Amendment #2 To the THERMOENERGY CORPORATION (LICENSEE)/BATTELLE MEMORIAL INSTITUTE (BMI) License Agreement (having an effective date of December 30, 1997)
Exhibit
10.4
Amendment
#2
To
the
THERMOENERGY
CORPORATION (LICENSEE)/BATTELLE MEMORIAL
INSTITUTE
(BMI)
License
Agreement (having an effective date of December 30, 1997)
_________________________________________________________________________
Whereas,
LICENSEE has an opportunity to grant sublicenses under the License Agreement
but
believes that the royalty currently provided by the License Agreement makes
the
business case unattractive, and
Whereas,
BMI is willing to amend the royalty terms to encourage commercialization of
the
technology through sublicensing by LICENSEE,
Now,
therefore, the parties mutually agree, effective
January 1, 2005,
that
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1.
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Articles
4A and 4B are hereby deleted and the following
new Articles 4A and 4B are hereby added to the License
Agreement:
A.
In the event LICENSEE or its sublicensee enters into an agreement
with a
customer wherein the LICENSEE or its sublicensee will design, build
and/or, optionally, operate a municipal wastewater facility licensed
hereunder for a sum of money or other consideration which includes
optionally the sale of equipment and/or the payment of continuing
royalties related to the operation, LICENSEE agrees to pay to BMI,
(1) a lump sum of five percent (5%) of the cost (price charged to the
customer) of the installed equipment at the time of commissioning
the
facility, and (2) a continuing royalty at the rate of one and
one-half percent (1.5%) of all revenues (but excluding revenues
for
amortization of principal or interest on the facility capital)
received
from the customer for such operation but not less than two cents
($0.02)
per pound of ammonia recovered in the operation.
In
the general case, it is anticipated that the installed cost of
a facility
utilizing the INVENTIONS shall be known and supported by invoice
records.
If costs for land, building, yard improvements, service facilities,
taxes,
contingency fees and working capital are incorporated into the
invoice
supported installed cost, then these costs may be deducted prior
to
determination of the royalty due to BMI. It is understood that
in some
circumstances, the total installed cost of a facility used to implement
the INVENTIONS may not be separately and specifically invoiced
apart from
some larger facility in such cases, for purposes of this Agreement,
the
installed cost of a facility shall be calculated as equal to 2.72
times
the total delivered cost of the major purchased equipment components,
equipment installation, instrumentation, piping, electric wiring,
engineering and supervision, construction expenses and contractor’s fee of
five percent (5%) on the above. It does not include land, building
yard
improvements, service facilities, taxes, contingency fees or working
capital.
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B.
(Deleted)
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2.
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All
of the other terms remain in full force and
effect.
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| THERMOENERGY CORPORATION | BATTELLE MEMORIAL INSTITUTE | |
| /s/ X Xxxxxx | /s/ Xxxxx X. Xxxxxxx | |
| Signature | Signature | |
| D Xxxxxx | Xxxxx X. Xxxxxxx | |
| Typed or Printed Name | Typed or Printed Name | |
| 11/05/05 | 13 July 2005 | |
| Date | Date |
