CONFIDENTIAL INFORMATION HAS BEEN OMITTED PURSUANT TO RULE 406 UNDER THE SECURITIES ACT AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE LOCATIONS OF THE OMITTED INFORMATION HAVE BEEN INDICATED WITH ASTERISKS.
Exhibit 10.17
- -------------------------------------------------------------------------------- FORM CD-450 U.S. DEPARTMENT OF COMMERCE (REV. 10-93) COOPERATIVE DAO 203-26 |_| GRANT |X| AGREEMENT
--------------------------
FINANCIAL ASSISTANCE AWARD ACCOUNTING CODE
**SEE BELOW - -------------------------------------------------------------------------------- RECIPIENT NAME AWARD NUMBER Plug Power, LLC 70NANB8H4039 - -------------------------------------------------------------------------------- STREET ADDRESS FEDERAL SHARE OF COST 968 Albany-Shaker Road $ 4,737,848.00 - -------------------------------------------------------------------------------- CITY, STATE, ZIP CODE RECIPIENT SHARE OF COST Latham, NY 12110 $ 5,000,000.00 - -------------------------------------------------------------------------------- AWARD PERIOD TOTAL ESTIMATED COST 01/01/1999 - 12/31/2000 $ 9,737,848.00 - -------------------------------------------------------------------------------- DEPARTMENT OF COMMERCE OPERATING UNIT NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY GRANTS OFFICE BUILDING 301, ROOM B129, GAITHERSBURG, MARYLAND 20899-0001 - -------------------------------------------------------------------------------- AUTHORITY P.L.100-418, Section 5131 (codified at 15 USC 278n) as modified by P.L.102-245 - -------------------------------------------------------------------------------- PROJECT TITLE Distributed Premium Power Fuel Cell Systems Incorporating Novel Materials and Assembly Techniques under Advanced Technology Program (ATP) 98-03 - -------------------------------------------------------------------------------- This Award approved by the Grants Officer is issued in triplicate and constitutes an obligation of Federal funding. By signing the three documents, the Recipient agrees to comply with the Award provisions checked below and attached. Upon acceptance by the Recipient, two signed Award documents shall be returned to the Grants Officer and the third document shall be retained by the Recipient. If not signed and returned by the Recipient within 15 days of receipt, the Grants Officer may declare this Award null and void.
|X| Department of Commerce Financial Assistance Standard Terms and Conditions
|X| Special Award Conditions
|X| Line Item Budget
PLEASE RETAIN FOR YOUR
|_| 0MB Circular A-21, Cost Principles for Educational Institutions
|_| 0MB Circular A-87, Cost Principles for State and Local Governments
|X| 0MB Circular A-110, Grants and Agreements with Institutions of Higher
Education, Hospitals, and Other Nonprofit Organizations Uniform
Administrative Requirements
|_| 0MB Circular A-122, Cost Principles for Nonprofit Organizations
|_| 15 CFR Part 24, Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments
|_| 15 CFR Part 29a, Audit Requirements for State and Local Governments
|_| 15 CFR Part 29b, Audit Requirements for Institutions of Higher Education
and Nonprofit Organizations
|X| 48 CFR Part 31, Contract Cost Principles and Procedures
|X| Other(s): General Terms and Conditions Advanced Technology Program-9/98, Program- Specific Audit Guidelines for Advanced Technology Program - Joint Venture - 11/96 **ACCOUNTING CODE: CC:8/474-0342 Obj. Cl. 4110 Req. No. 8/474-4273 $2,760,011.00 B-AE93-N-C-F-N-A-36-41399 EIN: 16-1528998 474/G. Ceasar - -------------------------------------------------------------------------------- SIGNATURE OF DEPARTMENT OF COMMERCE GRANT OFFICER TITLE DATE Shamim A. Shaikh /s/ Shamim A. Shaikh Grants Officer 9/30/98 - -------------------------------------------------------------------------------- TYPED NAME AND SIGNATURE OF AUTHORIZED RECIPIENT OFFICIAL TITLE DATE /s/ [ILLEGIBLE] Pres & CEO - --------------------------------------------------------------------------------
ELECTRONIC FORM 3
SPECIAL AWARD CONDITIONS
ADVANCED TECHNOLOGY PROGRAM - JOINT VENTURE
Plug Power, LLC
COOPERATIVE AGREEMENT NO. 70NANB8H4039
1. RECIPIENT JOINT VENTURE ADMINISTRATOR CONTACT
The Recipient Joint Venture Administrator Contacts' name, title, address, and telephone number are:
(Technical) Dr. William Ernst
Vice President & Technical Director
