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EXHIBIT 10.30
MANAGEMENT AGREEMENT
BETWEEN
ELECTRIC POWER RESEARCH INSTITUTE, INC.
AND
AMERICAN SUPERCONDUCTOR CORPORATION
This management Agreement ("Agreement") effective January 1, 1996, by and
between the Electric Power Research Institute, Inc. ("EPRI"), a non-profit
corporation organized and existing under the laws of the District of Columbia
and American Superconductor Corporation ("ASC"), a corporation organized and
existing under the laws of the State of Delaware.
WHEREAS, EPRI funds and supports research and development activities for
the benefit of the American utility industry and the public as a whole,
including research and development with respect to high temperature
superconducting biaxially textured coated conductors (the "Field"); and
WHEREAS, ASC has carried on and is willing to carry on a research and
development program on superconducting wires, the goal of which is to produce
superconducting wires which are suitable for commercial exploitation; and
WHEREAS, EPRI has or shall grant, and ASC desires to acquire, an exclusive
license under terms and conditions set forth in the Technology License
Agreement, and ASC has reviewed the terms and conditions of the agreements
between EPRI and third parties presently in effect and identified in Attachment
A of the Technology License Agreement; and,
WHEREAS, ASC has agreed, subject to the terms of the Technology License
Agreement and the Warrant Agreement, to issue EPRI a Warrant to purchase 100,000
shares of ASC Common Stock at a purchase price of $14 per share.
WHEREAS, EPRI and ASC desire to form a strategic alliance to fund certain
research and development programs in the area of high temperature superconductor
("HTS") biaxally coated conductors ultimately leading to the production and
commercialization by ASC of advanced HTS wire and other products.
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NOW, THEREFORE, for and in consideration of these premises and of the
mutual covenants and agreements contained in this agreement, and subject to the
terms and conditions set forth in this Agreement, the parties agree as set forth
below.
Section 1. DEFINITIONS
For the purpose of this Agreement the following capitalized terms are
defined as follows:
1.1 "Agreement" means this Agreement, including Table 1 and 2.
1.2 "ASC" means American Superconductor Corporation.
1.3 "Contract Year" means any National Laboratory or other organization
conducting research and/or development activities funded in whole or in part by
EPRI and/or ASC.
1.4 "Contract Year" means a twelve-month period commencing on the effective
date of this Agreement or any anniversary of such effective date.
1.5 "EPRI" means the Electric Power Research Institute, Inc.
1.6 "EPRI Technology" means Technology useful in the Program in which EPRI
has rights or as to which EPRI at any time has the right to grant licenses
conceived, created, reduced to practice or otherwise developed at any time prior
to the end of the Research and Development Program in the course of any of the
contracts between EPRI and third parties listed below in Table 1 (and any
extensions or modifications thereof) or in the course of any work in connection
with the Research and Development Program.
TABLE 1
PERIOD OF
CONTRACTOR CONTRACT NUMBER PERFORMANCE
******** ************ ****** ********
**** ********
*********** ********** ****** ********
**** ********
************* ********** ****** ********
**** ********
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******************** ********* ****** ********
**** ********
1.7 "Program Field" means the "high temperature superconductor ("HTS")
biaxally textured coated conductors, including any compositions, processes or
apparatus used in the manufacture of such conductors.
1.8 "Research and Development Program" means a research and development
program directed to the "development of HTS biaxially textured coated
conductors.
1.9 "Program Contract" means any contract between EPRI and/or ASC, on the
one hand, and a Contract Organization, on the other hand, pursuant to which such
Contract Organization conducts activities in connection with the Research and
Development Program.
1.10 "Proprietary Data" means all confidential information or data of any
type, whether or not patentable and whether or not copyrightable, including,
without limitation, ideas, concepts, formulas, methods, procedures, designs,
compositions, plans, applications, specifications, drawings, techniques,
processes, research, technical data, know-how, apparatus, equipment, samples,
inventions (patented and not patented), discoveries, and the like, and financial
data, business plans, demonstrations and trade secrets (all whether or not in
tangible or oral form).
