Exhibit 10.51
CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 246-2 UNDER THE
SECURITIES EXCHANGE ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN
INDICATED WITH AN "*".
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (the "Agreement") made this 17 day of March, 2000,
between Plug Power Inc., a Delaware corporation, having its principal place of
business at 968 Albany-Shaker Road, Latham, New York 12110 (hereinafter "Plug
Power") and General Electric Company, a New York corporation, having offices at
1 River Road, Schenectady, New York 12345 (hereinafter "GE").
WITNESSETH:
WHEREAS, Plug Power desires to have GE perform, and GE desires to perform,
certain technical services and support as is more fully defined in the
Statement of Work attached hereto as Exhibit 3.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree to this Agreement.
1. Definitions.
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(a) "Agreement" shall mean this agreement, and any subsequent agreement
amendment executed in accordance with the Change Order Protocol attached
hereto as Exhibit 1.
(b) "Change Order" shall have the meaning ascribed thereto in Exhibit 1.
(c) "Funding Schedule" shall have the meaning ascribed thereto in Exhibit 2.
(d) "Statement of Work" shall mean the statement of the work to be performed by
GE in connection with the Agreement, which statement is attached to this
Agreement as Exhibit 3.
2. Change Orders; Additional Services and/or Funding.
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(a) The Statement of Work and/or Funding Schedule may be modified or altered
prior to completion only with a Change Order executed in accordance with
the Change Order Protocol attached hereto as Exhibit 1.
(b) In addition to any such additional services and/or funding effected by any
such Change Order, GE shall, if and to the extent requested by Plug Power
and upon mutual agreement by the parties, provide training and technical
support services in respect of any deliverables produced by GE for, or
delivered by GE to, Plug Power pursuant to this Agreement.
(c) The standard terms and conditions attached hereto as Exhibit 4 shall apply
to any
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services performed by GE pursuant to this Agreement.
3. Confidential Information.
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(a) As used herein, the term "Confidential Information" of a party shall mean
any information or intellectual property of a party, whether presented in
writing or in any other tangible medium or presented verbally, that is of a
secret, confidential or non-public nature including, but not limited to (i)
matters of a technical nature (including inventions, data, concepts, devices,
software and documentation, secret processes or machines, know-how and related
improvements thereon), (ii) matters of a business nature (such as information
about contracts, profits, product pricing, promotional methods, markets, sales,
product availability, customers, suppliers), (iii) plans for further
development, and (iv) other information or intellectual property proprietary to
the party and not generally available to the public. All Confidential
Information shall be clearly marked by the disclosing party as "Confidential"
or "Proprietary".
(b) Each party shall treat as confidential all Confidential Information of the
other party, shall not use such Confidential Information other than as required
to carry out its duties and exercise its rights under this Agreement, and shall
not disclose such Confidential Information to any third party. Notwithstanding
the previous sentence, a party may disclose Confidential Information of the
other party to its employees, agents and subcontractors who require such
information in order for such party to carry out its duties and exercise its
rights under this Agreement; provided that such employee, agent or
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subcontractor has first entered into a confidentiality agreement containing
substantially the same obligations and restrictions as this Section 3. Without
limiting the foregoing, each of the parties shall use reasonable care to
prevent the disclosure or misuse of Confidential Information disclosed to it by
the other party under this Agreement.
(c) Notwithstanding the above, neither party shall have liability to the other
with regard to any Confidential Information of the other which:
(i) was in the public domain at the time it was disclosed or has
entered the public domain through no fault of the receiver;
(ii) was known to the receiver, without restriction, at the time of
disclosure as shown by the files of the receiver in existence
at time of disclosure;
(iii) was independently developed by the receiver without any use of
the Confidential Information of the other party and by
employees, agents and subcontractors of the receiver who have
not had access to the Confidential Information of the other
party; or
(iv) is disclosed pursuant to the order or requirement of a court,
administrative agency or other governmental body, provided
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that the receiver shall have
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provided prompt notice thereof to the discloser to enable the
discloser to seek a protective order or otherwise prevent
disclosure.
