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<PAGE>
EXHIBIT 10.18
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.
AMENDED AND RESTATED
LICENSE &
TECHNOLOGY TRANSFER
AGREEMENT
BY AND BETWEEN
EVERGREEN SOLAR, INC.
AND
EVERQ GMBH
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1 DEFINITIONS
1.1 CONSTRUCTION
1.2 DEFINITIONS
ARTICLE 2 RIGHTS AND LICENSES
2.1 E LICENSE GRANT TO VENTURECO
2.2 VENTURECO LICENSE GRANT TO E
2.3 RESERVATION OF RIGHTS; NO IMPLIED LICENSES
ARTICLE 3 TECHNOLOGY TRANSFER
3.1 QUARTERLY MEETINGS
3.2 DELIVERY OF TECHNICAL DELIVERABLES
3.3 COPIES
3.4 [****]
ARTICLE 4 CONSIDERATION AND PAYMENT
4.1 ROYALTY
4.2 ROYALTY EVALUATION BY EXPERTS
4.3 TAX AUTHORITY CHALLENGES
4.4 ROYALTY CALCULATIONS
4.5 PAYMENT
4.6 CURRENCY
4.7 TAXES
4.8 AUDIT
4.9 SEPARATE AGREEMENTS
4.10 PROSPECTIVE BASIS
4.11 WAIVER
ARTICLE 5 INTELLECTUAL PROPERTY RIGHTS
5.1 OWNERSHIP
5.2 ENFORCEMENT OF JOINTLY OWNED INTELLECTUAL PROPERTY
RIGHTS
5.3 THIRD PARTY LICENSES
5.4 FURTHER COOPERATION
ARTICLE 6 WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
6.2 REMEDY
6.3 DISCLAIMER
</TABLE>
September 28 06 FINAL
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 7 CONFIDENTIAL INFORMATION
7.1 CONFIDENTIAL INFORMATION
ARTICLE 8 TERM
8.1 TERM
8.2 SPECIAL TERMINATION RIGHT
8.3 EFFECT OF TERMINATION
ARTICLE 9 GENERAL PROVISIONS
9.1 LIMITATION OF LIABILITY
9.2 NOTICES
9.3 LANGUAGE
9.4 AMENDMENTS AND WAIVERS
9.5 ASSIGNMENT
9.6 ENTIRE AGREEMENT; SEVERABILITY
9.7 OTHER REMEDIES; SPECIFIC PERFORMANCE
9.8 GOVERNING LAW AND DISPUTE RESOLUTION
9.9 COMPLIANCE WITH LAWS AND REGULATIONS
9.10 EXPORT
9.11 FORCE MAJEURE
9.12 INDEPENDENT CONTRACTORS
9.13 THIRD PARTY BENEFICIARIES
9.14 COUNTERPARTS
9.15 CONDITION
</TABLE>
September 28 FINAL
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<PAGE>
AMENDED AND RESTATED
LICENSE &
TECHNOLOGY TRANSFER
AGREEMENT
This Amended and Restated License & Technology Transfer
Agreement (this
"AGREEMENT") is made by and between Evergreen Solar, Inc., a
Delaware
corporation ("E"), and EverQ GmbH, a limited liability company
(GmbH),
incorporated under the laws of the Federal Republic of Germany
("VENTURECO" or
"EverQ"), as of the Effective Date. E and VentureCo are
hereinafter referred to
individually by their respective names or as "PARTY" and
collectively as
"PARTIES."
RECITALS:
WHEREAS, E, Q Cells AG ("Q") and Renewable Energy Corporation
("REC") have
entered into that certain Master Joint Venture Agreement
(Notarial Deed nr.