Plug Power, LLC
968 Albany-Shaker Road
Latham, NY 12110
(518) 785-2859
(Administrative) John Law
Manager of Mobile & Government Programs
Plug Power, LLC
968 Albany-Shaker Road
Latham, NY 12110
(518) 785-2137
2. JOINT VENTURE MEMBER(S)
The organization(s) named below have been approved as joint venture member(s) to conduct research described in the Recipient's proposal which is incorporated into this award. Any changes or new member(s) must be approved in writing by the Grants Officer:
1) Plug Power, LLC, Latham, NY
2) W.L. Gore & Associates, Inc., Elkton, MD
3. GRANTS OFFICER
The Grants Officers name, address, and telephone number are:
Shamim Shaikh
National Institute of Standards and Technology
Bldg. 301, Room B129
Gaithersburg, MD 20899-0001
(301) 975-6558
4. GRANTS SPECIALIST
The Grants Specialist's name, address, and telephone number are:
Timothy M. Lynch
National Institute of Standards and Technology
Bldg. 301, Room B129
Gaithersburg, MD 20899-0001
(301) 975-6621
5. PROJECT MANAGEMENT
a. The Technical Project Manager's name, address, and telephone number are:
Gerald Ceasar
National Institute of Standards and Technology
Bldg. 101, Room A225
Gaithersburg, MD 20899-0001
(301) 975-5069
b. The Business Project Manager's name, address, and telephone number are:
Frank Power
National Institute of Standards and Technology
Bldg. 101, Room A225
Gaithersburg, MD 20899-0001
(301) 975-5057
6. PROJECT DESCRIPTION
All research shall be conducted in accordance with the Recipient's proposal dated April 7, 1 998, and revised budget dated August 12, 1998.
7. FUNDING LIMITATIONS
The scope of work and budget incorporated into this award covers a two-year period (referred to as the "project period") for a total amount of $4,737,848.00 in Federal funds. However, Federal funding available at this time is limited to $2,760,011.00 for the first year period (referred to as the "budget period"). Receipt of any additional funding up to the level projected under this award is contingent upon the availability of funds from Congress, satisfactory performance, and will be at the sole discretion the National Institute of Standards and Technology (NIST). The Recipient may not obligate, incur any expenditures, nor engage in any commitments which involve any amount in excess of the Federal amount presently available. No legal liability exists or will result on the part of the Federal Government for payment of any portion of the remaining funds which have not been made available under the award. If additional funds are not made available, any expenses incurred related to closeout activities must be funded from the amount already made available under this award. The notice of availability or non-availability of additional funding for the second and final year(s) will be made in writing by the Grants Officer. Only the Grants Officer is authorized to obligate funds. No other verbal or written notice should be relied upon by the Recipient. The Grants Officer's written notification shall be made prior to or no later than 30 days
Special Award Conditions/ATP-JV/09-98
after the expiration of each year's activities.
Anticipated Future Funding:
Year 2: $1,977,837.00 (From 01/01/00 to 12/31/00)
8. JV CONTINGENCY:
NO costs (Federal or Non-Federal) shall be incurred or charged to this cooperative agreement until the Grants Officer has received and approved in writing the following:
A. The Joint Venture (JV) Agreement which must include, but is not limited to, the following provisions: (a) a Power of Attorney clause, which designates an organization to serve as the collaboration's Administrator and to enter into this cooperative agreement for and on behalf of the entire JV; (b) an Intellectual Property Plan, which delineates the disposition of the collaboration's intellectual property; (c) a Governmental Use License, which grants to the Government a right to use the intellectual property created under the ATP-sponsored project; (d) a Precedence clause, which relegates the terms of the JV agreement to those of the NIST cooperative agreement; (e) Addition, Withdrawal and Termination provisions, outlining the collaboration's intended mechanisms for each action; and (f) a Liability and/or Indemnification clause(s), stating the ways in which liability issues will be handled by the collaboration.
