EX-10.10 6 y38367a2ex10-10.txt CONTRIBUTION AGREEMENT 1 EXHIBIT 10.10 DEPARTMENT OF NATURAL RESOURCES EFFICIENCY AND ALTERNATIVE ENERGY PROGRAM CONTRIBUTION AGREEMENT THIS AGREEMENT is made in duplicate BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF CANADA ("CANADA"), represented by the Minister of Natural Resources, AND: HYDROGENICS CORPORATION INCORPORATED, incorporated under the laws of Canada (the "PROPONENT"). WHEREAS Canada wishes to encourage the adoption of energy efficiency and renewable energy technologies in all sectors of the Canadian economy and has established the Efficiency and Alternative Energy Program for this purpose; WHEREAS Canada and the Proponent agree that for the Proponent to develop and implement the Project as described in Schedule A, the Proponent will require financial assistance from Canada; AND WHEREAS Canada is willing to provide financial assistance towards the total Eligible Costs of the Project in the manner and upon the terms and conditions hereinafter set forth; NOW, THEREFORE, Canada and the Proponent agree as follows: 1. INTERPRETATION 1.1 In this Agreement: "AGREEMENT" means this Agreement and the attached Schedules A, B and C; "COMPLETION DATE" means the date specified in Article 3.2; "ELIGIBLE COSTS" means any cost incurred by the Proponent in the period between APRIL 1, 1997 and MARCH 31, 1998 in relation to the Project and which is listed in Schedule B; "FISCAL YEAR" means the period beginning on April 1 of any year and ending on March 31 in the next year; "INTELLECTUAL PROPERTY" means any information developed by the Proponent in performance of the Project including, without limitation, data, techniques, methods, processes, know-how, inventions, designs, formulae, photographs, drawings, plans, specifications, reports, studies, technical and procedural manuals, programs including computer hardware and software and source code, whether susceptible to copyright or not, and all patents, copyrights, trademarks, and industrial designs arising there from; "MINISTER" means the Minister of Natural Resources and includes any duly authorized officers or representatives; "PROJECT" means the Project described in Schedule A; "PROPOSAL" means a written proposal including at least a background, purpose, work description, results expected and a budget, which is accepted by the Minister for a specific Project; and "REVENUE" means all considerations received by the Proponent from any person or party in respect of the licensing, selling, marketing or commercialization of the Intellectual Property, less returns actually credited and any applicable sales taxes. -1- 2 2. REPRESENTATIONS AND WARRANTIES 2.1 The Proponent represents and warrants that all factual matters contained in the Proposal and all material submitted in support are true and accurate, and that all estimates, forecasts and other related matters involving judgement were prepared in good faith and to the best of its ability, skill and judgement. 3. CONDUCT OF PROJECT 3.1 The Proponent shall carry out the Project promptly, diligently and in a professional manner and in accordance with the terms and conditions of this Agreement. 3.2 The Proponent shall complete the Project by MARCH 31, 1998. 3.3 The Proponent shall comply with all federal, provincial and municipal laws in relation to the Project. 4. CONTRIBUTIONS 4.1 Notwithstanding any other provision of this Agreement, Canada's liability under this Agreement shall not in any circumstances exceed $100,000. 4.2 Subject to the terms and conditions of this Agreement, Canada shall make a contribution to the Proponent towards the Eligible Costs of the Project in accordance with Article 5 and Schedule B. 4.3 In order to be eligible to receive a full contribution as described herein, the Proponent must submit its final claim for payment on or before APRIL 10, 1998. 4.4 Canada may reduce its contribution by such an amount as the Minister may decide if the Proponent receives contributions or payments in respect of the Project covered by this Agreement in addition to, or from sources other than, those named in its Proposal. 5. METHOD OF PAYMENT 5.1 Subject to Article 5.2, following receipt of a claim, acceptable to the Minister, for payment of Eligible Costs paid by the Proponent, accompanied by copies of invoices, vouchers, and any other documents that the Minister may require, Canada shall pay its contribution towards the Eligible Costs of the Project. 5.2 Canada shall withhold 10% from any payment under Article 5.1 until: (a) the Project has been completed to the satisfaction of the Minister; (b) a final report documenting the completion of the Project has been received and approved by the Minister; and (c) the Minister has approved a final statement of Eligible Costs paid in respect of the Project. 