287/2005 of the Berlin notary public Dr. Rudolf von Hanstein,
the "MASTER
AGREEMENT") which is deemed to be incorporated into this
Agreement where this
Agreement refers to the Master Agreement (and remains
incorporated
notwithstanding termination of the Master Agreement), pursuant
to which, among
other things, the Parties have agreed to enter this
Agreement;
WHEREAS, Q and VentureCo have entered into that certain License
and
Technology Transfer Agreement By and Between Q-Cells AG and
EverQ GmbH (the "Q
LICENSE AGREEMENT");
WHEREAS, REC and VentureCo have entered into that certain
License and
Technology Transfer Agreement By and Between Renewable Energy
Corporation and
EverQ GmbH (the "REC LICENSE AGREEMENT");
WHEREAS, E and VentureCo have entered that certain License &
Technology
Transfer Agreement ("PRIOR AGREEMENT");
WHEREAS, E and VentureCo wish to amend the Prior Agreement and
agree that
this Agreement shall supersede and replace the Prior
Agreement;
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:
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<PAGE>
ARTICLE 1
DEFINITIONS
1.1 Construction. Capitalized terms not defined herein shall
have the
meanings set forth in the Master Agreement. The interpretation
of this Agreement
shall be governed by those principles set forth in SECTION 1.2
(Headings and
Other Interpretation) of the Master Agreement.
1.2 Definitions. As used herein:
"ADDED VALUE" means increased value through sale of a Licensed
Product
attributable to [****] incorporated into or used to manufacture
that Licensed
Product, for example, [****]. The "Added Value" is determined by
comparison of
[****].
"DIRECT PRODUCTION COSTS" means all [****] required for the
production of a
Licensed Product, and [****] associated with manufacturing a
Licensed Product
incorporating MNIP.
"COST SAVINGS" means the aggregate reduction of Total Production
Costs of a
Licensed Product attributable to [****] incorporated into or
used to manufacture
that Licensed Product. Any change in yields and conversion
efficiencies shall be
taken into account in determining the "Cost Savings." The "Cost
Savings" is
determined by comparison of [****] in manufacture of the
Licensed Products, or
determined by comparison to another agreed [****]. If royalty
payments are based
on a royalty determined under Section 4.1(f) (Alternative
Royalty Rate
Calculation Based on MNIP), then each quarter the "Cost Savings"
will be
calculated by comparing [****] to the agreed [****]. The
mechanism for defining
such [****] will not change during the term of the royalty
payments, but the
[****].
"EFFECTIVE DATE" means [****].
"E IP" means the E Technology and E Intellectual Property
Rights.
"E INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property
Rights
owned or Licensable by E or its Affiliates during the Initial
Period and (with
respect to certain MNIP and other Intellectual Property Rights
as described in
this Agreement) [****] Post Termination Period, that relate to
the manufacture,
production, assembly, use or sale of Licensed Products, or which
would, without
the licenses herein, be infringed or violated by the operation
of VentureCo's
business or its commercialization of products as contemplated in
the Master
Agreement. "E INTELLECTUAL PROPERTY RIGHTS" includes those
Intellectual Property
Rights listed in PART 1 OF EXHIBIT A and (once available for
commercial use), in
PART 2 OF EXHIBIT A but excludes those Intellectual Property
Rights listed in
PART 3 OF EXHIBIT A ("EXCLUDED E INTELLECTUAL PROPERTY RIGHTS").
For the
avoidance of doubt, "E INTELLECTUAL PROPERTY RIGHTS" excludes
(i) MNIP offered
to VentureCo but which it has elected not
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<PAGE>
to license, (ii) other Intellectual Property Rights for
improvements or other
inventions that are made after the [****] Post Termination
Period (except to the
extent regulated in the context of support services to VentureCo
pursuant to an
applicable agreement), and (iii) in the event of an acquisition
of E,
Intellectual Property Rights of the acquirer of E.
"E TECHNICAL DELIVERABLES" means any reasonably available
documentation,
records and other tangible items constituting E Technology and E
Intellectual
Property Rights, including any such items specified in Part 1 of
Exhibit A.
"E TECHNOLOGY" means all Technology owned or Licensable by E or
its
Affiliates during the Initial Period and (with respect to
certain MNIP and other
Technology as described in this Agreement) [****] Post
Termination Period, that
relates to the manufacture, production, assembly, use or sale of
Licensed
Products and the operation of VentureCo's business and
commercialization of
products as contemplated in the Master Agreement. "E TECHNOLOGY"
includes
Technology relating to items described in PART 1 OF EXHIBIT A
("INCLUDED E
TECHNOLOGY") and (once available for commercial use) relating to
MNIP described
in PART 2 OF EXHIBIT A, but excludes Technology relating to
items described in
PART 3 OF EXHIBIT A ("EXCLUDED E TECHNOLOGY"). For the avoidance
of doubt, E
Technology excludes (i) MNIP offered to VentureCo but which it
has elected not
to license, (ii) other Technology created after the [****] Post
Termination
Period (except to the extent regulated in the context of support
services to
VentureCo pursuant to an applicable agreement), and (iii) in the
event of an
acquisition of E, Intellectual Property Rights of the acquirer
of E.
