Contract
Exhibit 10.10
[CERTAIN INFORMATION IN THIS EXHIBIT IDENTIFIED BY [***] IS CONFIDENTIAL AND HAS BEEN EXCLUDED BECAUSE IT (I) IS NOT MATERIAL AND (II) THE REGISTRANT CUSTOMARILY AND ACTUALLY TREATS THAT INFORMATION AS PRIVATE OR CONFIDENTIAL.]
BETWEEN
(1)24M TECHNOLOGIES, INC. AND
(2)FREYR BATTERY KSP JV, LLC
TABLE OF CONTENTS
SCHEDULE 1 PATENTS 32
SCHEDULE 2 SERVICES 33
SCHEDULE 4 EXCEPTIONS TO 24M REPRESENTATIONS AND WARRANTIES ..................
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This LICENSE AND SERVICES AGREEMENT (the “Agreement”) commences on and from 8th October 2021 (the “Effective Date”) and is entered into by and between:
(1)24M TECHNOLOGIES, INC, incorporated in Delaware, U.S.A. and whose principal office is situated at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (“24m”); and
each a “Party” and together the “Parties”.
RECITALS
(1)24m has developed 24m Proprietary Technology, including know how, related to the development and manufacture of Semi-Solid Battery (as defined herein) cells.
(2)FREYR BATTERY KSP is a newly-formed entity that intends to build and operate a plant or plants to manufacture Semi-Solid Battery cells and modules in the United States of America.
(3)FREYR BATTERY KSP wishes to license the 24m Proprietary Technology (as defined herein) and receive the Services (as defined herein) from 24m to enable the construction and scale of manufacturing facilities for such purposes.
(4)24m has agreed to license the 24m Proprietary Technology and provide the Services to FREYR BATTERY KSP to facilitate the manufacture and commercialization of the Semi-Solid Battery cells and modules by FREYR BATTERY KSP, in accordance with the terms of this Agreement.
a.DEFINITIONS AND INTERPRETATION
1.iIn this Agreement, unless the context requires otherwise:
“24m Developed Improvement” | has the meaning set out in clause 4.2; | ||||
“24m Indemnified Persons” | has the meaning set out in clause 10.4; | ||||
“24m Licensed Patents” | means all patents and patent applications (i) owned or Controlled by 24m or any of its Affiliates as of the Effective Date, or (ii) other than patents and patent applications constituting Materials IP, that 24m or an Affiliate develops or acquires ownership or Control of at any time during the Term of this Agreement, in each case that are necessary or useful for, or otherwise related to, the composition, manufacture, assembly, test, operation and service of Semi- Solid Battery cells and Semi-Solid Battery modules, including: (a) all patents and patent applications set out in Schedule 1 ([***]) as at the Effective Date, it being understood that such patents and patent | ||||
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applications relate to technology capable of producing cells with a gravimetric energy density below 350 Wh/kg at 20℃; (b)effective upon 24m obtaining the required governmental consents or exemptions further described in Schedule 1a (“Required Approvals”), all patents and patent applications set out in Schedule 1a ([***]) as at the Effective Date, it being understood that such patents and patent applications relate to technology capable of producing cells with a gravimetric energy density above 350 Wh/kg at 20℃; and (c)any patents and patent applications claiming inventions created in whole or in part by 24m in the performance of the Services or the fulfilment of 24m’s liabilities, responsibilities and obligations pursuant to this Agreement; (d)any patents and patent applications claiming 24m Developed Improvements; (e)any patents and patent applications claiming FREYR BATTERY KSP Developed Improvements; and (f)in respect of each of the above: (i) all extensions and renewals thereof; (ii) applications for any of the foregoing and the right to apply for any of the foregoing in any country; (iii) rights under licenses, consents, orders, statutes or otherwise in relation to the foregoing; (iv) rights of the same or similar effect or nature which now subsist; and (v) the right to sue for past and future infringements of any of the foregoing rights; but in no case will the foregoing clauses (i) through (v) inclusive include any patents or patent applications to the extent they claim technology solely related to producing cells with a gravimetric energy density above 350 Wh/kg at 20℃, until 24m obtains the Required Approvals. | |||||
“24m Licensed Technology” | means all Related Information (i) owned or Controlled by 24m or any of its Affiliates as of the Effective Date, (ii) that 24m or an Affiliate develops or acquires ownership or Control of at any time during the Term of this Agreement, or (iii) that 24m or an Affiliate otherwise discloses, delivers or transfers to FREYR BATTERY KSP under this Agreement, in each case that is not in the public domain or | ||||
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that is otherwise proprietary to 24m or an Affiliate, including: (a)all 24m Developed Improvements; (b)all FREYR BATTERY KSP Developed Improvements; (c)all IPR, including unregistered utility models, unregistered designs, unregistered design rights, topography rights, database rights, know-how and copyrights (including moral rights), in the foregoing; and (d)in respect of each of the foregoing: (i) applications for any of the foregoing and the right to apply for any of the foregoing in any country; rights under licenses, consents, orders, statutes or otherwise in relation to the foregoing; rights of the same or similar effect or nature which now subsist; and (ii) the right to sue for past and future infringements of any of the foregoing rights, but in each case, excluding the patent rights and trademark rights; | |||||
“24m Licensee” | means an entity with whom 24m has entered into licensing arrangements related to the 24m Proprietary Technology, but excluding FREYR BATTERY KSP or its Affiliates; | ||||
“24m Proprietary Technology” | means 24m Licensed Patents and 24m Licensed Technology; | ||||
| “Affiliates” | means, with respect to any person, any other person directly or indirectly Controlling, (including, but not limited to, all directors and officers of such person) Controlled by, or under direct or indirect common Control with, such person. For the purposes of this definition, “Control” when used with respect to any person, means the power to direct the management and policies of such person, directly or indirectly, through the ownership of more than fifty percent (>50%) voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall be construed accordingly; | ||||
“Applicable Law” | means any of the following, to the extent that it applies to a Party, its Affiliates or its employees and contractors: (a)any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time; (b)the common law and the law of equity; (c)any binding court order, judgment or decree; | ||||