1.11 "Research and Development Period" means the four-year period
commencing on the effective date of this Agreement, unless extended pursuant to
Section 5.6 or earlier terminated pursuant to Section 5.2 or 5.3 in which case
it means that period as so extended or limited.
1.12 "Warrant" means the Common Stock Purchase Warrant issued to EPRI by
ASC of even date herewith, a copy of which is included as Attachment B to the
Technology License Agreement.
1.13 "Technology License Agreement" means the Agreement of even date
between EPRI and ASC pursuant to which EPRI has licensed certain Technology to
ASC, a copy of which is included herein as Attachment A.
1.14 "Warrant Agreement" means the agreement of even date between EPRI and
ASC, a copy of which is included as Attachment B to the Technology License
Agreement, a copy of which is included
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ASTERISKS DENOTE SUCH OMISSIONS.
as Attachment A to this Agreement, providing the grant to EPRI of Warrants for
the purchase of ASC Common Stock.
1.15 "First Contract Year" shall include EPRI activities and funding in the
Program Field prior to the effective date of this Agreement, together with EPRI
activities and funding in the Field during the first twelve month period
commencing on the effective date of this Agreement.
1.16 "Second Contract Year" shall mean the twelve month period commencing
on the first anniversary of the effective date of this Agreement.
Section 2. THE RESEARCH AND DEVELOPMENT PROGRAM
2.1 Scope of Research and Development Program. The Research and Development
Program shall consist of research and development activities in the Program
Field performed by ASC to the extent financially supported by EPRI or performed
by Contract Organizations pursuant to contracts with EPRI or ASC to the extent
financially supported by EPRI and/or ASC, with the goal of developing HTS
biaxially textured coated conductors, all as more specifically provided below in
Table 2. Table 2 details the anticipated annual funding allocations for Research
and Development for Phase I. The Research and Development Program shall consist
of two phases. Phase I shall be an initial phase directed principally to
determining the viability of the concepts of the Research and Development
Program and shall be conducted during the first two Contract Years of this
Agreement. Phase II shall consist of further work conducted during subsequent
Contract Years. No obligation is created hereunder for EPRI to contribute funds
towards Phase II or beyond the first two contract years of this Agreement.
TABLE 2
Contractor EPRI ASC Total
**** **** **** ****
**** *** ***
************ *** ** ***
**** ** **
******** *** ***
********* *** ***
*** *** ***
********** *** ****
TOTAL* $1,000 $2,500 $3,500
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* Amounts above in K$.
2.2 Contracts and Working Relationships with Other Parties.
a. ASC and EPRI recognize that the work contemplated by the Research
and Development Program will involve work done pursuant to Program Contracts and
will require the negotiation and execution of Program Contracts, including
modification(s) and extension(s) of both existing and future contracts and
agreements.
b. ASC and EPRI agree to work together to:
i. negotiate and execute such contracts and agreements as may be
necessary to carry out the Research and Development Program contemplated by this
Agreement.
ii. enlist the support of and participation by the U.S. Department
of Energy ("DOE") in research and development activities to be conducted by
National Laboratories in connection with the Research and Development Program,
and
iii. enlist the support of and participation by those responsible
for or in any way controlling the activities of any Contract Organization.
c. Research and development activities that are funded and contracted
separately by either ASC or EPRI, will be managed by the sponsoring
organization. The sponsoring organization is obligated to ensure that the other
organization is able to participate in developing, approving, coordinating,
reviewing and providing input to all separately funded research and development
in the Research and Development Program and to use its best efforts to permit
the non-sponsoring organization to participate in all negotiations and
discussions between the sponsoring organization and any Contract Organization
regarding Program Contracts and research and development activities conducted,
or potentially to be conducted, in connection with the Research and Development
Program. The Non-sponsoring organization will be informed of the technical
progress and will be provided copies of all correspondence and the like relating
thereto on regular intervals but will not have direct control over the research
and development activities. The Joint Steering Committee will develop, approve,
review, and provide input with respect to all separately and jointly funded
research and development activities in connection with the Research and
Development Program, and shall be provided copies of all records, reports, and
other documents relating thereto.
