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As Of Filer Filing For·On·As Docs:Size Issuer Agent 11/09/06 Photowatt Technologies Inc. F-1/A 14:2.1M Bowne - Bot/FA |
Document/Exhibit Description Pages Size 1: F-1/A Pre-Effective Amendment to Registration Statement HTML 896K of a Foreign Private Issuer 2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 20K 3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 97K 4: EX-10.1 Material Contract HTML 174K 12: EX-10.10 Material Contract HTML 55K 13: EX-10.11 Material Contract HTML 80K 14: EX-10.15 Material Contract HTML 77K 5: EX-10.2 Material Contract HTML 121K 6: EX-10.3 Material Contract HTML 110K 7: EX-10.5 Material Contract HTML 58K 8: EX-10.6 Material Contract HTML 62K 9: EX-10.7 Material Contract HTML 48K 10: EX-10.8 Material Contract HTML 36K 11: EX-10.9 Material Contract HTML 73K
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A. | Photowatt is undertaking an initial public offering (the “Offering”) of its common shares pursuant to a registration statement on Form F-1 under the U.S. Securities Act of 1933 and a prospectus filed with Canadian provincial and territorial securities regulatory authorities. | ||
B. | Immediately prior to the completion of the Offering, ATS and Photowatt intend to enter into a Master Separation Agreement (the “Master Separation Agreement”), containing the key provisions relating to the separation of ATS and Photowatt, and the other Separation Agreements (as defined in the Master Separation Agreement) providing for, among other things, the transfer to Photowatt of certain assets of ATS including the Foil Presses. | ||
C. | ATS and/or certain Affiliates of ATS are in the business of providing design, development, fabrication and testing services (or some combination thereof) in connection with the development of certain types of machinery or process concepts and Photowatt and/or certain Affiliates of Photowatt may desire to engage ATS or an Affiliate of ATS to provide same from time to time on and subject to the terms of this Agreement. | ||
D. | Photowatt wishes to engage ATS to house its Foil Presses and to supply Foil Products on and subject to the terms of this Agreement. | ||
E. | The parties intend in this Agreement and the other Separation Agreements to set forth the principal arrangements between them regarding the Offering and their operations thereafter. |
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(a) | “Affiliate” means with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity or one or more of the other Affiliates of that entity (or a combination thereof). For purposes of this definition, an entity shall control another entity if the first entity (i) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity, or (ii) has the ability to elect a majority of the directors of the other entity. | ||
(b) | “ATS Indemnified Parties” has the meaning set out in Section 4.8(a). | ||
(c) | “Business Day” means a day other than Saturday, Sunday or other day on which commercial banks in Toronto, Ontario are authorized or required by law to close. | ||
(d) | “Common Shares” means the common shares in the capital of Photowatt at the date hereof and includes any shares or securities into which such common shares may be converted or changed or which result from a consolidation, subdivision, reclassification, stock split, stock dividend, recapitalization or redesignation of the common shares of Photowatt, any shares or securities of Photowatt which are received as a stock dividend or distribution in respect of such common shares, any common shares of Photowatt received on the exercise of any option, warrant or other similar right and any shares or securities which may be received by the holders of common shares of Photowatt as a result of an amalgamation, merger, arrangement or other reorganization of or including Photowatt. | ||
(e) | “Cost” means all manufacturing costs including, labour, materials, other direct costs, and an allocation of indirect and overhead costs. | ||
(f) | “Deliverables” mean the tangible documents and equipment that are to be provided to Photowatt pursuant to the terms of a Project Agreement, which may include without limitation, reports, designs, equipment, prototypes, computer software, and documentation. For purposes of clarity, Deliverables exclude Foil Products. | ||
(g) | “Foil Presses” has the meaning set out in Section 4.1. | ||
(h) | “Foil Products” has the meaning set out in Section 4.1. |
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(i) | “Percentage of Outstanding Common Shares” means the percentage equivalent to the quotient obtained when (i) the number of Common Shares directly beneficially owned at the time of the calculation by ATS and its Affiliates, is divided by (ii) the total number of Common Shares outstanding at the time of calculation, all quantities being on a non-diluted basis. | ||
(j) | “Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, a governmental authority, and the executors, administrators or other legal representatives of an individual in such capacity. | ||
(k) | “Photowatt Indemnified Parties” has the meaning set out in Section 4.8(b). | ||
(l) | “Products” means the equipment forming part of the Deliverables with respect to a particular Project. For purposes of clarity, Products exclude Foil Products and Foil Presses. | ||
(m) | “Project” has the meaning set out in Section 3.1. | ||
(n) | “Project Agreement” has the meaning set out in Section 3.1. | ||
