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LITHIUM TECHNOLOGY CORPORATION
FORM 10-KSB/A
For the fiscal year ended December 31, 1995
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-KSB/A
(Mark One)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (Fee Required)
For the fiscal year ended December 31, 1995
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (No fee required)
For the transition period from to
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Commission File Number 1-10446
LITHIUM TECHNOLOGY CORPORATION
(Name of Small Business Issuer in Its Charter)
DELAWARE 13-3411148
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
5115 CAMPUS DRIVE, PLYMOUTH MEETING, PENNSYLVANIA
(Address of Principal Executive Offices)
19462
(Zip Code)
(610) 940-6090
(Issuer's Telephone Number, Including Area Code)
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Securities registered under Section 12(b) of the Exchange Act: None
Securities registered under Section 12(g) of the Exchange Act:
Common Stock,
Par Value, $0.01
Check whether the issuer: (1) filed all reports required to be filed by Section
13 or 15(d) of the Exchange Act during the past 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes [X] No [ ]
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Check if there is no disclosure of delinquent filers in response to Item 405 of
Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-KSB or any amendment to this Form 10-KSB.
Yes [X] No [ ]
State issuer's revenues for its most recent fiscal year. None for the fiscal
year ended December 31, 1995.
State the aggregate market value of the voting stock held by non-affiliates
computed by reference to the price at which the stock was sold, or the average
bid and asked prices of such stock, as of a specified date within the past 60
days.
$48,669,000 as of March 29, 1996. The aggregate market value
was based upon the mean between the closing bid and
asked price for the Common Stock as quoted by the
NASD Electronic Bulletin Board.
ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS
DURING THE PAST FIVE YEARS
Check whether the issuer has filed all documents and reports required to be
filed by Section 12, 13, or 15(d) of the Exchange Act after the distribution of
securities under a plan confirmed by a court. Yes [ ] No [ ]
APPLICABLE ONLY TO CORPORATE REGISTRANTS
State the number of shares outstanding of each of the issuer's classes of
common equity, as of the latest practicable date: As of April 8, 1996,
15,658,704 shares of Common Stock.
DOCUMENTS INCORPORATED BY REFERENCE
If the following documents are incorporated by reference, briefly describe them
and identify the part of the Form 10-KSB (e.g., Part I, Part II, etc.) into
which the document is incorporated: (1) any annual report to security-holders;
(2) any proxy or information statement; and (3) any prospectus filed pursuant
to Rule 424(b) or (c) of the Securities Act of 1933 ("Securities Act"). None.
Transitional Small Business Disclosure Format (check one): Yes [ ] No [X]
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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EXHIBITS TO FORM 10-KSB/A
ANNUAL REPORT UNDER SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1995
LITHIUM TECHNOLOGY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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Exhibit 10.14
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TECHNOLOGY DEVELOPMENT AGREEMENT
THIS AGREEMENT is made effective the 29th day of March, 1996 ("Effective Date")
by and between Lithium Technology Corporation, a corporation having offices in
Plymouth Meeting, Pennsylvania ("LTC"), and Mitsubishi Materials Corporation,
having offices in Tokyo, Japan ("Mitsubishi"), and Mitsui & Co., Ltd., having
offices in Tokyo, Japan ("Mitsui"). Mitsubishi and Mitsui are hereinafter
referred to collectively as the "Consortium".
WITNESSETH:
WHEREAS, LTC has under development and owns various technologies for the
development and manufacture of solid-state lithium-polymer batteries.
WHEREAS, LTC wishes to further develop this technology so that it can be
commercially exploited;
WHEREAS, the Consortium wishes to assist further development work by LTC, and
LTC is willing to carry out such development work, with the assistance of the
Consortium, on the terms and conditions set forth in this Agreement;
WHEREAS, the Consortium and LTC anticipate that this Agreement is the first
step in a broad strategic alliance for the research and development,
manufacture, distribution, promotion and sales of lithium-polymer batteries;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
ARTICLE I - DEFINITIONS
-----------------------
As used in this Agreement, the following terms have the meanings set forth in
this Article. All Article and Section numbers, and schedule references, used
in this Agreement refer to Articles and Sections of, and schedules to, this
Agreement unless otherwise specifically described.