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2.3 Best Efforts Performance. Each party shall use its best efforts to
achieve the goals set forth in Section 2.1 and Table 2. In particular, each
party shall provide personnel qualified to perform the activities contemplated
so that the Research and Development Program will achieve such goals, and shall
use its best efforts to enter into such project contracts as may be reasonably
required to achieve such goals.
2.4 Disclosures.
a. Subject to the provisions of Section 4 (Confidentiality), solely
for the purposes of the Research and Development Program, EPRI shall make
available to ASC all EPRI Technology necessary for ASC to carry out its
obligations under Section 2. The rights of ASC to use or exploit any Technology
(including Proprietary Data) other than in the course of the Research and
Development Program, and to use or disclose Proprietary Data other than for
purposes of the Research and Development Program, shall be as provided in the
Technology License Agreement.
b. Solely for the purposes of the Research and Development Program,
ASC and EPRI shall make available to Contract Organizations such Technology
(including Proprietary Data) as is reasonably necessary for the respective
Contract Organization to carry out its obligations under a particular contract
or agreement. The extent to which disclosure of its Proprietary Data shall be
made shall be at the option of the disclosing party taking into account the
reasonable needs of the Person to which disclosure is to be made. No such
Technology or Proprietary Data is required to be disclosed under terms that
would permit the Person to which disclosure is made to use or disclose the same
other than for the purpose of the Research and Development Program.
2.5 Check points. During the Research and Development Program a check point
in each calendar year shall be established by the parties in order to certify
the feasibility, timing and results of the activities undertaken pursuant to
that program.
2.6 Visits. During the Research and Development Program, each party may (i)
send technical personnel to the other party or Contract Organizations as
provided in the Program Contract terms and conditions or (ii) received technical
personnel from the other party for consultation on the problems arising from the
research and development activities and for discussion of the results of the
Research and Development Program. The duration and frequency
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of these consultations and visits shall be determined by informal agreement of
the parties, from time to time, as requests may be made therefore, and
permission for such visits shall not be unreasonably withheld.
2.7 Joint Steering Committee. ASC and EPRI agree to form a Joint Steering
Committee consisting of an equal number of representatives from ASC and EPRI for
the purpose of developing, approving, coordinating reviewing and providing input
with respect to all research and development activities in the Research and
Development Program. Dr. Alexis P. Malozemoff of ASC and Dr. Paul M Grant of
EPRI would be the principal members of the Joint Steering Committee. The members
of the Joint Steering Committee agree to communicate together routinely and on a
continuing basis concerning all the work in the Field.
In the event the Joint Steering Committee is unable to reach agreement in
approving, coordinating, reviewing and providing input with respect to the
research and development activities, a group consisting of an equal number of
representatives from ASC and EPRI from senior management, including Dr. Gregory
J. Yurek of ASC and Dr. Tomas R. Schneider of EPRI, shall be assembled for the
purpose of resolving management disagreement(s).
2.8 Joint Steering Committee Meetings. The Join Steering Committee shall
meet on the dates of the check points established pursuant to Section 2.5 and at
such other times as the parties may agree to. Personnel of the parties, other
than the Committee members, may be invited to the meetings on the basis of their
contribution to the technical problems under discussion. ASC will be responsible
for keeping the minutes of each meeting, and these minutes shall be
countersigned by one representative of each party within thirty (30) days after
each meeting.
2.9 Records and Reports.
a. Records. Each party will prepare and maintain full accurate records
and books relating to the progress and status of the Research and Development
Program performed or funded by it, all financial matters connected therewith,
and all expenditures made or costs incurred in connection therewith. These
records and books shall be made available at all reasonable times to the Joint
Steering Committee for management and supervision purposes and verification of
the parties' obligations hereunder. Upon the written request of either party,
the records of the other shall be subject to audit, by a public accountant
selected by the requesting party and reasonably acceptable to the other party,
at
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the cost of requesting party. It is the intent of the parties that no such
audits shall be performed more than once a year, and once upon expiration or
termination of this Agreement.
b. Reports. At least once each calendar quarter, within fifteen (15)
days after the end of the quarter, each party will prepare and deliver to the
Joint Steering Committee reports setting forth:
(i) summaries of the status and progress of the Research and
Development Program;
(ii) all expenditures made or costs incurred in connection
therewith; and
(iii)projections of expenditures required in connection with the
Research and Development Program for each of the four calendar quarters
following the date of such reports.
