AGREEMENT FOR AMPOULE IRRADIATION TESTING IN 2006-2007
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
AGREEMENT
FOR AMPOULE IRRADIATION TESTING IN 2006-2007
THIS
AGREEMENT FOR AMPOULE IRRADIATION TESTING IN 2006-2007 (this
“Agreement”) is made as of December 28, 2007 (the “Effective Date”), by and
between THORIUM POWER, INC.,a Delaware
corporation, having its principal offices in McLean, VA, United States of
America (“Thorium Power”), and the RUSSIAN RESEARCH CENTRE KURCHATOV
INSTITUTE, a Russian Federation federal state institution, having its
principal offices at Xxxxxxxxx Xxxxxx, 0, Xxxxxx, Xxxxxx 000000 (“Kurchatov
Institute”) (individually a “Party” or collectively the “Parties”).
RECITALS
| A. |
Thorium
Power has conceived, developed and has a proprietary interest in
certain
thorium-based fuel technology that is compatible with existing
uranium-fueled Light Water Reactors (“LWR”) while retaining significant
advantages in lower fuel cycle costs and ease in waste disposal and
which
can have a positive effect in the field of non-proliferation of nuclear
weapons while allowing the continuation of the development of commercial
nuclear energy in the world;
|
| B. |
Thorium
Power has conceived, developed and has a proprietary interest in
certain
thorium-based fuel technology that will allow for the effective and
safe
disposition of separated reactor-grade plutonium (civilian or spent
fuel-derived plutonium) in existing or new nuclear power reactors.
It can
also be used to effectively dispose of excess weapons-grade
plutonium;
|
| C. |
Kurchatov
Institute has extensive experience with the research, testing and
evaluation involving nuclear fuel and nuclear reactor facilities
and
systems, including systems for the use, storage and disposition of
nuclear
fuel;
|
| D. |
Thorium
Power and Kurchatov Institute have been cooperating pursuant to (i)
Protocol, dated October 20, 1994, (ii) Cooperative Research and
Development Agreements CRADA No. BNL-C-96-02, CRADA No. BNL-C-98-15
and
CRADA No. BNL-C-01-6 (the “CRADAs”); and (iii) a Collaborative Research
Agreement, dated August 6, 2002 (the “2002
Agreement”);
|
| E. |
Kurchatov
Institute also conducted technical and economic investigation of
Thorium
Power’s fuel technology relating to disposition of excess weapons-grade
plutonium pursuant to an agreement with UT-Battelle, LLC acting under
its
contract with the DOE of the Management & Operation of the Oak Ridge
National Laboratory (Work Release K1WR18BSC under General Order Agreement
85B99398V) (the “Oak Ridge Agreement”);
|
| F. |
Thorium
Power financed ampoule irradiation testing of Thorium Power designed
uranium-zirconium and thorium-uranium fuel samples in the IR-8 research
reactor at Kurchatov Institute from 2002 to 2005 under the 2002
Agreement;
|
| G. |
In
2006 and 2007, at its own expense, Kurchatov Institute continued
conducting irradiation testing of one ampoule device with
uranium-zirconium seed fuel samples and two ampoule devices with
thorium-uranium blanket fuel samples in the IR-8 research reactor
(the
“2006-2007 Irradiation Testing Program”). The description of the 2006-2007
Irradiation Testing Program is provided in Exhibit 1 attached hereto;
|
Page
1 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| H. |
Thorium
Power desires to compensate Kurchatov Institute for the irradiation
testing activities in the 2006-2007 Irradiation Testing Program and
to
acquire all of the corresponding test data and other technical data
generated in the program.
|
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and intending to be legally bound hereby, Thorium Power and Kurchatov
Institute agree as follows:
| 1. |
TRANSFER
OF IRRADIATION TESTING DATA; ASSIGNMENT OF TECHNICAL
DATA
|
| 1.1. |
Consideration.