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(d)any applicable industry code, policy or standard enforceable by law; and (e)any applicable policy, requirement, rule or order that is given by a regulator; | |||||
| “ASEAN” | means those member states belonging to the Association of Southeast Asian Nations as at the Effective Date; | ||||
“Business Days” | means a day (other than a Saturday or Sunday) on which banks in Norway and/or New York, New York, USA are open for ordinary banking business; | ||||
“Calendar Year” | means a period of 12 consecutive months beginning on and including January 1st and ending on and including December 31st; | ||||
“Confidential Information” | means, in respect of a Party, information in any form (whether written, electronic, graphic, oral or otherwise) that falls within any of the following categories: (a)it has been provided by the Party and was marked confidential (or a similar designation) or was stated to be confidential at the time of disclosure; (b)it concerns the customers, finances, sales, marketing, products, suppliers, employees, strategies, business operations, projections, forecasts or management, or it would ordinarily be deemed by a reasonable person to be confidential or proprietary to each Party; (c)information contained in, or relating to, the items licensed to the other Party pursuant to clause 3 (Grant of Licence); and (d)information identified in this Agreement as Confidential Information of a Party; Notwithstanding the foregoing, the Confidential Information shall not include, and no obligation shall be imposed regarding information which: (a)is publicly known at the time of disclosure or becomes publicly known after disclosure through no wrongful act or breach of this Agreement by the other Party; (b)is already in the possession of the other Party at the time of disclosure without reference to the Party’s Confidential Information; (c)is rightfully and lawfully obtained by the other Party from a third party without any confidentiality obligation, directly or indirectly, to the Party or its | ||||
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Affiliates; (d)is independently developed by or for the other Party without reference to the Party’s Confidential Information; or (e)is approved for public release by written authorization of the Party; | |||||
“Control” | means, whether arising by ownership, license or otherwise: (i) with respect to a patent, patent application or patent right, that 24m or its Affiliate possesses the right to grant and authorize the licenses, and sublicenses, as applicable, of the scope granted to FREYR BATTERY KSP under this Agreement, and (ii) with respect to Information, that 24m or its Affiliate possesses the Information and the rights to disclose and deliver the Information, or a copy thereof, to FREYR BATTERY KSP under this Agreement; in either case without violating the terms of any agreement under which 24m or its Affiliate as of the Effective Date holds or after the Effective Date first acquires rights in such subject matter. For example, if 24m has a license to a patent, but is not permitted under such license to license it to FREYR BATTERY KSP, then such patent shall not be considered Controlled by 24m for purposes of this Agreement until such time as 24m has the right to license it to FREYR BATTERY KSP under the terms of this Agreement. Similarly, if 24m has a license to a patent, but is permitted under such license to license it to FREYR BATTERY KSP for some but not all purposes under this Agreement, then such patent shall be considered Controlled by 24m only for those purposes for which 24m has the right to license it to FREYR BATTERY KSP under the terms of this Agreement. | ||||
“COVID-19” | means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemic or disease outbreaks. | ||||
“COVID-19 Measures” | means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester, safety or similar law, directive, guidelines or recommendations promulgated by any industry group or any governmental authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19, including the CARES Act and Families First Act. | ||||
“Effective Date” | has the meaning set out in the preamble; | ||||
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“Energy Storage System” | means a grid connected electricity storage system that has more than 200 kWh of lithium-ion battery storage capacity, excluding any applications related to automotive charging or discharging. | ||||
“EVs” | means vehicles designed to carry people or goods, including passenger cars, busses, class 8 trucks and other commercial vehicles and motorcycles, and any and all components thereof, but specifically excluding, bicycles, trains, golf cart, airport transports, fork-lifts (and similar industrial machines), three-xxxxxxx cart/taxi, military vehicles, drones, air taxi, airplanes or other aviation applications, or watercraft or watercraft applications. | ||||
| “Exceptions” | has the meaning set out in clause 6; | ||||
“Existing IPR” | has the meaning set out in clause 4.1; | ||||
“Force Majeure Event” | means acts of God, fire, flood, war, acts of terrorism, riot, civil commotion, governmental actions, labour disputes (save where such disputes involve personnel of the non- performing Party), pandemic, epidemic, quarantine and any similar events that are not reasonably foreseeable and beyond the reasonable control of the non-performing Party; provided that, as an ongoing issue of which both Parties are aware, COVID-19 and COVID-19 Measures in effect as of the Effective Date shall not be considered Force Majeure Events; | ||||
“FREYR BATTERY KSP Indemnified Persons” | has the meaning set out in clause 10.1; | ||||
“Improvement” | means any improvement, enhancement, derivative of or modification to the 24m Proprietary Technology including any such modifications in the manufacturing processes or otherwise related to manufacture of the Products but in all cases excluding the 24m Proprietary Technology itself (without reference, for purposes of this exclusion, to clauses (d) and (e) in the definition or “24m Licensed Patents” and clauses (a) and (b) in the definition of “24m Licensed Technology”), | ||||
| “Indemnitee” | means the Party that is receiving the benefit of the relevant indemnity; | ||||
| “Indemnitor” | means the Party that is giving the relevant indemnity; | ||||
“Insolvency Event” | means the occurrence of any of the following events (or any event analogous to any of the following in a jurisdiction | ||||