B. A copy of the notification letter sent to both the Department of Justice and the Federal Trade Commission regarding the JV and its membership and proposed area of technical collaboration.
The above documentation must be submitted to the Grants Office within ninety (90) days from the date of the execution of this cooperative agreement award by the Grants Officer. This cooperative agreement may be terminated by the Grants Officer for cause if the fully executed JV agreement is not submitted timely.
9. COST SHARE
For the first year period, the cost sharing ratio applicable to this award is the Recipient's contribution of 51.24% ($2,900,000) and NIST's contribution of 48.76% ($2,760,011). Recipients must meet or exceed the cost share ratio on a quarterly financial reporting basis.
Special Award Conditions/ATP-JV/09-98
GENERAL TERMS AND CONDITIONS
ADVANCED TECHNOLOGY PROGRAM
September 1998
1. Order of Precedence of Terms and Conditions of Award 2. Referenced Requirements 3. Modifications of the Award 4. Requirements for Continuing Financial Assistance 5. NIST Project Management Team 6. Substantial Involvement 7. Technical/Business Reports & Plan 8. Prior Approval Requirements 9. Unallowable Costs 10. Purchase of American-Made Equipment and Products 11. Non-Expendable Property 12. Termination 13. Refunds 14. Audits 15. Closeout of Cooperative Agreement 16. Use of Name or Endorsements 17. Publication Guidelines 18. Protection of Human Subjects 19. Care and Use of Vertebrate Animals 20. Bureau of Export Administration (BXA) Clearance 21. North American Free Trade Agreement Patent Notification Procedures 22. Liability 23. Intellectual Property
GENERAL TERMS AND CONDITIONS
ADVANCED TECHNOLOGY PROGRAM
This document applies to all Recipients of the Advanced Technology Program (ATP) Cooperative Agreements. ATP Recipient is defined to include all single company Recipients and each individual company that is identified in the Special Award Conditions and is a signatory to the Joint Venture agreement (approved in writing by the NIST Grants Officer).
1. ORDER OF PRECEDENCE OF TERMS AND CONDITIONS OF AWARD
Where the terms of the award and proposal differ, the terms of the award shall prevail. The Recipient is obligated to bring to the attention of the Grants Specialist any perceived difference between any terms and conditions and the proposal.
2. REFERENCED REQUIREMENTS
The ATP Rule, 15 CFR Part 25; the ATP Notice of Availability of Funds, 62 Fed. Reg. 65679 (December 15, 1997); and the ATP Proposal Preparation Kit (December 1997), are hereby incorporated into the award by reference.
3. MODIFICATIONS OF THE AWARD
The Grants Officer is the ONLY authorized agent at NIST with the authority to bind the Federal Government; and to take actions to amend, suspend, and terminate the cooperative agreement.
If either party desires a modification to this award, the parties shall, upon reasonable notice of the proposed modification by the party desiring the change, confer in good faith to determine the desirability of such modification. Such modification shall not be effective until a written award amendment is signed by the Grants Officer and counter-signed by the Recipient.
4. REQUIREMENTS FOR CONTINUING FINANCIAL ASSISTANCE
a. With respect to any technology arising from assistance provided by NIST under this award, the Recipient shall promote the manufacture of products resulting from that technology within the United States and shall procure parts and materials from competitive United States suppliers to the extent practical.
b. At any time within the life of this award should the Recipient cease to have a majority control or ownership by individuals who are citizens of the United States, the Recipient shall notify the NIST Grants Officer of that fact, in writing, within FIFTEEN (15) days.
c. NIST may, within thirty (30) days after notice to Congress, suspend a company from continued assistance under this award if NIST determines that the company or a parent company has failed to satisfy any of the criteria contained in paragraphs a. and b. of this term, and that it is in the national interest of the United States to do so.
