Deed of Amendment
Between
HTC
Purenergy Inc, a company incorporated in Alberta, Canada with its office at
0000
Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxx, Xxxxxx ("Licensor").
and
XXXXxxx
XX0 Technologies Pty Ltd, a company incorporated in Australia with its
office at
Ground
Floor Engineering House, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxx ("Licensee").
Whereas:
A.
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Licensor
and Licensee entered into the CCS Technology License Deed dated November
29, 2007 (the "License Deed") by which Licensor (under its previous
name
HTC Hydrogen Technologies Corp) licensed to Licensee (under its previous
name CO2 Technologies Pty Ltd.) for the Asia Pacific region on an
exclusive basis certain technology related to carbon capture and
storage.
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B.
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Licensor
now seeks the approval of Licensee to amend the current License
Deed and
grant a worldwide license for that technology to two third parties,
Doosan
Xxxxxxx Energy Limited ("DBEL"), a company incorporated in England,
and
Doosan Heavy Industries & Construction Co., Ltd. ("DHI"), a company
incorporated in Korea (the "Doosan
License").
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It
is
agreed:
1.
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Definitions:
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1.1
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Except
as expressly set forth herein, the terms "ACS Technology", "Licensed
Marks,"
"Territory" and "Use" shall carry the same meanings in this Deed
of
Amendment as in the License
Deed.
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1.2
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"Control"
shall mean (i) direct or indirect ownership of or control over at
least
fifty percent
(50%) of the voting stock or any other voting securities of the relevant
entity or (ii) control of the board of directors (or any other comparable
governing body) of the relevant entity; and "Change of Control" shall
have
a corresponding meaning.
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1.5
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"Competitor"
shall mean any power engineering solution or power equipment provider,
power original equipment manufacturer, power process engineering
solution
or power equipment provider, power engineering consultancy, engineering
service provider for the power industry, or any Associate of any
of the
foregoing.
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1.6
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"Integrated
CCS Technology" shall mean the Improvements and Significant Improvements
(as these terms are defined in the Doosan License (as defined below),
owned by Licensor.
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2.
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The
License Deed is hereby amended to the extent that Licensor may grant
to
DBEL and DHI a license (the "Doosan License") to Use the CCS Technology
and the Licensed Marks in the
Territory.
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2.1
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The
License Deed is hereby amended whereby the Licensee’s use is governed by
the following provisions;
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(a)
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The
parties agree that the Territory does not include any countries or
territories in North, Central or South
America.
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(b)
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That
Clause 2 above is without prejudice to Licensee's right under the
License
Deed to Use the CCS Technology and the Licensed Marks, but supersedes
Licensee's right to sublicense the CCS Technology or the Licensed
Marks
and its right to assign its rights under the License Deed as further
set
forth in this Clause 2.1.
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(c)
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Licensee's
exclusive rights under Clauses 3.1(a) and 4.6 of the License Deed
are
hereby amended so that they are
non-exclusive.
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(d)
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Notwithstanding
anything to the contrary in the License Deed, including, but not
limited
to, Clauses 2.1(a) and 7.11 thereof, or this Deed of Amendment, (i)
Licensee may not assign any of its rights or obligations under the
License
Deed or sublicense any of its rights under the License Deed, or undergo
a
Change of Control, without the prior written consent of DBEL and
DHI, and
(ii) no permitted sublicensee of Licensee shall have the right to
grant
any further sublicenses; provided, however, that with respect to
any
assignment or sublicense to a party that is not (and is not directly
or
indirectly Controlled by) a Competitor or any Change of Control of
Licensee that does not result in a Competitor obtaining direct or
indirect
Control of Licensee, DBEL and DHI shall not unreasonably withhold
their
consent so long as the terms of such assignment, sublicense or Change
of
Control transaction expressly provide for the immediate termination
of
such assignment or sublicense (or of the License Deed in the case
of a
Change of Control transaction) upon the assignee or sublicensee becoming
(or the assignee or sublicensee, or Licensee in the case of a Change
of Control transaction,
becoming directly or indirectly Controlled by) a Competitor. In addition,
Licensee shall notify DBEL and DHI in writing immediately upon Licensee
or
EESTech Inc. being adjudicated bankrupt, going into liquidation,
receivership or trusteeship voluntarily or otherwise, or voluntarily
entering into any similar proceedings for the relief of debtors (each
a
"Bankruptcy Event").