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other than the United States) in relation to the relevant entity: (a)the entity passing a resolution for its winding up or a court of competent jurisdiction making an order (which order is not dismissed or vacated within 90 days) for the entity to be wound up or dissolved or the entity being dissolved; (b)the appointment by a court of competent jurisdiction of an administrator of or a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or part of the entity’s undertaking, assets, rights or revenue; or (c)the entity makes an application to a court of competent jurisdiction for protection from its creditors, however, a resolution by the relevant entity or a court order that such entity be wound up for the purpose of a bona fide reconstruction or amalgamation will not amount to an Insolvency Event; | |||||
| “IPR” | means all rights of any nature in patents, registered designs, registered trademarks and service marks, and all extensions and renewals thereof, unregistered trademarks and service marks, business and customer names, unregistered designs, internet domain names and email addresses, design rights, topography rights, rights in inventions, utility models, database rights, rights in Information and copyrights (including moral rights); applications for any of the foregoing and the right to apply for any of the foregoing in any country; rights under licenses, consents, orders, statutes or otherwise in relation to the foregoing; rights of the same or similar effect or nature which now subsist; and the right to sue for past and future infringements of any of the foregoing rights; | ||||
| “Information” | means all technical, scientific and other know-how and information, trade secrets, technology, means, methods, processes, practices, formulae, instructions, skills, techniques, procedures, experiences, discoveries, inventions, designs, drawings, assembly procedures, computer programs, apparatuses, prototypes, specifications, data, results, and other material, including manufacturing and quality control procedures and data, in each case (whether or not confidential, proprietary, patented or patentable, of commercial advantage or not) in written, electronic or any other form now known or hereafter developed. | ||||
“Major Automobile Companies” | means any company that produces more than five-hundred thousand cars and/or more than ten thousand trucks or buses annually. | ||||
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“Materials IP” | means claims of patents and patent applications that both (i) 24m or an Affiliate develops (that has the earliest priority date after the Effective Date of this Agreement) or first acquires ownership or Control of, only after the Effective Date of this Agreement, and (ii) solely relate to Novel Chemical Entities and/or methods of manufacturing Novel Chemical Entities. For the avoidance of doubt, Materials IP excludes claims of patents and patent applications that relate to preparations (e.g., mixing) of electrolyte, active material and other materials, combinations of such compositions within a battery cell, formulas related to battery cell activation and other processes and methods of manufacturing the battery cells. | ||||
“North America” | means the United States, Canada and Mexico. | ||||
“Novel Chemical Entity” | means a chemical compound, molecule or chemical intermediate that has a novel structure and/or previously unknown or unrecognized functions or properties (as it relates to that compound) that are useful in a Semi-Solid Battery cell. | ||||
“Permitted New Licensees” | has the meaning set out in clause 6; | ||||
| “Product” | means Semi-Solid Battery cells or any product containing a Semi-Solid Battery cell, the manufacture or sale of which would, but for the license granted in this Agreement, infringe a Valid Claim of a 24m Licensed Patent. For the avoidance of doubt, Product includes Semi-Solid Battery cells or products containing Semi-Solid Battery cells, that is manufactured and/or sold in a jurisdiction that does not infringe a Valid Claim, provided its manufacture or sale in any jurisdiction would infringe a Valid Claim; | ||||
| “Quarter” | means calendar quarters, 1 January – 31 March; 1 April – 30 June; 1 July – 30 September; and 1 October – 31 December, and “Quarterly” shall be construed accordingly; | ||||
“Related Information” | means all Information necessary or useful for, or otherwise related to, the composition, manufacture, assembly, test, operation and service of Semi-Sold Battery cells and Semi- Solid Battery modules, including: (a) all Information regarding materials required to manufacture Semi-Solid Battery cells and Semi- Solid Battery modules; | ||||
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(b)all specifications and drawings for pilot and high volume Semi-Solid Battery cell and Semi-Solid Battery module manufacturing equipment and facilities; (c)all manufacturing and testing process and procedures for Semi-Solid Battery cells and Semi- i.Solid Battery modules; and (d)all Information (including specifications) regarding the machines, the equipment and the facilities used for manufacturing or evaluating Semi-Solid Battery cells and Semi-Solid Battery modules; | |||||
“Related Parties” | means any person or entity that is related to any of the senior management of FREYR BATTERY KSP, owns more than 5% of FREYR BATTERY KSP or otherwise exerts significant influence or control over FREYR BATTERY KSP; | ||||
“Reserved Companies” | means any company that produces more than five-hundred thousand cars and/or more than ten thousand trucks or buses annually. | ||||
“Reserved IP” | Means any IPR and/or Information licensed to 24m from Volkswagen Battery Technology Development, LLC. or an Affiliate of Volkswagen Battery Technology Development, LLC. | ||||
“Restricted Information” | means the Information set forth or described in Schedule 4B. | ||||
| “Royalty” | has the meaning set out in clause 5.1, and “Royalties” shall be construed accordingly; | ||||
“Scandinavian Region” | means Denmark, Norway, Sweden, Finland, Greenland, and Iceland; | ||||
“Semi-Solid Battery” | means a battery that has at least one electrode comprised of a liquid electrolyte and a solid for which the manufacturing process did not use a drying process; | ||||
| “Term” | has the meaning set out in clause 2.1; | ||||
“Valid Claim” | means a claim of an issued and unexpired patent included within the 24m Licensed Patents that (a) has not been held unenforceable, unpatentable or invalid by a decision of a court or other governmental agency of competent jurisdiction, unappealable or unappealed within the time | ||||
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allowed for appeal, and (b) has not been admitted to be invalid or unenforceable through reissue, disclaimer or otherwise.