In consideration of $410,000.00 (Four Hundred Ten Thousand US Dollars),
Kurchatov Institute hereby transfers all of the test data generated
in the
course of the 2006-2007 Irradiation Testing Program and assigns all
the
Technical Data associated with the 2006-2007 Irradiation Testing
Program
(as defined in Article 1.3 herein) to Thorium Power and provides
access to
Thorium Power and its affiliates to the information and documentation
specified in Exhibit 4 of this Agreement for audit purposes. The
entire
amount of consideration is due and payable to Kurchatov Institute
within
thirty (30) business days from the date of transfer by Kurchatov
Institute
to Thorium Power of all of the Technical Data as contemplated hereunder
and Kurchatov Institute has complied with other provisions set forth
in
this Agreement, including submission to Thorium Power of copies of
approvals and permits specified in Article 3 of this Agreement. The
payment to Kurchatov Institute shall be sent by wire transfer pursuant
to
the following wire transfer
instructions:
|
RUSSIAN
RESEARCH CENTRE “KURCHATOV INSTITUTE”, XXXXXXXXX XX, XXXXXX 000000,
XXXXXX
ACCT
NO
40502840138200200011
BENEFICIARY
BANK: SAVINGS BANK OF THE RUSSIAN FEDERATION (KRASNOPRESNENSKOE BRANCH ? 1569)
MOSCOW, RUSSIA
SWIFT:
SABR RU MM
CORRESPONDENT
BANK OF SAVINGS BANK OF THE RUSSIAN FEDERANION:
BANK
OF
NEW YORK,
NEW
YORK,
NY, USA
SWIFT:
IRVT US 3N
ACCOUNT
OF SAVIGS BANK OF THE RASSIAN FEDERATION WITH CORRESPONDENT BANK:
000-0000-000
TECHNICAL
DATA SHOULD BE SENT ON CONDITION CPT WASHINGTON
| 1.2. |
Assignment
by Kurchatov Institute. Kurchatov Institute hereby sells, assigns,
conveys
and transfers to Thorium Power (as well as its successors and assigns)
the
entire worldwide right, title and interest in and to the Technical
Data.
Kurchatov Institute hereby expressly agrees not to use, in any manner,
the
work product hereunder or exercise any rights associated therewith
without
the express written approval by Thorium Power.
|
Page
2 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| 1.3. |
Definition
of Technical Data. For purposes of this Agreement, “Technical Data” means
any and all technical data, specified in Exhibit 2 hereto.
|
| 1.4. |
Covenants.
Kurchatov Institute hereby covenants and agrees as
follows:
|
| A. |
As
a result of the Technical Data rights assignment herunder, (i) Thorium
Power is the sole owner of the entire right, title and interest in
and to
the Technical Data; and (ii) without limitation, the Technical Data
rights
will be held and enjoyed by Thorium Power no less fully and exclusively
as
they would have been by Kurchatov Institute had such assignment and
transfer not been made;
|
| B. |
The
assignment and licensing of the respective Technical Data rights
by
Kurchatov Institute shall be performed to the extent not prohibited
by the
Russian Law in a form required under the applicable law without payment
of
any additional consideration. The same rule shall apply to early
termination or further prolongation of the licenses. The term of
each
license with respect to any of the Technical Data rights shall be
subject
to limitations as established by the applicable law;
|
| C. |
Kurchatov
Institute has not and will not enter into an agreement with a third
party
that conflicts with this Agreement. To the extent that any subsequent
agreement between Kurchatov Institute and a third party conflicts
with the
assignment of the Technical Data rights, Kurchatov Institute agrees
that
the terms of this Agreement will supersede the terms of such
agreement;
|
| D. |
Any
facts, circumstances or notices regarding any of the Technical Data
rights
shall be promptly communicated and delivered to Thorium Power;
and
|
| E. |
Kurchatov
Institute shall assist Thorium Power to the best of its ability in
the
protection of Thorium Power’s Technical Data rights. For that purpose,
Kurchatov Institute shall testify in any legal proceedings, sign
all
papers, execute all applications, divisionals, continuations,
continuations-in-part, reissues, renewals, extensions and additions
thereof and counterparts thereto, make all rightful oaths and generally
aid Thorium Power (as well as its successors and assigns), with expenses
reasonably incurred to be borne by Thorium Power (except those expenses
which relate in any way to any breach of this assignment, which expenses
shall be borne by Kurchatov Institute), in obtaining and enforcing
proper
protection and access (in the reasonable discretion of Thorium Power)
for
and to the Technical Data rights.
|
| 1.5. |
Request.