(d) Plug Power's Confidential Information is and shall remain the property of
Plug Power, and shall only be used by GE for the limited purpose of rendering
services directly related to the Work. GE acknowledges that, by the disclosure
of its Confidential Information, Plug Power has not granted to it any express
or implied right to Plug Power's patents, copyrights, trademarks, trade secrets
or other Confidential Information for any other purpose whatsoever.
(e) Within 10 days after the acceptance date with respect to, or the effective
date of cancellation of, any Agreement, GE shall return to Plug Power all of
Plug Power's Confidential Information then in tangible form and then held by it
or under its control and any part or portion thereof, including all copies or
other reproductions thereof.
4. Intellectual Property Rights.
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(a) Definitions
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1. "Technical Information" means all technical information, know-
how, manufacturing techniques, engineering and other data,
drawings, material and process specifications, and other
information, whether patented or unpatented, whether in written,
oral or other form, relating to fuel cells.
2. "Patents" means all patents (including patents of importation,
patents of confirmation, patents of improvement, patents and
certificates of addition and utility model patents, as well as
divisions, reissues, continuations, continuations-in-part,
reexamination certificates, renewals and extensions of any of
the foregoing) and applications therefor and patents which may
issue on such applications, covering inventions with respect to
which the first application for patent anywhere was filed prior
to the date of expiration or any prior termination of this
Agreement.
3. "Technology" means Technical Information and Patents.
4. "Background" means, with respect to Patents, Technical
Information and Technology, that which a party has acquired or
acquires outside of this Agreement.
5. "Foreground" means, with respect to Patents, Technical
Information and Technology, that which is created pursuant to
this Agreement.
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(b) Ownership and Use Rights in Technology
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1. Each party shall retain ownership of its Background Technology,
and neither party shall obtain, either directly, by implication,
estoppel or otherwise, rights under any Background Technology of
the other party except as explicitly set forth herein.
2. In the event an invention is conceived solely by employees of GE
in the course of performance of tasks under this Agreement, such
inventions and any resulting Foreground Technology shall be
owned by GE. GE shall have the sole right to apply for such
Foreground Patents resulting from any such inventions, which
shall be at GE's sole expense and option.
3. Inventions conceived jointly by employees of both parties in the
course of performance of tasks under this Agreement and any
resulting Foreground Technology arising from such joint
inventions shall be the joint property of GE and Plug Power and,
except as limited by this Agreement, each shall be free to
utilize the same and to license third parties of its own
choosing thereunder without consultation with the other party,
and without an accounting or sharing of licensing income thereby
received, if any. The parties agree to select mutually
acceptable patent attorneys to file and prosecute patent
applications based on such joint patentable inventions and to
share equally the cost of such services and expenses reasonably
incurred by such attorneys, including the payment of patent
maintenance fees, and without further compensation, to give such
attorneys all reasonable assistance, to cause all necessary
papers to be executed and do all things that may reasonably be
required to obtain and maintain patents on such joint
inventions. Each party shall be kept fully advised of the
status of the prosecution of each such patent application and
shall be consulted in advance with respect to the advisability
of continuing said prosecution in the event of any final
rejection, appeal, interference, or the like, and each party
may, at any time by ten (10) days' notice to the other party,
elect not to continue to pay its share of such services and
expenses incurred after the date of said election with respect
to any such patent or patent application; provided, however,
that the party making such an election shall, at the time of so
notifying the other party, immediately assign to the other party
all rights to the patent or patent application with respect to
which the election is being made. Neither party hereto shall be
obligated to make any payments for or on account of proceedings
before any court or any other tribunal or agency in connection
with the maintenance or assertion of any patent based on joint
inventions.
4. In the event an invention is conceived solely by employees of
Plug Power in the course of performance of tasks under this
Agreement, any resulting Foreground Technology shall be owned by
Plug Power. Plug Power shall
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have the sole right to apply for Foreground Patents resulting
from any such inventions, which shall be at Plug Power's sole
expense and option.