1.2In this Agreement, unless the context requires otherwise:
(a)a statutory provision, includes a reference to:
(i)the statutory provision as modified or re-enacted from time to time (whether before or after the Effective Date); and
(ii)any subordinate legislation made pursuant to the statutory provision (whether before or after the Effective Date);
(b)a Party, person or entity, includes a reference to that Party’s, person’s or entity’s successors, personal representatives or assigns;
(c)an agreement, includes a reference to such agreement as amended from time to time;
(d)a “Schedule” or “Appendix” unless the context otherwise requires, is a reference to a schedule or appendix to this Agreement; and
(e)the singular includes the plural and vice versa, unless the context otherwise requires.
1.3The headings in this Agreement will not affect the interpretation of this Agreement (and unless the context requires otherwise, a reference to a Schedule includes the associated Appendices).
1.4Whenever the words “include”, “includes”, “including” or “in particular” (or similar derivates) are used, they are deemed to be followed by the words “without limitation”.
1.5This Agreement is the result of arm’s length negotiations between the Parties and will be construed to have been drafted by both Parties such that any ambiguities in this Agreement will not be construed against either Party as a result of that Party having drafted or proposed the relevant clause.
2COMMENCEMENT AND DURATION
2.1This Agreement shall take effect from the Effective Date and, unless terminated earlier in accordance with clause 12 (Termination), shall continue until the expiration, lapse, cancellation, abandonment or invalidation of the last Valid Claim of the 24m Licensed Patents (the “Term”). FREYR BATTERY KSP’s license with respect to then-existing 24m Licensed Technology will survive the expiration, but not an earlier termination (subject to clause 12.5 with respect to FREYR BATTERY KSP Developed Improvements) of the Agreement, [***].
3.GRANT OF LICENSE
3.124m Licensed Patents. Subject to the terms of this Agreement, 24m hereby grants the following rights to FREYR BATTERY KSP and its Affiliates:
(a)during the Term a royalty-bearing, exclusive (except as provided in clause 3.3 and subject to clause 6), irrevocable (except in accordance with clause 12 (Termination)),
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non-transferable (except in accordance with clause 16.2 (Assignment / Novation)) and non-sub-licensable (except as provided in clause 3.4) license under the 24m Licensed Patents, to:
(i)manufacture Products in North America solely for use in or as part of EVs and for Energy Storage Systems; and
(ii)use, sell, offer to sell and import on a worldwide basis Products manufactured in North America solely for use in or as part of EVs or Energy Storage Systems, subject to the following restrictions (“Restrictions”):
(A)FREYR BATTERY KSP may not sell or offer to sell the Products within ASEAN until 24m’s exclusive license with GPSC expires, currently December 31, 2022.
(B)FREYR BATTERY KSP may not sell or offer to sell the Products within Japan until 24m’s exclusive license with Kyocera expires, currently December 31, 2022.
Notwithstanding the foregoing, with respect to any 24m Licensed Patents claiming FREYR BATTERY KSP Developed Improvements, the foregoing license is granted on a perpetual, non-exclusive, irrevocable, fully paid-up and royalty-free basis.
(b)during the Term a royalty-bearing, non-exclusive, irrevocable (except in accordance with clause 12 (Termination)), non-transferable (except in accordance with clause 16.2 (Assignment / Novation)) and non-sub-licensable (except as provided in clause 3.4) license under the 24m Licensed Patents, to:
(i)manufacture Products, subject to the following restrictions (“Manufacturing Restrictions”):
(A)FREYR BATTERY KSP’s license under this clause 3.1(b)(i) shall not include the right to manufacture Products within ASEAN until after December 31, 2022, unless 24m’s exclusivity with GPSC expires earlier;
(B)FREYR BATTERY KSP’s license under this clause 3.1(b)(i) shall not include the right to manufacture Products within Japan until after December 31, 2022, unless 24m’s exclusivity with Kyocera expires earlier;
(C)FREYR BATTERY KSP’s license under this clause 3.1(b)(i) shall not include the right to manufacture Products within the European Economic Area (“EEA”) until after December 31, 2023 unless 24m’s exclusivity with FREYR expires earlier; and
(D)FREYR BATTERY KSP’s license under this clause 3.1(b)(i) shall not include the right to manufacture Products within the Scandinavian Region until after December 31, 2030 unless 24m’s exclusivity with FREYR expires earlier;
and
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(ii)use, sell, offer to sell and import Products on a worldwide basis, subject to the Restrictions.