2.10 Research and Development Payments and Expenditures. EPRI agrees to
contribute a minimum of $2.0 million during calendar 1996 and 1997 to fund and
manage the EPRI Technology. The funding by EPRI would be made directly to the
National Laboratories and other organizations depending on the terms of the
agreement reached with the National Laboratories and other organizations. Any
monies paid by EPRI to ASC pursuant to this Agreement will be subject to a
separate Program Contract. The parties anticipated that increased work may be
performed during Phase II if Phase I of the Research and Development Program is
successful, and agree that the amounts to be contributed by EPRI will negotiate
a new warrant agreement in view of such subsequent contributions.
Section 3. REPRESENTATIONS AND WARRANTIES
3.1 Representations And Warranties of EPRI. EPRI represents and warrants to
ASC as follows:
a. Organization and Authority. EPRI is a non-profit corporation duly
organized, validly existing and in good standing under the laws of the District
of Columbia and has full power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. EPRI is
qualified and in good standing as a foreign corporation doing business in all
jurisdictions in which where failure to so qualify would have a material adverse
effect on its business and/or assets. EPRI has
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full power and authority to enter into and perform its obligations under this
Agreement in accordance with its terms.
b. Authorization; No violation. The execution, delivery and performance
of this Agreement by EPRI have been duly authorized by all requisite corporate
action of EPRI, and this Agreement constitutes the valid end binding obligation
of EPRI, enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement nor the performance by EPRI of its obligations
hereunder shall (i) violate any provision of its Certificate of Incorporation or
By-Laws; (ii) violate, conflict with, or result in the breach or termination of
any agreement or instrument to which EPRI is a party or by which it is bound,
which breach or termination would adversely affect EPRI's ability to perform its
obligations under this Agreement, (iii) violate any judgment, order, injunction,
decree or aware against, or binding upon, EPRI; or, (iv) constitute a violation
by EPRI of any law, directive or regulation of any jurisdiction.
c. Approvals and Consents. The execution and delivery of this Agreement
and the performance by EPRI of its obligations hereunder do not require notice
to, or the approval or consent of, any third party, including without limitation
any educational institution, or governmental or other regulatory agency.
3.2 Representations and Warranties of ASC. ASC represents and warrants to
EPRI as follows:
a. Organization and Authority. ASC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has full corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. ASC has full
corporate power and authority to enter into and perform its obligations under
this Agreement in accordance with its terms.
b. Authorization; No Violation. The execution, delivery and performance
of this Agreement by ASC has been duly authorized by all requisite corporate
action of ASC, and this Agreement constitutes the valid and binding obligation
of ASC, enforceable in accordance with its terms. Neither the execution and
delivery of this Agreement nor the performance by ASC of its obligations
hereunder shall (i) violate any provision of its Certificate of Incorporation or
by-laws; (ii) violate, conflict with or result in the breach or termination of
any agreement or instrument to which ASC is a party or by which it is bound,
which breach or termination would adversely affect ASC's ability to
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perform its obligations under this Agreement; (iii) violate any judgment, order,
injunction, decree or aware against, or binding upon. ASC; or, (iv) constitute a
violation by ASC of any law, directive, or regulation of any jurisdiction.
c. Approval and Consents. The execution and delivery of this Agreement
and the performance by ASC of its obligations hereunder do not require notice
to, or the approval or consent of, any third party, including without limitation
any governmental or other regulatory agency.
d. ASC has made a good faith determination that the fair market value
of the assets acquired pursuant to the Technology License Agreement is less than
***********.
Section 4. CONFIDENTIALITY
4.1 Obligation to Maintain Secrecy. Each party undertakes to keep secret
and confidential and to use only as provided in this Agreement, all Proprietary
Data disclosed to it by other party during the term of this Agreement or that is
Program Technology.