5. GE agrees to grant and hereby grants to Plug Power a royalty-free,
irrevocable, world-wide license to make, have made, use, sell,
offer for sale or otherwise dispose of fuel cells under the
Foreground Technology described in Paragraphs 4(b)2 and 4(b)3.
The foregoing grant consists of a right and license to use such
Foreground Technical Information and a license under such
Foreground Patents which cover the Technical Information.
(i) In the case of fuel cell systems (i.e., fuel cell
stacks, fuel reformers, power electronic systems and
balance of plant (e.g., auxiliaries such as blowers,
fans, pipes)) employing proton exchange membrane
(PEM) technology (includes membranes that transport
protons, including polymer electrolyte membranes and
acid doped polymer membranes), and subject to
Paragraph 4(b)7, the license rights shall be
exclusive.
(ii) In the case of fuel cells other than those employing
PEM technology, the license rights shall be non-
exclusive.
6. Prior to the parties mutually agreeing to start work in any
specific area (the "Project"), GE agrees to notify Plug Power of
any GE Background Technology administered by the GE Power
Systems business ("GEPS") or GE Corporate Research and
Development ("GE-CRD") where it appears to GE that the use or
practice of the anticipated Project deliverables by Plug Power
is likely to infringe such GE Background Technology, and such
infringement cannot be reasonably avoided in the field of fuel
cell systems employing PEM technology. Prior to the start of
any Project, GE will either:
(i) offer Plug Power a non-exclusive license to use
such GE Background Technology as is necessary for
Plug Power to practice the Foreground Technology in
the field of fuel cell systems employing PEM
technology, such license to be under terms,
including compensation (if any), to be negotiated in
good faith; or
(ii) negotiate with Plug Power to change the direction of
the Project so as to avoid infringement.
If GE fails to notify Plug Power of any relevant blocking GE
Background Technology administered by GEPS or GE-CRD, as
stated herein, then GE waives any future right to assert
such GEPS or GE-CRD administered Background Technology
against Plug Power in the field of fuel cell systems
employing PEM technology.
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7. The license grant set forth in Paragraph 4(b)5(i) hereof shall
immediately become non-exclusive upon notice from GE:
(i) in the event that Plug Power enters into a product
distribution and/or service relationship with the
following GE Power Systems' competitors: * provided,
however, that nothing herein shall prevent Plug Power
from using such competitors as product suppliers or
product manufacturers; or
(ii) in the event Plug Power becomes a subject of any
voluntary or involuntary bankruptcy, settlement,
receivership, reorganization or other insolvency
proceedings, unless such proceedings are terminated
within six months from their original opening.
8. In the event that Plug Power desires to sell that portion of its
business to which the license grants of Paragraph 4(b)5 relate
or to sell a portfolio of assets that includes the license
grants of Paragraph 4(b)5, Plug Power will provide GE with an
exclusive 30-day negotiating period to purchase same and, after
such 30-day period, Plug Power may not enter into such a
transaction with any other party upon terms less favorable than
those previously offered by GE.
(c) Miscellaneous
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1. Nothing in this Agreement shall be construed as:
(i) a warranty or representation by GE as to the validity
or scope of any GE Background or Foreground Patent;
or
(ii) a warranty or representation that anything made,
used, sold or otherwise disposed of under any
license granted in this Agreement is or will be free
from infringement of patents of third parties; or
(iii) a requirement that GE shall file any patent
application, secure any patent or maintain any
patent in force; or
(iv) an obligation to bring or prosecute actions or suits
against third parties for infringement.