Kurchatov Institute does hereby authorize and request that any and
all
Technical Data rights which may be granted upon the Technical Data
be
issued to Thorium Power as assignee of the entire interest therein.
The
assignment of the respective Technical Data rights by the respective
right-holder shall be performed to the extent not prohibited by the
Russian Law, in a form required by Russian Law, without payment of
any
additional consideration to Kurchatov Institute.
|
Page
3 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| 1.6. |
Notice
and Assistance Regarding Patent and Copyright Infringement. Kurchatov
Institute shall report to Thorium Power promptly and in reasonable
written
detail, each notice or claim of patent or copyright infringement,
or any
other infringement related to Technical Data rights and (or) intellectual
property rights based on the performance of this Agreement of which
Kurchatov Institute has knowledge and shall furnish to Thorium Power,
at
the expense of Thorium Power, when requested by Thorium Power, all
evidence and information in possession of Kurchatov Institute pertaining
to such claim or any resulting
suit.
|
| 2. |
CONFIDENTIALITY
AND COMMERCIAL SECRET
|
| 2.1. |
Obligation
of Confidentiality and Non-Use. Kurchatov Institute acknowledges
and
agrees that it owes a duty to Thorium Power to maintain in strict
confidence all Confidential Information and Commercial Secret Information
(as defined below) provided to, learned or developed by Kurchatov
Institute in connection with the performance of the 2006-2007 Irradiation
Testing Program either by Kurchatov Institute or its subcontractors.
Kurchatov Institute shall take all steps reasonably necessary to
prevent
the unauthorized disclosure or dissemination of such Confidential
Information or Commercial Secret Information for any reason and to
any
person or entity, except with the prior written consent of Thorium
Power.
In addition, Kurchatov Institute shall not use or copy any such
Confidential Information or Commercial Secret Information, or authorize
or
permit others to use any such Confidential Information or Commercial
Secret Information, for any purposes other than in connection with
performance of the Services hereunder. Notwithstanding the foregoing,
Kurchatov Institute may disclose such Confidential Information or
Commercial Secret Information to those officers, employees, advisors
and
consultants of Kurchatov Institute (each, a “Representative,” and
collectively, “Representatives”) who have a need to know such information
in connection with performance of services under this Agreement;
provided
that each Representative, prior to such disclosure, is informed by
Kurchatov Institute of the confidential nature of such information
and of
the confidentiality obligations imposed on Kurchatov Institute under
this
Agreement, and signs a written undertaking confirming his or its
agreement
to treat it confidentially. Kurchatov Institute shall be responsible
for
any and all breaches of the provisions of this Article 2 (Confidentiality
and Commercial Secret) by its Representatives. The Parties acknowledge
that Kurchatov Institute intends to engage [REDACTED] as Thorium
Power’s
representative to download and process the test data generated during
the
performance of the 2006-2007 Irradiation Testing Program. As used
herein,
“steps reasonably necessary” means, at a minimum, the steps that Kurchatov
Institute takes to protect its own, similarly confidential or proprietary
information, which steps shall not be less than a reasonable standard
of
care, and in the case of Commercial Secret Information shall include
maintaining an up to date list of the Commercial Secret Information
(the
“List”), establishing a procedure for handling of such information and
controlling compliance therewith, marking or labeling such information
with the words ‘Commercial Secret’ and the name of Thorium Power and its
location, and requiring conclusion of a confidentiality agreement
in the
form of Exhibit 3 by any person who shall have or is likely to have
access
to such information. At the discretion of Thorium Power, all or any
part
of the Confidential Information may become subject to a requirement
that
it be classified and protected as ‘Commercial Secret Information’
information within the meaning of Russian
law.