5.3 The Proponent shall submit claims, accompanied by quarterly progress reports as per Schedule C, for payment on a quarterly basis. 6. REPAYMENT OF CONTRIBUTION 6.1 The Proponent shall pay to Canada TWO PER CENT (2%) of the Revenue received by the Proponent. 6.2 Notwithstanding an other provision of this Agreement, Article 6.1 shall remain in effect for a period of 15 YEARS or until Canada has received $100,000 from any Revenue received by the Proponent, whichever occurs first. 6.3 The Proponent shall submit Revenue reports and payments to Canada as described in Schedule C for the period set out in Article 6.2. 6.4 The Proponent agrees that all considerations to be received by the Proponent in respect of the licensing, selling, marketing or commercialization of the Intellectual Property shall be established in a bona fide arm's length transaction between parties. -2- 3 7. ACCOUNTS AND AUDIT 7.1 Prior to the Completion Date of the Project and for three years after the period described in Article 6.2, the Proponent shall: (a) keep proper books, accounts and records of its Revenue and any contributions received and expenses incurred and paid in connection with the Project and shall keep its invoices, receipts and vouchers relating thereto; (b) keep proper and accurate records relating to the environmental impact (if any) of the Project; and (c) on demand, make available to the Minister such books, accounts, records, invoices, receipts and vouchers referred to above and permit the Minister to examine and audit and take copies and extracts from such documents. 7.2 If any discrepancy is identified between the amounts paid by Canada and the amounts actually payable under this Agreement, the appropriate adjustments shall be promptly made between the parties. If there has been an overpayment by Canada, the amount of the overpayment shall constitute a debt due to Canada and may be so recovered. 8. INTELLECTUAL PROPERTY 8.1 Subject to Articles 8.2, 8.3 and 12.1, title to all Intellectual Property shall be vested in the Proponent. 8.2 The Proponent hereby grants to Canada a non-exclusive, royalty-free licence in perpetuity to use or sublicense the use of any Intellectual Property for any purpose, which licence Canada may not exercise until three years after the Completion Date and then only if in the Minister's sole opinion the Proponent has failed to take reasonable steps to develop and market in Canada the products, processes or services to which the Intellectual Property relates. 8.3 The Proponent shall supply to Canada copies of all reports, documents and publications arising out of the performance of the Project; and the right to the copyright in all such reports, documents and publications shall be vested in Canada which hereby grants to the Proponent a non-exclusive, royalty-free licence to copy and publish the material provided that Canada's financial support is prominently acknowledged in any publication. 8.4 The Proponent shall ensure that any moral rights in the reports, documents and publications arising out of the performance of the Project are irrevocably waived in favour of Canada. 8.5 Except with the written consent of the Minister, the Proponent shall not license the Intellectual Property to any government other than the Government of Canada or to any person, corporation, partnership or business for the purpose of manufacturing outside Canada the products or processes resulting from the Project, and shall place the same restrictions on any authorized licensee. 8.6 If the Proponent elects not to retain ownership of or use any Intellectual Property, the Proponent shall notify the Minister of this election and shall, if the Minister so requires, assign and transfer the Intellectual Property to Canada, whereupon Canada will grant the Proponent a non-exclusive, royalty-free licence to use the Intellectual Property solely for internal purposes, if so requested by the Proponent. 9. INDEMNITY 9.1 The Proponent shall indemnify and save harmless Canada and its Ministers, officers, employees and agents from and against any and all claims, damages, loss, costs and expenses which they or any of them may at any time incur or suffer as a result of or arising out of any injury to persons (including injuries resulting in death) or loss of or damage to property which may be or be alleged to be caused by or suffered as a result of the carrying out of the Project or any part thereof, except to the extent caused by a breach of duty of Canada or its Ministers, officers, employees or agents. 9.2 The Proponent shall indemnify and save harmless Canada and its Ministers, officers, employees and agents from and against any and all claims, damages, loss, costs and expenses which they or any of them may at any time incur or suffer as a result of or arising out of any claim, demand or action for the infringement or alleged infringement of any patent, registered industrial design, copyright or other intangible property based upon the -3- 4 use thereof by the Proponent or upon the use of the Intellectual Property by Canada in accordance with the terms of this Agreement. 