2. GE makes no representations, extends no warranties of any kind,
either express or implied, and assumes no responsibilities
whatever with respect to the adequacy, accuracy, or utility of
any Technical Information provided to Plug Power under this
Agreement; and GE assumes no responsibilities whatever with
respect to use by Plug Power or any third party of any Technical
Information provided to Plug Power under this Agreement, or with
respect to any use, sale or other disposition by Plug Power of
any products incorporating or made by use of any (i) inventions
licensed under this
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Agreement, or (ii) Technical Information, if any, obtained by Plug
Power under this Agreement
3. Plug Power agrees to indemnify, hold harmless and save from
liability GE, including its officers, employees and agents from
and against all claims, demands and actions arising out of or
related to the commercial use by Plug Power of Technology
licensed to Plug Power under Paragraphs 4(b)5 and 4(b)6 of this
Agreement.
5. Payment and Reporting Terms
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(a) The cost reimbursement for services to be rendered by GE shall not
exceed $2,801,079 during the first six month period ending on June 31, 2000.
Additional funding for the remainder of calendar year 2000 will be
authorized on a quarterly basis prior to the beginning of third quarter by
amendment to this Agreement in accordance with the Funding Schedule. In no
event will the total funding for calendar year 2000 exceed $4,072,375 unless
otherwise agreed to by the parties pursuant to the Change Order Protocol.
(b) GE shall provide monthly reports to Plug Power of expenditures incurred
under this Agreement. The monthly reports shall be provided within five
working days following GE's monthly closing. Such monthly reports shall be
broken down in accordance with the work task categories as set forth in the
Statement of Work and shall include actual labor hour rates for each listed
category (direct salary plus 45% for GE Power Systems, actual internal GE
transfer rates for other GE divisions), plus actual expenditures without any
markups for materials, supplies, travel, or other direct costs.
(c) Invoices for actual expenditures incurred and paid shall be submitted to
the Plug Power not more often than on a monthly basis. Payments shall be
made within 30 days after receipt of invoice.
6. Term and Termination.
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(a) This Agreement shall be effective as of the day and year first written
above and shall continue in full force and effect until March 31, 2001,
unless otherwise extended by mutual written agreement of the parties.
(b) The provisions of Sections 3 and 4 of this Agreement shall survive any
expiration or termination thereof.
(b) Plug Power shall have the right to terminate this Agreement upon 15 days
prior written notice to GE.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
the day and year first above written.
PLUG POWER INC. GENERAL ELECTRIC COMPANY
By:__________________________ By:_______________________
Title:_______________________ Title:_ Manager, New Products & Processes
General Electric Company
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Exhibit 1
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Change Order Protocol
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1. Plug Power may, upon mutual agreement of the parties, alter the
description of the Work and Deliverables required by any Agreement
on notice to GE (any such notice, a "Change Order").
2. Upon receipt of a Change Order request, Plug Power shall prepare and
submit the following to GE: revised Statement of Work, delivery
schedule, and where appropriate, payment schedule. GE shall prepare
and submit to Plug Power an estimate of the increased or decreased
costs, and delays or time savings associated with the Change Order.
3. If Plug Power then wishes GE to proceed with the Change Order, Plug
Power shall prepare a revised Statement of Work and delivery
schedule and any such payment schedule for execution by the parties.
The revised Statement of Work shall become effective upon execution
by the parties.
4. Plug Power and GE shall exercise its best efforts to minimize
increased costs and delays, if any, associated with a Change Order.
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Exhibit 2
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Funding Schedule
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Work for calendar year 2000 in accordance with this Agreement will be
authorized on a quarterly basis prior to the beginning of each quarter. This
Funding Schedule specifies the funding planned to be authorized for each
quarter and the date by which funding will be authorized by Change Order
Protocol .
Quarter Funding to be authorized Target date for authorization
- -------------------------------------------------------------------------------
1 (Jan-Mar) $1,447,119 N/A
2 (Apr-Jun) $1,353,960 March 17, 2000
3 (Jul-Sep) $ 776,460 June 16, 2000
4 (Oct-Dec) $ 494,835 September 15, 1999
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Exhibit 3
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Statement of Work
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Attached
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Exhibit 4
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Standard Terms and Conditions
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Attached
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