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Page
4 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| 2.2 |
Obligation
to Inform. Upon learning of any actual or threatened unauthorized
disclosure or use of the Thorium Power’s Confidential Information or
Commercial Secret Information by it or a third party, Kurchatov Institute
promptly shall provide Thorium Power with notice
thereof.
|
| 2.3 |
Definition
of Confidential Information and Commercial Secret Information. The
term
“Confidential Information” shall mean this Agreement and all trade
secrets, data, know-how, technical data or other information and
materials, business strategies, plans and procedures, business
information, proprietary information, of Thorium Power, as well as
any
other information and materials that are deemed confidential or
proprietary to or by Thorium Power (including, without limitation,
all
information and materials of Thorium Power’s customers and their other
consultants). The term ‘Commercial Secret Information’ shall have the
meaning established under Russian law. Protocols of irradiation testing
shall be deemed to be Commercial Secret Information and shall be
treated
as such. At the same time, Commercial Secret Information excludes
the
following three documents relating to the 2006-2007 Irradiation Testing
Program that were issued prior to the Effective Date of this Agreement
and
were not marked as Commercial Secret Information: (a) Safety analysis,
(2)
Technical solutions, and (3) Procedures for performing irradiation
testing. The above three documents are deemed to be Confidential
Information. Kurchatov Institute shall provide to Thorium Power copies
of
the above three documents simultaneously with the Technical Data
specified
in Exhibit 4.
|
| 2.4 |
Exceptions
to Confidential Information. Notwithstanding the foregoing paragraph,
“Confidential Information” shall not include any information or materials
that: (a) are or become known to the general public through no act
or
omission of Kurchatov Institute or any other person with an obligation
of
confidentiality to Thorium Power or any of Thorium’s customers, or (b) are
required to be disclosed pursuant to applicable law (provided, however,
that prior to any disclosure of Confidential Information as required
by
applicable law, Kurchatov Institute shall advise Thorium Power of
such
required disclosure promptly upon learning thereof and shall cooperate
with Thorium Power and Thorium Power’s customers in order to afford them a
reasonable opportunity to contest or limit such
disclosure).
|
| 2.5 |
Return
or Destruction of Confidential Information. Upon the termination
or
expiration of this Agreement, or at any other time upon the written
request of Thorium Power, Kurchatov Institute shall promptly return
to
Thorium Power or, at Thorium Power’s option, destroy all Confidential
Information and Commercial Secret Information pursuant to Exhibit
2 in
Kurchatov Institute’s possession or control, together with all copies,
summaries and analyses thereof, regardless of the format in which
such
information exists or is stored. Within five (5) business days following
the expiration or early termination of this Agreement, or any written
request as set forth above, Kurchatov Institute shall provide Thorium
Power with a written certification of Kurchatov Institute’s compliance
with the provisions of this
paragraph.
|
Page
5 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| 2.6 |
The
provisions of this Article 2 concerning confidentiality and Commercial
Secret information shall survive the termination of this Agreement
and the
agreements envisioned hereby, and the liquidation and reorganization
of
the parties hereto. Kurchatov Institute and any agent thereof including
subcontractors shall be responsible for any and all damages connected
with
the unauthorized disclosure of Confidential or Commercial Secret
Information.
|
| 3. |
OBTAINING
APPROVALS AND PERMITS
|
| 3.1. |
Kurchatov
Institute hereby agrees to obtain any and all necessary approvals
and/or
permits that may be required under Russian laws and regulations in
order
(i) to assign Technical Data rights as envisioned by Article 1 hereof;
(ii) to transfer the work product created hereunder to Thorium Power;
and
(iii) to carry out any other activities pursuant to this Agreement.
Kurchatov Institute shall promptly provide to Thorium Power full
and
accurate copies of such approvals and
permits.
|
| 3.2. |
Kurchatov
Institute hereby agrees to apply for and obtain a permit and/or approval
from the relevant Russian Federation export control authority in
connection with the proposed transfer to Thorium Power of the technical
documentation (including on magnetic media) created hereunder. Kurchatov
Institute shall promptly forward to Thorium Power full and complete
copies
of such approvals and permits.
|
| 3.3. |
Kurchatov
Institute hereby agrees to obtain any other permits and/or approvals
that
may be required to perform this
Agreement.
|
| 3.4. |
In
the event that Kurchatov Institute fails to obtain permits and/or
approvals set forth in this Article 3, Thorium Power shall be entitled,
at
its election, (a) to suspend performance until such time as the permits
and approvals have been obtained and copies supplied to Thorium Power,
or
(b) to terminate this Agreement. In no event shall Thorium Power
be
obligated to make any payments to Kurchatov Institute hereunder,
including
without limitation pursuant to Article 1.1 hereof, unless and until
all
such permits and approvals shall have been obtained and a copy supplied
to
Thorium Power.