(1.01) "Technology" shall mean intentions, patents, know-how, trade secrets,
information, data, manufacturing processes, designs, ideas, and the
like, relating to lithium-polymer batteries.
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(1.02) "LTC Process Technology " shall mean all Technology developed
independently by LTC for the manufacture of lithium-polymer batteries,
including without limitation, benchtop line technology.
(1.03) "LTC Battery Technology" shall mean all Technology developed
independently by LTC relating to the composition and construction of
lithium-polymer batteries, including without limitation, baseline high
energy cell technology.
(1.04) "LTC Technology" shall mean all LTC Process Technology and LTC Battery
Technology. LTC Technology consists of LTC Core Technology and LTC New
Technology.
(1.05) "LTC Core Technology" shall mean all Process Technology and Battery
Technology owned by LTC prior to the date of this Agreement.
(1.06) "LTC New Technology" shall mean all Process Technology and Battery
Technology developed independently and owned by LTC subsequent to the
date of this Agreement.
(1.07) "Consortium Technology" shall mean all Technology developed by the
Consortium for the manufacture of lithium-polymer batteries or
relating to the composition and construction thereof independently
developed and owned prior to or subsequent to the date of this
Agreement.
(1.08) "Joint Technology" shall mean all Technology developed jointly by the
parties irrespective of the form of Consortium's contribution,
including without limitation, disclosure of Consortium R&D plan,
bi-monthly reports, information exchange meetings, on-site technical
support, etc., in the development of LTC New Technology, regardless of
whether patentable or not.
(1.09) "Products" shall mean those commercially exploitable battery products
meeting the technical specification, quality and other itemized
figures as listed on Schedule A attached hereto in the manner
satisfactory to the Consortium.
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ARTICLE II - PURPOSE AND OBJECTIVES
-----------------------------------
(2.01) LTC shall further develop the LTC Technology as it relates to the
Products. The Consortium, as potential manufacturers and distributors
of Products, also wishes to see the further development of the LTC
Technology. Accordingly, the Consortium agrees to help fund for the
further testing and development work by LTC on the LTC Technology, as
set forth in detail in Article III. The Consortium will also provide
certain other forms of cooperation in support of LTC's development
effort and the parties will exchange information concerning the
further development of the LTC Technology, all as set forth in detail
in Article IV.
(2.02) The general objective of the parties under this Agreement will be to
technically advance the LTC Technology as it relates to the Products.
In this regard, LTC shall devote the bulk of its time and effort in
developing LTC Technology to complete the Products. The primary
application of LTC Technology for Products shall be listed in Schedule
A.
However, the Consortium's obligations to LTC with respect to the
development program shall be fully defined by this Agreement and the
Consortium shall have no obligation with respect to the development of
the LTC Technology nor any obligation to provide funding or support to
LTC beyond what is explicitly set forth herein or in the Agreements
referred to herein.
ARTICLE III - FUNDING BY THE CONSORTIUM
---------------------------------------
(3.01) The Consortium shall make payment to LTC in the amount as follows:
Mitsubishi $1,500,000; Mitsui $900,000 (hereafter the total amount in
dollars referred to as the "Proceeds"), in consideration of:
(a) 605,336 shares of LTC restricted Common Stock whose number is
calculated by the Proceeds divided by mutually agreed price
per share, $3.964745 which represents 4% of all the
outstanding shares of Common Stock, all the outstanding shares
of Preferred Stock (convertible to Common) and the shares to
be issued to the holders of convertible promissory notes of
LTC (which notes are to be converted simultaneously with the
Closing), after the issuance thereof, and after a 1:30 reverse
split on 8 February 1996 as listed on Schedule B;
(b) an exclusive option right, exercisable at the sole discretion
of the Consortium, to be granted license to LTC's Technology,
under mutually agreeable terms to be negotiated, necessary for
the manufacture, distribution and sales of Products as
specified in Article VII; and
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* Confidential treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
(c) any other rights as provided in this Agreement.
(3.02) The funding provided by the Consortium pursuant to Section 3.01 will
be paid to LTC upon the issuance and delivery of Common Stock
mentioned in Section 3.01(a) and execution of the Subscription and
Stock Purchase Agreement.
