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SEDAR Filing Copy
TECHNOLOGY AGREEMENT
THIS AGREEMENT IS MADE AND IS EFFECTIVE AS OF THE 15th DAY OF MAY , 2012
(“Effective Date”)
B E T W E E N
EEStor, Inc.
a corporation incorporated under the laws of
Delaware with offices at Cedar Park, Texas
(“Vendor”)
-and-
ZENN Motor Company Inc.
a corporation incorporated under the laws of Ontario
with offices at Toronto, Ontario
(“Purchaser”)
WHEREAS, Vendor and Purchaser entered into a January 2007 Amended and Restated
Technology Agreement dated as of January 22, 2007, Amended Technology Agreement dated
August 8, 2006, Amended Technology Agreement dated as of September 30, 2005 and Technology
Agreement dated as of November 26, 2004 (collectively, the "Original Agreement'), pursuant to
which Vendor granted to Purchaser certain rights;
and WHEREAS, Vendor and Purchaser desire to enter into this Agreement in order replace and
supersede the Original Agreement, such that the Original Agreement shall be of no further force or
effect;
and WHEREAS, Vendor desires to grant and Purchaser desires to obtain certain rights to purchase
energy storage units from Vendor;
NOW THEREFORE, THIS AGREEMENT WITNESSES THAT in consideration of the premises and
mutual covenants contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows.
ARTICLE 1. DEFINITIONS
1.1 In this Agreement, the following terms will have the meanings set out in this section 1.1
unless the context requires otherwise:
(a) "Affiliate" means any corporation or other entity which is directly or indirectly controlling,
controlled by or under the common control with a Party hereto. For the purpose of this
Agreement, "control" means the direct or indirect ownership of at least fifty percent (50%)
of the outstanding shares or other voting rights of the subject entity to elect directors, or if
not meeting the preceding, any entity owned or controlled by or owning or controlling at
the maximum control or ownership right permitted in the country where such entity exists.
(b) “Agreement” means this Technology Agreement, including the schedules and exhibits
to this Technology Agreement as it or they may be amended or supplemented from time
to time, and the expressions “hereof, “herein”, “hereto”, “hereunder”, “hereby” and similar
expressions refer to this Agreement and not to any particular section or other portion of
this Agreement.
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(c) “Business Day” means any day except Saturday, Sunday or any day on which banks
are generally not open for business in Cedar Park, Texas.
(d) “Combined Product” means any device, system, apparatus, algorithm or embodiment
thereof, together with any documentation therefor, incorporating as a component the
EESU, including any such device, system or apparatus or embodiment thereof
combining with the EESU any Intellectual Property owned or controlled by Purchaser or
any other Person.
(e) “Confidential Information” means (i) any proprietary or confidential information or
material in tangible form disclosed hereunder that is marked as “Confidential” at the time
it is delivered to the receiving Party; or (ii) proprietary or confidential information
disclosed orally hereunder which is identified as confidential or proprietary when
disclosed and such disclosure of confidential information is confirmed in writing within
thirty (30) days by the disclosing Party. Notwithstanding the foregoing, Confidential
Information does not include any information that: (a) is in the public domain without such
disclosure being a result, directly or indirectly, of a breach of this Agreement; (b) was
previously known to the other Party; (c) was received by the other Party from a third
Party source not subject to obligations of confidence in favour of the first Party, or
(d) was independently developed by the other Party without use of the Confidential
Information of the first Party.
(f) “EESU” means any energy storage unit developed by Vendor but does not include
power driver circuits external to the EESU.
(g) “Know-How" means unpatented and/or unpatentable technical information, including
but not limited to EESU technical information, ideas, concepts, inventions, discoveries,
data, designs, formulas, specifications, procedures for experiments and tests and other
protocols, results of experimentation and testing owned by Vendor during the term of the
Agreement which are necessary for the practice of the Patent Rights and which Vendor
has the right to license. For greater certainty, Know-How shall not include the Patent
Rights, however, Know-How shall include all information disclosed in any patent and
patent application, including unpublished patent applications, owned by Vendor or its
Affiliates.