|
| 4. |
DISCLAIMERS
AND LIMITATIONS OF LIABILITY
|
| 4.1. |
Disclaimer
of Consequential Damages. Neither Party shall be liable to the other
Party
hereto for any consequential, incidental, indirect, special, punitive
or
exemplary damages suffered or incurred by such other Party in connection
with a breach or alleged breach of this Agreement, even if such other
Party has been advised of the possibility of such damages. Consequential
damages shall include, without limitation, lost profits, lost savings,
lost business or lost goodwill, loss of nuclear material, loss of
accountability of nuclear material, or unavailability of facilities.
The
provisions of this Article 4.1 shall apply to the full extent permitted
by
law whether such a claim is based on tort (regardless of the degree
of
fault or negligence), warranty, breach of contract, strict liability
or
otherwise, and shall survive the cancellation, expiration or termination
of this Agreement, as well as the fulfillment of the obligations
of the
Parties hereunder and shall apply notwithstanding any other provisions
of
this Agreement.
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Page
6 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| 4.2. |
Acknowledgement.
The Parties hereto, having been advised by legal counsel, acknowledge
and
agree that they are sophisticated parties in all matters relating
to this
Agreement and that the foregoing disclaimer and limitation of liability
represent bargained-for allocations of risk, and that the economics,
terms
and conditions of this Agreement reflect such
allocations.
|
| 5. |
REPRESENTATIONS
AND WARRANTIES
|
KurchatovInstitute
represents and warrants to Thorium Power: (a) that Kurchatov Institute has
the
right, power and authority to enter into this Agreement and to perform Kurchatov
Institute’s obligations hereunder, that Kurchatov Institute has obtained any
internal approvals or approvals of its owner as may be required by law to
permit
conclusion of this Agreement, and that Kurchatov Institute’s performance
hereunder will not breach any other agreement or understanding by which
Kurchatov Institute is bound; (b) that the services performed by Kurchatov
Institute hereunder will be of professional quality, consistent with
generally-accepted industry standards and expectations for work of a similar
nature; and (c) that the services provided to Thorium Power hereunder will
not
infringe or misappropriate the patent, copyright, trademark, trade secret
or
other intellectual property rights of any third party.
| 6. |
COMPLIANCE
WITH LAWS
|
| 6.1 |
Kurchatov
Institute shall comply, and shall be responsible for ensuring that
its
employees and consultants comply, with all applicable laws in their
performance of its services pursuant to this Agreement. Without limiting
the generality of the foregoing, Kurchatov Institute further agrees
that
it will take no action, and it will ensure that its employees and
contractors take no action, that would violate the Foreign Corrupt
Practices Act of 1977, as amended, or any other similar U.S. or foreign
law, or that would create any liability for Thorium Power under any
such
law. Kurchatov Institute further understands that materials and
information resulting from the performance of this Agreement may
be
subject to U.S. and Russian export control laws and that Kurchatov
Institute is responsible for its compliance with such laws. Kurchatov
Institute shall be responsible for developing an internal compliance
program to ensure compliance by it and its employees and contractors
with
all applicable laws.
|
| 6.2 |
Thorium
Power agrees and covenants that the export product and products made
using
the Technical Data:
|
| a. |
Shall
not be used for production of nuclear weapons and other devices or
any
other military purpose;
|
| b. |
Shall
be safeguarded using methods of physical protection at the level
not less
than that recommended by the International Atomic Energy
Agency;
|
|
|
c. |
Shall
be re-exported or transferred from the jurisdiction of the receiving
country to any other country only upon the receipt of prior approval
from
the Russian Agency for Atomic Energy
(Rosatom).
|
Page
7 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| 7. |
CHOICE
OF LAW
|
This
Contract shall be governed by, and construed in accordance with, the substantive
laws of England without reference to its conflict of laws rules.