3.224m Licensed Technology. 24m hereby grants to FREYR BATTERY KSP and its Affiliates a non-exclusive (subject to clause 6), perpetual, irrevocable, royalty-free, fully-paid, non- transferable (except in accordance with clause 16.2 (Assignment / Novation)) and non- sublicensable (except as provided in clause 3.4) license to use the 24m Licensed Technology, in order to:
(a)manufacture Products on a worldwide basis subject to Manufacturing Restrictions; and
(b)use, sell, offer to sell and import Products on a worldwide basis, subject to the Restrictions
Notwithstanding the foregoing, with respect to any FREYR BATTERY KSP Developed Improvements, the foregoing license is granted on a perpetual, non-exclusive, irrevocable, fully paid-up and royalty-free basis.
3.3Exclusivity. Subject to the Exceptions, the right for 24M to manufacture and sell a maximum of [***] MWh per year and except for the Permitted New Licensees under clause 6, the licenses granted to FREYR BATTERY KSP and its Affiliates under clauses 3.1 and 3.2 are exclusive solely with respect to (i) the manufacture of Products within North America for use in or as part of EVs and/or Energy Storage Systems and (ii) the worldwide use, sale, offer for sale and import of Products that are manufactured in North America solely for use in or as part of EVs and/or Energy Storage Systems. Otherwise, the licenses granted to FREYR BATTERY KSP and its Affiliates under clauses 3.1 and 3.2 are non-exclusive. The Parties acknowledge and agree that: (a) Products that are manufactured by a third party outside of North America can be imported into North America for use, sale and be offered for sale for use in EVs and/or Energy Storage Systems; and (b) products may be manufactured in North America for use in applications other than EVs and/or Energy Storage Systems (e.g., airplanes).
3.4Sublicensing. The licenses granted to FREYR BATTERY KSP and its Affiliates under clauses 3.1 and 3.2 are sublicensable to:
(a)equipment manufacturers and other contracted suppliers, solely in support of, and to supply to or for, FREYR BATTERY KSP and its Affiliates hereunder and not for the independent use by a third party;
(b)contracted resellers and contracted distributors solely in order to permit such contracted resellers and contracted distributors to sell, offer for sale and import Products manufactured by or for FREYR BATTERY KSP and its Affiliates; and
(c)downstream customers solely in order to use the Products manufactured by or for FREYR BATTERY KSP and its Affiliates.
3.5 No Implied License. Except as expressly provided in this Agreement, nothing herein is intended to confer, by implication, estoppel, or otherwise, upon FREYR BATTERY KSP a license to or rights in any IPR of 24m.
3.6Materials IP Option. In the event that 24m develops Materials IP that is potentially useful in or in the manufacture of a Product manufactured by or for FREYR BATTERY KSP, then 24m will notify FREYR BATTERY KSP of such Materials IP (the “Materials Notice”).
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FREYR BATTERY KSP will then have the option to acquire a license to any such Materials IP or a supply of materials made through the practice of such Materials IP (to the extent such materials are made commercially available by 24m, a 24m Affiliate, or a third party authorized by 24m or a 24m Affiliate (each, an “Authorized Supplier”)) for use in and/or in the manufacture of Products manufactured by or for FREYR BATTERY KSP by sending written notice to 24m of its desire to take such a license or obtain a supply of such materials within six (6) months of its receipt of a Materials Notice (the “Materials Request”). Upon receipt of a Materials Request, 24m will in good faith negotiate a license or as applicable supply agreement with FREYR BATTERY KSP for such Materials IP or for a supply of materials that include or are made through the practice of such Materials IP for Products or the manufacture of Products manufactured by or for FREYR BATTERY KSP on commercially reasonable terms and royalties/fees, which terms and royalties/fees will be no less favorable to FREYR BATTERY KSP than the terms then or subsequently offered by 24m or its Affiliate to any other Enabled Licensee under similar terms, volumes, commitments and circumstances. The term “Enabled Licensee” means an entity to whom 24m or an Affiliate of 24m has granted or subsequently grants a license to the 24m Proprietary Technology for use in the manufacture of Semi-Solid Batteries for EVs or Energy Storage Systems and the Materials IP. The parties will use good faith efforts to conclude any such license or supply agreement negotiations within six (6) months of 24m’s receipt of a Materials Request.
4.OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS
4.1Ownership of Background IPR. Except as provided in clause 4.3, nothing in this Agreement will assign or transfer ownership of any IPR, corporate names, trademarks, and associated goodwill, of either Party which are (i) owned or Controlled by that Party or any Affiliate as of the Effective Date (the “Existing IPR”), or (ii) developed or acquired by that Party or any Affiliate (itself or working with any third party, including any 24m Licensee) during the Term of this Agreement.
4.224m Developed Improvements. As between the Parties and subject to the licenses provided in clause 3, any Improvement that is conceived, first reduced to practice, invented or developed by 24m or any Affiliate (itself or working with any third party, including any 24m Licensee) after the Effective Date (“24m Developed Improvements”) shall be owned by 24m.