"EXCLUDED E TECHNOLOGY" has the meaning set forth in SECTION
1.2
(Definitions - E Technology).
"INITIAL PERIOD" means the time period commencing on the License
Effective
Date and ending on the Termination Date.
"INTELLECTUAL PROPERTY RIGHTS" means all rights in, to, or
arising out of:
(i) any Patents; (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 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.
"JOINTLY OWN" has the meaning set forth in SECTION 5.1(a)(i)
(Definition).
"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.
"LICENSE EFFECTIVE DATE" means the Effective Date.
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<PAGE>
"LICENSED PRODUCTS" means Wafers, Cells, and/or Modules, as the
case may
be, in which the Wafers are made using String Ribbon
Technology.
"LICENSED PRODUCTS REVENUE" means the cumulative Net Sales Price
for all
Licensed Products Sold in the respective period.
"MARKET RATE" means [****].
"MATERIAL NEW IP" or "MNIP" means Intellectual Property Rights
and
Technology developed or Licensable by E only after the License
Effective Date
[****]. Notwithstanding anything to the contrary, MNIP shall not
include any
Excluded E Intellectual Property Rights or, in the event of an
acquisition of E,
Intellectual Property Rights of the acquirer of E. In general
Intellectual
Property Rights and Technology that are legally protectible and
reduce Total
Production Costs of Licensed Products by, or provide an Added
Value of, [****];
provided, however, that MNIP may include Property Rights and
Technology not
meeting such criteria to the extent that it nevertheless
provides a substantial
and material benefit.
"NET SALES PRICE" means, (i) for arm's length Sales for fair
value, the
average gross revenue received by VentureCo in the period for
Sales of the
Licensed Products, accounted for in accordance with generally
accepted
accounting principles, less any deduction for discounts,
returns, freight,
insurance, taxes, and duties and (ii) for Sales other than arm's
length Sales
for fair value, the greater of (a) the net average selling price
of the same or
most nearly same Licensed Product and (b) the average gross
revenue for such
Sales less any deduction for discounts, returns, freight,
insurance, taxes, and
duties in accordance with generally accepted accounting
principles.
"PATENTS" means any German, international or foreign patent or
any
application therefor and any and all reissues, divisions,
continuations,
renewals, extensions and continuations-in-part thereof.
"POST TERMINATION PERIOD" means the time period commencing
immediately
after the Termination Date. "[****] POST TERMINATION PERIOD"
means the [****]
period commencing immediately after the Termination Date.
"REGISTERED E INTELLECTUAL PROPERTY RIGHTS" means all E
Intellectual
Property Rights (including Patents) that have been registered,
filed, issued or
otherwise perfected or recorded with or by any state, government
or other public
or quasi-public legal authority, including any applications for
filings for any
such rights.
"SOLD" or "SELL" means any direct or indirect disposition, by
sale, lease,
use or otherwise, of a Licensed Product.
"STRING RIBBON" means [****].
"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,
-4-
<PAGE>
systems, hardware, equipment, prototypes, proofs of concept,
apparatuses,
hardware, software, algorithms, files, routines, documents,
designs, drawings,
plans, specifications and the like.
"TERMINATION DATE" means the earlier of the date on which the
Master
Agreement or this Agreement is terminated in accordance with its
terms.
"TOTAL PRODUCTION COSTS" means the total of the [****] and
[****] to the
extent such [****] is directly associated with the respective
product.
"VENTURECO INTELLECTUAL PROPERTY RIGHTS" means all Intellectual
Property
Rights developed and owned (solely or jointly) by VentureCo that
relate to or
which would, without the licenses set forth herein, be infringed
or violated by
making, using, selling, importing or otherwise exploiting
Wafers, Cells and
Modules.
"VENTURECO IP" means VentureCo Technology and VentureCo
Intellectual
Property Rights.
"VENTURECO TECHNOLOGY" means all technology developed and owned
(solely or
jointly) by VentureCo that relates to the making, using,
selling, importing or
other exploiting Wafers, Cells and Modules.