| 8. |
EQUITABLE
RELIEF
|
Kurchatov
Institute hereby acknowledges and agrees that damages at law may be an
inadequate remedy for any breach of Kurchatov Institute’s obligations under
Article 1 (Transfer of Irradiation Testing Data; Assignment of Technical Data
rights), or Article 2 (Confidentiality and Commercial Secret). Accordingly,
Kurchatov Institute agrees that Thorium Power will be entitled to such
temporary, preliminary and permanent injunctive relief as may be necessary
to
remedy or limit such breach, without the necessity of proving actual damages
or
posting any bond or other security, and including specific performance of such
obligations and an order enjoining Kurchatov Institute from the continuation
of,
or from any threatened, breach of such obligations. The rights set forth in
this
paragraph shall be in addition to, and not in lieu of, any other rights which
Thorium Power may have at law or in equity.
| 9. |
AUDIT
RIGHTS
|
Kurchatov
Institute will during ordinary business hours and upon reasonable notice give
Thorium Power and Thorium Power’s representatives access to information and
documentation set forth in Exhibit 4.
| 10. |
HEADINGS
|
The
headings used in this Agreement are included for convenience only and are not
to
be used in construing or interpreting this Agreement.
| 11. |
NOTICES
|
Any
notices required or permitted to be sent hereunder shall be delivered personally
or mailed, certified mail, return receipt requested, or delivered by courier
service to the following addresses, or such other address as any Party hereto
designates by written notice to the other Party. Provided, however, a
transmission per telefax or email shall be sufficient and shall be deemed to
be
properly served when the telefax or email is received if the signed original
notice is received by the recipient within seven (7) calendar days
thereafter.
IF
TO
THORIUM POWER:
Thorium
Power, Inc.
0000
Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx,
XX 00000 XXX
United
States of America
Attention:
Andrey Mushakov
Executive
Vice President
Telephone:
x0.000.000.0000
Fax
x0.000.000.0000
E-Mail:
xxxxxxxx@xxxxxxxxxxxx.xxx
Page
8 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
IF
TO
KURCHATOV INSTITUTE:
RRC
“Kurchatov Institute”
Xxxxxxxxx
Xxxxxx, 0
Xxxxxx,
Xxxxxx 000000
Attention:
Xxxxxxxx Xxxxxxxxx
Tel:x000 000
00 00
Email:
xxx@xxxx.xx
| 12. |
AMENDMENTS
OR MODIFICATIONS
|
This
Agreement may not be released, discharged, amended or modified in any manner
except by an instrument in writing signed by the Party or Parties to be
bound.
| 13. |
FORCE
MAJEURE
|
Neither
Party shall be liable to the other for delays or failures in performing its
obligations under this Agreement due directly or indirectly to any act
reasonably beyond the control of such Party, including but not limited to:
(i)
acts of God; (ii) acts (including failures to act or delays in acting) of
any governmental authority (de jure or de facto), or governmental priorities;
(iii) accidents or disruptions such as wars (declared or undeclared),
riots, revolutions, world disturbance, fires, floods, earthquakes, storms,
sabotage, nuclear incidents, epidemics; or (iv) strikes, labor disputes,
labor difficulties. The foregoing shall apply even though any of such causes
exists at the time of this Agreement or occurs after a Party’s performance is
delayed or otherwise hindered for other causes. In the event of any delay or
failure excused by this Article 13 (Force Majeure), the Party whose performance
is delayed shall as soon as practical (1) notify the other Party, (2) take
all
reasonable steps to minimize the delay and rectify any failure to perform and
(3) specify the revised performance date. In the event of such delay, the time
of performance shall be extended for a period equal to the time lost by reason
of the delay. If the delay exists for more than six (6) months the Party that
is
not subject to delay shall be entitled to terminate this Agreement without
liability.
| 14. |
COUNTERPARTS
|
This
Agreement shall be executed in two original copies in Russian and English.