(o) | “Project Services” means all the services that are to be performed by ATS pursuant to the terms of a Project Agreement, which may include, without limitation, general consulting services, design services, and installation services. For purposes of clarity, Project Services exclude any services provided by ATS pursuant to Article 4. | ||
(p) | “Proprietary Rights” means any and all legal and equitable rights, including all worldwide copyrights, patent rights, trade secrets, confidential and proprietary information rights, moral rights, and all rights and title in and to the structure, sequence, and organization of a work of authorship, and all rights in and to any code, materials, pictures, interfaces, screen display, and audio visual display or presentation. | ||
(q) | “Specifications” means the design, functional and performance specifications mutually agreed upon between the parties. |
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(a) | Project Agreements. From time to time during the term of this Agreement including pursuant to the provisions of Article 2, ATS and Photowatt may agree in writing that ATS shall provide certain Project Services and/or Deliverables in connection with a particular project (“Project”) which the parties intend to be governed by this Agreement. Each such project agreement shall reference this Agreement, shall be subject to the terms of this Agreement, and shall be referred to herein as a “Project Agreement”. Any agreements entered into pursuant to Section 2.1 and Section 2.2 shall be deemed to be Project Agreements and shall be subject to the terms of this Agreement. Each Project Agreement shall be deemed to include the terms of any quotation provided by ATS unless otherwise expressly provided for. Any terms on Photowatt’s purchase order, other than terms addressing quantity and price, shall be void and of no force notwithstanding any delivery under such purchase order. | ||
(b) | Affiliates. Should an Affiliate of a party to this Agreement enter into what would otherwise be a Project Agreement with the other party to this Agreement or an Affiliate of such other party, and should the parties to that Project Agreement reference this Agreement as governing such Project, then the terms of this Agreement shall apply to the same extent as if the parties to that Project Agreement were parties to this Agreement and the terms “Photowatt” and “ATS” herein shall be amended as required for the purposes of such Project Agreement. |
(a) | Price and Payment. Photowatt and ATS will mutually agree to pricing for each Project in the corresponding Project Agreement. Unless otherwise provided for in a particular Project Agreement, all payments are due within 30 days of receipt of an invoice from ATS. Photowatt shall pay interest at the prime rate quoted from time to time by The Bank of Nova Scotia plus 2% on any amounts invoiced by ATS which are not paid when due. |
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(b) | Taxes. The prices quoted by ATS are exclusive of all applicable federal, state/provincial or local taxes, unless otherwise stated. Photowatt shall pay the gross amount of any present or future sales, use, excise, value added, or other similar tax applicable to the price, sale or delivery of any Product, Project Service or Deliverable furnished hereunder or to their use by Photowatt. Photowatt shall furnish ATS with evidence of exemption from any such taxes acceptable to the taxing authorities. Photowatt shall assess and remit any applicable tax to taxing authorities not otherwise invoiced by ATS. If any tax in the nature of withholding tax is payable on any sums invoiced under this Agreement, Photowatt shall pay ATS such amount as is necessary to ensure that the net amount received by ATS after such withholding shall be equal to the amount invoiced or otherwise required to be paid herein. |
(a) | Photowatt shall provide ATS in a timely manner with: |
(i) | all information necessary in order to comply with its obligations under any Project Agreement or reasonably requested by ATS; | ||
(ii) | access to Photowatt’s and its Affiliates’ personnel and appropriate subject matter experts in connection with any Project; |
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(iii) | all required sample parts or other specified items required by ATS to design, manufacture, test and install the Product; and | ||
(iv) | clear and unobstructed access to those portions of Photowatt’s and its Affiliates’ premises required by ATS for installation of the Product in a condition ready to receive the Product; and |
(b) | Any documents submitted to Photowatt for comment or approval by ATS must be reviewed in a timely manner by Photowatt for accuracy, completeness and conformance to this Agreement. Failure of Photowatt to advise ATS in writing of material issues associated with such documents within 5 business days of submission or resubmission will be considered deemed approval of such documents. |
(a) | ATS and Photowatt shall agree in writing upon a test plan (“Test Plan”) within 20 business days of completion of the final designs for the Products, setting out the criteria to be met, and the testing process to be employed, during the FAT (as defined below) and the SAT (as defined below). | ||
(b) | A factory acceptance test (“FAT”) shall be performed at ATS’s facility or such facilities of ATS’s subcontractors as may be agreed upon in writing by the parties and shall commence within five (5) business days of notice from ATS confirming completion of the Products or at such other time as may be agreed upon in writing by the parties. Such testing shall be carried out in accordance with the Test Plan. The FAT shall be deemed successful when the results of the testing are in compliance with the Test Plan’s criteria. | ||