ARTICLE 2
RIGHTS AND LICENSES
2.1 E License Grant to VentureCo. Subject to the terms and
conditions of
this Agreement, E hereby grants and agrees to grant to
VentureCo, effective upon
the License Effective Date, a world-wide, non-exclusive,
non-transferable,
perpetual, irrevocable, fully paid up and royalty-free (except
as provided in
ARTICLE 4 (Consideration and Payment)) license, without the
right to sublicense,
under the E Intellectual Property Rights, to make (but not have
made), use,
sell, offer for sale, import or otherwise commercialize or
exploit Licensed
Products, to use the E Technology in connection with the
foregoing, and to
otherwise operate VentureCo and commercialize its products as
contemplated in
the Master Agreement. It is understood that the foregoing
license to VentureCo
includes, without limitation, the right to change and make
improvements and
extensions to the E Technology. Furthermore, it is understood
that VentureCo
shall have the right to commercially exploit such changes and
improvements in
accordance with such license.
2.2 VentureCo License Grant to E. VentureCo hereby grants and
agrees to
grant to E a world-wide, non-exclusive, non-transferable (except
pursuant to
SECTION 9.5 (Assignment)), perpetual, irrevocable, fully paid
up, royalty-free,
fully sublicensable, license, under the VentureCo Intellectual
Property Rights
developed in the Initial Period and [****] Post Termination
Period, to make,
use, sell, offer for sale, import or otherwise commercialize or
exploit Wafers,
Cells and Modules. In addition, VentureCo hereby grants and
agrees to grant to E
a world-wide, non-exclusive, non-transferable, perpetual,
irrevocable, fully
paid up, royalty-free, fully sublicensable,
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<PAGE>
license, under the VentureCo Intellectual Property Rights,
whenever developed,
[****] to make, use, sell, offer for sale, import or otherwise
commercialize or
exploit Wafers, Cells and Modules. It is understood that the
foregoing license
to E includes, without limitation, the right for E to change and
make
improvements and extensions to such Technology licensed from
VentureCo.
Furthermore, it is understood that E shall have the right to
commercially
exploit said changes and improvements in accordance with such
license.
2.3 Reservation of Rights; No Implied Licenses. All rights not
granted
herein are reserved. Nothing in this Agreement shall be deemed
to constitute the
grant of any license or other right to a Party's Intellectual
Property Rights or
Technology except as expressly set forth herein.
ARTICLE 3
TECHNOLOGY TRANSFER
3.1 Quarterly Meetings.
(a) New Developments. During the Initial Period and [****]
Post
Termination Period, the Parties shall meet on a quarterly basis
(or as otherwise
agreed upon by the Parties) to discuss (and E shall advise
VentureCo of) any
material or other E IP or VentureCo IP that was acquired,
developed or became
Licensable since the prior quarterly meeting.
(b) Defining Material New IP. During the quarterly meetings
described
above, the Parties shall also determine whether new Intellectual
Property Rights
and Technology of or Licensable by E comprise Material New IP.
The Parties
intend that if E develops MNIP, it may be appropriate for E to
receive royalty
for VentureCo's use thereof (and whichVentureCo has elected to
acquire) in
accordance with ARTICLE 4 (Consideration and Payment). The
Parties' obligations
with respect to MNIP will be governed by ARTICLE 4
(Consideration and Payment).
3.2 Delivery of Technical Deliverables. E shall deliver to
VentureCo at
least one copy of all E Technical Deliverables, in electronic
form when
practicable, within [****] days after the License Effective Date
or (as
applicable),
(a) in the case of MNIP listed in EXHIBIT A PART 2, promptly
upon
commercial availability (subject to applicable royalties),
(b) in the case of MNIP available in the Initial Period (other
than
that in EXHIBIT A PART 2), promptly after VentureCo's election
to acquire that
MNIP (subject to applicable royalties), and
(c) in the case of MNIP available after the E Interest Reduction
Date
or Termination Date, promptly after VentureCo's election to
acquire that MNIP
and determination of applicable royalties.