4.3FREYR BATTERY KSP Developed Improvements. As between the Parties, any Improvement that is conceived, first reduced to practice, invented or developed by FREYR BATTERY KSP or any Affiliate, independently or in cooperation with 24m or any Affiliate, shall be owned by 24m (“FREYR BATTERY KSP Developed Improvements”); provided that (a) FREYR BATTERY KSP Developed Improvements exclude [***], and (b) 24m hereby grants to FREYR BATTERY KSP a license to FREYR BATTERY KSP Developed Improvements on a non-exclusive, perpetual, irrevocable, fully-paid up and royalty free basis, in accordance with clause 3. In connection with the foregoing, XXXXX BATTERY KSP hereby assigns, and agrees to assign, all of its
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right, title, and interest in and to the FREYR BATTERY KSP Developed Improvements, including any IPR related thereto that arises from the conception, first reduction to practice, invention or development of the FREYR BATTERY KSP Developed Improvement by FREYR BATTERY KSP or any Affiliate, subject to such FREYR BATTERY KSP Developed Improvements being automatically licensed back to FREYR BATTERY KSP pursuant to clause 3, without further action by the Parties, on a perpetual, irrevocable, fully paid-up and royalty-free basis.
4.4Deliveries.
(a)By 24m. Following 24m’s initial delivery of all Related Information required under clause 7.4, and continuing throughout the Term of this Agreement, on a quarterly basis 24m shall disclose in writing and transfer and deliver to FREYR BATTERY KSP, at no cost and, where possible, through electronic means such as file transfer or FTP, copies of all material 24m Developed Improvements and all other material Related Information that 24m or its Affiliates have developed or acquired ownership or Control of at any time during the Term of this Agreement (to the extent not previously disclosed, transferred or delivered to FREYR BATTERY KSP hereunder), but excluding Information claimed in a claim of a patent or patent application that constitutes Materials IP. XXXXX BATTERY KSP acknowledges and agrees that, with respect to the Restricted Information, XXXXX BATTERY KSP may be required to enter into an agreement directly with the third-party owner of rights in or to such Information in order to receive access to such Information in connection with this Agreement.
(b)By FREYR BATTERY KSP. Following 24m’s initial delivery of all Related Information required under clause 7.4, and continuing throughout the Term of this Agreement, on a quarterly basis FREYR BATTERY KSP shall disclose in writing and transfer and deliver to 24m, at no cost and, where possible, through electronic means such as file transfer or FTP, copies of all material FREYR BATTERY KSP Developed Improvements that FREYR BATTERY KSP or its Affiliates have developed or acquired ownership or Control of at any time during the Term of this Agreement (to the extent not previously disclosed, transferred or delivered to 24m hereunder), but excluding any Information claimed in claim of a patent or patent application that would constitute Materials IP if it had been developed, or if ownership or Control had been acquired, by 24m or a 24m Affiliate after the Effective Date of this Agreement.
5.ROYALTY PAYMENTS
5.1.Royalty. In consideration of the licenses granted by 24m under clause 3.1 of this Agreement, FREYR BATTERY KSP shall pay to 24m the royalty payments set out below (the “Royalty”) on aggregate Revenues earned for the sale of Products during each Calendar Year:
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Portion of aggregate Revenues from Products sold during Calendar Year (based on aggregate, rated capacity of Products sold, in kWh) | Royalty (% of Revenue) | ||||||||||
[***] kWh/year | to | [***] kWh/year | [***]% | ||||||||
[***] kWh/year | to | [***] kWh/year | [***]% | ||||||||
[***] kWh/year | to | [***] kWh/year | [***]% | ||||||||
[***] kWh/year | to | [***] kWh/year | [***]% | ||||||||
[***] kWh/year | to | [***] kWh/year | [***]% | ||||||||
[***] kWh/year | to | [***] kWh/year | [***]% | ||||||||
[***] kWh/year | [***]% | ||||||||||
“Revenue” for the purpose of calculating the Royalty in the table above means the actual revenue per Calendar Year (not the cumulative amount from the production) FREYR BATTERY KSP earned for the sale of Products to customers of FREYR BATTERY KSP who are not Affiliates nor Related Parties of FREYR BATTERY KSP (“Non-affiliates”). If FREYR BATTERY KSP leases (to third parties or Related Parties or Affiliates), uses (for its own benefit as a commercial end user) or sells Products to Affiliates or Related Parties of FREYR BATTERY KSP, then Revenue shall be the revenue that would have been received if Products were sold at the market price as represented by the price paid by unaffiliated parties in an arms-length transaction, which shall be deemed to be the actual revenue received by the Affiliate or Related Party from the subsequent resale of the Products to customers (that are not an Affiliates or Related Parties of FREYR BATTERY KSP) if the Products are so resold. For the foregoing purposes, the Parties agree to negotiate in good faith a representative market price based on available information of sales of Products by FREYR BATTERY KSP, if any, and other manufacturers after considering differences in quality, purchase volumes and other relevant considerations.
For the avoidance of doubt, for the [***] kWh of sales each Calendar Year the Royalty is [***]% of Revenue. For example, if FREYR BATTERY KSP’s quarterly sales volumes are [***] kWh for the first, second and third quarters and [***] kWh in the fourth quarter, then the Royalty will be [***]% of Revenue for the [***] kWh of sales and [***]% of Revenue for the remaining [***] kWh of sales.
Notwithstanding anything to the contrary in this Agreement, if a Product includes Semi-Solid Battery cells as part of or in combination with other products, services or components that do not use or practice 24m Licensed Patents (e.g., a module that does not use or practice 24m Licensed Patents that includes Semi-Solid Battery cells), Revenue from such combination sales for purposes of calculating the amounts due shall be the revenue that would have been received if the Semi-Solid Battery cells were sold alone at the market price as represented by the price paid by unaffiliated parties in an arms-length transaction.