(c) | A Photowatt site acceptance test (“SAT”) shall be performed at Photowatt’s facility within five (5) business days of the completion of installation of the Products at Photowatt’s site. Such testing shall be carried out in accordance with the Test Plan. The SAT shall be deemed successful when the results of the testing are in compliance with the Test Plan’s criteria. | ||
(d) | ATS shall carry out such remedial work as is necessary to achieve a successful FAT and SAT at no additional charge to Photowatt, provided that any changes |
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requested by Photowatt beyond those set forth in the Specifications may require additional charges which shall be determined by mutual agreement by both parties and reflected in a change order executed by the parties in accordance with Section 3.4. Once remedial work is complete, the Products will be re-tested and this process shall continue until a successful FAT and SAT is achieved. |
(e) | In the event ATS and Photowatt are unable to agree upon a Test Plan within the time period provided for in sub-section (a) above, the parties shall immediately escalate the issue within their organizations and, failing agreement within five (5) business days of when that escalation should have occurred, either party shall have the right to terminate the applicable Project Agreement upon five (5) days’ notice. In the event of such termination, Photowatt shall pay ATS for all work performed prior to the termination, including costs and expenses already incurred and commitments made by ATS plus reasonable amounts for overhead and profit on the foregoing. | ||
(f) | Notwithstanding anything to the contrary, FAT and/or SAT will be deemed successfully completed in the event that Photowatt fails to conduct the tests within the prescribed timeframe referred to above or in the event Photowatt does not provide the production quality sample parts or other inputs required by the Test Plan within such timeframes. |
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(a) | ATS warrants that each Product (other than equipment comprising prototypes or proof of principle equipment) will be free from defects in workmanship and material and shall materially conform to the Specifications for a period (the “Warranty Period”) of twelve (12) months from the date of successful completion of SAT of the Product in Photowatt’s plant or fifteen (15) months from the date of shipment from ATS’s facilities, whichever occurs first. | ||
(b) | During the term of the applicable Project Agreement, ATS warrants that it shall perform all Project Services provided under the Project Agreement in a workmanlike manner respecting industry standards and practices for similar services. | ||
(c) | Upon prompt notification from Photowatt of any failure of a Product or any Project Services to conform to these warranties during the applicable warranty period, ATS will make repairs, adjustments, re-performance or replacements to the defective part(s) or Project Services at ATS’s option. Where required by ATS, Photowatt agrees to return a defective part to ATS at Photowatt’s expense. ATS will return corrected or replacement parts to Photowatt CPT Photowatt’s plant. Photowatt acknowledges that this sub-section sets forth Photowatt’s exclusive remedy, and ATS’s exclusive liability, for any breach of these warranties or other duty related to the quality of the Products or the Project Services. | ||
(d) | ATS shall have no responsibility for, and does not warrant against, any problems that occur as a result of improper use of any Product or failure to properly install, maintain and operate it in accordance with ATS’s recommended procedures, or alteration to it by any party other than ATS or those authorized by ATS to do so or any modifications not made by ATS or problems that result from any accident, vandalism, mischief or theft. Photowatt shall maintain accurate and complete records regarding equipment operation and maintenance and service procedures performed on the Product. | ||
(e) | ATS’s warranty excludes consumable items and wear parts, such as but not limited to belts, bulbs, lamps, fuses, o-rings, filters, fiber guides, printer ribbons or cartridges, lubricants, solvents or chemicals, which by their nature require periodic replacement. | ||
(f) | With respect to third party equipment integrated into the Product, warranties for such items are limited to the warranty extended to ATS by the third party supplier. ATS hereby assigns to Photowatt all warranties received from its |
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suppliers to the extent ATS is able to and agrees to assist Photowatt in making any claim pursuant to the said warranties. |
(a) | Sixty (60) days prior to the shipment of any Product, ATS shall provide Photowatt with a list of recommended parts (“Spare Parts”), subject to final verification by ATS at the time of shipment of the Products, to be stocked by Photowatt for maintenance of the Products set forth in the applicable Project Agreement, and all subsequent change orders to such Project Agreements in accordance with this Agreement, including prices (in effect at such time), lead-time, original equipment manufacturer (OEM) and OEM part numbers for such parts. | ||