(3.03) The funding provided by the Consortium pursuant to Section 3.01 is
intended by the parties to cover expenses of LTC exclusively related
to the further development of the LTC Technology as it relates to the
Products.
ARTICLE IV - CONDUCT OF THE DEVELOPMENT PROGRAM;
EXCHANGE OF INFORMATION
-----------------------
(4.01) *
(4.02) Six months after signing this agreement, LTC and the Consortium shall
start to discuss the progress and achievement of LTC Battery
Technology development and LTC Process Technology development to be
conducted hereunder. LTC shall continue LTC Technology development as
it relates to the Products.
(4.03) *
(4.04) Notwithstanding any provisions as contained herein, the Consortium
shall be entitled to terminate this Agreement, at its discretion, at
any time unconditionally and without incurring any liability to LTC
hereunder upon 30 days prior written notice to LTC.
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(4.05) Within thirty (30) days from the date of this Agreement, the
Consortium shall provide LTC with a written outline describing in
reasonable detail, as LTC has done in Schedules C and D, its proposed
research, development, and testing activities for the first six months
of this Agreement ("Consortium R&D Plan", Schedules C and D "LTC R&D
Plan", Consortium R&D Plan and LTC R&D Plan collectively called "R&D
Plan").
Similar R&D Plans shall be prepared and exchanged by the parties on
the first and subsequent six month anniversaries of this Agreement
unless terminated pursuant to Section 4.04. Each party shall give due
consideration to any suggestions or advice received from the other
with respect to its R&D Plan. However, the exact manner in which each
party implements its R&D Plan shall be within that party's sole
discretion.
(4.06) At LTC's request, the Consortium may support LTC's development effort
by: (a) performing limited testing and development work with respect
to Products (the extent of such work to be solely within the
Consortium's discretion); and (b) by providing other technical
expertise agreeable to LTC and the Consortium, to include on-site
engineers at LTC's facility as described in Section (4.13) below.
(4.07) In addition to the work described in Section 4.06, the Consortium at
its option may perform further testing or development work on LTC
Technology, but in no event shall the Consortium be required to
perform such further work.
(4.08) LTC shall disclose to the Consortium all information generated by
LTC's work under this Agreement, including without limitation all test
results, data, trade secrets, and ideas (whether or not patentable),
and other Technology hereunder. Such disclosures shall be made in
writing pursuant to Section 4.09. All such disclosures by LTC shall
be made pursuant to the confidentiality provisions of Article VII.
(4.09) In order to facilitate the disclosure of information as set forth in
Section 4.08, LTC shall provide the Consortium with written reports of
LTC's activities pursuant to this Agreement. The first such report
will be delivered to the Consortium not later than two months from the
date of this Agreement and additional reports will be delivered
thereafter at bimonthly intervals during the term of this Agreement.
The reports shall contain a reasonably detailed account of LTC's
activities under this Agreement, including supporting data, as well as
a description of any significant technical advances (including
patentable ideas) which have occurred during such bi-monthly periods.
(4.10) During the term of this Agreement, the Consortium will promptly
disclose to LTC all information generated by the Consortium directly
arising out of the Consortium's work on LTC Technology, including
without limitation all test results, data, trade secrets, and ideas
(whether or not patentable) and other Technology hereunder. LTC
explicitly acknowledges that the Consortium shall have no obligation
to disclose to LTC any information not directly arising out of the
Consortium's work on LTC Technology and further that the Consortium
shall reserve any rights, title and interest in and to Consortium
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Technology, irrespective of the execution and performance of this
Agreement. Disclosures shall be made in writing to the extent
reasonably possible pursuant to Section 4.11. All such disclosures by
the Consortium shall be made pursuant to the confidentiality
provisions of Article VII.
(4.11) In order to facilitate the disclosure of information as set forth in
Section 4.10, the Consortium shall provide LTC with written reports of
the Consortium's activities in support of the development program
pursuant to Sections 4.06 and 4.07. The first such report will be
delivered to LTC not later than two months from the date of this
Agreement and additional reports will be delivered thereafter at
bi-monthly intervals during the term of this Agreement. The reports
shall contain a reasonably detailed account of the Consortium's
activities under Sections 4.06 and 4.07, including supporting data, as
well as a description of any significant technical advances (including
patentable ideas) which have occurred during such bi-monthly periods;
but in no event shall the Consortium be required to include in such
reports any information as to its activities which does not relate to
LTC Technology.