5.2.Minimum Annual Royalty. Beginning with Calendar Year 2025, FREYR BATTERY KSP shall pay to 24m minimum annual Royalties equal to three million U.S. Dollars ($3,000,000) per Calendar Year (“Minimum Annual Royalties”).
5.3.Royalty Abatement on Initial Sales. Notwithstanding clause 5.1, the Parties agree that the [***] kWh of Product sold by FREYR BATTERY KSP from its U.S. manufacturing factory before December 31, 2025 shall be free of any running Royalty.
5.4.Revenue. In addition to the foregoing set out in clause 5.1:
(a)Revenue shall mean the actual revenue earned or calculated from sales or use of Product sold, less:
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(i)any tax regarding sales, use, occupation, tariff, excise or import/export, or other governmental charges imposed on the production, importation, exportation, use or sale on particular sales or the provision of a service (but not income taxes derived from such sales);
(ii)any packing for the shipping of Products, freight, postage, insurance, or other transportation charges itemized as such on the invoice; and
(iii)refunds, returns, and credits for the foregoing.
5.5Royalty Calculation and Invoicing. The Royalty calculated in accordance with this clause 5 (Royalty Payments) shall be paid Quarterly in arrears. Within twenty (20) Business Days after the end of each relevant Quarter, FREYR BATTERY KSP shall provide full details to 24m of the total Revenue earned during that Quarter and the corresponding amount of the Royalty calculated in accordance with clauses 5.1 (the “Royalty Report”). The amount of the Royalty shall be converted by FREYR BATTERY KSP into US Dollars using the average exchange rate during the Quarter in which the Royalty is calculated. 24m shall provide an invoice to FREYR BATTERY KSP within five (5) Business Days following receipt of the Royalty Report. If there has been any underpayment or overpayment of the Royalty, FREYR BATTERY KSP shall ensure that there is an adjustment to the next Quarterly payment following discovery of such underpayment or overpayment.
The Minimum Annual Royalty under clause 5.2 shall be paid each Calendar Year in arrears. In its Royalty Report for the 4th Quarter of each Calendar Year, actual Royalties accrued for the entire Calendar Year shall be credited against the Minimum Annual Royalty, and any remainder added to the Royalty calculation of the Royalty Report for the 4th Quarter.
5.6Royalty Payment. FREYR BATTERY KSP shall pay all undisputed Royalties in US dollars within [***] of receipt of each invoice from 24m. FREYR BATTERY KSP will pay 24m a late fee for any amount that is not paid when due at a rate of [***] per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
5.7Taxes
(i)All Royalty payments are exclusive of VAT (or other similar taxes) and shall be paid by FREYR BATTERY KSP free of all deductions and withholdings whatsoever, except where otherwise required by law.
(ii)If any deduction or withholding is required by law, XXXXX BATTERY KSP will pay to 24m a sum that will, after such deduction or withholding has been made, leave 24m with the same amount as 24m would have been entitled to in the absence of such deduction or withholding. FREYR BATTERY KSP shall provide to 24m a statement showing the gross Royalty paid, the amount of the sum deducted, and the actual Royalty paid.
(iii)Any taxes, duties or fees arising out of or in connection with each Party’s income shall be borne by the Party the respective taxes are levied upon.
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6.NON-COMPETE
Provided FREYR BATTERY KSP is not in material default of this Agreement and has met the Minimum Commitments, and with the exception of: (i) licenses or other binding agreements to grant licenses to no more than two (2) of the Reserved Companies for Products made by or for such Reserved Companies, for use in or as part of EVs and/or Energy Storage Systems made by or for them that are marketed and sold under trademarks owned or controlled by them or (ii) licenses or binding agreements to grant licenses that are in effect as of the Effective Date set forth in Schedule 4C (the direct grants and licenses in clauses (i) and (ii) are, collectively, the “Exceptions”), 24M will refrain, and will cause its Affiliates to refrain, from directly or indirectly granting any license for the manufacture of Products within North America for use in or as part of EVs and/or Energy Storage Systems (and also from the worldwide use, sale, offer for sale and import of Products manufactured in North America for use in or as part of EVs and/or Energy Storage Systems) as follows: (a) no new licensees until the second anniversary of the Effective Date, (b) up to one (1) new licensee until the fourth anniversary of the Effective Date, (c) up to three (3) new licensees until the seventh anniversary of the Effective Date (in the aggregate, including those granted prior to the fourth anniversary of the Effective Date), and (d) except for the Exceptions, up to five (5) new licensees until the tenth anniversary of the Effective Date (in the aggregate, including those granted prior to the seventh anniversary of the Effective Date) (the permitted new licensees in clauses (a) though (d) are, collectively, the “Permitted New Licensees”). Notwithstanding the foregoing, there shall be no further limitations on any licenses after the tenth anniversary of the Effective Date and 24m may license any third party to make any Products in North America for any reason, including use in or as part of EVs and/or Energy Storage Systems (and also the worldwide use, sale, offer for sale and import of Products manufactured in North America for any purposes, including use in or as part of EVs and/or Energy Storage Systems). For the avoidance of doubt, the Parties acknowledge and agree that if a given Minimum Commitment is missed, then the provisions of this Section 6 shall no longer apply to 24m after such date.