(h) “Intellectual Property" means: (i) any invention, discovery, trademark, copyright,
industrial design, integrated circuit topography, trade secret, Confidential Information,
proprietary information or unfair competition protection; (ii) any right that relates to or
arises in connection with any of the foregoing under any Law in the world, including
judicial decisions under common law or equity, and under legislation or regulation by any
Governmental Entity; and (iii) any right to apply for the registration of anything covered
within (i) or (ii), any related application or related registration, including any patent
application, patent, trademark application, trademark registration, copyright application or
copyright registration.
(i) "Law" means any and all: (i) laws, constitutions, treaties, statutes, codes, ordinances,
orders, decrees, rules, regulations and by-laws; (ii) judgments, orders, writs, injunctions,
decisions, awards and directives of any governmental body of competent jurisdiction;
and (iii) to the extent that they have the force of law, policies, guidelines, notices and
protocols of any governmental body of competent jurisdiction.
(j) “Liability” has the meaning set out in section 8.1.
(k) “Party” means either Vendor or Purchaser, as the case may be.
(l) “Parties” means Vendor and Purchaser collectively.
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(m) "Patent Rights" means any U.S. or foreign rights embodied in any patent applications
related to the EESU and all divisions, continuations, continuations-in-part, and
substitutions thereof; all foreign patent applications corresponding to the preceding
applications; and all U.S. and foreign patents related to the EESU, including those
issuing on any of the preceding applications, including extensions, reissues, and reexaminations,
and all priority rights therefor.
(n) “Person” means a natural person or any other entity.
(o) “Press Release” means a publication disseminated to the public by a press agency
which will be disseminated broadly in North America.
(p) “Production Quality EESU” means an EESU that meets the specification,
performance, and reliability standards applicable in the automotive industry as may be in
effect from time to time, to Purchaser’s reasonable satisfaction.
(q) “Purchaser” means ZENN Motor Company Inc.;
(r) “Purchaser Laboratory” means a laboratory selected by Purchaser;
(s) “Vehicle” means any new or used vehicle that uses, in whole or in part, electrical
energy, but does not include: (i) any vehicle having exactly one wheel, exactly two
wheels or exactly three wheels; or (ii) any vehicle that Purchaser would reasonably know
is manufactured exclusively for sale to United States Federal (Civilian and Department of
Defense Agencies) and State and Local Agencies. Also, ZENN Motors must comply with
the United States import and export laws.
(t) “Vendor” means EEStor, Inc.
(u) “Vendor Laboratory” means a laboratory selected by Vendor and reasonably
acceptable to Purchaser that is qualified to conduct electrical performance testing of the
EESU;
1.2 Headings. The inclusion of headings in this Agreement is for convenience of reference only
and shall not affect the construction or interpretation hereof.
1.3 Gender and Number. In this Agreement, unless the context otherwise requires, words
importing the singular include the plural and vise versa and words importing gender include
all genders.
1.4 Entire Agreement. This Agreement constitutes the entire agreement between the Parties
hereto pertaining to the subject matter of this Agreement and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or written. There
are no conditions, warranties, representations or other agreements between the Parties in
connection with the subject matter of this Agreement (whether oral or written, expressed or
implied, statutory or otherwise) except as specifically set out in this Agreement.
ARTICLE 2. PRIOR AGREEMENTS
2.1 Termination of Original Agreement. Vendor and Purchaser hereby mutually terminate the
Original Agreement.
ARTICLE 3. TECHNOLOGY RIGHTS
3.1 Exclusive Rights. Subject to the provisions set out herein, Vendor grants to Purchaser:
(a) a worldwide, exclusive, transferable, perpetual, fully paid-up, irrevocable right to
purchase EESUs for Vehicles, including:
(1) the right to purchase the EESUs for resale to any Person for use in any Vehicle;
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(2) the right to purchase the EESUs to build, develop and sell Combined Products to any
Person for use in any Vehicle; and
(3) this does not include vehicles identified in section 1.1 (s)(i) and 1.1(s)(ii); and
(b) all further rights and licenses required to give effect to the foregoing.
