Exhibit 10.4
CONFIDENTIAL TREATMENT
REQUESTED. CONFIDENTIAL
PORTIONS OF THIS DOCUMENT HAVE BEEN REDACTED
AND HAVE BEEN SEPARATELY FILED WITH THE
COMMISSION.
FIBERSTARS DEVELOPMENT
AGREEMENT
This Fiberstars Development
Agreement (this “ Fiberstars Development Agreement
”) is being entered into by and between Advanced Lighting
Technologies, Inc., an Ohio corporation, with offices at 32000
Aurora Road, Solon, Ohio 44139 and its Affiliates (“
ADLT ”) and Fiberstars, Inc., a California
corporation, with offices at 32000 Aurora Road, Solon, Ohio 44139
(“ FIBERSTARS ”). Each of FIBERSTARS and
ADLT is a “ Party ” and are “
Parties ” to this Fiberstars Development
Agreement.
RECITALS
WHEREAS :
(a)
The Parties have entered into that
certain Master Services Agreement (the “ Master Services
Agreement ”) of even date herewith which, among other
things, contemplates that the Parties will enter into several
ancillary agreements, including this Fiberstars Development
Agreement; and
(b)
The Parties desire that FIBERSTARS
provide certain consulting and development services to ADLT
pursuant to the terms and conditions of this Fiberstars Development
Agreement. The initial development services contemplated by
this Agreement are for the Projects (as defined below) including
projects related to that certain **** technology, a *** lamp and a
*** lamp all as further defined and described in
Attachment A , attached hereto.
NOW, THEREFORE , in consideration of the premises and the
covenants contained herein, intending to be legally bound, the
Parties hereto agree as follows:
1.
SCOPE.
This Fiberstars Development
Agreement and all attachments hereto is being entered into and is
being made pursuant to that Master Services Agreement to which this
Fiberstars Development Agreement is attached as
Exhibit D and is incorporated therein by
reference. Collectively, the Master Services Agreement and
its attached Ancillary Documents (as defined therein), constitute
the Agreement. This Fiberstars Development Agreement provides
the terms and conditions under which FIBERSTARS as the Supplying
Party will perform certain development Services and provide the
Custom Deliverables hereunder to ADLT as the Purchasing Party, as
more fully described in this Fiberstars Development
Agreement.
*** CONFIDENTIAL MATERIAL REDACTED
AND SEPARATELY FILED WITH THE COMMISSION
2.
DEFINITIONS.
Capitalized terms used but not
otherwise defined in this Fiberstars Development Agreement shall
have the same meanings as provided in the Master Services
Agreement. For the purposes of this Fiberstars Development
Agreement, FIBERSTARS, hereinafter shall be the Supplying Party and
ADLT hereinafter shall be the Purchasing Party. Unless
otherwise specified, references to Sections are to Sections of this
Fiberstars Development Agreement. For purposes of this
Fiberstars Development Agreement, the following terms shall have
the respective meanings indicated below:
2.1.
“ Affiliates ” is
defined in Section 3.4 of the Master Services Agreement.
2.2.
“ Agreement ” is
defined in Section 1 of the Master Services Agreement.
2.3.
“ Ancillary Document(s)
” is defined in Section 1 of the Master Services
Agreement.
2.4.
“ Background IP ”
is defined in Section 15.1 of the Master Services
Agreement.
2.5.
“ Change Order ”
is defined in Section 3.10 of the Master Services
Agreement.
2.6.
“ Commencement Date
” is defined in Section 3.12 of the Master Services
Agreement.
2.7.
“ Confidential
Information ” is defined in Section 3.13 of the Master
Services Agreement.
2.8.
“ Custom Deliverable(s)
” is defined in Section 3.15 of the Master Services
Agreement.
2.9.
“ Deliverable(s)
” is defined in Section 3.16 of the Master Services
Agreement.
2.10.
“ Developed IP ”
means, collectively, all Custom Deliverables, together with all
inventions, original works of authorship, artwork, photographs,
developments, concepts, know-how, improvements and trade secrets
which are made by FIBERSTARS (solely or jointly with others) within
the scope of and during the period in which FIBERSTARS provides
Services to ADLT under this Fiberstars Development
Agreement.
2.11.
“ Fiber Optic Lighting
Applications ” shall mean any lighting applications
involving remote source lighting and either (i) fiber optics, or
(ii) light pipes, or (iii) other light guides.
2.12.
“ Fiberstars Development
Term ” is defined in Section 7.1.
2.13.
“ Filing ( s
)” is defined in Section 5.5.
2.14.
“ Intellectual Property
Right ( s )” is defined in Section 3.25 of the
Master Services Agreement.
2.15.
“ IP Indemnitor ”
and “ IP Indemnitee ” is defined in Section 12.2
of the Master Services Agreement.
2
2.16.
“ Master Services
Agreement ” is defined in the recitals.
2.17.
“ Non-Conformance
” is defined in Section 3.6.
2.18.
“ Periodic Payment (
s )” are defined and set forth in
Attachment B to this Fiberstars Development
Agreement.
2.19.
“ Project ( s
)” is defined in the recitals and is further defined and
described in Attachment A to this Fiberstars
Development Agreement.
2.20.
“ Purchasing Party
” is defined in Section 3.41 of the Master Services
Agreement.
2.21.
“ Quarterly Notice
” is the document delivered to FIBERSTARS in substantially
the form attached hereto as Attachment C at the
beginning of each calendar quarter after the Quarterly Review by
ADLT (as made effective upon signature by ADLT’s authorized
representative), which shall provide, among other things: (i)
ADLT’s authorization to continue the Services and Custom
Deliverables hereunder as scheduled and described in one or more
milestones for the forthcoming calendar quarter; (ii) ADLT’s
confirmation of the Periodic Payments associated with the
performance and delivery of the Services and Custom Deliverables in
the forthcoming calendar quarter pursuant to Section 4.1; or
(iii) in the alternative provide FIBERSTARS notice of termination
or suspension of the Services and Custom Deliverables pursuant to
the Section 3.2 and the other terms and conditions of this
Fiberstars Development Agreement.