Subject to ARTICLE 4 (Consideration and Payment), during the
Initial Period
and the [****] Post Termination Period, E shall periodically and
promptly
deliver to VentureCo copies of E
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<PAGE>
Technical Deliverables that have not been previously delivered,
including E
Technical Deliverables relating to E IP acquired or Licensable
after the License
Effective Date.
3.3 Copies. VentureCo may copy, modify and otherwise use the E
Technical
Deliverables in accordance with and subject to the restrictions
and licenses set
forth herein as necessary to exercise the rights granted
hereunder. VentureCo
agrees to maintain a document control system to control copies
of such E
Technical Deliverables and otherwise treat such information as
E's Confidential
Information subject to the provisions of ARTICLE 7 (Confidential
Information).
3.4 [****
(a) ****
(b) ****
(c) ****
(d) ****]
ARTICLE 4
CONSIDERATION AND PAYMENT
4.1 Royalty. Subject to exceptions in this Agreement, VentureCo
shall pay
royalties to E for the use of MNIP. The royalty shall be based
on two main
elements: the success of the relevant MNIP in achieving Cost
Savings and the
success of that MNIP in achieving Added Value, [****]. For the
sake of
commercial simplicity the product of the two base rate elements
shall be
converted into a combined royalty rate, at intervals specified
in relevant
Sections below. The detailed rules of royalty calculation,
including exceptions,
follow below.
The royalty and other fees (if any) (collectively "ROYALTY")
payable for
the use of MNIP shall be [****] generally determined as set
forth below. The
royalty payment obligations commence (with respect to Licensed
Products Sold
incorporating that MNIP) the later of (1) January 1 2007, and
(2) the date when
VentureCo first Sells Licensed Products that incorporate that
MNIP.
For purposes of this Agreement, Thin Ribbon Technology (as
described in
Exhibit A, part [2] item [2], will be deemed MNIP.
(a) Royalty Rate in General. The royalty rate applicable
hereunder
("Royalty Rate") shall be as set forth in the following table
shall continue
until [****] ("Royalty Renewal Date").
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<PAGE>
<TABLE>
<CAPTION>
Licensed Product Revenue Royalty Rate
------------------------ ------------
<S> <C>
$0 to $100 million 5%
$100 million to $250 million 3.5%
$250 million to $1,000 million 2%
more than $1,000 million 1%
</TABLE>
(b) Annual Adjustments. The Royalty Rate may be adjusted on
annual
basis as follows. While Annual Adjustments may be made as set
forth below, in
making such adjustments, the Parties shall give deference to the
above rates,
and any adjustments shall made primarily to account for changes
after the above
rates were established. At least [****] days in advance of the
[****] of the
Royalty Renewal Date, the Parties shall agree upon a new market
based Royalty
Rate that shall be applicable for the next [****] year period
commencing on the
[****] of the Royalty Renewal Date. In the event that VentureCo
and E cannot
agree on the Royalty Rate applicable to such next [****] year
period, or at the
election of either VentureCo and E, the Royalty Rate for
currently used MNIP
shall be determined in accordance with Section 4.1(f)
(Alternative Royalty Rate
Calculation Based on MNIP).
(c) Exceptional Adjustments. The Royalty Rate may be modified
before
the annual adjustment of Section 4.1(b) (Annual Adjustments) at
the request of
either party as set forth below in Section 4.1(c)(i)
(Performance) or Section
4.1(c)(ii) (Compared to Conventional Silicon).
(i) Performance. In the event that the performance of the
MNIP
used by VentureCo differs substantially from the performance
anticipated at the
time the Royalty Rate was determined in accordance with 4.1(b)
(Annual
Adjustments), the Royalty Rate may be modified in accordance
with this Section
4.1(c) (Exceptional Adjustments) to reflect this unexpected
performance. For a
difference in performance to merit a change of Royalty Rate
under this section
4.1 (c) (Exceptional Adjustments), the change would comprise
[****].
(ii) Compared to Conventional Silicon. [****].
(iii) New Royalty Rate. In the event that a change in
Royalty
Rate is requested and the change in Royalty Rate is merited
based on Section
4.1(b)(i) (Performance) or Section 4.1(b)(ii) (Compared to
Conventional
Silicon), Parties agree to negotiate in good faith to determine
the new
applicable Royalty Rate based on the actual and then anticipated
performance of
the MNIP or change in Costs/Value of the Licensed Products
respectively. The
Party asserting that the Royalty Rate should be changed shall
have the burden of
proof of showing that a change should be made. In the event that
the Parties do
not agree on the new applicable Royalty Rate merited based on
Section 4.1(b)(i)
(Performance) or Section 4.1(b)(ii) (Compared to Conventional
Silicon), the
Royalty Rate shall be determined based on the expected and
actual performance of
the MNIP in accordance with Section 4.2 (Royalty Evaluation by
Experts).