(b) | ATS agrees that it will, for a period of five (5) years after the Warranty Period, make available the necessary resources to service the Products and sell to Photowatt all necessary Spare Parts, at prevailing price, delivery and payment terms, required for maintenance and repair of the Products. The parties acknowledge that in the event that Spare Parts consisting of or including components manufactured by a third party supplier and not manufactured by ATS cease to be available from such third party supplier, ATS shall be entitled to identify a suitable replacement or work-around solution for such Spare Parts. After such five (5) year period has expired, Photowatt may request that ATS continue to support the Products or supply Spare Parts and, if ATS does not choose to continue to support such Products or supply such Spare Parts, ATS agrees to provide Photowatt, upon receipt of a written request from Photowatt therefore, with an opportunity for Photowatt to make final purchases of any Spare Parts then in the possession of ATS and supply Photowatt with copies of all manufacturing drawings of Spare Parts that are manufactured by ATS so that Photowatt can maintain the Products, provided that Photowatt shall only be able to use such drawings to make or have made Spare Parts for Products supplied by ATS and for no other purpose. |
(a) | ATS agrees that it will, at its own expense, defend any suit instituted against Photowatt and will indemnify Photowatt against any award of Losses and reasonable costs made against Photowatt in a final judgment by a court of competent jurisdiction, or any amount in settlement or compromise thereof, provided that (i) the same is based upon a claim that any Product infringes a |
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valid patent under the laws of the United States or Canada; (ii) Photowatt gives ATS prompt, detailed notice in writing of any such claims asserted; and (iii) Photowatt permits ATS sole authority through its counsel to defend and/or settle the matter and Photowatt cooperates and assists with such defense and/or settlement. | |||
(b) | In case the Product is, or may become, the subject of any such proceeding, ATS may, and in the event the Product is held in such suit to constitute an infringement and its use is enjoined, ATS shall, at its expense and option, either procure for Photowatt the right to continue to use the Product, or replace same with a non-infringing product or part, or modify same so it becomes non-infringing, or remove the Product and refund the purchase price of the infringing part of the Product (less depreciation for its use on a straight line basis over a period of five (5) years from the date of the applicable Project Agreement) and any transportation costs shall be separately paid by Photowatt. | ||
(c) | The indemnity obligations shall not apply to the extent a claim for infringement of third party intellectual property rights relates to (i) any Product or part which is manufactured to Photowatt’s design; (ii) any Product or part which is modified by a party other than ATS (ii) any product of a third party as specified by Photowatt incorporated in the Product; (iii) the use of any Product furnished to Photowatt in combination with other products not furnished by ATS, unless the Product furnished by ATS, alone and without combination, infringes the asserted rights; or (iv) any infringement relating to Photowatt’s prescribed manufacturing processes. As to any such excluded product or part thereof, ATS assumes no liability whatsoever for intellectual property right infringement and Photowatt shall hold ATS harmless against any infringement claim arising therefrom. | ||
(d) | These express indemnity obligations shall be ATS’s sole obligation and Photowatt’s sole remedy in respect to any third party claims of infringement of intellectual property rights. |
(a) | Consequential Damages. In no event, whether as a result of breach of contract, warranty, tort (including negligence) or otherwise, shall ATS or its suppliers or subcontractors be liable for any special, indirect, consequential, incidental or punitive damages including, but not limited to, loss of profit or revenues, loss of use of any Product, any Foil Product or any associated equipment, damage to associated equipment, cost of capital, cost of substitute products, facilities, services or replacement equipment, down time costs or claims of Photowatt’s customers for such damages. If Photowatt transfers title to or leases any Product to any third party, Photowatt shall obtain from such third party a provision affording ATS and its suppliers and subcontractors the protection of the preceding sentence. |
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(b) | Aggregate Liability. In no event, whether as a result of breach of contract, warranty, tort (including negligence) or otherwise, shall ATS’s liability to any Photowatt Indemnified Party for any Losses arising out of, or resulting from the Products or Project Services furnished hereunder, exceed the amount actually received by ATS for the specific Product or Project Service which gives rise to the claim. | ||
(c) | The remedies provided either party in this Agreement are such party’s sole and exclusive remedies. |
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(a) | ATS shall invoice Photowatt upon shipment of Foil Products, the fees payable by Photowatt for Foil Products ordered by Photowatt under this Article 4. | ||
(b) | Photowatt shall pay to ATS, on or before the 10th day after the date on which an invoice for Foil Products is delivered to the Photowatt in accordance herewith (or the next Business Day, if such 10th day is not a Business Day) (each, a “Payment Date”), by wire transfer of immediately available funds payable to the order of ATS, all amounts invoiced by ATS pursuant to Section 4.6. Photowatt shall pay interest at the prime rate as quoted from time to time of The Bank of Nova Scotia plus 2% on any amounts invoiced by ATS which are not paid when due. In the event Photowatt fails to pay amounts owing under this Article 4 on two or more occasions, ATS reserves the right to require all future deliveries of Foil Products to be paid C.O.D. | ||