2.22.
“ Quarterly Review
” is defined in Section 3.2.
2.23.
“ Services ”
notwithstanding the definition of Services found in the Master
Services Agreement, as used herein Services are defined in
Attachment A hereto.
2.24.
“ Statement(s) of Work
” or “ SOW ” is defined in Section 3.45 of
the Master Services Agreement.
2.25.
“ Specification (
s )” is defined in Section 3.44 of the Master Services
Agreement.
2.26.
“ Supplying Party
” is defined in Section 3.47 of the Master Services
Agreement.
2.27.
“ Term ” is
defined in Section 21 of the Master Services Agreement.
2.28.
“ Termination by
Non-Renewal ” is defined in Section 7.3(c).
2.29.
“ Termination for
Convenience ” is defined in Section 7.2.
2.30.
“ Termination for
Default ” is defined in Section 22.2 of the Master
Services Agreement.
3
3.
OBLIGATIONS OF
FIBERSTARS.
3.1.
Services and
Deliverables .
During the Fiberstars Development Term and subject to the terms and
conditions of this Fiberstars Development Agreement, FIBERSTARS
will perform the Services described on the SOW attached hereto as
Attachment A (for the purposes of this Fiberstars
Development Agreement, the “ Services ”), and
will provide to ADLT the related Custom Deliverables in connection
therewith, in accordance with the terms and conditions of this
Fiberstars Development Agreement. The Services and the
related Custom Deliverables set forth on Attachment A shall be
scheduled and divided into monthly and quarterly milestones (as
applicable) for the Projects beginning on the Commencement Date and
up through December 31, 2006. All Deliverables provided
hereunder shall be considered Custom Deliverables under the
Agreement. FIBERSTARS shall perform all Services hereunder
and provide the Custom Deliverables in compliance with the
Specifications, as set forth and mutually agreed under a SOW issued
hereunder or as amended by a Change Order. Notwithstanding
anything herein or in the Master Services Agreement to the
contrary, no Change Order issued under this Fiberstars Development
Agreement, other than termination pursuant to Section 3.2 hereof,
shall be effective unless executed by both Parties’ chief
executive officers or by both Parties’ designated and
authorized representatives.
3.2.
Quarterly Reviews; Quarterly
Notice to Continue, Suspend or Terminate. Not less than fifteen (15) days prior to
the end of each calendar quarter, the Parties shall meet together
to review the results of the Services and the Custom Deliverables
delivered by FIBERSTARS over the course of such calendar quarter
(“ Quarterly Review ”). Within five (5)
business days after each Quarterly Review, in addition to its other
rights (including a Termination for Convenience) ADLT shall
have the right to immediately terminate, suspend or continue the
Services and Custom Deliverables for the forthcoming calendar
quarter by providing FIBERSTARS notice in its Quarterly Notice
which shall explicitly indicate and provide, as
applicable:
(a)
ADLT’s termination of this
FIBERSTARS Development Agreement;
(b)
ADLT’s notice of suspension of
the Services and Custom Deliverables which shall include a good
faith estimate regarding the expected date of recommencement;
or
(c)
ADTL’s authorization to
continue the Services and Custom Deliverables hereunder as
scheduled and described for the forthcoming calendar quarter and
the corresponding Periodic Payments therewith.
In the case of an authorization to
continue the Services and Custom Deliverables (under Section
3.2(c)), the Parties may by mutual consent amend the Services,
Custom Deliverables, Periodic Payments, scheduled milestone dates,
or any other term hereunder by attaching a Change Order (executed
pursuant to Section 3.1) to the Quarterly Notice.
Upon receipt of Quarterly Notice
providing for termination under Section 3.2(a), FIBERSTARS shall
immediately cease all Services and Custom Deliverables which
termination shall be considered a Termination for Convenience with
all Periodic Payment
4
and amounts owed by ADLT treated as
such under Section 7.3. In case of a suspension under Section
3.2(b), FIBERSTARS shall immediately cease all Services and Custom
Deliverables and ADLT shall immediately pay all Periodic Payments
or amounts owed to FIBERSTARS as if such suspension was a
Termination for Convenience under Section 7.3(b).
3.3.
Facilities and
Personnel .
FIBERSTARS shall furnish all of the facilities, equipment and
personnel needed for FIBERSTARS to perform the Services. To
the extent that the Services and the Custom Deliverables require an
interface with ADLT Equipment or products then ADLT shall provide
such assistance and technical support, at ADLT’s own cost, as
may be necessary to facilitate and enable FIBERSTARS to perform the
Services.
3.4.
Project Management and Routine
Progress Reports .
FIBERSTARS will manage the Services to be performed
hereunder. ADLT will provide assistance to FIBERSTARS on an
as-needed basis and according to the terms of this Fiberstars
Development Agreement. In addition to the Quarterly Review,
FIBERSTARS will conduct periodic joint status meetings with ADLT,
which meetings will cover the current status of the Services,
indicate the progress of the work being performed (including any
Custom Deliverable in progress), estimate the time required for
completion of the applicable Services and Custom Deliverables, and
identify actual and anticipated problem areas, the impact thereof
on FIBERSTARS’ work effort, and the actions being taken and
recommended to be taken to remedy such problems. On or before
the tenth (10 th ) day of each month during the
Fiberstars Development Term, FIBERSTARS will also provide monthly
written progress reports on the work performed during the preceding
month, and the status of the Services.
3.5.
Technical Inp