At
the same time, this Agreement may be executed in any number of counterparts,
each of which shall be an original as against any Party whose signature appears
thereon, but all of which together constitute but one and the same instrument.
| 15. |
NO
THIRD-PARTY BENEFICIARIES
|
Except
as
expressly stated herein, nothing in this Agreement is intended to confer
benefits, rights or remedies unto any third party other than the Parties hereto
or their permitted successors and assigns.
| 16. |
REPRODUCTION
OF DOCUMENTS
|
This
Agreement and all documents relating hereto, including, but not limited to,
(i)
consents, waivers, amendments and modifications which may hereafter be executed
and (ii) certificates and other information previously or hereafter furnished,
may be reproduced by any photographic, photostatic, microfilm, optical disk,
micro-card, miniature photographic or other similar process. The Parties agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a Party in
the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
Page
9 of 18
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| 17. |
SURVIVAL
|
The
following listed Articles shall continue and survive the expiration or
termination of this Agreement: Article 1 (Transfer of Irradiation Testing Data;
Assignment of Technical Data rights), Article 2 (Confidentiality and Commercial
Secret), Article 4 (Disclaimers and Limitations of Liability), Article 5
(Representations and Warranties), Article 6 (Compliance with Laws) and Article
8
(Equitable Relief).
| 18. |
SEVERABILITY
|
Any
provisions of this Agreement which are determined to be invalid or unenforceable
in any jurisdiction shall be ineffective to the extent of such invalidity or
unenforceability in such jurisdiction, without rendering invalid or
unenforceable the remaining provisions of this Agreement or affecting the
validity or enforceability of such provisions in any other jurisdiction. If
a
court of competent jurisdiction declares any provision of this Agreement to
be
invalid or unenforceable, the Parties hereto shall request that such court
reduce the scope, duration, or area of the provision, delete specific words
or
phrases from the provision, or to replace the provision with a provision that
is
valid and enforceable and that comes closest to expressing the original
intention of the Parties hereto, and this Agreement shall be enforceable as
so
modified in the jurisdiction in which the provision was declared invalid or
unenforceable.
| 19. |
TERM.
|
The
term
of this Agreement shall commence on the Effective Date and continue thereafter
until August 31, 2008 unless terminated early pursuant to Article 20 of this
Agreement.
| 20. |
TERMINATION
|
This
Agreement may be terminated by either Party by giving thirty (30) calendar
days’
prior written notice of termination to the other Party.
|
21.
|
DISPUTE
RESOLUTION
|
Any
dispute, controversy or claim arising out of or in connection with this
Agreement, or the breach, termination or invalidity thereof (hereinafter
referred to as “Dispute”), shall be settled by the Parties by means of good
faith negotiations. Where such good faith negotiations fail within thirty (30)
days following submission by one Party of a notice of a Dispute to the other
Party, the Dispute shall be finally settled by arbitration in accordance with
the Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
The
arbitral tribunal shall be composed of three (3) arbitrators. The place of
arbitration shall be Stockholm, Sweden. The language to be used in the arbitral
proceedings shall be English. The arbitration award shall be final and binding
upon the Parties, their successors and assigns.
| 22. |
MISCELLANEOUS
|
| 22.1. |
Independent
Contractor Status. Kurchatov Institute shall not be considered an
employee
of Thorium Power and shall not be entitled to participate in or receive
any benefits or rights as an employee of Thorium Power under any
employee
benefit and welfare plans, including, without limitation, employee
insurance, pension, savings and security plans (each, a “Plan”). In
addition, even if Kurchatov Institute’s status is ultimately
recharacterized by a third party to constitute employee status, Kurchatov
Institute shall not be eligible to participate in or receive any
benefits
or rights as an employee of Thorium Power under any Plan unless and
until
Thorium Power consents to such eligibility in writing. Without limiting
the generality of the foregoing, Kurchatov Institute shall not be
considered an employee of Thorium Power for purposes of any state
or
federal laws relating to unemployment insurance, social security,
workers
compensation or any regulations which may impute any obligation or
liability to Thorium Power reason of an employment relationship.
Kurchatov
Institute agrees to pay all income, payroll, and other taxes or levies
imposed by any governmental authority on any compensation that Kurchatov
Institute receives under this Agreement. Kurchatov Institute shall
indemnify, defend and hold harmless Thorium Power and its officers
and
employees from and against any and all losses, damages, liabilities,
obligations, judgments, penalties, fines, awards, costs, expenses
and
disbursements (including without limitation, the costs, expenses
and
disbursements, as and when incurred, of investigating, preparing
or
defending any claim, action, suit, proceeding or investigation) suffered
or incurred by Thorium Power as a result of any allegation that Kurchatov
Institute is an employee of Thorium Power by virtue of performing
any work
for or on behalf of Thorium Power hereunder or otherwise. This Agreement
shall not be construed as authority for Kurchatov Institute to act
as
Thorium Power’s agent or in any other similar capacity, or to make
commitments of any kind for the account of or on behalf of Thorium
Power,
and Kurchatov Institute shall not take any action suggesting
otherwise.
|
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RUSSIAN
TRANSLATION OMITTED
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
| 22.2. |
Assignment.