9.3 The Proponent shall indemnify and save harmless Canada and its Ministers, officers, employees and agents from and against any and all claims, damages, loss, costs and expenses which they or any of them may at any time incur or suffer as a result of or arising out of any claim, demand or action made by a third party against them or any of them based upon Canada s capacity as a provider of financial assistance under this Agreement, including without limitation, any claim in respect of materials or services provided by a third party to the Proponent or to a subcontractor of the Proponent. 10. ACCESS 10.1 The Proponent shall ensure that the Minister has access during normal working hours to any premises or place where the Project is being carried out for the purposes of inspecting and assessing the progress of the Project and all matters pertaining thereto. 11. REPORTS 11.1 The Proponent shall submit Project reports satisfactory to the Minister in accordance with the provisions of Schedule C or as otherwise requested by the Minister. 12. DEFAULT 12.1 If, in the opinion of the Minister, there has been a misrepresentation or a breach of warranty under Article 2, or the Proponent fails to proceed diligently with the Project, or is otherwise in default in carrying out any of the terms, conditions, covenants, or obligations of this Agreement, or if the Proponent becomes bankrupt or insolvent, or has a receiving order made against it (either under the Bankruptcy and Insolvency Act or otherwise), or a receiver is appointed, or the Proponent makes an assignment for the benefit of creditors, or if an Order is made or a Resolution passed for the winding up of the Proponent, or if the Proponent takes the benefit of any statute for the time being in force relating to bankrupt or insolvent debtors, the Minister may, by giving notice in writing to the Proponent, exercise any or all of the following remedies: (a) terminate the whole or any part of this Agreement; (b) terminate the obligation on the part of Canada to pay any monies in respect of the Project, including monies due or accruing due; (c) direct the Proponent to repay forthwith all or any part of monies paid by Canada pursuant to this Agreement and that amount is a debt due to Canada and may be so recovered; (d) request the Proponent to assign all rights in the Intellectual Property and the Proponent shall, if so requested, do so; and (e) request the Proponent to transfer to Canada title to all or any of the equipment and supplies purchased by the Proponent to carry out the Project and funded by Canada under this Agreement, and the Proponent shall, if so requested, do so. 12.2 In the event of a termination of this Agreement by the Minister under Article 12.1, Canada may, in the discretion of the Minister, pay to the Proponent Canada's share of the Eligible Costs of the Project completed to the date of termination. 13. SALE OF PROPERTY 13.1 If, prior to the Completion Date of the Project, the Proponent sells, leases, or otherwise disposes of any property other than Intellectual Property, where the cost of the property is part of the Eligible Costs under the Project to which Canada has contributed under this Agreement, the Proponent shall immediately notify the Minister in writing of the disposition and, if the Minister so requires, the Proponent shall share with Canada the proceeds of the disposition in the same ratio as that of Canada's contribution to the purchase of the property, except that Canada's share shall not exceed its contribution under this Agreement. - 4 - 5 14. SUBCONTRACTS AND CANADIAN CONTENT 14.1 Except as provided in the Proposal, the Proponent shall not subcontract all or any part of the Project funded by Canada unless the Proponent has obtained the prior written consent of the Minister. Every subcontract entered into by the Proponent shall provide that the subcontractor shall comply with the terms and conditions of this Agreement which are applicable to the subcontract. 14.2 Canadian goods and services shall be used in carrying out the Project to the full extent to which they are procurable, competitive and allow for the expeditious performance of the Project. 15. ACKNOWLEDGMENT 15.1 The Proponent will acknowledge the financial support of Canada in all public information produced as part of the Project. 