5. NIST PROJECT MANAGEMENT TEAM
The NIST Project Management Team (PMT) includes an ATP Project Manager, a NIST Grants Specialist, and one or more ATP technical and business specialists. The ATP Project Manager is responsible for working with the Recipient, including making recommendations to the NIST Grants Officer throughout the life of the project to ensure that the project progresses towards the objectives stated in the proposal in an optimal way. The ATP Project Manager (and other members of the PMT as appropriate) shall participate in a project start or kickoff meeting, annual reviews, and a close-out meeting prior to the expiration of the award. The ATP Project Manager is responsible for:
a. General oversight and project management functions associated with this
cooperative agreement.
b. Arranging kickoff meetings, annual review meetings, and final closeout
c. Monitoring the project to ensure that it is executed in accordance with
the proposal and this award. Analyzing the quarterly, annual, and final
reports, and consulting with other members of the team on issues so as to
be able to assess progress or lack thereof.
d. Recommending appropriate action to the NIST Grants Officer if the project
is failing to meet its objectives or needs administrative assistance to
propose modifications to this agreement for evaluation by the Project
6. SUBSTANTIAL INVOLVEMENT
A cooperative agreement has been selected as the funding instrument for this project, because of the planned substantial involvement of NIST in the following areas:
a. Approval of go/no go decision points at various project stages before
subsequent stages of a project may continue;
b. Concurrence with subcontract plans in excess of $100,000;
c. Approval of key personnel (including such positions as President, Chief
Financial Officer, Principal Investigator, and/or Project Manager);
d. Approval of changes in Joint Venture membership.
General Terms and Conditions/ATP/09-98
7. TECHNICAL/BUSINESS REPORTS AND PLANS
The Recipient shall provide access to information throughout the project life cycle that is required to assess the project's progress or lack thereof. In addition to monitoring the technical work, NIST requires business information, pertaining to the project during its life. In addition to monitoring the technical work, NIST requires business information, pertaining to the project during the course and for six years after its end in order to assess progress towards commercialization, the degree of adoption of the technology, and the impact of the project on the economy. When special economic studies or case studies are carried out that involve the Recipient, the ATP Project Manager may delegate the responsibility for coordinating the participation of the Recipient in such studies to a business specialist or the ATP Economic Assessment Office.
a. TECHNICAL REPORTING:
The Recipient shall submit technical performance reports in triplicate (one original and two copies). Two copies shall be submitted to the ATP Project Manager and the original report to the Grants Officer in the same frequency as the Financial Status Report (SF 269). Technical performance reports shall contain information as prescribed in OMB Circular A-110 Section ___.51. See Attachment A for an optional structure or format for compiling the technical report.
The final technical report may not be consolidated with the technical report for the final quarter.
b. BUSINESS REPORTING:
The Recipient shall submit business reports in accordance with the "Guidelines for Reporting on Business Progress and Economic Impacts" (see Attachment B).
8. PRIOR APPROVAL REQUIREMENTS
In addition to the requirements specified in OMB Circular A-110 Section __.25, the following changes require prior written approval from the NIST Grants Officer :
a. The transfer of funds among direct cost categories exceeding 10% of the
approved total annual budget for each single Recipient or joint venture
participant for each approved project year. Recipients are not authorized
to create new budget categories without prior approval.
b. Revisions to Ownership and/or Dissolution of Recipients (Recipients
include the single applicant company and all participants under a Joint
Venture Agreement). These changes include but are not limited to: 1) when
a company is acquired by, or merges with, any other company, including a
foreign company; 2) when the company is no longer majority-owned by U.S.
citizens; and 3) when only two for profit companies are participating in a
JV and one of them ceases participation. In the first case, the Recipient
should include in the written notification to the NIST Grants Officer the
following information: date of final acquisition or merger; name and
address of any new foreign parent and amount of ownership; whether the
Recipient intends to complete its assigned tasks with the same commitment
and at the same location; and how this change in ownership will affect the
project's projected benefits to the United States. The NIST Grants Officer
reserves the right to ask for clarification and/or additional information.
In the second case, the Recipient should provide details of the change in
ownership and whether it affects the Recipient's assigned tasks in any
way. In the third case, the Recipient shall provide details regarding the
circumstances of the departure, and plans for replacing the departing
company with another for-profit organization.
In the event a Recipient requests prior approval for any of the above, the
Recipient must provide documentation of the Recipient's intent to notify
the Department of Justice and the Federal Trade Commission of these
changes and/or deletion of members.
