COOPERATION AGREEMENT
This COOPERATION AGREEMENT (hereinafter the "Agreement") is entered into on
this 6th day of February 2001, by and between Medis Technologies, Ltd., a
company located in New York, Now York, USA, (hereinafter "Medis"), 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, inter alia,
makes various consumer electronics, including in particular, cellular phones,
handheld and manportable electronic devices called hereafter "application".
WHEREAS, Medis' lower tier subsidiary, More Energy Ltd., of Israel,
("More") has developed certain unique proprietary technologies for the
development of fuel cells, in particular in the area of direct liquid methanol
fuel cells, and Medis is interested in arranging for the collaborating by More
with OEM companies in the development of specific applications for More's DLM
fuel cell technologies;
WHEREAS, SAGEM SA is interested in a DLM fuel cell application for its
power pack and other potential applications and desires to cooperate with Medis
and More in that effort and Medis agrees to cause More to carry-out such
cooperation, all on the terms hereinafter set forth.
NOW Therefore the Parties 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 a DLM fuel cell power pack which will serve as
a secondary power source for SAGEM SA's 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 4 ("Confidential Information").
1.2. It is further understood that More will be developing an individual
fuel cell which will then be incorporated in a larger assembly which will
constitute a power pack secondary power source and that this application will
require a number of such individual fuel cells. The integration and
qualification of the power pack shall be managed by a joining team composed by
representatives of SAGEM SA and More able to take decisions concerning the
contents of the test plan and the location where the test plan will be
performed.
1.3. Should the development effort by More to develop a DLM fuel cell power
pack as a secondary power source for the SAGEM SA application be successfully
achieved hereunder, the Parties may negotiate a further agreement under which
SAGEM SA could purchase DLM fuel cell power packs from More or be licensed by
More 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 INDIVIDUAL CELL
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 More a test plan concerning the evaluation of
state of the art individual fuel cell with the purpose to better understand the
More 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 More
under the SAGEM SA supervision.
3. DESIGN OF A POWER PACK PROTOTYPE
With better knowledge of system considerations, outputs of ss. 2, this
phase will address the manufacturing process and cost for a future power pack
dedicated to SAGEM SA application. SAGEM SA dealing with high technologies with
a large engineering expertise agrees to undertake some engineering work jointly
with More to design a powerpack.
The outputs of this phase is to design a power pack 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 individual cell being part of the powerpack will
consider the last technical improvements achieved from the evaluation phase.
4. DEVELOPMENT, MANUFACTURING & TESTING OF A POWERPACK PROTOTYPE
More and SAGEM SA undertake the development of a DLM powerpack prototype
following a design output from ss. 3. The powerpack casing and accessories
required for the system operation will be manufactured by SAGEM SA, More will
integrate the individual fuel cells. The powerpack prototype will be tested
first by More at More Facility after final assembly under a specific test plan
mutually agreed. The optimized prototype will then be tested at SAGEM SA under a
specific mutually agreed test plan. The purpose of these test plans is to
understand the behavior of the powerpack connected to a representative load, to
optimize the interface electronic circuit and to establish the management rules
of the powerpack in the different operational scenario.
It is understood that the individual cell being part of the powerpack will
consider the last technical improvements achieved from the beginning of the
evaluation phase.
An optimization phase will follow this work so that a definitive concept
could be selected for the next phase dedicated to a proven powerpack.
5. DEVELOPMENT, MANUFACTURING AND TESTING OF A PROVEN POWERPACK
More and SAGEM SA undertake the development of a DLM powerpack following
the optimized design output from ss. 4. The powerpack casing and accessories
required for the system operation will be designed and manufactured by SAGEM SA,
More will integrate the optimized individual fuel cells and will test the
complete units under mutually agreed acceptance test procedures.
It is understood that the individual cell being part of the powerpack will
consider the last technical improvements achieved from the beginning of the
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 the DLM fuel cell power pack as a secondary power source. The
effort hereunder does not include production engineering for such individual
fuel cell or DLM fuel cell power pack. A production engineering effort, if
desired by SAGEM SA, would require a separate agreement mutually acceptable to
the Parties.
6. PRIMARY POWER SOURCE
Upon successful fulfillment of the effort hereunder regarding the
Powerpack, the Parties will define a continuing development effort between them
for a primary power source for mutually agreed SAGEM SA applications based upon
a design and development effort similar to the one set forth herein for the
Powerpack.
7. SCHEDULE
A development plan is attached to this cooperation agreement at the end of
the document. This particular plan is dedicated to a cell phone application.
8. CONFIDENTIAL INFORMATION
8.1. 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 More, fuel cell technology and in the case of SAGEM SA, cell phone
technology) including. but not limited to, type design data, drawings,
photographs, specifications, models, prototypes, designs, materials,
construction or assembly, computer hardware and software, 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 identifies the Confidential Information. Such summary shall be
transmitted to the receiving Party within thirty (30) calendar days of the
non-written disclosures.
8.2. More hereby acknowledges that it is not presently in possession of
know how or technology related to the design or manufacture of cellular phones
and SAGEM SA hereby acknowledges that it is not presently in possession of know
how or technology for a DLM 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 4.3 below.
8.3. The restrictions on Confidential Information shall not apply if the
receiving Party demonstrates that the:
8.3.1 information was already in the public domain at the time of
disclosure; or
8.3.2 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).
8.4. 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.
8.5. 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.
8.6. All Confidential Information disclosed by More in connection with this
Agreement and all of the resulting know how, technology, data, or information
resulting from the development of the DLM fuel cell and/or DLM fuel cell
secondary power source application hereunder is and shall remain the exclusive
property of More. SAGEM SA acknowledges that the More fuel cell technology is of
an extremely 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 DLM
fuel cell technology of More.
8.7. At any time that the disclosing Party may request, but no later than
seven (7) calendar days after 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.
8.8. 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.
8.9. 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 breach 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.
8.10. This Section 7 shall survive any expiration or termination of this
Agreement.
9. 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 4 above, neither Party will have any
further obligation or liability vis-a-vis the other Party hereunder.
10. APPLICABLE LAW
This Cooperation Agreement is governed in all respects by the federal laws
of Switzerland. All disputes arising in connection with this Agreement shall be
exclusively and finally settled by arbitration in accordance with the rules of
arbitration of the international chamber of commerce by three arbitrators
appointed in accordance with the said rules. The place of arbitration shall be
Geneva, Switzerland. The arbitral procedure shall be conducted in the English
language. The arbitration award shall be final and binding on the parties.
11. 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.
12. 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.
13. 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 More
Attention: Xxx XXXXXX
In connection with the Cooperation Agreement between Sagem and Medis
Technologies, both parties agree to maintain the existence of the Agreement and
the work to performed under the Projects thereunder in confidence and shall not
disclose same by way of any public announcements and/or other publicity,
including without limitation at conferences, congresses etc., without the other
Parties' prior written consent, which consent shall not be unreasonably
withheld, provided that any disclosure required to be made by either Party under
law shall be made only after consultation with the other Party as to the form
and content of such disclosure.
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 the case of registered airmail communications) within fourteen (14) days of
mailing.
14. 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 MEDIS TECHNOLOGIES LTD.
By: /s/ Jacques Paccard By: /s/ Xxxxxx X. Xxxxxx
----------------------------- ------------------------------
Name: Jacques Paccard Name: Xxxxxx X. Xxxxxx
----------------------------- ------------------------------
Managing Director
Title: Defense and Security Division Title: Chairman and CEO
------------------------------ ------------------------------