(4.12) In order to further facilitate the exchange of information
contemplated under this Article, the parties agree to have periodic
meetings to review and discuss the activities of LTC under this
Agreement and the activities of the Consortium in support thereof.
The first such meeting shall take place three (3) months from the date
of this Agreement. Each meeting shall take place at a mutually
convenient time and place. Among the matters to be discussed at each
such meeting are: (a) the status of each party's work under their
current R&D Plan as mentioned in Section 4.05, as well as any
amendments or modifications that party may wish to make to such R&D
Plan, and (b) whether any patentable developments have been made by
the parties during the preceding quarter and, if so, how such
developments are to be handled pursuant to the procedures established
in Article V. Such meetings are to be in aid of, but not in lieu of,
the parties and duties of disclosure pursuant to this Article.
Each party shall pay its own costs of travel and lodging associated
with these periodic meetings.
(4.13) The Consortium shall have the right to dispatch and station technical
representatives of the Consortium to evaluate support LTC Technology
development at LTC's facility where the work on LTC Technology is
being conducted. LTC shall receive such technical representatives and
give them reasonable accommodations and facilities in which to work.
Further, the Consortium shall have the right to visit, on a quarterly
basis, LTC's facility where the work on LTC Technology is being
conducted, to inspect the laboratory notebooks and other records
related to Technology development activities as maintained by LTC's
scientists and technicians, to consult with such scientists and
technicians and to observe experiments in progress. Such visits shall
be conducted by the Consortium in a manner which will not unduly
interfere with or obstruct the progress of LTC's work.
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LTC and its personnel shall extend their full cooperation to the
Consortium's dispatched technical representatives in connection with
any such on-site technical evaluation, support or visits.
(4.14) The Consortium and LTC shall cooperate in (a) promoting Technology to
selected OEMS; (b) identifying potential OEM customers; (c)
facilitating appropriate contacts between LTC and selected OEMS; (d)
helping to identify and define OEM power source requirements and
specifications; and (e) assisting LTC in tailoring Technology and
Products to specific OEM applications requirements.
ARTICLE V - OWNERSHIP OF AND CONTRIBUTION TO
THE TECHNOLOGY
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(5.01) LTC shall be the sole owner of all LTC Technology which (a) exists
prior to this Agreement (LTC Core Technology) and (b) is developed by
LTC independently at any time during the period of this Agreement (LTC
New Technology), and in turn, the Consortium shall be the sole owner
of all Consortium Technology which (a) exists prior to this Agreement
and (b) is developed by the Consortium independently at any time
during the period of this Agreement.
(5.02) Joint Technology shall be jointly owned by LTC and the Consortium in
proportion to the contribution made by each party.
(5.03) In the reports to be prepared by the parties pursuant to Section 4.09
and 4.11, each party shall identify all significant items of
Technology developed during the period covered by such reports and
shall characterize each such item of Technology as LTC Technology,
Consortium Technology, or Joint Technology. Should the party
receiving the report disagree with the characterization of any item of
Technology, that party shall raise its objection by written notice to
the other party at least five days prior to the first meeting pursuant
to Section 4.12 subsequent to its receipt of such report (or, if this
Agreement has expired or terminated, within thirty (30) days of the
receipt of such report), and the failure of any party to raise such
objection shall constitute a waiver of its right to so object.
