDENTIALITY
8.1 OBLIGATION OF CONFIDENTIALITY. Without the prior written
consent of the disclosing party, no receiving party, its officers, directors,
agents or employees shall, in the case of Confidential Information (as defined
below), both during the term of this Agreement and until five years after the
expiration of the last to expire of the patents licensed under the Main
Agreement, in any manner whatsoever disclose or communicate such information to
a third party, except as legally required by any governmental or judicial
agency, and BTC and JCI each agree to keep such Confidential Information
strictly confidential. For the purpose of this Agreement, the term
"CONFIDENTIAL INFORMATION" shall mean and include any and all business and
financial information relating to BTC or JCI (including, without limitation,
customer lists), all technical information (including, without limitation,
design specifications, instructions, know- how, and inventions claimed by TMF
Technology patents) relating to the Technology, the JCI TMF Developments and
the Products, information concerning this Agreement and its terms and
conditions, information received from a third party who is not a party to this
Agreement under an obligation of confidentiality, and all information which BTC
or JCI should reasonably expect to be considered Confidential Information.
Confidential Information may be communicated orally, in writing or in any other
recorded or tangible form. "Confidential Information" shall not include any
information which:
(a) has become or entered the public domain through no
act or omission of the receiving party;
(b) was in the possession of the receiving party prior to
or at the time of receipt hereunder, which possession the receiving party can
demonstrate through competent written records;
(c) was or has been obtained lawfully from a third party;
provided, however, that such third party shall not include BTC or JCI;
(d) has been independently developed by the receiving
party without violation of its obligation under this Agreement, which
independent development the receiving party can demonstrate through competent
written records.
7.
<PAGE> 8
8.2 OBLIGATION NOT TO USE. BTC and JCI each agree that it shall
not use any Confidential Information obtained from the other party for any
purpose whatsoever except in the manner expressly provided for in this
Agreement and in the Main Agreement; provided, however, that BTC and JCI may
disclose information about this Agreement if legally required to do so in order
to comply with securities laws, as well as to customers and to existing and
potential investors in, or acquirors of, BTC and JCI.
8.3 INDEMNITY; INJUNCTIVE RELIEF. BTC and JCI shall indemnify and
hold the other harmless from any loss, liability and expenses suffered by the
other party as a result of any unauthorized disclosure, communication or use of
any Confidential Information by the receiving party, its officers, directors,
employees or agents. BTC and JCI each acknowledge that irreparable injury will
result to the other in the event of a breach or threatened breach of any of the
provisions of this Section and agrees that in the event of a breach or
threatened breach, the complaining party shall be entitled, in addition to any
other available remedy, to seek injunctive and other equitable relief from a
court of competent jurisdiction.
8.4 SURVIVAL OF CONFIDENTIALITY. The obligations contained in
this Section 8 shall survive the termination of this Agreement.
9. TERM. Unless sooner terminated pursuant to Section 10 below, this
Agreement shall terminate the earlier of (i) four years after the
implementation of the supplying party's commercial manufacturing capability, or
(ii) immediately when the purchasing party no longer has the right to use or
sell Products under the Main Agreement.
10. TERMINATION.
This Agreement may be terminated as follows:
10.1 TERMINATION; TERMINATION FOR BREACH. Notwithstanding anything
herein contained to the contrary, BTC and JCI shall each have the right, in
addition and without prejudice to any other rights or remedies, to terminate
this Agreement immediately upon notice to the other party if:
(a) the other party commits any material breach of the
terms of this Agreement which, in the case of a breach capable of remedy, shall
not have been remedied within thirty (30) days of the receipt by the party in
default of notice specifying the breach and requiring its remedy, and in the
case of a breach incapable of remedy, no remedial period shall be required or
permitted;
(b) (i) all or a substantial portion of the assets of the
other party are transferred to an assignee for the benefit of creditors, to a
receiver or to a trustee in bankruptcy, (ii) a proceeding is commenced by or
against the other party for relief under bankruptcy or similar laws and such
proceeding is not dismissed within sixty (60) days, or (iii) the other party is
adjudged bankrupt; or
8.
<PAGE> 9
(c) the other party (i) has publicly announced that it is
discontinuing, or (ii) has discontinued for three consecutive months, its
business that is directed to the TMF Technology or the sale of Products.
10.2 TERMINATION FOR CONVENIENCE. This Agreement may be terminated
by mutual agreement of BTC and JCI at any time and as provided in any such
agreement.
10.3 EFFECT OF TERMINATION OR EXPIRATION. Termination or
expiration of this Agreement shall not affect any rights or obligations of
either BTC or JCI which may have accrued up to the effective date of such
termination, shall not prejudice any rights or remedies of either party under
this Agreement, at law or in equity, and BTC and JCI shall not be relieved of
any confidentiality obligation under Section 8 of this Agreement.
11. GENERAL TERMS
11.1 SURVIVAL. Notwithstanding language in the JV Agreements to
the contrary, none of the terms of the JV Agreements shall survive. The
following terms and conditions of this Agreement shall survive: Section 6
(Product Warranties, Disclaimers and Limitations of Liability); Section 7
(Indemnification); and Section 8 (Confidentiality).
11.2 PUBLICITY. Except as otherwise required by law including,
without limitation, any disclosure required under federal or state securities
laws, and except as may be reasonably necessary in connection with financing or
credit arrangements, all notices to third parties and all other publicity
concerning the transactions contemplated by this Agreement shall be jointly
planned and coordinated by and between BTC and JCI. BTC and JCI shall not act
unilaterally in this regard without the prior written approval of the other,
which approval shall not be unreasonably withheld. Upon the execution of this
Agreement, the parties agree to issue a mutually agreeable joint press release.