3.2 Improvements and Modifications. As between the Parties, Vendor shall own the
Intellectual Property in respect of the EESU and its associated converter circuits, packaging,
and any associated software or firmware and Purchaser shall own the Intellectual Property in
respect of the Combined Products. For greater certainty:
(a) except in respect of Combined Products, if Purchaser suggests features, functionality, or
performance for the EESU that Vendor or Vendor's suppliers subsequently incorporates
into the EESU, Purchaser hereby assigns and shall assign to Vendor, all Intellectual
Property rights in and relating to any such feature, functionality or performance; and
(b) if Vendor suggests features, functionality, or performance for any portion of the
Combined Products other than the EESUs, Vendor hereby assigns and shall assign to
Purchaser all Intellectual Property rights in and relating to any such feature, functionality
or performance; and
(c) each Party hereby makes all assignments necessary to accomplish the foregoing
ownership.
3.3 Purchaser will not reverse engineer, disassemble or otherwise attempt to discover any
underlying technology, Know-How or Intellectual Property in the EESU, including without
limitation reverse engineer, disassemble, decompile or otherwise attempt to discover the
source code or structure, sequence and organization of any software included in or with the
EESU, except to the extent expressly permitted by this Agreement or applicable law. Except
as expressly and unambiguously permitted in this Agreement, Purchaser is granted no rights
to make a derivative work, improvement, or other modification to the EESU.
ARTICLE 4. PAYMENTS
4.1 Payments and Currency. Except as otherwise specified herein, all payments due
hereunder shall be paid by wire transfer in United States dollars in immediately available
funds to an account designated by Vendor.
4.2 Payment Schedule. In consideration of the rights and licenses granted hereunder,
Purchaser shall pay to Vendor:
(a) $500,000 within two (2) Business Days following the release by Vendor of a Press
Release acceptable to the Parties outlining the current state of development of the
EESU, the advancements to date in developing the EESU and the challenges remaining
in relation to the development of the EESU. However, statements in the release will not
contain EEStor, Inc. proprietary information as identified by the Vendor excluding
information included in Schedule A;
(b) $200,000 within ten (10) Business Days following the collective completion of: (i) the
release by Vendor of a Press Release acceptable to the Parties announcing certification
by a Vendor Laboratory of individual layers of the EESU having performance
characteristics meeting or exceeding set out in Schedule “A”, as updated by Purchaser
from time to time; and (ii) the delivery by Vendor to Purchaser of comprehensive test
results provided by the Vendor Laboratory;
(c) $100,000 within ten (10) Business Days following the collective completion of: (i) the
delivery by Vendor to Purchaser of 20 [number redacted] EESU layers substantially the
same as those tested by the Vendor Laboratory pursuant to Section 4.2(b); and (ii)
certification by a Purchaser Laboratory that the foregoing individual layers of the EESU
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have performance characteristics meeting or exceeding set out in Schedule “A”, as
updated by Purchaser from time to time;
(d) $200,000 within ten (10) Business Days following the collective completion of: (i) the
delivery by Vendor to Purchaser of not less than 20 [number redacted] EESUs having
not less than 500 [number redacted] layers; and (ii) certification by a Purchaser
Laboratory that the foregoing EESUs has performance characteristics meeting or
exceeding those set out in Schedule “A”, as updated by Purchaser from time to time;
(e) $500,000 within fifteen (15) Business Days following the collective completion of: (i) the
delivery by Vendor to Purchaser of not less than 100 [number redacted] Production
Quality EESUs; and (ii) certification by a Purchaser Laboratory of the foregoing
Production Quality EESUs have a continuous output of not less than 15 kilowatt hours
that operates as defined in Schedule “A”, as updated by Purchaser from time to time;
(f) $200,000 within ten (10) Business Days following the collective completion of: (i) the
delivery by Vendor to Purchaser of not less than 25 [number redacted] Production
Quality EESUs; and (ii) certification by a Purchaser Laboratory of the foregoing
Production Quality EESUs having an electrical energy storage capacity of not less than
35 kilowatt hours and having performance characteristics meeting or exceeding those set
out in Schedule “A”, as updated by Purchaser from time to time; and (iii) the release by
Vendor of a Press Release acceptable to Purchaser announcing certification by the
Purchaser Laboratory of the Production Quality EESU described in this section 4.2(f);
(g) $3,800,000 within thirty (30) Business Days following the delivery by Vendor to
Purchaser of one thousand (1000) [number redacted] Production Quality EESUs having
performance characteristics meeting or exceeding those set out in Schedule “A”, as
updated by Purchaser from time to time; and
(h) $5,000,000 on the first, second, third, fourth and fifth anniversary of the delivery date set
out in Section 4.2(g) provided that in the year immediately preceding each such
anniversary date, Vendor has delivered to Purchaser the Production Quality EESUs as
provided for under the supply agreement referred to in section 5.1.