(5.04) If the parties are unable in good faith to resolve an objection which
arises under Section 5.03, then the objection shall be resolved as
follows in each instance:
(a) The parties shall cooperate to find a patent attorney who (i) has
substantial experience in U.S. patent matters, (ii) is familiar
with the technology in question or closely related technologies,
and (iii) is independent of both LTC and the Consortium. In the
event that the parties are unable to agree on the selection of
such attorney within thirty (30) days after this procedure has
been invoked, then the attorney shall be appointed by the
American Arbitration Association ("AAA"), 140 West 51st Street,
New York, New York 10020. In making its appointment, the AAA
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shall be bound by the factors set forth above in this
sub-paragraph. The selection of any such person (hereafter, the
"Independent Attorney") shall not be final or binding on either
party unless both parties agree on and accept such person in
writing (or until the AAA makes its selection, as the case may
be), and until the person so selected has agreed to perform the
task set forth herein on a confidential basis. Each such
selection shall be treated on a separate basis, and acceptance by
a party of a particular individual as the Independent Attorney in
any one case shall not be binding with respect to selection of
the Independent Attorneys in a subsequent case. However, if both
parties agree, the Independent Attorney need not be bound by the
AAA rules.
(b) The Independent Attorney shall be provided with a copy of the
invention disclosure. The Independent Attorney shall be
permitted to interview the inventor(s) or others at LTC or the
Consortium with knowledge of the invention, and to obtain copies
of LTC or the Consortium laboratory notebooks, memoranda, or
other documents relating to the invention. The Independent
Attorney may, if necessary, conduct a search of the art to locate
all prior art references which pertain to the invention. Each
party shall, within thirty (30) days of the selection of the
Independent Attorney, provide the Independent Attorney with a
brief statement of its views on the objection which has been
raised.
(c) Based on the investigation pursuant to Article 5.04 (b) herein,
the Independent Attorney shall be required to provide LTC and the
Consortium within two (2) months of his selection with a written
statement setting forth his opinion on the objection. This period
of two (2) months may be extended upon the mutual agreement of the
Consortium and LTC. If the Independent Attorney fails to provide
an opinion within the two month period or such extended period,
then the parties may select a different Independent Attorney in
accordance with the provisions of this Article V. Either party
shall have thirty (30) days from the receipt of such opinion to
submit a statement to the Independent Attorney calling his
attention to any errors or mistakes which such party believes
exists in his opinion, and the Independent Attorney shall respond
in writing to both parties setting forth either a reaffirmation or
modification of his original opinion within thirty (30) days
thereafter. The final opinion of the Independent Attorney shall
be binding and conclusive on both LTC and the Consortium, and
neither party shall further dispute the matters considered by the
Independent Attorney.
(d) All costs incurred by the Independent Attorney and all charges
submitted by him shall be shared equally by LTC and the
Consortium.
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(5.05) The preparation, filing, prosecution, maintenance and enforcement of
all patent applications and patents arising from Joint Technology
shall be made in the name of LTC and the Consortium and under the
control of both LTC and the Consortium and all charges (including
attorney's fees) arising from such activity and any recovery from
enforcement of such patent property shall be shared equally between
the parties. However, if the Consortium explicitly waives the right to
control any patent applications or patents in certain countries, LTC
shall prepare, file, prosecute, maintain and enforce such patent
applications or patents in such countries at its own expense.
(5.06) In order that all patent applications and patents be properly
supported and documented, each party shall require all of its
scientists and technicians to maintain laboratory notebooks of their
experimentation and concepts relating to LTC Technology. These
notebooks shall be signed by the writer and maintained in accordance
with customary scientific practices. Each party will periodically
review its notebooks to ensure that they are properly documented and
witnessed so as to be suitable evidence of work performed.
(5.07) Each party shall provide support to the other party in all matters
pertaining to the filing, prosecution and enforcement of any patent
applications or patents on LTC Technology and Joint Technology. Such
support shall include, (a) patent strategies; (b) patent filings in
Japan and other countries; (c) the execution of documents and (d) the
provisions of information or testimony.
(5.08) In the event the Consortium decides to terminate this Agreement under
the provisions of Section (4.04), or upon the termination of this
Agreement under the provisions of Section (8.01), the Consortium and
LTC shall have equal rights to use the Joint Technology on a
worldwide, royalty free basis.
ARTICLE VI - CONFIDENTIALITY
----------------------------
(6.01) During the term of this Agreement and an additional period of three
(3) years thereafter each party shall hold in confidence, not disclose
to any third party, and not use for its own business purposes other
than as contemplated in this Agreement without prior written approval
of the other party, all confidential information concerning Technology
received from the other party pursuant to this Agreement. Confidential
information must be designated as such in writing at the time of
disclosure, and if disclosed orally or visually, reduced in written
statement and submitted by disclosing party to receiving party with 15
days of such disclosure.