(c) | The prices quoted by ATS are exclusive of all applicable federal, state/provincial or local taxes, unless otherwise stated. Photowatt shall pay the gross amount of any present or future sales, use, excise, value added, or other similar tax applicable to the price, sale or delivery of any Product, Foil Product, Project Service or Deliverable furnished hereunder or to their use by Photowatt. Photowatt shall furnish ATS with evidence of exemption from any such taxes acceptable to the taxing authorities. Photowatt shall assess and remit any applicable tax to taxing authorities not otherwise invoiced by ATS. If any tax in the nature of withholding tax is payable on any sums invoiced under this Agreement, Photowatt shall pay ATS such amount as is necessary to ensure that the net amount received by ATS after such withholding shall be equal to the amount invoiced or otherwise required to be paid herein. |
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(a) | Photowatt acknowledges and agrees that (i) ATS is not in the business of supplying Foil Products to third parties and that the AMD Press has never been used to manufacture Foil Products on a commercial basis, (ii) ATS has agreed to supply Foil Products as an accommodation to Photowatt and (iii) ATS makes no representations or warranties whatsoever, whether express or implied by statute or otherwise, regarding the Foil Products or any other matters relating to or arising out of this Agreement. | ||
(b) | In no event, whether as a result of breach of contract or warranty, tort (including negligence) or otherwise shall ATS have any liability to any Photowatt Indemnified Party or any other Person for any Losses arising out of, resulting from or relating to any Foil Products manufactured on Photowatt’s Foil Presses and supplied to Photowatt hereunder or for any related services rendered or to be rendered hereunder by any ATS Indemnified Party, or for their respective actions or inactions hereunder, except for Losses resulting from the gross negligence or willful misconduct of such ATS Indemnified Party or its representatives. | ||
(c) | Photowatt shall in all circumstances use commercially reasonable efforts to mitigate and otherwise minimize Losses to the Photowatt Indemnified parties, individually and collectively, whether direct or indirect, due to, resulting from or arising in connection with any failure by ATS to comply fully with ATS’s obligations under this Article 4. | ||
(d) | Notwithstanding anything in this Agreement to the contrary, in no event shall ATS be liable to Photowatt or any other Person for, and Photowatt (on behalf of itself, its Affiliates and other Photowatt Indemnified parties) hereby releases ATS from all claims for, special, indirect, consequential, incidental or punitive Losses (including lost profits or savings), even if advised of their possible existence. | ||
(e) | In no event, whether as a result of breach of contract, warranty, tort (including negligence) or otherwise, shall ATS’s liability for any Losses arising out of, or resulting from this Article 4, exceed the amount actually received by ATS for the specific Foil Product or service which gives rise to the claim. |
(a) | Subject to Section 4.7, Photowatt shall indemnify and hold harmless ATS, its Affiliates and its and their respective directors, officers, employees and agents (the “ATS Indemnified Parties”) from and against any and all Losses relating to, arising out of or in connection with the Foil Presses and the Foil Products including any service rendered or to be rendered by any ATS Indemnified Person pursuant to this Agreement, any Losses relating or attributable to the manufacture of the Foil Products by ATS including any Losses resulting from a |
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defect or failure in the Products, any claim for patent infringement or other infringement of intellectual property rights relating to the Foil Presses, or any ATS Indemnified Party’s actions or inactions in connection with any such Foil Presses and Foil Products, except to the extent resulting from such ATS Indemnified Party’s gross negligence or willful misconduct. |
(b) | Subject to Section 4.7, ATS shall indemnify and hold harmless Photowatt, its Affiliates and its and their respective directors, offices, employees and agents (the “Photowatt Indemnified Parties”) from and against any and all Losses relating to, arising out of or in connection with the gross negligence or willful misconduct of any ATS Indemnified Party in connection with the Foil Products supplied to Photowatt pursuant to this Agreement. |
(a) | the parties may by mutual agreement terminate this Article 4 of this Agreement, in whole or in part, in accordance with this Section 4.10(a); | ||
(b) | Photowatt may terminate this Article 4 at any time if ATS shall have failed to perform any of its material obligations under this Article 4, Photowatt shall have notified ATS in writing of such failure and such failure shall have continued unremedied for a period of at least 30 days after receipt by ATS of written notice of such failure from Photowatt; and | ||
(c) | either party shall have the right to terminate its obligations under this Article 4 by giving at least six months notice to the other party; provided that ATS shall not be permitted to exercise its termination right until one year from the Effective Date. |
