<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
-i-
<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
-ii-
<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:
-1-
<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
-2-
<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.
-3-
<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,
-5-
<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 t