4.3 Right to Release Test Results. Vendor acknowledges that Purchaser has the option to
release to the public any test results produced by the Purchaser Laboratory.
4.4 Inclusion of EESU Cost. Vendor acknowledges that the payments from Purchaser set out
in Sections 4.2(c), 4.2(d), 4.2(e) and 4.2(f) shall be deemed to include the cost of the EESU
layers or EESUs delivered to Purchaser for testing, as the case may be and all costs related
to the testing provided by Purchaser Laboratory for the certification set out in this Section
4.2(c).
4.5 Commercially Reasonable Efforts. Vendor acknowledges Purchaser's objective to
commence commercial development and sale of EESUs as soon as reasonably practicable.
Vendor agrees to use commercially reasonable efforts to commence and diligently proceed
with the commercialization and production of EESUs which meet Purchaser's specifications
as may be specified from time to time by Purchaser.
4.6 Failure to Pay. Notwithstanding the payment schedule set out in section 4.2, Purchaser may
at any time elect to not make further payments set out in section 4.2 in which case, as of the
date of the failure to make such payments:
(a) Purchaser’s rights set out in ARTICLE 3 shall be exclusive only in respect of Vehicles
that are 1400 kilograms curb weight or less not including batteries;
(b) Vendor shall not be permitted to sell EESUs, directly or indirectly, to any manufacturer of
Vehicles that have electrical propulsion systems operating at less than 75 continuous
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kilowatt hours, but otherwise, Vendor shall not be restricted other than as provided under
(a) above; and
(c) Purchaser’s rights set out in ARTICLE 3 shall be non-exclusive in respect of all other
Vehicles.
4.7 Taxes. Any amounts required to be paid to Vendor pursuant to this Agreement are payments
exclusive of any taxes (other than taxes imposed on or measured by net income) or similar
governmental charge imposed by any jurisdiction.
ARTICLE 5. COVENANTS
5.1 Supply Agreement. Within ninety (90) days following completion of 4.2 (f) and following
written notice by Purchaser, the Parties shall enter into a supply agreement consistent with
the purchase rights of this Agreement, wherein Vendor shall be the sole and exclusive
supplier of EESUs to Purchaser for use and sale of Combined Products and for resale to any
Person. Vendor and Purchaser agree to reasonably cooperate and negotiate in good faith
the terms of such supply agreement. The Parties hereby agree that: (i) until the Vendor has
complied with 4.2(g) above Purchaser has the first right to purchase any EESUs
manufactured by Vendor with energy storage of 15 kilowatt hours or greater; (ii) Purchaser is
hereby accorded "most favored customer" status, among all of Vendor’s customers, for the
price of the EESUs and prices of components used by Vendor to fulfill orders of EESUs by
Purchaser; (iii) the maximum price that Vendor will charge to Purchaser is $100 [dollar
amount redacted] per kilowatt hour of energy storage of the EESUs excluding the cost of
the EESU circuits; (iv) Purchaser has the option of purchasing from Vendor converter
circuits, power driver circuits or interconnections [types of products redacted] relating to
the purchased EESUs provided that Vendor is willing and capable of delivering same, and
Vendor shall provide same to Purchaser in accordance with commercially reasonably prices
and terms; and (v) Vendor shall replace at its expense any defective, malfunctioning or
poorly performing EESUs delivered to Purchaser.