11.3 DISPUTES/GOVERNING LAW. The validity, interpretation and
performance of this Agreement and any dispute connected herewith shall be
governed and construed in accordance with the laws of Colorado. All disputes
not settled by negotiation or other method of alternative dispute resolution
mutually agreeable to the parties shall be resolved by arbitration in
accordance with the then-prevailing Commercial Rules of the American
Arbitration Association. All disputes shall be decided by a single arbitrator,
and an award shall be issued within ninety (90) days of the date of filing of
the demand for arbitration. The award rendered shall be final, and judgment
may be entered upon it in accordance with the applicable law in any court
having jurisdiction.
11.4 SEVERABILITY. In the event that any provision of this
Agreement shall be unenforceable or invalid under any applicable law or be so
held by applicable court decision, such unenforceability or invalidity shall
not render this Agreement unenforceable or invalid as a whole, and in such
event, such provision shall be changed and interpreted so as to best accomplish
the objectives of such unenforceable or invalid provision within the limits of
applicable law or applicable court decisions.
9.
<PAGE> 10
11.5 RIGHTS AND REMEDIES CUMULATIVE. Except as expressly provided
herein, the rights and remedies provided in this Agreement shall be cumulative
and not exclusive of any other rights and remedies provided by law or
otherwise.
11.6 THIRD PARTIES. Nothing in this Agreement is intended, nor
shall be deemed to confer any rights or remedies upon any person or legal
entity not a party hereto.
11.7 ASSIGNMENT. The rights, duties and obligations under this
Agreement shall not be assignable by BTC or JCI without the prior written
consent of the other, except as provided by this Agreement. Any attempted
assignment without the required consent will be void. Notwithstanding the
foregoing, all rights, duties and obligations under this Agreement may be
assigned to an Affiliate of BTC or JCI without the prior written consent of the
other party.
11.8 ENTIRE AGREEMENT, AMENDMENT. This Agreement, along with the
exhibits attached hereto, embodies the final, complete and exclusive
understanding between BTC and JCI, and replaces and supersedes all previous
agreements, understandings or arrangements between BTC and JCI with respect to
the subject matter contained herein. No modification or waiver of any terms or
conditions hereof nor any representations or warranties shall be of any force
or effect unless such modification or waiver is in writing and signed by an
authorized officer of both BTC and JCI.
11.9 FORCE MAJEURE. Neither BTC nor JCI shall be liable to the
other party for its failure to perform any of its obligations under this
Agreement, other than the failure to pay any sums when due, during any period
in which such performance is delayed because rendered impracticable or
impossible due to circumstances beyond its reasonable control, provided that
the party experiencing the delay promptly notifies the other party of the
delay.
11.10 NOTICES. All notices, consents, agreements, communications,
requests and the like required or permitted under this Agreement will be in
writing and will be deemed given and received (a) when delivered personally,
(b) when sent by confirmed telecopy, (c) three days after having been duly
mailed by first class, registered or certified mail, postage prepaid, or (d)
two days after deposit with a commercial overnight carrier, with written
verification of receipt. All notices will be addressed as follows:
10.
<PAGE> 11
If to BTC:
Bolder Technologies Corporation
5181 Ward Road, Suite 230
Wheat Ridge, Colorado 80033
ATTN: Chairman and Chief Executive Officer
Phone: (303) 422-8200
Fax: (303) 422-8180
with a copy to:
Cooley Godward LLP
2595 Canyon Boulevard, Suite 250
Boulder, Colorado 80302
ATTN: James C.T. Linfield, Esq.
Phone: (303) 546-4000
Fax: (303) 546-4099
If to JCI:
Johnson Controls Battery Group, Inc.
P.O. Box 591
5757 North Green Bay Avenue
Milwaukee, WI 53201
ATTN: Vice President and General Manager
Johnson Controls Battery Group, Inc.
with a copy to:
Johnson Controls Battery Group, Inc.
P.O. Box 591
5757 North Green Bay Avenue
Milwaukee, WI 53201
ATTN: Vice President and General Counsel
or to such other address as the person to whom notice is to be given may have
furnished to the other in writing in accordance herewith.
11.11 WAIVER. The failure of either party to enforce the provisions
of this Agreement shall not be deemed a waiver of such provisions or of the
right of such party thereafter to enforce such provisions.
11.12 COUNTERPARTS. This Agreement may be executed in counterparts
with the same force and effect as if each of the signatories had executed the
same instrument.
11.13 PARTIES ADVISED BY COUNSEL -- NO INTERPRETATION AGAINST THE
DRAFTER. This Agreement has been negotiated between unrelated parties who are
sophisticated and knowledgeable in the matters contained in this Agreement and
who have acted in their own self interest. In addition, each party has been
represented by legal counsel. Accordingly, the
11.
<PAGE> 12
provisions of this Agreement shall be interpreted in a reasonable manner to
effect the purpose of the parties and this Agreement shall not be interpreted
or construed against any party to this Agreement because that party or any
attorney or representative for that party drafted this Agreement or
participated in the drafting of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the Effective Date.
BOLDER TECHNOLOGIES CORPORATION JOHNSON CONTROLS BATTERY GROUP, INC.
By: /s/ Daniel S. Lankford By: /s/ Michael F. Johnston
-------------------------------- -------------------------------------
Daniel S. Lankford, Chairman and Michael F. Johnston, Vice President --
Chief Executive Officer Battery Group
12.