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* Confidential treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
(6.02) The obligations of each party under Section 6.01 shall not extend to
any information which:
(a) is known to the receiving party or an affiliate thereof as of
the date of the original signing of a Confidentiality
Agreement with LTC by the Consortium members (Mitsubishi -- 3
March 1995; Mitsui -- 22 September 1995);
(b) is known to the public as of the date of this Agreement or
subsequently becomes known to the public through no fault of
the receiving party or its agents;
(c) becomes known to the receiving party or its affiliates from a
third party not under an obligation of confidentiality to
disclosing party;
(d) is independently developed by the receiving party without
reference to confidential information;
(e) is required by law.
ARTICLE VII - LICENSING AND DISTRIBUTORSHIP OPTION RIGHTS
---------------------------------------------------------
(7.01) LTC hereby agrees to grant the Consortium the exclusive option right,
exercisable at its discretion, to enter into a licensing agreement
with LTC, under mutually agreeable terms to be negotiated not less
favorable than terms granted to any other licensee, to use LTC
Technology necessary for the manufacture of Products on an exclusive
basis (with LTC abstaining from using LTC Technology in any manner) in
the Asian and Oceanian countries listed in Schedules F and H, and on a
co-exclusive basis (LTC and the Consortium share exclusivity) with
respect to European, North American and South American countries
listed in Schedules G, I, and J. In each of these co-exclusive
regions, the Consortium and LTC anticipate establishing a joint
venture for manufacturing operations. *
(7.02) LTC hereby agrees to grant the Consortium the exclusive option right
to enter into a distributorship agreement with LTC, under mutually
agreeable terms to be negotiated not less favorable than terms granted
to any other potential distributors, to distribute and sell the
Products, as manufactured by LTC, by a joint venture in which LTC
participates, by the Consortium, or by a joint venture in which the
Consortium participates, on a world-wide exclusive basis. *
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(7.03) LTC reserves the right to manufacture and license LTC Technology in
markets other than those listed in Schedules F and H.
ARTICLE VIII - TERM AND TERMINATION
-----------------------------------
(8.01) Unless earlier terminated pursuant to the provisions of Section 4.04,
this Agreement shall have a term of two (2) years from the date first
written above. The provisions of Articles V, VI and VII shall survive
any termination or expiration of this Agreement, and thus for the
purpose of granting the option rights described in Article VII, LTC
shall without delay notify the Consortium three months before the
completion of the Product to act upon their option rights.
(8.02) Further, in case of expiration or termination of this Agreement, the
$2,400,000 paid by the Consortium to LTC pursuant to Section 3.01
shall be non-refundable, and the stock shares pursuant to Section
3.01(a) shall continue to be owned by the Consortium.
(8.03) This Agreement may be renewed or extended on terms mutually agreeable
to the Consortium and LTC.
ARTICLE IX - GENERAL
--------------------
(9.01) This Agreement sets forth the entire agreement and understanding of
the parties with respect to the subject matter hereof and supersedes
all prior agreements, arrangements and understandings relating to the
subject matter hereof. No representation, promise, inducement or
statement of intention relating to the transactions contemplated by
this Agreement has been made by either party which is not set forth in
this Agreement or the documents referred to herein, and no party shall
be bound by or liable for any alleged representation, promise,
inducement, or statement of intention not so set forth.
(9.02) All notices and other communications required or permitted to be given
under this Agreement shall be deemed to have been duly given if in
writing and delivered by hand or mailed (first-class mail, postage
prepaid, registered or certified mail) or sent by electronic
telecommunications to the appropriate address as follows:
If to LTC: Mr. David J. Cade
Vice President of Marketing
Lithium Technology Corporation
5115 Campus Drive
Plymouth Meeting, Pennsylvania 19462-1129 USA
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If to the Consortium: Dr. Taizo Ohmura
Associate Director and General Manager
R&D Department
Research and Corporate Development Division
Mitsubishi Materials Corporation
1-5-1, Ohtemachi, Chiyoda-ku, Tokyo 100,
Japan
Mr. Koichi Suzuki
General Manager
Electronic Devices and Equipment Division
Mitsui & Co., LTD.
