<PAGE>
Exhibit 10.19
CONFIDENTIAL TREATMENT REQUESTED: Certain portions of this document
have been
omitted pursuant to a request for confidential treatment and, where
applicable,
have been marked with an asterisk ("[****]") to denote where
omissions have been
made. The confidential material has been filed separately with the
Securities
and Exchange Commission.
TECHNOLOGY CO-OPERATION
AGREEMENT
BY AND BETWEEN
RENEWABLE ENERGY COOPERATION
AND
EVERGREEN SOLAR, INC.
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TABLE OF CONTENTS
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1.
DEFINITIONS.........................................................
1
1.1
"CAST"........................................................
1
1.2
"CELL"........................................................
1
1.3
"DEVELOPED
TECHNOLOGY"........................................ 2
1.4
"DEVELOPMENT
SERVICES"........................................ 2
1.5
"DIRECT
PRODUCTION COSTS"..................................... 2
1.6 "EFFECTIVE
DATE".............................................. 2
1.7
"GOVERNMENTAL
AUTHORITY"...................................... 2
1.8
"INITIAL
PERIOD".............................................. 2
1.9
"INTELLECTUAL
PROPERTY RIGHTS"................................ 2
1.10
"JOINT
INVENTION".............................................
2
1.11
"LICENSED
PRODUCTS"........................................... 2
1.12
"LICENSABLE"..................................................
2
1.13
[****]........................................................
2
1.14
"MATERIAL
IP"................................................. 2
1.15
"MODULE"......................................................
3
1.16
"POST TERMINATION
PERIOD"..................................... 3
1.17
"STRING
RIBBON"............................................... 3
1.18
"TECHNOLOGY"..................................................
3
1.19
"TERMINATION
DATE"............................................ 3
1.20
"WAFER".......................................................
3
2. JOINT
DEVELOPMENT...................................................
3
2.1
IN
GENERAL....................................................
3
2.2
INITIAL
ASSISTANCE............................................ 3
2.3
ONGOING
TECHNICAL ASSISTANCE AND CONSULTING................... 3
2.4
ACCESS TO REC
RESOURCES....................................... 4
2.5
ASSIGNMENT OF
PERSONNEL....................................... 4
2.6
COMPLIANCE WITH
RULES......................................... 4
2.7
MATERIAL
IP................................................... 4
3. ACCESS TO
EVERGREEN TECHNOLOGY......................................
4
4.
PAYMENTS............................................................
5
4.1
[****]........................................................
5
4.2
SCHEDULE OF
COSTS............................................. 5
4.3
ROYALTY ON
MATERIAL IP........................................ 5
4.4
ROYALTY
EVALUATION BY EXPERTS................................. 7
4.5
TAX AUTHORITY
CHALLENGES...................................... 7
4.6
ROYALTY ON
REFUNDS............................................ 7
4.7
ROYALTY
PAYMENT............................................... 7
4.8
CURRENCY......................................................
7
4.9
AUDIT.........................................................
7
4.10
PROSPECTIVE
BASIS............................................. 8
4.11
WAIVER........................................................
8
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TABLE OF CONTENTS
(CONTINUED)
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5. OWNERSHIP
RIGHTS AND LICENSES.......................................
8
5.1
INTELLECTUAL
PROPERTY RIGHTS IN DEVELOPED TECHNOLOGY.......... 8
5.2
EXPLOITATION OF
JOINT INVENTIONS.............................. 8
5.3
PATENT
PROSECUTION............................................
8
5.4
ENFORCEMENT OF
JOINT INVENTIONS............................... 8
5.5
FURTHER
ASSURANCES............................................ 9
5.6
BACKGROUND
LICENSE............................................ 9
6. TERM AND
TERMINATION................................................
9
6.1
TERM..........................................................
9
6.2
TERMINATION FOR
CAUSE......................................... 9
6.3
SPECIAL
TERMINATION RIGHT..................................... 9
6.4
SURVIVAL......................................................
9
7.
CONFIDENTIALITY.....................................................
10
7.1
DEFINITION....................................................