4.2 Exceptions. Notwithstanding the provisions of Section 4.1, a party may
disclose Proprietary Data received from the other party or that is Program
Technology.
a. pursuant to a nonappealable order or judgment of any competent
court or governmental body, provided that the receiving party so obliged to
disclose shall give notice of such order or judgment to the other party and
shall use reasonable efforts to obtain a protective order covering this
Proprietary Data,
b. if required to do so by any law, rule or regulation,
c. if such Proprietary Data is or becomes generally available to the
public through any means other than breach of this Agreement,
d. if such Proprietary Data is disclosed to the receiving party without
any obligation of confidentiality by a third party who has the right to make
such disclosure,
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e. if such Proprietary Data was in the possession of the receiving
party without an obligation of confidence prior to the effective data of this
Agreement,
f. if the other party provides advance written authorization for the
disclosure,
g. under terms and conditions substantially the same as those provided
in this Section 4, to those of its employees, consultants, contractors, and
sub-licensees who need to use such Proprietary Data for the purposes of this
Agreement,
h. as permitted by the Technology License Agreement.
4.3. Disclosure in Patent Applications. Neither party will disclose
Proprietary Data received from the other party or that is Program Technology in
a patent application or in connection with the filing or prosecution of any
patent application without the prior approval of the other party. If, in the
judgment of the other party, it is reasonably necessary to include any such
Proprietary Data in a patent application, the party will so inform the other
party and the parties will consult in good faith to attempt to resolve whether
and the manner in which such Proprietary Data may be so disclosed.
4.4 Matters Not Considered Public Knowledge For the Purposes of Section
4.2. Proprietary Data received from the other party or that is Program
Technology in a patent application or in connection with the filing or
prosecution of any patent application without the prior approval of the other
party. If, in the judgment of the other party, it is reasonably necessary to
include any such Proprietary Data in a patent application, the party will so
inform the other party and the parties will consult in good faith to attempt to
resolve whether, and the manner in which, such Proprietary Data may be so
disclosed.
a. the general principle is public knowledge or known to such party
but the particular practice is not itself public knowledge or so known,
b. the generic information is public knowledge or known to such party
but the specific information is not in itself public knowledge or so known, or,
c. it constitutes a combination (not itself public knowledge or known
to such party) of information which is public knowledge or known to such party.
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4.5 Period of Confidentiality. The provisions of this Section 4 shall
remain in effect for five (5) years after the expiration or termination of this
Agreement or any extensions thereto, provided, however, that as to any
particular Proprietary Data such provisions shall remain in effect for not less
than ten (10) years from the date that such particular Proprietary Data was (i)
first created or (ii) first disclosed by the disclosing party to the receiving
party of this Agreement, whichever is longer.
Section 5. TERM, TERMINATION AND EXTENSION
5.1 Term of Agreement. This Agreement shall be effective January 1, 1996
and remain in force four years from the effective date of this Agreement, unless
earlier terminated as provided in this Section 5.
5.2 Early termination. EPRI may discontinue expenditures of funds pursuant
to this Agreement at any time within thirty (30) days written notice to ASC;
however, if EPRI discontinues expenditures of funds during the first two
Contract Years of this Agreement, then (a) EPRI's right to acquire or exercise
Warrants will be adjusted in proportion to the fraction of $2.0 million dollars
that EPRI has expended under EPRI Technology. In the event of early termination,
the five hundred thousand dollar amount referenced in section 4.02(b) of the
Technology License Agreement shall be changed in accord with the fraction of
$2.0 million provided in section 2.1 that EPRI has expended during the First and
Second Contract Years.
Either party shall have the right to terminate this Agreement effective two
years after the effective date hereof, upon a determination by it that the
results of Phase I of the Research and Development Program do not justify
continuing with Phase II, by giving written notice to the other party of its
intent to so terminate not later than ninety (90) days before the second
anniversary of the effective date of this Agreement. If neither party makes such
a determination and gives such notice, then this Agreement shall remain in
effect for the full term thereof.