9. UNALLOWABLE COSTS
a. Construction of new buildings or extensive renovations of existing
laboratory buildings. However, construction of experimental research and
development facilities to be located within a new or existing building are
allowable provided that the equipment or facilities are essential for
carrying out the proposed scientific and technical project and are
approved by the Grants Officer.
b. Indirect costs for single companies. (However, if a joint venture
proposer, indirect costs are allowable. If the company's indirect cost
rate is over 100 percent of direct costs, NIST reserves the right to limit
such costs.)
c. Profit, management fees, interest on borrowed funds, or facilities capital
cost of money.
d. Bid and proposal (B&P) costs, tuition costs, marketing surveys or
commercialization studies, and general business planning unless they are
incorporated into a Federally approved indirect cost rate for a joint
venture participant. (However, a university participating in an ATP
project as a subcontractor or as a joint venture partner may charge ATP
for tuition remission or other forms of compensation in lieu of wages paid
General Terms and Conditions/ATP/09-98
university students working on ATP projects only as provided in OMB
Circular A-21, section J.41.)
e. Single company and joint venture participants may not subcontract to
another part of the same company or to another company with identical or
nearly identical ownership. Work proposed by another part of the same
company or by another company with identical or nearly identical ownership
should be shown as funded through inter-organizational transfers that do
not contain profit. Inter-organizational transfers should be broken down
by budget categories in a similar manner to all other tasks.
10. PURCHASE OF AMERICAN-MADE EQUIPMENT AND PRODUCTS
Recipients are encouraged, to the greatest extent practicable, to purchase American-made equipment and products with funding provided under this award.
11. NON-EXPENDABLE PROPERTY
For Joint Venture awards, title to any equipment purchased under the award that may be in the name of a departing participant and that continues to be needed on the project shall be transferred to the Joint Venture Administrator for continued use on the project. The departing participant shall be compensated by the Joint Venture for its contribution to the purchase of the equipment by applying its percentage of the cost of the equipment to the current fair market value of the equipment. Should the equipment no longer be needed on the project, the departing participant shall request disposition instructions in accordance with OMB Circular A-110, Section __.34.
12. TERMINATION
In accordance with OMB Circular A-110, Sections __.61(a)(2) and __.62, this award may be terminated by the mutual consent of NIST and the Recipient, in which case the parties shall agree upon the termination conditions, including the effective end date. In accordance with OMB Circular A-110, Section __.61(a)(1), NIST may also terminate this award if NIST determines that the statutory purposes under 15 USC 278n(a) of the research and technical development funded under the award can no longer be served or the recipient has been determined to be otherwise in material non-compliance with the terms and conditions of the award.
13. REFUNDS
The Recipient shall submit all refund checks to the DoC accounting office identified below and notify the Grants Office upon submission. All checks must identify on their face that NIST is funding the award, the award number, and no more than a two-word description to identify the reason for the refund. Submit to:
National Institute of Standards and Technology
Accounts Receivable
Bldg. 101, Room A825
Gaithersburg, MD 20899-0001
14. AUDITS
a. ALL ATP Recipients are required to provide sufficient funds in the project
multi-year budget to have project audits performed, including audits of
all joint venture participants. Subrecipients and subcontractors,
including universities, who receive funding under the ATP project totaling
more than $300,000 each are also subject to audit to determine the
appropriateness of direct and indirect costs charged to the ATP project.
b. It is the responsibility of the Recipient to ensure that audits are
performed within 90 days of the end of the project period to be audited.
The audits may be performed by the Recipient's CPA firm. However, the
Department of Commerce Office of Inspector General (DoC/OIG) reserves the
right to carry out audits at any time it deems necessary and appropriate.
ATP Recipients are required, when requested, to undergo audits (e.g.,
audits of cost-accounting systems, direct-cost expenditures, indirect cost
rates, or other periodic reviews) by the DoC/OIG or a cognizant or
oversight Federal agency.
c. All audits shall be performed in accordance with the following:
(1) For awards less than 24 months, an audit is required within 90 days from
the project expiration date.
(2) For 2-, 3-, or 4-year awards, an audit is required after the first year
and within 90 days from the project expiration date.
(3) For 5-year awards, an audit is required after the first year, third year,
and within 90 days of the project expiration date.
(4) Audits of withdrawing participants must be completed within 90 days of the
last date of participation.
Audits o ...
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