1-2-1, Ohtemachi, Chiyoda-ku, Tokyo 100,
Japan
Any party may change the address to which such communications are
directed to it by giving notice to the other in the manner provided in
this Section.
(9.03) No party shall be liable for any loss, damage, delay or failure of
performance resulting directly from any cause which is beyond its
reasonable control, including but limited to acts of God,
extraordinary traffic conditions, riots, civil disturbances, wars,
states of belligerency or acts of the public enemy, strikes, work
stoppages, or the laws, regulations, acts or failure to act of any
governmental authority.
(9.04) The construction and performance of this Agreement shall be governed
by the law of the State of New York, United States of America.
(9.05) The parties agree that prior to invoking the arbitration provisions of
Section 5.04 or to resolve any other disputes relating to the subject
matter of this Agreement, they shall first submit such disputes to a
senior management review panel consisting of one representative of the
management level designated by each party.
Any dispute or claim arising out of or relating to this Agreement, or
the breach thereof (except for the dispute arising out of or relating
to Section 5.04 which shall be settled by such Section 5.04), shall be
settled by arbitration in New York, New York, U.S.A. in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the Arbitrator(s)
may be entered in any court having jurisdiction thereof.
(9.06) The obligations hereunder of each party to export Technology and
Products and grant the rights herein shall at all times be subject to
such restrictions and limitations as may be imposed upon it by the
laws and regulations and other administrative acts, now or hereafter
in effect, of the Japanese Government and the United States
Government, respectively, and their departments and agencies. LTC
shall obtain any
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approval, consent or license necessary for the performance of its
obligations under this Agreement.
(9.07) Publicity
(a) The parties agree to keep the terms and conditions of this
Agreement confidential and not to disclose any of its
provisions, without the express written consent of the other
party except that the parties may disclose the same, under the
confidentiality restrictions no less stringent than those
herein contained, to:
i) its affiliates;
ii) as may be required by law; and,
iii) counsel advisors, patent agents, certified public
accountants or tax agents retained by the party or
its affiliate.
(b) Notwithstanding the foregoing paragraph, the Consortium and
LTC agree to issue, within ten (10) days of the Effective Date
of this Agreement, a joint public announcement of the
existence of this Agreement, and of the intent of the parties
hereunder. This announcement will be jointly approved as to
form, content and media by the Consortium and LTC prior to the
date of release. In addition to the press releases, the
Consortium and LTC may conduct such other interviews, press
conferences, and other media releases as may be required, and
may conduct advertising and marketing activities, provided the
information disclosed is consistent with the level of detail
and the scope of the press releases or other mutually agreed
upon material.
(9.08) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute
but one and the same instrument.
(9.09) This Agreement and the rights herein may not be assigned by either
party, whether by operation of law or otherwise, without the express
written consent of the other party hereto, except that the Consortium
may, without the consent of LTC, assign this Agreement (a) to an
affiliate or subsidiary of any member of the Consortium (provided that
the Consortium shall continue to be liable for all performance of such
assignees after such assignment) or (b) to a subsequent purchaser of
the Consortium's battery manufacturing, distribution and sales
businesses.
(9.10) The Consortium reserves the right to add or delete members, subject to
the prior consent in writing of LTC. Any transfer of shares
originally issued pursuant to Section 3.01(a) to additional Consortium
members shall be subject to the prior consent in writing of LTC and in
accordance with U.S. Securities Laws.
13
<PAGE> 15
(9.11) Subject to the provisions and constraints of this Agreement, LTC
reserves the right to enter into relationships with potential
manufacturers, distributors and customers of LTC's Technology and
Products. LTC also reserves the right to enter into relationships and
licensing arrangements with other companies for applications which are
outside the scope of Schedule A of this Agreement, such as Aerospace
and Defense. The execution and performance of this Agreement shall
not restrict the ability of the Consortium or its affiliates to carry
on their existing business or seek or make any other business
opportunity, including without limitation, research and development,
manufacture, distribution or sales of any products competitive with
Products or LTC Technology unless such activities contravene the
confidentiality restriction as mentioned in Article VII.