16. NOTICES 16.1 The claims for payment, requests, notices, and information referred to in this Agreement shall be sent in writing or by any method of telecommunication and, unless notice to the contrary is given, shall be addressed to the party concerned at the following address: TO CANADA: Natural Resources Canada CETC/Energy Technology Branch 580 Booth Street, 13th Floor Ottawa, Ontario K1A 0E4 ATTENTION: DR. VESNA SCEPANOVIC, P.ENG. RESEARCH ADVISOR, HYDROGEN & FUEL CELLS TELEPHONE: (613) 996-6228 FACSIMILE: (613) 996-9416 TO THE PROPONENT: Hydrogenics Corporation 180 Geary Avenue Toronto, Ontario M6H 2B9 ATTENTION: MR. JOE CARGNELLI DIRECTOR & VICE-PRESIDENT ENGINEERING TELEPHONE: (416) 535-8657 FACSIMILE: (416) 535-2147 E-MAIL: h2_genx@pathcom.com 16.2 Notices, requests and documents are deemed to have been received, if sent by registered mail, when the postal receipt is acknowledged by the other party; by telegram, when transmitted by the carrier; by telex or facsimile, when transmitted and receipt is confirmed; and by messenger or specialized courier agency, when delivered. 17. LEGAL RELATIONSHIP 17.1 Nothing contained in this Agreement shall create the relationship of principal and agent, employer and employee, partnership or joint venture between the parties. 17.2 The Proponent shall not make any representation that the Proponent is an agent of Canada and shall ensure that the members of the Proponent do not make any representation that could reasonably lead any member of the public to believe that the Proponent or its members or contractors are agents of Canada. - 5 - 6 18. TIME OF ESSENCE 18.1 Time is of the essence of this Agreement. 19. MEMBERS OF THE HOUSE OF COMMONS 19.1 No Member of the House of Commons shall be admitted to any share or part of this Agreement or to any benefit to arise there from. 20. CONFLICT OF INTEREST 20.1 It is a term of this Agreement that no individual, for whom the post-employment provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders or the Conflict of Interest and Post-Employment Code for the Public Service apply, shall derive a direct benefit from this Agreement unless that individual is in compliance with the applicable post-employment provisions. 21. FUNDS 21.1 The Proponent shall not make any direct or indirect reference to this Agreement for the purpose of raising funds without the prior written approval of the Minister. 22. ASSIGNMENT 22.1 This Agreement shall not be assigned in whole or in part by the Proponent without the prior written consent of the Minister and any assignment made without that consent is void and of no effect. 22.2 Where an assignment of this Agreement is made pursuant to Article 22.1, such assignment shall not relieve the Proponent of any obligation under this Agreement or impose any liability upon Canada. 23. DISPUTE RESOLUTION 23.1 The parties agree to negotiate all disputes arising from this Agreement in good faith after receiving written notification of the existence of a dispute from any party. 23.2 If a dispute arising out of this Agreement cannot be settled amicably through negotiation, then the parties agree that either party may submit the dispute to mediation as administered by the Arbitration and Mediation Institute of Canada Inc. upon written notice to the other party. The cost of mediation shall be borne equally by the parties. 24. GOVERNING LAW 24.1 This Agreement shall be interpreted in accordance with the laws in force in Canada. 25. AMENDMENTS 25.1 No amendment of this Agreement nor waiver of any of the terms and provisions shall be deemed valid unless effected by a written amendment signed by the parties. 26. ENTIRE AGREEMENT 26.1 This Agreement constitutes the entire Agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, communications, and other agreements, whether written or verbal, between the parties. 27. SUCCESSORS AND ASSIGNS 27.1 This Agreement shall enure to the benefit of and be binding on the parties and their respective representatives, successors and assigns. - 6 - 7 IN WITNESS WHEREOF this Agreement has been executed on behalf of HER MAJESTY THE QUEEN IN RIGHT OF CANADA by an officer duly authorized by the Minister of Natural Resources and on behalf of the PROPONENT, by an officer duly authorized in that behalf, HER MAJESTY THE QUEEN IN RIGHT OF CANADA 3 July 97 /s/ N. BECK ------------- ---------------------------------------------- Date N. Beck, Acting Chief Transportation Energy Technologies CETC / Energy Technology Branch Natural Resources Canada HYDROGENICS CORPORATION INCORPORATED June 25, 1997 /s/ BOYD JOSEPH TAYLOR ------------- ---------------------------------------------- Date Boyd Joseph Taylor, Principal and Director Hydrogenics Corporation Incorporated - 7 - 8 SCHEDULE A STATEMENT OF WORK BACKGROUND: Power sources are required for stationary and remote locations in Northern Canada for communications' equipment, etc. Current power sources, such as rechargeable batteries, must be derated because of the cold climate and they require frequent maintenance, which is expensive in many locations in this part of Canada. OBJECTIVE/PURPOSE: The main objective of this Project is to upgrade a prototype power