(i) | eighteen (18) months following the Effective Date if the event described in Section 7.1(b) occurs during the first year of the term of this Agreement; and | ||
(ii) | six (6) months following the occurrence of the event described in Section 7.1(b) if such event occurs after the first year of the term of this Agreement. |
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(a) | Notwithstanding any termination or expiry of this Article 4: (i) Photowatt shall remain liable to the ATS for any fees payable under this Article 4 which are owed and payable prior to the effective date of such termination; and (ii) the provisions of Sections 4.7, 4.8, 4.9, 4.11, Article 5 (Confidentiality and Proprietary Rights) and Article 8 (General) shall survive any such termination. | ||
(b) | Following termination of this Agreement, the parties agree to cooperate with each other in providing for an orderly transition to Photowatt or to a successor service provider as designated by Photowatt. Without limiting the foregoing, ATS agrees to cooperate with Photowatt in developing a transition schedule with respect to the supply of Foil Products. | ||
(c) | Upon termination or notice of termination of this Article 4 as applicable, Photowatt shall at Photowatt’s sole cost and expense cause the Foil Presses to be de-installed and shall take possession of the Foil Presses and cause the Foil Presses to be moved and relocated from ATS’s premises. Photowatt also agrees to pay all of ATS’s costs in restoring its premises to its condition prior to the installation of the Foil Presses including filling the holes containing the Foil Presses and installing new flooring. Photowatt shall be permitted a period of 6 months from the earlier of the date of termination or notice of termination to remove the Foil Presses and allow sufficient time for remediation, provided Photowatt shall continue to pay a pro-rata portion of the service charge provided for in Section 4.1 during such period. Notwithstanding anything to the contrary provided for above, in the event there are outstanding amounts owing by Photowatt to ATS at the time of termination, ATS may, at its option, require payment of such amounts before Photowatt is entitled to remove the Foil Presses. |
(a) | Ownership/License. ATS shall and does irrevocably grant and assign to Photowatt the Proprietary Rights in and to any and all of the Deliverables first developed or conceived during performance of and otherwise resulting from this Agreement other than those that constitute ATS Proprietary Technology (as defined below) effective upon full payment for such Deliverables. Notwithstanding any provision, express or implied, to the contrary, and for the purposes of clarity, the parties confirm that ATS shall retain all Proprietary Rights to any ATS Proprietary Technology forming part of the Deliverables |
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under the Agreement. “ATS Proprietary Technology” means any and all technology, know-how, trade secrets, inventions, and software and other intellectual property that: (i) was developed or conceived by ATS prior to or outside the scope of this Agreement, or (ii) is owned by a third party and that ATS has obtained rights to independently of this Agreement, or (iii) is developed or conceived during the course of performance under this Agreement (“New Developments”), to the extent such New Developments relate to mechanical and electronic devices used to automatically convey, grip, locate, orient, connect, manipulate, alter, form, inspect, test or sense materials or products as part of a manufacturing process. Photowatt shall have and ATS hereby grants to Photowatt, an irrevocable, non-exclusive, world-wide, royalty-free, perpetual right and license to use such ATS Proprietary Technology as has been incorporated into the Deliverables solely to operate, modify, and maintain the Deliverables provided under the Agreement. | |||
(b) | Software. The Product may use computer software. Computer software that is custom developed by ATS specifically for Photowatt under the terms of the Agreement (“Custom Software”) shall be delivered to Photowatt with the Product, including source code. All title, right and interest in the copyright to such Custom Software shall vest in Photowatt upon full payment for the Product and form part of the Deliverables. Computer software of third party suppliers (“Third Party Software”) may also be integrated into the Product. To the extent possible, ATS shall assign all rights afforded under the licenses for such Third Party Software to Photowatt and Photowatt shall assume all obligations under any such software licenses. The Deliverables may also include software that has been developed by ATS, at ATS’s expense, for general use in the products ATS manufactures (“ATS Software”). ATS Software is proprietary to ATS. Upon full payment for the Product, such ATS Software shall be licensed to Photowatt on a non-exclusive basis for use solely to operate and maintain the Product by Photowatt. For certainty, unless the Project Agreement specifically contemplates and identifies software as Custom Software to be developed for and owned by Photowatt, software developed by ATS and included in the Deliverables shall be ATS Software. |
(a) | worker’s compensation and employer’s liability Insurance providing for the payment of benefits to and for the account of employees employed in connection with the performances of any obligations hereunder; and | ||