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(e)
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Notwithstanding
anything to the contrary in the License Deed, including, but not
limited
to, Clause 5.1 thereof, or this Deed of Amendment, if (i) Licensee
makes
any assignment, grants any sublicense or undergoes a Change of Control
in
violation of Clause 2.1(d) of this Deed of Amendment, (ii) a Bankruptcy
Event occurs or (iii) any permitted sublicensee or assignee undergoes
a
Change of Control resulting in a Competitor obtaining direct or indirect
Control of such party, then the License Deed (or, if applicable,
such
sublicense) shall immediately terminate, and Licensee (or, if applicable,
such sublicensee or assignee) shall have no further right to Use
the CCS
Technology or to use the Licensed Marks after such termination. In
the
event of termination, Licensee shall promptly return to Licensor
all
technical and confidential information of Licensor relating to the
CCS
Technology.
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(f)
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Integrated
CCS Technology shall not be included in the CCS Technology licensed
to
Licensee pursuant to the License Deed, and Licensee shall only have
the
right to use the Integrated CCS Technology in the Territory to the
extent
that such technology is embodied in the results of services provided
by
Licensor to Licensee where Licensor is Licensee's exclusive engineering
partner or services provider and solely in connection with the specific
project to which Licensor's services relate. Licensee shall not assign
or
sublicense such rights except for such assignments or sublicenses
that
would otherwise be permitted under Clause 2.1(d) of this Deed of
Amendment.
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3.
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Licensor
and Licensee further agree as
follows:
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3.1
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Licensor
agrees to enter into a royalty sharing agreement with Licensee whereby
a
portion of royalties received by Licensor from DBEL and DHI for Use
of the
CCS Technology in the Territory will be paid by Licensor to Licensee,
based on the following formula:
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Total
royalties received by Licensor from DBEL / DHI for Use of the CCS Technology
in
the Territory, minus 2.45% of royalty bearing supply cost
x 30%.
For
greater clarification the following is an example of a project transaction
occurring
in the next 10-year period:
Royalty
bearing CCS supply cost for a project based on a $200 mm capex.
Royalty
of 6% = $12 million - (2.45% of $200 million) = $7.1 million x 30% =
$2.13 million allocation to Licensee.
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3.2
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Licensor
agrees to immediately effect the tax efficient delivery of five million
(5,000,000) shares of EESTech Inc. to Licensee after Licensor, DBEL
and
DHI execute the Doosan License.
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3.3
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Notwithstanding
anything to the contrary set forth in the Service Agreement by and
between
the parties dated as of November 29, 2007 (the "Services Agreement"),
Licensor shall remain the exclusive provider to Licensee of the CSS
Services, as defined in the Services
Agreement.
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3.4
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Except
as set forth above, the License Deed shall remain in full force and
effect
in accordance with its terms following the execution of this Deed
of
Amendment. This Deed of Amendment will be binding upon, and enforceable
against, any permitted successors and assigns of Licensee. In the
event of
any conflict between the terms of this Deed of Amendment and the
License
Deed, the terms of this Deed of Amendment shall take
precedence.
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3.5
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This
Deed of Amendment shall not be modified or amended without the prior
written consent of DBEL and DHI, each of which shall be deemed to
be a
third party beneficiary hereunder and shall be entitled to enforce
the
provisions of this Deed of Amendment directly against the parties
hereto.
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3.6
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This
Deed of Amendment is subject to the laws of the same jurisdiction
as the
License Deed.
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3.7 |
This
Deed of Amendment is conditional upon the Licensor and DBEL and DHI
entering into the Doosan License, and shall become effective upon
written
notification by Licensor to Licensee that the Doosan License has
been
executed.
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Executed
as a Deed by:
/s/ | /s/ | ||
For: EESTech CO2 Technologies Pty Ltd. |
For: HTC Purenergy Inc. |
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Name:
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Name: | |||
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Title: | Chairman / CEO | Title: | Chairman / CEO | |
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