5.2 Market Protection. Subject to Section 4.6, Vendor agrees: (i) to not sell, directly or
indirectly, EESUs for use in Vehicles to any Person other than Purchaser; and (ii) to not
enter into any discussion with any other Person, formally or informally, in respect of any
business venture involving Vendor that may be competitive to Purchaser’s business as a
supplier of ESSUs and related systems to the Vehicle market.
5.3 No Competing Development. Purchaser agrees to not develop or assist in the development
of an energy storage device that directly competes with the EESU for the term of this
agreement, the supply agreement, and a period of five (5) [number redacted] years after
termination of both, provided in all cases that Vendor has met its obligations hereunder.
5.4 Information Updates. Vendor shall provide to Purchaser, fifteen (15) [number redacted]
Business Days following the end of each calendar quarter, information disclosures including:
(i) the current state of development of the EESU, the advancements to date in developing
the EESU and the challenges remaining in relation to the development of the EESU; and (ii)
any test results relating to the testing, validation or verification of the EESU.
5.5 Updating Patent Schedule. Vendor shall update Schedule “B” promptly, as required from
time to time, and promptly notify Purchaser of such update. For greater certainty, Vendor
shall update Schedule “B” promptly upon: (i) filing any patent application in respect of any
aspect of the EESU; (ii) the withdrawal, lapse or abandonment of any patent or patent
application listed on Schedule “B”; and (iii) the issuance or granting of any patent
application listed on Schedule “B”. Vendor shall ensure the accuracy of the information
listed on Schedule “B” at all times.
5.6 Press Releases. Vendor acknowledges that Purchaser is required to keep the public and its
shareholders fully and accurately informed of material information. Vendor, therefore,
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covenants that all information disclosed in any Vendor issued Press Release or otherwise
publicly disclosed by Vendor is and shall be true and accurate in all material respects. To
give effect to the foregoing, Vendor agrees to provide reasonable access to Purchaser from
time to time to conduct customary due diligence as reasonably requested in connection with
any such Vendor issued Press Releases, and all information obtained by Purchaser as a
result of such due diligence shall be Vendor’s Confidential Information and protected in
accordance with Article 6.
5.7 Vendor Liquidation. In the event Vendor is unable to pay its debts when due or, is ordered
or adjudged to be bankrupt; is placed in the hands of a receiver, enters into any scheme or
composition with its creditors, or is dissolved, liquidated or wound up, Vendor will assist
Purchaser in developing a contract with any new owners.
ARTICLE 6. CONFIDENTIALITY
6.1 Confidential Information. Except as expressly provided herein, the exchange of any
Confidential Information pursuant to this Agreement shall be governed by the Non Disclosure
Agreement between the Parties signed October 29, 2009. For greater certainty, Vendor
acknowledges that Purchaser may be required to disclose, in whole or in part, this
Agreement to the public and, therefore, to the extent necessary the terms and execution of
this Agreement shall not constitute Confidential Information.
ARTICLE 7. REPRESENTATIONS AND WARRANTIES
7.1 Vendor Representations. Vendor represents to Purchaser that:
(a) it has the full power and authority to enter into this Agreement;
(b) Schedule “B” sets out all patents and patent applications related to the EESU as of the
effective date hereof;
(c) the information set out on Schedule “B” is accurate and true as of the effective date
hereof;
(d) it is the sole and exclusive owner of all right, title and interest in the Patent Rights and all
Intellectual Property rights in the EESU;
(e) there are no threatened or pending actions, suits, investigations, claims or proceedings
in any way relating to the EESU technology;
(f) it has not previously granted any right, license or interest inconsistent with this
Agreement.
7.2 Purchaser Representations. Purchaser represents and warrants that: (i) it has the right and
all necessary approvals to enter into this Agreement; and (ii) it has not previously entered
into any agreement inconsistent with this Agreement.
7.3 Disclaimer. Except as expressly provided herein, nothing in this Agreement is or shall be
construed as:
(a) a warranty or representation by Vendor as to the validity or scope of any claim or patent
within the Patent Rights;
(b) 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 any
patent rights or other Intellectual Property right of any Person;
(c) an obligation to bring or prosecute actions or suits against any Person for infringement of
any of the Patent Rights; or
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(d) granting by implication, estoppel, or otherwise any licenses or rights under patents or
other rights of Vendor or any Person, regardless of whether such patents or other rights
are dominant or subordinate to any patent within the Patent Rights.