10
7.2
CONFIDENTIAL
INFORMATION AND EXCLUSIONS....................... 10
7.3
CONFIDENTIALITY
OBLIGATION.................................... 10
7.4
LEGAL
DISCLOSURE..............................................
10
7.5
REMEDIES......................................................
10
8.
REPRESENTATIONS AND
WARRANTIES...................................... 10
8.1
AUTHORITY.....................................................
10
8.2
STANDARD OF
PERFORMANCE....................................... 10
8.3
NON-INFRINGEMENT..............................................
11
8.4
DISCLAIMER....................................................
11
9.
INDEMNIFICATION.....................................................
11
9.1
INDEMNITY.....................................................
11
10. LIMITATION OF
LIABILITY............................................. 11
11. GENERAL
PROVISIONS..................................................
11
11.1
NOTICES.......................................................
11
11.2
LANGUAGE......................................................
12
11.3
AMENDMENTS AND
WAIVERS........................................ 12
11.4
ASSIGNMENT....................................................
12
11.5
ENTIRE AGREEMENT;
SEVERABILITY................................ 12
11.6
OTHER
REMEDIES................................................
12
11.7
GOVERNING LAW AND
DISPUTE RESOLUTION.......................... 13
11.8
COMPLIANCE WITH LAWS
AND REGULATIONS.......................... 13
11.9
EXPORT........................................................
13
11.10 FORCE
MAJEURE.................................................
13
11.11 INDEPENDENT
CONTRACTORS....................................... 13
11.12 THIRD PARTY
BENEFICIARIES..................................... 13
11.13
COUNTERPARTS..................................................
13
11.14
VALIDITY......................................................
13
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<PAGE>
TECHNOLOGY COOPERATION AGREEMENT
This
Technology Cooperation Agreement ("AGREEMENT") is made and
entered
into as of the 24th day of November, 2005 ("EFFECTIVE DATE") by and
between
Renewable Energy Corporation, a stock corporation organized under
the laws of
Norway with its principal executive offices located at Veritasveien
14, N-1323
Hovik, Norway ("REC") and Evergreen Solar, Inc., a Delaware
corporation with its
principal executive offices located at 138 Bartlett Street,
Marlboro,
Massachusetts, USA, ("EVERGREEN").
WHEREAS, Evergreen and Q-Cells AG ("Q-CELLS") have previously
entered into
a master joint venture agreement (such agreement, including,
amendment thereof
"MASTER AGREEMENT") pertaining to the formation of EverQ GmbH
("EVERQ");
WHEREAS, The purpose of EverQ is to manufacture string ribbon
wafers,
photovoltaic cells and modules incorporating such wafers based on a
combination
of the parties' respective technologies;
WHEREAS, REC is one of the world's largest suppliers of high
quality solar
silicon and silicon wafers for photovoltaic applications;
WHEREAS, Evergreen, Q-Cells and REC have determined to amend the
Master
Agreement to enable REC to become a shareholder of EverQ;
WHEREAS, concurrently with the aforementioned amendment to the
Master
Agreement, REC and EverQ are entering a License & Technology
Transfer Agreement
("REC EVERQ LICENSE");
WHEREAS, In conjunction with the inclusion of REC in EverQ, the
parties
believe it to be in their collective best interest for Evergreen
and REC to
collaborate with respect to certain technology sharing, which
collaboration
shall be determined based on common agreement among Evergreen and
REC; and
WHEREAS, Evergreen and REC wish to provide for a framework under
which they
can mutually determine and establish the desired collaboration;
NOW,
THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements herein
contained, and
other good and valuable consideration, the receipt and sufficiency
of which are
hereby acknowledged and accepted, and intending to be legally bound
hereby, the
parties hereto hereby agree as follows:
1.
DEFINITIONS
1.1 "CAST" means [****].
1.2 "CELL" means a crystalline silicon material substrate that
has
been processed to provide electrical output from incident
sunlight.
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1.3 "DEVELOPED TECHNOLOGY" means any Technology developed,
discovered,
created or invented in connection with or resulting from the
performance of the
Development Services.
1.4 "DEVELOPMENT SERVICES" is defined in Section 2.1.