(9.12) This Agreement may be amended or terminated, or any of the terms
hereof may be waived, only by a writing amends, terminates, or waives
such terms, and executed by duly authorized representatives of the
parties or, in the case of a waiver, by the party waiving compliance.
The failure of any party at any time or times to require performance
of any provision hereof shall in no manner affect the right at a later
time to enforce the same. No waiver by any party of any breach of any
term contained in this Agreement, in any one or more instances, shall
be deemed to be or construed as a further or continuing waiver of any
such breach or a waiver of any breach of any other term.
14
<PAGE> 16
IN WITNESS WHEREOF, the parties by their duly authorized representatives have
executed this Agreement on the date first above written.
Lithium Technology Corporation
/s/ David J. Cade
-----------------------------------
David J. Cade
Vice President of Marketing
Mitsubishi Materials Corporation
/s/ Taizo Ohmura
-----------------------------------
Taizo Ohmura
Associate Director and General Manager
R&D Department
Research and Corporate Development Division
Mitsui & Co., Ltd.
/s/ Koichi Suzuki
---------------------------------
Koichi Suzuki
General Manager
Electronic Devices and Equipment Division
15
<PAGE> 17
* Confidential treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
Schedule - A
*
16
<PAGE> 18
Schedule - B
<TABLE>
<CAPTION>
LTC's outstanding stock
- -----------------------
Proforma
Authorized Outstanding Outstanding
---------- ----------- after Split
-----------
<S> <C> <C> <C>
Prior to reverse split of 1 for 30 100,000,000 100,000,000 3,333,333*
Effective as of 8 February 1996
- -------------------------------
Class A Common Stock
Each share is entitled to 3 votes
2 shareholders
- --------------
Stephen F. Hope (55,033,333)
(son of founder)
Majestic Hopes (44,966,667)
(original investor group)
Class B Common Stock 500,000,000 125,813,830 4,193,794*
Each share is entitled to 1 vote
225,813,830 7,527,127
Conversion of all Outstanding Preferred Stock 13,607,200 453,573*
---------- -------
239,421,030 7,980,700
* Convert to One Class of Common Stock After Reverse
Split.
Proforma, giving effect to Reverse Split
of 1 for 30, New Capitalization and
Issuance of Shares to the Consortium
- ------------------------------------
"New" Common Stock par value $.01
Each share is entitled to 1 vote 500,000,000 7,527,127
Assumed conversion of preferred stock 453,573
Assumed conversion of promissory notes 6,396,000
Issued to the Consortium 605,336
-------
(14,376,700/.95 = 15,133,368 x .04)
</TABLE>
17
<PAGE> 19
* Confidential treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
Schedule - C
*
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
*
*
18
<PAGE> 20
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
*
1.
2. *
2.1
19
<PAGE> 21
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
*
20
<PAGE> 22
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
*
21
<PAGE> 23
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
*
22
<PAGE> 24
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
*
23
<PAGE> 25
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
* Schedule - D
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
*
24
<PAGE> 26
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
* Schedule - E
25
<PAGE> 27
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
*
26
<PAGE> 28
* Confidential Treatment has been granted by the Commission to Lithium
Technology Corporation. The omitted material has been filed
separately with the Commission pursuant to the application for
confidential treatment.
*
*
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
*
27
<PAGE> 29
Schedule - F
Asian counties designation
--------------------------
Japan
Republic of Korea
Taiwan R.O.C.
The People's Republic of China (including Hong Kong)
Singapore
Malaysia
Thailand
Republic of The Philippines
Indonesia
India
Vietnam
28
<PAGE> 30
Schedule - G
European countries designation
------------------------------
Federal Republic of Germany
United Kingdom
Ireland
France
Spain
Italy
Austria
Switzerland
Belgium
Netherlands
Norway
Sweden
Finland
Russian Federation
29
<PAGE> 31
Schedule - H
Oceanian countries designation
------------------------------
Australia
New Zealand
Schedule - I
North American countries designation
------------------------------------
Canada
The United States of America
Mexico
Schedule - J
South American countries designation
------------------------------------
Brazil
Venezuela
Peru
Argentina
Chile
30