generator, referred to as the Hydrogen ThErmoelectric Fuel Cell (HyTEF) generator, to a larger power output. This upscaled hybrid system of a thermoelectric and a fuel cell generator with hydrogen as the common fuel is an essential developmental step in reaching a commercially-ready system. DESCRIPTION/SCOPE: Task 1. Design a power source suitable for off-grid Arctic applications of at least 200 to 500 watts, consisting of a thermoelectric generator and a fuel cell stack with hydrogen as the common fuel. Task 2. Construct a working prototype of the HyTEF power source, which will include the following major components: a) a fuel cell stack of at least 12 Volts and having a maximum current rating sufficient to achieve the power rating of at least 200W; b) a flameless catalytic hydrogen burner capable of sustaining a temperature of at least +200(degrees)C at the surface of a heat sink; c) a thermoelectric generator capable of producing electricity at 12 Volts and 0.5 Amperes from a temperature differential of at least 200(degrees)C; d) an enclosure protecting the HyTEF inner components from Arctic weather conditions; e) a suitable stand for the HyTEF plus enclosure. Task 3. Design, construct and integrate a self-contained micro-controller for HyTEF which will: a) monitor the temperature, voltages and supply pressure for the system and activate solenoids, relays or valves accordingly to sustain operations in remote areas; b) consume minimal parasitic power from the HyTEF c) be adaptable through software changes 3.1. Design and construct a wireless self attended Supervisory Control and Data Acquisition (SCADA) connection for distance monitoring on the HyTEF. 3.2. Assess concentration of unreacted hydrogen efluents emanating from the HyTEF. Task 4. Test the HyTEF at ambient temperature prior to deployment to Arctic environmental conditions. Task 5. Test the HyTEF to at least -40(degrees)C and make modifications as necessary. Task 6. Retest HyTEF. BENEFITS: The Prototype HyTEF has no moving parts and uses hydrogen as the fuel. Therefore, there will be Zero Emissions from this device. Increased reliability, relative to rechargeable batteries and lower costs are expected benefits. The system can easily be scaled up in principle, thereby opening other marketing opportunities in off-grid applications. Canadian jobs will be created if the Project is successful. -8- 9 SCHEDULE B ELIGIBLE COSTS The Proponent shall be reimbursed for Eligible Costs paid following successful completion of Project requirements. Canada shall pay an amount equal to the lesser of the dollar or percentage amount of the Eligible Costs of the Project as indicated below. Eligible Costs shall be approved in accordance with Treasury Board Guidelines associated with the execution of the various Tasks as described in Schedule A. The reimbursable Provincial Sales Tax and the Goods and Services Tax costs must be net of any tax rebate to which the Proponent is entitled. TOTAL ELIGIBLE COSTS $347,778.33
CONTRIBUTORS: $ % ------------- CANADA 100,000 29 PROPONENT 210,328.33 60 VIKING TOOL CO. 6,500.00 2 HYDROGEN RESEARCH INSTITUTE, UQTR 30,950.00 9
ELIGIBLE COSTS: 1. Salaries at competitive rates 2. Materials for the Project 3. Travel expenses provided Treasury Board Guidelines are observed, i.e., no first class or business class fares, etc. 4. Other expenses related to the Project with the Minister's approval. NON-ELIGIBLE COSTS: 1. Property Taxes 2. Purchase of Land -9- 10 SCHEDULE C REPORTS & MEETINGS 1.1 TECHNICAL REPORTS The Proponent shall prepare Quarterly Reports on the Tasks listed in Schedule A. In addition, the Proponent shall prepare a Draft Final Report of the Project which shall be delivered to Canada ON OR BEFORE APRIL 1, 1998. The Proponent shall make appropriate changes to the Draft Final Report as required and deliver the Final Report ON OR BEFORE MAY 30, 1998. All reports shall be to the satisfaction of the Minister. 1.2 TECHNICAL MEETINGS. The Proponent shall hold one Technical Review Meeting to discuss the progress on the Project. The date for this meeting shall be chosen in consultation with the Minister's representative and it shall be held on or before January 31, 1998. 1.3 REVENUE REPORTS AND PAYMENTS The Proponent shall provide to the Minister not later than 30 days after the end of March and September in each calendar year, for the period of the payment obligation described in ARTICLE 6.2 of this Agreement, a complete and accurate report (including nil reports) of any Revenue received by the Proponent and shall include any payments due to Canada. The reports shall: (a) contain a statement of the Revenue received by the Proponent; (b) include a computation of any share of the Revenue, if any, due and payable to Canada; and (c) be certified as correct by the Treasurer or some other senior officer of the Proponent. -10-