5.3 Termination for Bankruptcy. EPRI may terminate this Agreement by giving
ten (10) days written notice to ASC if ASC files or has filed against it any
petition in bankruptcy or any proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors, if that petition or
proceeding is not dismissed with prejudice within thirty (30) days after filing.
Such termination shall be effective as of the tenth
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day following such notice. If EPRI terminates this Agreement pursuant to this
paragraph, EPRI shall not be obligated to make any further payments to ASC
hereunder.
5.4 Continuation Program Contracts. If either party terminates the Research
and Development Program or this Agreement as provided in this Section 5, then
the other party shall have the right to insure the continuation of any Program
Contracts then in effect by (i) providing the termination party written notice
of its desire to do so and (ii) agreeing to assume responsibility for any
payments thereunder due under any such Program Contracts with respect to periods
more than two years after the effective date of this Agreement.
5.5 Termination for Material Breach. Either party shall have the right to
terminate the Research and Development Program and this Agreement upon a
material breach by the other of any warranties, covenants or obligations
hereunder. Termination pursuant to the provisions of this Section 5.5 shall be
accomplished by the giving of written notice by the terminating party to the
other party of its election to terminate and specifying the date of termination,
and the breach that is the basis for termination, such notice to be given not
less than 90 days prior to such date of termination. If such breach can be
cured, the party receiving such notice shall have the right to prevent
termination by curing the specified breach within such 90 day period.
5.6 Extensions. This Agreement and/or the Research and Development Program
may be extended by mutual agreement. If either party requests an extension, both
parties shall then negotiate in good faith to reach an agreement on such an
extension.
5.7 Effect of Termination or Expiration. Except as specifically otherwise
set forth in this Section 5.7, upon either termination or expiration of this
Agreement, the provisions of this Agreement shall no longer have any legal
effect except that the following provisions shall survive and shall not be
subject to any limit of time except those expressed in the provisions
themselves:
Attachment A Technology License Agreement
Attachment B Warrant Agreement
Section 1 Definitions
Section 2.9,a. Records
Section 3 Representations and Warranties
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Section 4 Confidentiality
Section 5.4 Continuation of Program Contracts
Section 5.7 Effect of Termination or Expiration
Section 6.1 Export Controls
Section 6.2 Indemnification
Section 6.3 Resolution of Disputes
Section 6.5 Publicity
Section 6.6 Assignment
Section 6.7 Notices
Section 6.10 Written Amendment Only
Section 6.11 Application Law; Entire Agreement,
Headings
Section 6.12 National Cooperative Research and
Production Act Filings
Section 6. MISCELLANEOUS
6.1 Export Controls. The parties agree to comply with all applicable export
control laws and regulations of the United States.
6.2 Force Majeure. If the performance of any obligation under this
Agreement is prevented by any cause beyond the reasonable control of a party,
such party shall be excused from such performance for so long as is reasonable.
The party so prevented shall use all practical efforts to perform its
obligations as soon as possible.
6.3 Resolution of Disputes. If a dispute arises out of or relating to this
Agreement, or any breach thereof, and if such dispute cannot be settled through
direct negotiation between the parties, the parties shall submit the dispute to
nonbinding mediation with a mediator to be mutually agreed upon by the parties.
The mediation may be initiated by the written request of either party to the
other party and shall commence within fifteen (15) days of receipt of such
notice, unless otherwise agreed by the parties.
6.4 Arbitration. In the event of the failure of any such mediation as
provided for under Section 6.3 above, the parties shall then settle the dispute
by arbitration conducted in San Francisco, California, in accordance with the
rules then in effect of the American Arbitration Association by three (3)
arbitrators appointed in accordance with such rules. The award rendered by the
Arbitrators shall be final and binding, and judgment may be entered upon it in
any court having jurisdiction thereof.
