EXHIBIT 10(iv)
COOPERATION AGREEMENT
This Cooperation Agreement (hereinafter the "Agreement") is entered into on this
8th day of December 2000. by and between ALUMINIUM-POWER Inc., a company located
in Toronto, Canada (hereinafter "API"), of the one part, and SAGEM SA, Defence
and Security Division, a Company existing and organized under the laws of
France, whose registered office is 6. avenue d'xxxx 75783 XXXXX Xxxxx 00,
Xxxxxx. hereinafter referred to as "SAGEM SA," (hereinafter "SAGEM SA"), of the
other part.
WHEREAS, SAGEM SA Is an international industrial company, and makes various
consumer electronics, including in particular, cellular phones, handheld and man
portable electronic devices called hereafter `application'.
WHEREAS, ALUMINIUM-POWER Inc. ("API") has developed certain proprietary
technologies for the development of fuel cells, in particular in the area of
Aluminium-air fuel cells;
WHEREAS, SAGEM SA is interested in a Aluminium-air fuel cell application for its
battery pack and desires to cooperate with ALUMINIUM-POWER Inc.
NOW Therefore the Pates agree as follows:
1. BASIC NATURE OF COOPERATION
1.1 The Parties agree that their cooperation hereunder is motivated by their
mutual interest to realize an Aluminium-air fuel cell which will serve as a
power source for SAGEM SA's cellular phone application, and effort will be
carried out on a best efforts basis. Each Party will be responsible for all of
its own expenses connected with the implementation of this cooperation and
neither Party will have any liability to the other regarding the success of this
effort or otherwise. In addition neither Party is undertaking to work
exclusively with the other in the area of fuel cell or battery technologies and
they both retain to themselves the right to work alone or with others regarding
such technologies, provided however this in no way derogates from the Parties
obligations under the provisions of Section 5 ("Confidential Information").
1.2 It is further understood that API will be developing a fuel cell for
inclusion in SAGEM SA products, which will then be incorporated in a larger
assembly, which will constitute a power source The integration and qualification
of the power source shall be carried out by SAGEM SA in coordination with API.
1.3 Should the development effort by API to develop an Aluminium-air fuel cell
as a power source for the SAGEM SA application be successfully achieved
hereunder, the Parties may negotiate a further agreement under which SAGEM SA
could purchase fuel cells from API or be licensed by API to manufacture same for
the sole use with the SAGEM SA application against which it was developed.
Should either Party not wish to enter into such a further agreement or fail to
agree on the terms thereof. neither Party will have any liability to the other
and their cooperation will end pursuant to the termination provisions of this
Agreement
2. EVALUATION OF EXISTING FUEL CELL TECHNOLOGY
The Parties will each designate a. senior engineer as the Project manager for
the respective Party and those two individuals will be authorized by the Parties
to make all necessary technical decisions in implementation of this agreement
for their respective company.
SAGEM SA shall provide to API a test plan concerning the evaluation of state of
the art individual fuel cell with the purpose to better understand the API
current technology and to anticipate the key issues for the integration of such
devices in a portable equipment. This test plan will be carried out by API under
the SAGEM SA supervision.
3. DESIGN OF A POWER SOURCE
With better knowledges of system considerations, outputs of ss. 2 this phase
will address the manufacturing process and cost for a future power source
dedicated to SAGEM SA application. SAGEM SA dealing with high technologies with
a large engineering expertise agrees to undertake some engineering work jointly
with API in particular the fuel cell holster with the relevant interface because
very dependant of the application,
The outputs of this phase is to design a power source prototype able to drive an
application, to be manufactured and tested in step ss. 4. For this purpose, a
technical specification will be raised by SAGEM SA, taking into account system
considerations and the identified physical barriers.
It is understood that the fuel cell will consider the last technical
Improvements achieved from the beginning of the evaluation phase.