ARTICLE 8. INDEMNIFICATION
8.1 Breach of Agreement. Each Party agrees to indemnify, defend and hold the other Party and
its directors, officers, employees and agents harmless from and against any and all liabilities,
claims, demands, expenses (including, without limitation, attorneys and professional fees
and other costs of litigation), losses or causes of action (each, a "Liability") arising out of or
relating in any way to any breach of this Agreement by such Party, except to the extent, in
each case, that such Liability is caused by the negligence or willful misconduct of the other
Party as determined by a court of competent jurisdiction.
8.2 Vendor Indemnification. Vendor agrees to indemnify, defend and hold Purchaser and its
directors, officers, employees and agents harmless from and against any and all Liabilities
arising out of or relating in any way to a claim against Purchaser by a third party as a result
of: (i) the possession, use, sale or other disposition of EESUs, whether based on breach of
warranty, negligence, product liability or otherwise, except to the extent, in each case, that
such Liability is caused by the negligence or willful misconduct of Purchaser as determined
by a court of competent jurisdiction; (ii) the infringement of any Intellectual Property right of
any Person relating to the EESU, subject to the following:
(a) Injunctions. If Purchaser’s possession, use, sale or other disposition of any EESUs is, or
in Vendor’s opinion is likely to be, enjoined due to the type of infringement specified in
Section 8.2(ii) above, Vendor may, at its sole option and expense: (1) procure for
Purchaser the right to continue using or selling such EESUs under the terms of this
Agreement; (2) replace or modify such EESUs so that they are non-infringing and
substantially equivalent in function to the enjoined EESUs;
(b) Exclusions. Notwithstanding the terms of Section 8.2, Vendor will have no liability for
any infringement claim of any kind to the extent it results from: (a) modification of the
EESUs made other than by Vendor; (b) the combination, operation or use of any EESU
supplied hereunder with equipment, devices or software not supplied by Vendor to the
extent such a claim would have been avoided if the Products were not used in such
combination; or (c) failure of Purchaser to use updated or modified EESUs provided by
Vendor to avoid infringement;. Purchaser shall defend and hold Vendor harmless against
any expense, judgment or loss for alleged infringement of any patents or copyrights or
misappropriation of trade secrets which result exclusively from Vendor's compliance with
Purchaser’s designs, specifications or instructions..
8.3 Purchaser Indemnification. Purchaser agrees to indemnify, defend and hold Vendor and its
directors, officers, employees and agents harmless from and against any and all Liabilities
arising out of or relating in any way to: (i) the possession, manufacture, use, sale or other
disposition of Combined Products, whether based on breach of warranty, negligence,
product liability or otherwise, except to the extent, in each case, that such Liability is caused
by the negligence or willful misconduct of Vendor as determined by a court of competent
jurisdiction; (ii) the infringement of any Intellectual Property right of any Person relating to the
Combined Product except to the extent such infringement is attributable to the EESU.
ARTICLE 9. TERM AND TERMINATION
9.1 Term. The term of this Agreement will commence on the Effective Date of this Agreement
and shall remain in full force and effect until terminated in accordance with this ARTICLE 9.
9.2 Permissive Termination. Purchaser may terminate this Agreement at any time by providing
Vendor notice in writing at least thirty (30) days prior to the effective date of termination. All
fees paid or payable as at the date of termination to Vendor or due and payable prior to
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termination shall be nonrefundable, and all fees that accrued prior to the date of such
termination shall become immediately due and payable on such date of termination.
9.3 Termination for Cause. Either Party may terminate this Agreement in the event the other
Party has materially breached or defaulted in the performance of any of its obligations
hereunder, and such default has continued for thirty (30) days after written notice thereof
was provided to the breaching Party by the non-breaching Party. Any termination shall
become effective at the end of such thirty (30) day period unless the breaching Party has
cured any such breach or default prior to the expiration of such period. Notwithstanding the
above, in the case of a failure to pay any amount due hereunder the period for cure of any
such default following notice thereof shall be ten (10) days and, unless payment is made
within such period, the termination shall become effective at the end of such period.