1.5 "DIRECT PRODUCTION COSTS" means all direct labor, direct
and
consumable materials required for the production of a Licensed
Product, and
amortized equipment costs associated with manufacturing a Licensed
Product
incorporating Material IP.
1.6 "EFFECTIVE DATE" means [****]
1.7 "GOVERNMENTAL AUTHORITY" means any US or Norwegian,
federal,
national, supranational, state, provincial, municipal, local, or
similar
government, governmental, regulatory or administrative authority,
agency or
commission or any court, tribunal, or judicial or arbitral
body.
1.8 "INITIAL PERIOD" means the time period commencing on the
Effective
Date and ending on the Termination Date.
1.9 "INTELLECTUAL PROPERTY RIGHTS" means all rights in, to, or
arising
out of: (i) any patent, national or international, or any
application therefor
and any and all reissues, divisions, continuations, renewals,
extensions and
continuations-in-part thereof; (ii) inventions, discoveries
(whether patentable
or not in any country), invention disclosures, improvements, trade
secrets,
proprietary information, know-how, technology and technical data;
(iii)
copyrights, copyright registrations, mask works, mask work
registrations, and
applications therefor in the any country, and all other rights
corresponding
thereto throughout the world; and (iv) any other proprietary rights
in or to
Technology anywhere in the world.
1.10 "JOINT INVENTION" is defined in Section 5.1 (Intellectual
Property Rights in Developed Technology).
1.11 "LICENSED PRODUCTS" means Wafers, Cells, and/or Modules, as
the
case may be, in which the Wafers are made using String Ribbon
Technology.
1.12 "LICENSABLE" means possession of the ability to grant a
license
or sublicense of, or within, the scope provided for in this
Agreement without
payment of any fee to, or violating the terms of any agreement or
other
arrangements with a Third Party and without violating any
applicable laws, rules
or regulations.
1.13 [****][****]
1.14 "MATERIAL IP" means Intellectual Property Rights and
Technology
owned by or Licensable by REC [****]. To avoid doubt, Material
IP
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comprises, without limitation, Patents on Technology [****].
Notwithstanding
anything to the contrary, Material IP shall not include, in the
event of an
acquisition of REC, Intellectual Property Rights of the acquirer of
REC.
1.15 "MODULE" means an assembly of multiple, electrically
connected
Cells.
1.16 "POST TERMINATION PERIOD" means the time period commencing
immediately after the Termination Date. "[****]" means the [****]
period
commencing immediately after the Termination Date. [****]" means
the [****]
period commencing immediately after the Termination Date.
1.17 "STRING RIBBON" means [****].
1.18 "TECHNOLOGY" means information and technology in tangible
and/or
intangible form and materials, embodiments, implementations or
improvements of
any technology, including, but not limited to: software, media,
data
collections, databases, techniques, methods, processes, formulae,
systems,
hardware, equipment, prototypes, proofs of concept, apparatuses,
hardware,
software, algorithms, files, routines, documents, designs,
drawings, plans,
specifications and the like.
1.19 "TERMINATION DATE" means the date on which the Master
Agreement
is terminated in accordance with its terms.
1.20 "WAFER" means a crystalline silicon material substrate that
is
intended to but has not yet been made into a Cell.
2.
JOINT DEVELOPMENT
2.1 IN GENERAL. On the terms and conditions set forth in this
Agreement, the parties agree to jointly develop improvements to
Evergreen's
manufacturing processes. REC agrees to participate in this joint
development
through the performance of the services described herein (the
"DEVELOPMENT
SERVICES").
2.2 INITIAL ASSISTANCE. REC will disclose to Evergreen REC's
Technology regarding the items set forth in EXHIBIT A ("INITIAL
DELIVERABLES"),
to the extent that the parties jointly determine that such
Technology may be
applicable to Evergreen and EverQ's manufacturing of Wafers, Cells,
and Modules.