4. DEVELOPMENT. MANUFACTURING & TESTING OF A PROVEN POWER SOURCE
API and SAGEM SA undertake the development of a power source following the
results output from ss.3. The power source holster and accessories required for
the system operation will be designed and manufactured by SAGEM SA. API will
integrate the optimized fuel cell and will test the complete unit under mutually
agreed acceptance test procedures.
It is understood that the individual cell being part of the power source will
consider the last technical improvements achieved from the beginning of
evaluation phase.
Few units will be manufactured and tested in appropriate conditions agreed
mutually by each party. The achievements of this phase will condition the
introduction of the demonstrators at the end user level for evaluation and
promotion.
It is understood by SAGEM SA that this effort is to achieve a proven prototype
of fuel cell power source as a secondary power source. The effort hereunder does
not include production engineering for such fuel cell. A production engineering
effort, if desired by SAGEM SA, would require a separate agreement mutually
acceptable to the Parties.
5. SCHEDULE
A development plan is attached to this cooperation agreement. This particular
plan is dedicated to a cell phone application.
6. CONFIDENTIAL INFORMATION
6.1 The term "Confidential Information" as used in this Agreement shall mean all
trade secrets and information which is proprietary to either Party (in the case
of API fuel cell technology and in the case of SAGEM SA, technology dedicated to
the application) including, but not limited to, type design data, drawings,
photographs, specifications, models, prototypes, designs, materials,
construction or assembly, computer hardware and software, patents, technical,
commercial and operational information concerning products, information
concerning manufacturing methods and techniques, quality control and test
methods, cost and pricing data and product applications. Information disclosed
in other than written form shall be considered Confidential Information only to
the extent that the disclosing Party summarizes the same in written form, which
clearly and conspicuously identities the Confidential Information. Such summary
shall be transmitted to the receiving Party within thirty (30) calendar days of
the non-written disclosures.
6.2 API hereby acknowledges that it is not presently in possession of know how
or technology related to the design or manufacture of the application and SAGEM
SA hereby acknowledges that it is not presently in possession of know how or
technology for Aluminum-air fuel cell. Each Party shall hold all Confidential
Information disclosed to it in strict confidence and will not disclose or use
the Confidential Information for its benefit or the benefit of any other company
or entity anywhere in the world or any other purpose other than for the purpose
of carrying out the cooperation as expressly set forth in this Agreement.
Notwithstanding the foregoing, each Party may disclose Confidential Information
of the other Party if and only to the extent required pursuant to any legal
process or order issued by any court, provided (a) prior notice is given to the
other Party before any such disclosure is made in order to enable such Party to
seek to obtain a protective order, and (b) that any such disclosure shall not
result in such Confidential Information becoming subject to any of the
exceptions listed in paragraph 6.3 below.
6.3. The restrictions on Confidential Information shall not apply if the
receiving Party demonstrates that the:
6.3.1 information was already in the public domain at the time of disclosure; or
6.3.2 information, which though originally confidential, subsequently becomes
part of the public domain through no fault of the receiving Party.
In each case, the receiving Party shall notify the disclosing Party in writing
of its intent to make any disclosure based on one of the above-listed exceptions
at least 30 days in advance (including a description of the information to be
disclosed and the basis for the claimed exception).
6.4 The receiving Party shall maintain all Confidential Information in the same
manner that such Party maintains its own Confidential Information, provided that
the standard of care required shall be at least a reasonable industry standard.
6.5 Any disclosure of Confidential Information shall be limited to the receiving
Party's employees who have a strict need for such Confidential Information in
performance of this Agreement. The receiving Party shall advise its employees of
its obligations pursuant to this Agreement in regards to the nature and
treatment of Confidential Information.
6.6 All Confidential Information disclosed by API in connection with this
Agreement and all of the resulting know how, technology, data, or information
resulting from the development of the Aluminium-air fuel cell power source
application hereunder is and shall remain the exclusive property of API. SAGEM
SA acknowledges that the API fuel cell technology is of a sensitive proprietary
nature and therefore SAGEM SA shall refrain from disassembling any fuel cell
delivered to SAGEM SA hereunder and shall not make or allow any other party to
make any attempt to reverse engineer the fuel cell technology of API.