(b) | one or more policies of comprehensive general liability agreement from a recognized, major insurance company qualified to do business in the Province of |
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Ontario and naming the other party as an additional insured. Such policy shall include a product liability endorsement covering personal injury and property damage claims, suits and actions, effective for occurrences caused by accidents or other incidents involving the products and services provided hereunder on or after the date hereof. Such policy shall provide limits of liability per occurrence and other terms which ATS from time to time considers satisfactory (initially, such policy shall have a combined single limit for bodily injury and property damage of at least $10,000,000.00. From time to time as requested by either party hereto, the other party shall promptly deliver evidence satisfactory to the requesting party that such insurance is in full force and effect. |
(a) | five (5) years from the Effective Date; and | ||
(b) | such time as the Percentage of Outstanding Common Shares is less than 10%. |
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(a) | If ATS becomes bankrupt or insolvent or breaches a material provision hereof and does not commence to remedy such breach within ten (10) calendar days of being given written notice by Photowatt, Photowatt may terminate the Agreement in whole or in part effective ten (10) calendar days after such notice was given. In the event of such termination, Photowatt shall take possession of the Deliverables (in whatever state of design or manufacture they are at such time) immediately and shall have a right to receive a refund of all amounts paid to ATS by Photowatt hereunder, less an amount representing payment for all work performed and deliverables provided by ATS to the date of such termination. ATS shall not be entitled to anticipated profit or anticipated overhead charges. Upon such payment, Photowatt shall have the right to the continued use of the Deliverables then delivered. | ||
(b) | THE REMEDY PROVIDED TO PHOTOWATT IN THIS ARTICLE SHALL BE PHOTOWATT’S SOLE AND EXCLUSIVE REMEDY IN RESPECT OF ANY BANKRUPTCY OR INSOLVENCY OF ATS AND, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT, IN RESPECT OF ANY BREACH OF THIS AGREEMENT BY ATS. |
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(1) | if to ATS, to: |
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ATS Automation Tooling Systems Inc. 250 Royal Oak Road Cambridge, Ontario N3H 4R6 Attention: General Counsel Fax No.: (519) 650-6520 |
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(2) | if to Photowatt, to: | ||
Photowatt Technologies, Inc. 25 Reuter Drive Cambridge, Ontario N3E 1A9 |
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Attention: President and Chief Executive Officer Fax No.: (519) 650-6535 |
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(a) | Direct Negotiation. If either party considers that any Dispute has arisen under or in connection with this Agreement, then such party may first deliver a notice to the other party describing the nature and the particulars of such Dispute. Second, within 10 Business Days following delivery of such notice to the other party, the parties shall meet (whether by phone or in person) in a good faith attempt to resolve the Dispute. Third, if the Dispute is still unresolved after 10 Business Days following the commencement of such good faith attempt, then the chief financial officer (or another designee with full authority to resolve such dispute) of each party shall meet (whether by phone or in person) in a good faith attempt to resolve the Dispute, such meeting to be held within 20 days of the first meeting referred to above. Fourth, if the Dispute is still unresolved after 10 Business Days following the commencement of such second negotiations, then such Dispute shall be submitted to mediation in accordance with Section 8.17(b). | ||
(b) | Mediation. If the Dispute is to be submitted to mediation in accordance with Section 8.17(a), the mediator will be selected by mutual agreement of the parties, which agreement shall be reached in good faith and on a timely basis. If they are unable to agree on a mediator, each party will select one third party representative, each of whom shall be an independent experienced professional mediator practicing in Ontario, which two representatives shall mutually select a mediator for such Dispute with the same qualifications referred to above (and each party shall in good faith instruct its representative to work in good faith with the other party’s representative to promptly select such mediator). |
(i) | Mediation Procedure. The mediation will be conducted pursuant to the rules generally used by the mediator in the mediator’s practice, subject to the following: |
(A) | The mediator will act as an advocate for resolution and will use his or her best efforts to assist the parties in reaching a mutually acceptable settlement. The mediator may suggest ways of resolving the Dispute, but may not impose his or her own judgment on the issues or that of the parties. The mediator will not have the authority to decide any issue for the parties, but will attempt to |
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facilitate the voluntary resolution of the Dispute by the parties. | |||
(B) | Each Person participating in the mediation will have authority to settle, and all Persons necessary to the decision to settle will be present during the entire mediation session or sessions. | ||