[****]
2.3 ONGOING TECHNICAL ASSISTANCE AND CONSULTING. In addition to
the
Development Services contemplated under Section 2.2 (Initial
Assistance), REC
shall provide Evergreen technical assistance and consulting as
mutually agreed
by the Parties to assist Evergreen in improving the manufacturing
of String
Ribbon Wafers, Cells and Modules. The Parties will meet
periodically to review
the progress of the Development
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Services. [****]. In the event that the Parties contemplate
modifying or
expanding the scope of the Development Services, the Parties shall
mutually
agree upon the specifications, timing and costs of such work. The
payment for
any Development Services shall be in accordance with Section 4
(Payments) unless
otherwise agreed by the Parties.
2.4 ACCESS TO REC RESOURCES. In connection with the Development
Services, REC will provide Evergreen reasonable access to REC
personnel,
documents and facilities to facilitate the development of
Evergreen's
manufacturing process. REC will use commercially reasonable efforts
to assign to
the Development Services employees that have sufficient
qualifications and
experience with respect to the subject mater of the Development
Services and
make such personnel available to Evergreen.
2.5 ASSIGNMENT OF PERSONNEL. Unless otherwise expressly agreed,
employees of each party remain employees of their respective
employer,
notwithstanding their location in the respective facility of the
other party or
their participation in the provision or receipt of the Development
Services.
2.6 COMPLIANCE WITH RULES. While at the facility of any party
("HOSTING PARTY") in connection with this Agreement all employees
and agents of
the other party ("VISITING PARTY") shall fully abide by all plant
rules and
regulations of the Hosting Party.
2.7 MATERIAL IP.
(A) MATERIAL IP
- NOTIFICATION. If REC has developed Material IP
in the Initial Period [****], REC shall promptly
submit a general, written description of the Material IP to
Evergreen, with
reference to this Section. Upon Evergreen's request, REC will
further disclose
to Evergreen and provide Evergreen assistance in implementing the
respective
Material IP in accordance with Section 2.3 (Ongoing Technical
Assistance and
Consulting).
(B) LICENSE TO MATERIAL IP. Material IP shall be licensed to
Evergreen under Section 5.6 (Background License) except that the
license of
Material IP is royalty-bearing to the extent provided in Section
4.3 (Royalty on
Material IP). Notwithstanding the foregoing, Evergreen shall have
the right to
exclude any item of Material IP from this Agreement by providing
REC written
notice of such exclusion, and after Evergreen has provided such
notice, the
respective Material IP shall be excluded from the scope of the
license granted
under this Agreement.
3.
ACCESS TO EVERGREEN TECHNOLOGY
3.1 Upon REC's request prior to [****], the Parties agree to
negotiate
in good faith entering into a non-exclusive, world-wide license
agreement under
which REC will have a license to manufacture Wafers using String
Ribbon
Technology after [****] subject to mutually agreed terms and
conditions. These
terms and conditions will be in line with standard commercial terms
[****].
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3.2 In the event that Evergreen intends to commercialize String
Ribbon
Technology through such a license agreement in [****], Evergreen
shall notify
REC of its intention and provide REC an opportunity to negotiate
such a license
agreement with Evergreen. After [****] of good faith negotiations
from
Evergreen's notice, neither REC nor Evergreen shall be obligated to
continue to
negotiate such a license, and Evergreen shall be free to negotiate
and enter a
license agreement with a third party, subject to the following:
Evergreen shall
only have the right to enter such agreement with a third party
without notifying
REC provided that the conditions of such license agreement are not
materially
more favorable to the third party, taken as a whole, than the last
conditions
offered to REC. If the terms to be entered with a third party in
[****] are
materially more favorable than the last conditions offered to REC,
REC may elect
to enter such a license under such terms. In the event that REC
does not agree
to enter a license agreement having such terms within [****] of
Evergreen's
notice outlining such terms, Evergreen shall have the right to
negotiate and
enter any license agreement with a third party on terms that are
materially as
favorable as, or less favorable than, such terms. REC shall not
have any
obligation to agree to any terms which are unique to the third
party. [****]
4.
PAYMENTS
4.1 [****]. Evergreen will pay REC for the Development Services on
a
[****]. In advance of commencing with any phase of the Development
Services, REC
will submit an estimate of costs for such phase to Evergreen. In
the event that
REC determines that the [****] will exceed the estimate, REC shall
seek
Evergreen's a