6.7 At any time that the disclosing Party may request, but no later than twenty
(20) calendar days alter such request, the receiving Party shall return the
Confidential Information to the disclosing Party and shall certify in writing
that all copies thereof in the receiving Party's possession have been destroyed.
6.8 If the disclosing Party at any time does not require. performance and/or
enforcement of any provision of this Agreement, this shall not be construed as a
waiver of its rights under this Agreement, nor shall the disclosing Party not
taking any action affect its rights at some later date to enforce these rights
under this Agreement for a breach of any of the provisions of this Agreement
6.9 Each Party acknowledges that a breach of any provision of this Agreement
will result in irreparable injury and continuing damage to the disclosing
Party's for which there will be no adequate remedy at law. In the event of any
alleged or anticipated breech by the receiving Party of any provision of this
Agreement, the disclosing Party shall be entitled to injunctive relief, without
the necessity of proof or actual damage, and to such other and further relief as
may be proper.
6.10 This Section 6 shall survive any expiration or termination of this
Agreement.
7. TERMINATION
Either Party may cancel this Cooperation Agreement by giving written notice to
the other Party hereto. Upon such cancellation, each Party will return and/or
destroy any Confidential Information of the other Party in its possession and
other than the provisions of Section 6 above, neither Party will have any
further obligation or liability vis-a-vis the other Party hereunder.
8. ARBITRATION
All disputes, claims and controversies concerning the validity, interpretation,
performance, termination or breach of this contract shall be referred to
arbitration London, England under the rules of the London Court of International
Arbitration (the `Court') in effect on the date of this contract (the `Rules').
Arbitration hereunder shall be the parties exclusive remedy.
9. APPLICABLE LAWS
All questions concerning the validity, interpretation, performance, termination
or breach of this contract or any tort claim arising thereunder shall be
governed and decided in accordance with English Law.
10. ASSIGNMENT
Neither this Cooperation Agreement nor any activity set forth herein, may be
delegated. assigned, or otherwise transferred in any manner by either Party
without the prior express written consent of the other Party hereto.
11. NON-WAIVER
Any failure by either Party to enforce any of the provisions of this Cooperation
Agreement or to require at any time the performance by the other Party of any of
the provisions hereof shall in no way affect the validity of this Cooperation
Agreement or any part hereof, or the right of either Party thereafter to enforce
each and every such provision.
12. NOTICES
All notices and other communications required or authorized hereunder shall be
given in writing by personal delivery, registered air mail or telex, and shall
be addressed to the respective Party as follows:
To SAGEM SA
Attention: Xxxxxxx CURLIER
To ALUMINIUM-POWER
Attention: Xxxxxxx XXXXXXX
Such notices/communications shall be deemed received (in the case of personal
delivery) on the date personally delivered/sent, as the case may be, or (in case
of registered airmail communications) within fourteen (14) days of mailing.
13. ENTIRE AGREEMENT
This Cooperation Agreement shall constitute the entire and complete agreement
between the Parties regarding the subject matter hereof and supersedes all prior
communications and/or agreements between the Parties in respect of any of the
Parties rights and/or obligations set forth hereunder. Any additions and/or
amendments and/or changes and/or modifications to the terms and conditions of
this Cooperation Agreement shall be in writing and shall be signed by duly
authorized representatives of both Parties.
IN WITNESS WHEREOF, the Parties hereto have signed this AGREEMENT on the day and
year first hereinabove written.
SAGEM SA ALUMINIUM-POWER Inc.
BY: BY: /s/ Xxxxxxx XXXXXXX
01-01-29
NAME: Jacques PACCARD NAME: Xxxxxxx XXXXXXX
TITLE: Managing director TITLE: Chief Executive Officer
Defence & Security
Division
22 January 2001
/s/ Jacques PACCARD
Jacques PACCARD
Managing Director
Defence & Security Division