(C) | The mediation will take place at a time and convenient location agreeable to the mediator and the parties, as the mediator will determine, but such mediation will take place no later than 20 Business Days after the commencement of the second negotiations under Section 8.17(a) and will take place over two consecutive days. | ||
(D) | Mediation sessions will be private, and only the parties and their representatives may attend the mediation sessions. Other Persons may attend the mediation sessions only with the written permissions of the parties and with the consent of the mediator. | ||
(E) | There will be no stenographic record of the mediation process, and no Person will tape record any portion of the mediation sessions. | ||
(F) | No subpoenas, summons, complaints, citations, writs, or other process may be served at or away from the site of any mediation session upon any Person who then is entering, on the way to, in attendance or leaving the session. | ||
(G) | The parties will participate in the mediation proceeding in good faith with the intention to settle. | ||
(H) | No later than five days prior to the mediation, each party will deliver to the mediator all information reasonably required for the mediator to understand the issues presented and a confidential memorandum (not to exceed five pages with normal type size and margins) setting forth the following: |
i. | identification of the matters in dispute; | ||
ii. | concise statement of points (factual, legal, practical) that such party believes enhances its chance of achieving a favourable outcome of the Dispute; and |
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iii. | history of settlement discussions and outstanding offers of settlement. |
(I) | The above rules may be modified or amended with the parties’ written consent. |
(ii) | Release. The mediator will not be a necessary or proper party in any Action relating to the mediation. Neither the mediator, the Person employing the mediator, nor the Person providing the mediator will be liable to any party for any acts or omissions in connection with any mediation conducted pursuant to this Section 8.17. | ||
(iii) | Compromise Negotiation. The mediation is a compromise negotiation for purposes of the applicable rules of evidence and is an alternative dispute resolution procedure subject to Law chosen to govern this Agreement. The entire procedure is and will be confidential. All conduct, statements, promises, offers, views and opinions, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees or other representatives and by the mediator, who is the parties’ joint agent for purposes of these compromise negotiations, are confidential and will, in addition where appropriate, be deemed to be work product and privileged. Such conduct, statements, promises, offers, views and opinions will not be discoverable or admissible for any purposes, including impeachment, if any litigation or other proceedings involve the parties and will not be disclosed to anyone not an agent, employee, expert or other representative for any of the parties. Evidence otherwise discoverable or admissible is not excluded from discovery or admission as a result of its use in the mediation. Confidential Information disclosed to the mediator by the parties or by witnesses in the course of the mediation will not be divulged by the mediator. All records, reports or other documents received by the mediator while serving in that capacity will be confidential. The mediator will not be compelled to divulge such records or to testify with regard to the mediation in any adversary proceeding or judicial forum. | ||
(iv) | Costs of Mediation. The parties will bear their respective costs incurred in connection with the mediation described in this Section 8.17, except that the parties will share equally the fees and expenses of the mediator, the costs of obtaining the facility for the mediation, and the fees and expenses of any experts employed at the mediator’s request. | ||
(v) | Termination of Mediation. The mediation will be terminated upon the first to occur of the following: |
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(A) | by the execution of a settlement agreement resolving the dispute by the parties; | ||
(B) | by a written declaration of the mediator to the effect that further efforts at mediation are no longer worthwhile; or | ||
(C) | after the completion of two full days of mediation sessions, by written declaration of a party or parties to the effect that mediation proceedings are terminated. |
(c) | Litigation. Neither party may bring (or have brought) any Action in any forum with respect to any Dispute arising out of or related to this Agreement, or the breach or termination thereof, until such party has fully complied with Section 8.17(a) and (b) with respect to such Dispute. |
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ATS AUTOMATION TOOLING SYSTEMS INC. | PHOTOWATT TECHNOLOGIES INC. | |||||||||
By:
|
By: | |||||||||
Date: [Month] ___, 2006 | Date: [Month] ___, 2006 |
1. | Foil Production Equipment | ||
2. | Optical Fused Powder | ||
3. | Front Bond | ||
4. | Diagnostic BLP | ||
5. | Back Bond | ||
6. | Test/Sort | ||
7. | Cell Cut & Test | ||
8. | FWP weld | ||
9. | FWP Cut | ||
10. | Stringers | ||
11. | Module Test | ||
12. | General Material Handling* | ||
13. | New Automation Scopes |
* | General Material Handling includes automated wafer handling between workstations |
1. | Screen Print | ||
2. | Edge Isolation Laser | ||
3. | Wafer Test | ||
4. | Tabbing/Stringing | ||
5. | Lamination | ||
6. | Module Test | ||
7. | *General Material Handling | ||
8. | New Automation Scopes |
* | General Material Handling includes automated wafer handling between workstations |