-8-
<PAGE>
(iv) Frequency of Adjustment. A request to adjust the
Royalty
Rate under this Section 4.1(c) (Exceptional Adjustments) cannot
be made more
frequently than [****].
(d) Changes. Any adjustments to Royalty Rate under Section
4.1(c)
(Exceptional Adjustments) shall apply only to Sales made after
the adjustment,
and all royalties paid or due hereunder are non-refundable. In
no event shall
the Royalty Rate under this Agreement be less than zero.
(e) Royalty Payments. If the Royalty Rate is determined under
Section
4.1(a) (Royalty Rate in General), then VentureCo shall pay E a
royalty equal to
the Royalty Rate multiplied by the Licensed Product Revenue. If
the Royalty Rate
is determined in accordance with Section 4.1(f) (Alternative
Royalty Rate
Calculation Based on MNIP), then (i) VentureCo shall pay E a
royalty equal to
the respective Royalty Rate multiplied by Net Sales Price of
each Licensed
Product Sold by VentureCo in the respective period that
incorporates the MNIP
into or uses the MNIP in the manufacture of such Licensed
Product, and (ii) if
the Royalty Rate is determined on a per unit basis (such as
watts) then the Net
Sales Price will be determined on the identical units and the
product of these
shall be multiplied by units Sold. VentureCo shall pay the
royalty on a calendar
quarterly basis, within [****] days of the end of the respective
calendar
quarter.
(f) Alternative Royalty Rate Calculation Based on MNIP. The
provisions
in this Section 4.1 (f) (Alternative Royalty Rate Calculation)
shall be used to
determine the Royalty Rate, only in the particular circumstances
for which this
Section is applicable as set forth in Section 4.1(a) (Royalty
Rate in General).
(i) The "Base Rate" means [****]% of the Cost Savings plus
[****]% of the Added Value that was not already captured by the
Cost Savings.
The Royalty Rate applicable to any particular year shall depend
on the [****]
and the Base Rate in accordance with the following:
<TABLE>
<CAPTION>
Production [****] Royalty Rate
----------------- ------------
<S> <C>
[****] Base Rate
[****]: [****] x Base Rate
[****]: [****] x Base Rate
[****]: [****] x Base Rate
[****] [****] x Base Rate
[****]: [****] x Base Rate
[****]: [****] x Base Rate
[****]. [****] x Base Rate
</TABLE>
(ii) In accordance with the above table, the Royalty Rate
equals
the Base Rate in the [****] and [****] thereafter. [****] in the
above table to
which respective Royalty Rates apply start upon the date of the
first sale in
commercial volumes of the Licensed Products
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<PAGE>
incorporating the respective MNIP. Successive [****] start on
successive [****]
of the date of such first sale. For example, if such first sale
were to take
place on [****].
(iii) Notwithstanding the foregoing, the royalty for any
particular item of MNIP shall not exceed [****]% of (Net Sales
Price of the item
embodying the MNIP (e.g., Wafer, Cell, or Module) - Incoming
Product Purchase
Price) for thin ribbon MNIP through [****], and other than with
respect to such
thin ribbon MNIP, the royalty for any particular item of MNIP
shall not exceed
[****]% of (Net Sales Price of the item embodying the MNIP
(e.g., Wafer, Cell,
or Module) - Incoming Product Purchase Price). If several
different items of
MNIP are used for the same Licensed Product, royalty shall be
due for each of
such items of MNIP, except that the total of all such royalties
shall not exceed
[****]% of (Net Sales Price - [****]). [****] but not the
[****], (ii) the cost
of [****] in the event that MNIP relates to [****] but not the
respective
[****], and (iii) [****] with respect to all other MNIP. For the
purpose of
determining the [****], the costs of such [****] and [****]
shall be determined
based on the prices at which Evergreen sells such products to
third parties in
arm's length tr
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