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Notwithstanding the foregoing, the parties may apply to any court of competent
jurisdiction for a temporary restraining order, preliminary injunction, or other
interim or conservatory relief, as necessary, without breach of this arbitration
agreement and without any abridgement of the powers of the arbitrators.
6.5 Publicity. During the term of this Agreement and any extension thereof,
and unless otherwise required by court order, governmental law or regulation, or
any other operation of law, neither ASC nor EPRI shall:
a. Issue any statement to the public or the press regarding the subject
matter of this Agreement without the prior consent of the other; provided,
however, that ASC may issue any statement or communication if it is advised by
counsel that such statement or communication is required to comply with
applicable law, governmental rule or regulation, or stock market rule.
b. Permit its employees to issue any technical article or paper that
quotes any of its employees, officers or directors in connection with the
Research and Development Program, or that discloses Proprietary Data of the
other party, the results of the Research and Development Program or any of the
terms of this Agreement (except insofar as such Proprietary Data, results or
terms previously have been properly disclosed), without the prior review and
consent of the other party, provided, however, that the recipient shall be
deemed to consent to the technical article or paper only if the recipient does
not respond within ten (10) business days.
6.6 Assignment. This Agreement shall be binding upon, and inure to the
benefit of, ASC and EPRI and their respective successors and permitted assigns.
Neither party may assign its rights and obligations under this Agreement without
the prior written consent of the other party, except that either party may
assign all or any part of its right, title and interest in and to this Agreement
to (i) a wholly-owned subsidiary or (ii) any entity that succeeds to all or
substantially all of the business assets of the assignor, provided that the
other party is advised of the assignment in writing at least thirty (30) days
before the effective date of the assignment, that the assignee agrees in writing
prior to the effective date of the assignment to be bound by all of the terms
and conditions of this agreement, and that assigning party shall remain liable
for all of its obligations under this Agreement.
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6.7 Notices. Any notice or communication given pursuant to this Agreement
by either party to the other shall be in writing and delivered or mailed by
registered or certified mail, airmail postage prepaid (airmail notices shall be
deemed to have been given 10 days after having been mailed), as follows:
If to EPRI: Electric Power Research Institute
P. O. Box 10412
Palo Alto, CA 94303
Attention: Director of Contracts
If to ASC: American Superconductor Corporation
Two Technology Drive
Westborough, MA 01583
Attention: President
or to such other address as the address shall have last furnished in writing to
the addressor.
6.8 No Prejudice by inaction. No failure or delay on the part of a party to
exercise any of its rights under this Agreement shall be construed to prejudice
its rights in connection with that or any subsequent default.
6.9 Relationship of Parties. Nothing in this Agreement shall be construed
to constitute either party as the partner, joint venture, agent, employee or
affiliate of the other, it being intended that the parties shall remain
independent contractors and neither party shall be liable for the obligations,
liabilities or representations of the other.
6.10 Written Amendments Only. No agreement or understanding varying or
extending this Agreement will be binding upon either party unless it is in
writing and signed by a duly authorized officer or representative of both
parties.
6.11 Applicable Law; Entire Agreement; Headings. This Agreement including
the Technology License Agreement and the Warrant Agreement shall be construed in
accordance with the laws of the State of California. This Agreement may be
executed in two counterparts, each of which shall be deemed an original, but
both of which together shall constitute one and the same instrument. This
Agreement including the Technology License Agreement and the Warrant Agreement
contain the entire understanding between the parties with respect to the subject
matter of this Agreement and
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supersedes all prior agreements and understandings. The headings contained in
this agreement are for reference purposes only and shall not affect the meaning
or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first written
above.
ELECTRIC POWER RESEARCH AMERICAN SUPERCONDUCTOR
INSTITUTE, INC. CORPORATION
BY: /s/ Alan Germanis BY: /s/ Ramesh Ratan
--------------------------- ---------------------------
Its:Director of Contracts Its: Exec. V.P.
-------------------------- --------------------------
3/25/96 3/26/96
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ATTACHMENT A
AND ATTACHMENT B
ARE FILED HEREWITH AS
EXHIBIT 10.31 AND
EXHIBIT 10.32,
RESPECTIVELY
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