Kurchatov Institute recognizes that Thorium Power desires to obtain
these
Services for the reasons stated in the Recitals above, and that this
Agreement is non-transferable. Therefore, Kurchatov Institute may
not
assign or transfer this Agreement or any of its rights or obligations
created hereunder, by operation of law or otherwise, without the
prior
written consent of Thorium Power.
|
|
23.
|
CONTRACT
CONSTRUCTION
|
|
|
23.1. |
Contract
Construction. For purposes of contract construction, or otherwise,
this
Agreement is the product of negotiation and neither Party to it shall
be
deemed to be the drafter of this Agreement or any part
thereof.
|
|
|
23.2. |
Entire
Agreement. Except as otherwise expressly set forth in this Agreement,
those documents expressly referred to herein, embody the complete
agreement and understanding among the Parties, and cancels and supersedes
any related previous understanding or agreement, whether written
or oral.
Notwithstanding the foregoing and for the avoidance of doubt, this
Section
23.2 shall not apply to any provisions of that certain Collaborative
Research Agreement by and between Thorium Power and Kurchatov Institute
dated August 6, 2002, as amended (the "CRA") that, by their terms,
survive
the expiration and termination of the CRA, as provided in Section
19
thereof.
|
| 24. |
LANGUAGE
|
This
Agreement is made in English and Russian. The English and the Russian versions
of this Agreement are deemed to be identical. If there is any inconsistency
between the English version and the Russian version, the English version shall
prevail.
[signature
page follows]
Page
11 of
18
RUSSIAN
TRANSLATION OMITTED
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
and delivered as of the Effective Date by their duly authorized
representatives:
Thorium
Power, Inc.
By:
_____________________________________
Name: Andrey
Mushakov
Title: Executive
Vice President
Page
12 of
18
RUSSIAN
TRANSLATION OMITTED
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
Exhibit
1
Description
of the 2006-2007 Irradiation Testing Program Parameters and Testing
Data
[REDACTED]
Page
13 of
18
RUSSIAN
TRANSLATION OMITTED
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
Exhibit
2
Assigned
Technical Data relating to the 2006-2007 Irradiation Testing
Program
[REDACTED]
Page
14 of
18
RUSSIAN
TRANSLATION OMITTED
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
Exhibit
3
Acknowledgement
I
hereby
acknowledge that Confidential Information and Commercial Secret Information
is
being provided to [name of consultant or subcontractor] pursuant to the terms
and restrictions of the Collaborative Research Agreement by and between Thorium
Power, Inc. and RRC “Kurchatov Institute Institute” dated December 28, 2007, and
I agree not to use or reveal or otherwise communicate to anyone any information
disclosed to me by Kurchatov Institute Institute. I hereby submit to the
jurisdiction of the courts of the Stockholm Chamber of Commerce for purposes
of
enforcement of this Agreement.
|
Dated:
|
|
Signature:
|
|
|
|
Name:
|
|
|||
|
Company:
|
|
|||
|
Address:
|
|
Page
15 of
18
RUSSIAN
TRANSLATION OMITTED
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
Exhibit
4
Information
and documentation relating to the 2006-2007 Irradiation Testing Program
accessible by Thorium Power or its representatives for audit purposes pursuant
to Article 9 of this Agreement
[REDACTED]
Page
16 of
18
RUSSIAN
TRANSLATION OMITTED
Agreement
for Ampoule Irradiation Testing in 2006-2007
between Thorium Power, Inc. and RRC “Kurchatov Institute Institute” dated
December 28, 2007
Exhibit
5
The
form of protocol
Results
for testing of trial blanket and seed rods in channels of the IR-8 research
reactor
[REDACTED]
Page
17 of
18