9.4 Termination for Insolvency. If voluntary or involuntary proceedings by or against a Party
are instituted in bankruptcy under any insolvency Law, or a receiver or custodian is
appointed for such Party, or proceedings are instituted by or against such Party for corporate
reorganization or the dissolution of such Party, which proceedings, if involuntary, shall not
have been dismissed within sixty (60) days after the date of filing, or if such Party makes an
assignment for the benefit of creditors, or substantially any of the assets of such Party are
seized or attached and not released within sixty (60) days thereafter, the other Party may
immediately terminate this Agreement effective upon notice of such termination.
9.5 Effect of Termination. Termination of this Agreement for any reason shall not release any
Party hereto from any obligation or liability which, at the time of such termination, has already
accrued to the other Party or which is attributable to a period prior to such termination nor
preclude either Party from pursuing any rights and remedies it may have hereunder or at
Law or inequity with respect to any breach of this Agreement. It is understood and agreed
that monetary damages may not be a sufficient remedy for any breach of this Agreement and
that the non-breaching Party may be entitled to injunctive relief as a remedy for any such
breach. Such remedy shall not be deemed to be the exclusive remedy for any such breach of
this Agreement, but shall be in addition to all other remedies available at Law or in equity.
9.6 Return of Confidential Information. Upon any termination of this Agreement, each Party
shall promptly return to the other Party all Confidential Information received from the other
Party.
9.7 Survival. ARTICLE 1, ARTICLE 2, section 3.2, section 4.3, section 5.2, section 5.3, section
6.1, ARTICLE 7, ARTICLE 8, ARTICLE 9 and ARTICLE 10 of this Agreement shall survive
the expiration or termination of this Agreement for any reason.
ARTICLE 10. GENERAL
10.1 Governing Law. This Agreement and any dispute, including without limitation any
arbitration, arising from the performance or breach hereof shall be governed by and
construed and enforced in accordance with the Laws of the state of Delaware, without
reference to conflicts of laws principles. The exclusive venue of any dispute arising out of or
in connection with the performance or breach of this Agreement shall be the Delaware state
courts or U.S. district court located in Delaware, and the Parties hereby consent to the
personal jurisdiction of such courts.
10.2 Assignment. Neither Party may transfer or assign this Agreement or any of its rights or
obligations hereunder, whether voluntarily or by operation of Law, without the written consent
of the other Party, except that written consent of the other Party shall not be required if this
Agreement is assigned to: (a) an Affiliate of the Party; provided, however, that the Party shall
remain responsible for the performance of any such Affiliate of its obligations under this
Agreement; or, (b) a purchaser of all or substantially all of the Party’s assets and such
purchaser, provided such purchaser agrees in writing to be bound by this Agreement. Any
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such attempted transfer or assignment shall be void. This Agreement shall be binding upon
and inure to the benefit of the Parties and their permitted successors and assigns.
10.3 Waiver. No waiver of any rights shall be effective unless consented to in writing by the Party
to be charged and the waiver of any breach of default shall not constitute a waiver of any
other right hereunder or any subsequent breach or default.
10.4 Severability. In the event that any provisions of this Agreement are determined to be invalid
or unenforceable by a court of competent jurisdiction, the remainder of the Agreement shall
remain in full force and effect without said provision.
10.5 Notices. All notices, requests and other communications hereunder shall be in writing and
shall be personally delivered or sent by telecopy or other electronic facsimile transmission or
by registered or certified mail, return receipt requested, postage prepaid, in each case to the
respective address specified below, or such other address as may be specified in writing to
the other Parties hereto:
To Purchaser:
ZENN Motor Company Inc.
James E. Kofman, CEO
85 Scarsdale Road, Suite 100
Toronto Ontario, M3B 2R2, Canada
416-535-8395 [phone number redacted]
To Vendor:
EEStor, Inc.
Richard D. Weir
President and CEO
715 Discovery Blvd.
Building 1 - # 107
Cedar Park, TX 78613
512-259-5144 [phone number redacted]
10.6 Independent Contractors. Both Parties are independent contractors under this Agreement.
Nothing contained in this Agreement is intended nor is to be construed so as to constitute
Vendor or Purchaser as partners or joint venturers with respect to this Agreement. Neither
Party shall have any express or implied right or authority to assume or create any obligations
on behalf of or in the name of the other Party or to bind the other Party to any other contract,
agreement, or undertaking with any third Party.
10.7 Patent Marking. Purchaser agrees to mark all products sold by Purchaser in accordance
with the applicable Laws relating to patent marking in the country or countries of manufacture
and sale thereof.
10.8 Compliance with Laws. In exercising their rights under this license, the Parties shall fully
comply in all material respects with the requirements of any and all applicable Laws, of any
governmental body having jurisdiction over the exercise of rights under this Agreement.
10.9 Use of Name. Neither Party shall use the name or trademarks of the other Party without the
prior written consent of such other Party, except that Purchaser may use the name of Vendor
in any Press Release or any filing required by a governmental body of competent jurisdiction.
10.10 Entire Agreement; Amendment. This Agreement constitutes the entire and exclusive
Agreement between the Parties with respect to the subject matter hereof and supersedes
and cancels all previous discussions, agreements, commitments and writings in respect
thereof. No amendment or addition to this Agreement shall be effective unless reduced to
writing and executed by the authorized representatives of the Parties.
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10.11 Limitation of Liability. EXCEPT AS TO OBLIGATIONS UNDER ARTICLE 8 OR BREACH
OF SECTION 3.3 OR ARTICLE 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS
OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT AS TO OBLIGATIONS UNDER
SECTIONS 3.3 OR 6, IN NO EVENT SHALL THE LIABILITY OF EITHER PARTY TO THE
OTHER PARTY EXCEED THE AMOUNTS PAID AT THAT TIME TO VENDOR
HEREUNDER IN THE CASE OF VENDOR, OR THE AMOUNTS DUE AND OWING TO
VENDOR AT THAT TIME IN THE CASE IF PURCHASER.
[Signature page follows.]
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IN WITNESS WHEREOF, the Parties have executed this Agreement in duplicate originals by duly
authorized officers,
EEStor, Inc.
(signed) "Richard Weir"
By:
Name: Richard Weir
Title: CEO
Date: May 15, 2012
ZENN Motor Company Inc.
(signed) "James Kofman"
By:
Name: James Kofman
Title: Chairman and Interim CEO
Date: May 15, 2012
Schedule A EEStor Inc. Specifications
All values are for DC Energy Storage Unit Only - no power electronics or management system
All values are for individual layer, multi layer module, full scale EESU
Energy Storage Characteristics
Values are
met or
exceeded
Test Notes
Energy Density in Wh/l > 700 Measured at 1 hour discharge rate
Specific Energy in Wh/kg > 450 Measured at 1 hour discharge rate
Specific Power in W/kg > 2000 Measured at 15 minute discharge rate
Cycle Life > 1,000,000
Cycles are defined as 100% to 5% SOC as measured by discharge energy at maximum
continues charge/discharge rate
Cycle Energy Efficiency (Wh Out)/(Wh In) > 94% Measured at 1 hour charge, 1 hour discharge rate, at life cycle # 10, 100k, 500k, 750k 1000k
Operating Temperature Range -40 to +65 C Ambient Temperature, thermal management system operating to design
Schedule B
EEStor, Inc. Patents Granted and Patent Applications – As of May 15, 2012
Granted Patents
• 7,033,406
• 7,914,755
• 7,729,811
• 7,595,109
• 7,466,536
• 7,658,687
• 7,993,611
Patent Applications
• 13/039,530
• 12/245,461
• 12/714,537
• 13/039,165
• 12/785,266
• 12/758,628
• 13/170,676
• 12/777,251
• 12/777,252
• 12/823,826
• 13/010,516
• 12/885,290
• 12/785,380
• 12/860,519
• 13/400,517 [patent application number redacted]