The term “Minimum Commitments” shall mean that FREYR BATTERY KSP has (a) built a United States manufacturing facility for the manufacture of Products by 2025 and (b) met the sales volumes as set forth below:
| Year | Sales Volume Commitment | ||||
| 2022 | [***] GWh | ||||
| 2023 | [***] GWh | ||||
| 2024 | [***] GWh | ||||
| 2025 | [***] GWh | ||||
| 2026 | [***] GWh | ||||
| 2027 | [***] GWh | ||||
| 2028 | [***] Gwh | ||||
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| 2029 | [***] GWh | ||||
| 2030 | [***] GWh | ||||
Further, 24m agrees, that as appropriate, to position XXXXX BATTERY KSP as a preferred battery cell producer for potential customers that wish to use 3rd party suppliers for the production of their batteries in North America.
For clarity, Products manufactured under this Agreement for Reserved Companies will count for purposes of the Minimum Commitments.
7.SERVICE AGREEMENT
1Service Fee. FREYR BATTERY KSP shall pay 24m a Service Fee to cover Services to support the design, equipment selection and purchasing for FREYR BATTERY KSP’s first
U.S. manufacturing facility (the “Service Fee”) on each anniversary of the Effective Date, until such time as FREYR BATTERY KSP is manufacturing at least [***] of Products. The service fees and detailed scope of Services shall be as mutually agreed between FREYR BATTERY KSP and 24M. 24m shall agree to perform such services reasonably requested by XXXXX BATTERY KSP. However, the service scope shall not exceed the scope of the FREYR, AS Services, FREYR BATTERY KSP shall dedicate the appropriate resources to the project and the service fee will not exceed ten million dollars ($10 million).
2Services.
(a)All Services are dependent on FREYR BATTERY KSP actively providing the resources required to complete its tasks.
(b)The Parties further agree that regardless of the capacity or status of FREYR BATTERY KSP, Services shall be completed within [***] of the start production start but in no event shall Services extend beyond December 31, 2025.
3Technical Training.
(a)24m and FREYR BATTERY KSP will define what, if any, technical training will be provided by 24m to FREYR BATTERY KSP trainees. In all cases, FREYR BATTERY KSP will pay all costs associated with its trainees, including wages, benefits, taxes, food, lodging, travel and incidental expenses during any training.
4Information Provision. Except with respect to information which 24m determines, in its sole discretion with the advice of counsel, is designated as “critical technology” pursuant to 31
C.F.R. § 800.215 or other information 24m is not permitted to disclose under other nondisclosure agreements, applicable laws, rules, or regulations, including but not limited to, those for export control, 24m will disclose and/or provide, and continue to disclose and/or provide, to FREYR BATTERY KSP the following Information and/or tangible materials it has in its possession that are necessary or reasonably relevant for FREYR BATTERY KSP to construct and operate a [***] factory to produce Products, including:
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(a)any information regarding materials, excluding Information claimed in a claim or a patent or patent application that constitutes Materials IP, required to manufacture Semi-Solid Battery cells and/or the Semi-Solid Battery modules;
(b)specifications and drawings for pilot and high volume Semi-Solid battery manufacturing equipment and facilities; and
(c)manufacturing process and testing process of the Semi-Solid Battery cells and modules, and any information (including, but not limited to, specifications) regarding the machines, the equipment or the facilities used for manufacturing or evaluating such Semi-Solid Battery cells and/or such Semi-Solid Battery modules.
FREYR BATTERY KSP may reasonably request any such information set forth above in this clause 7.4 from time to time during the Term of this Agreement, and 24m shall reasonably cooperate with FREYR BATTERY KSP to promptly provide such information.
5On Site Support. 24m will provide support for FREYR BATTERY KSP in the specification, selection and installation of the facility and manufacturing equipment necessary to initially produce [***] of Products. This includes:
(a)technical advice and/or onsite technical support to install the mass production equipment and the support of FREYR BATTERY KSP personnel in the initial start-up and debug of said equipment.
6Limitations. Without obtaining U.S. or other jurisdiction/country’s government clearance, license, permit or exemption or relying on License Exception TSR, 24m will not disclose or provide to FREYR BATTERY KSP or FREYR BATTERY KSP Affiliates any information regarding technologies capable of producing an energy density above 350 Wh/kg at 20℃ and other information that requires such clearance, license, permit or exemption. For the avoidance of doubt, 24m will withhold and retain from FREYR BATTERY KSP any information it determines, in its sole discretion with the advice of counsel, is subject to U.S. export control restrictions or is “critical technology” or technical information that is not available in the public domain and is necessary to design, fabricate, develop, test, produce, or manufacture a critical technology, including processes, techniques, or methods.
7Joint Steering Committee.
(a)Joint Steering Committee. The Parties will establish, as soon as practicable after the Effective Date, a Joint Steering Committee (the “JSC”) to oversee and coordinate the performance of the Services and information sharing regarding Improvements that arise in connection with this Agreement. The JSC shall be comprised of two (2) employees from FREYR BATTERY KSP and two (2) employees from 24m, or such other equal number as the Parties may agree in writing. Subject to the foregoing, each Party shall appoint its respective representatives to the JSC, and may change its representatives from time to time, in its sole discretion, effective upon notice to the other Party designating such change in accordance with this Agreement. Each JSC representative of each Party shall be a senior employee of such Party and shall have appropriate technical credentials, experience and knowledge pertaining to Products. One (1) of the members of the JSC shall be designated the JSC chairperson (the “JSC Chair”). XXXXX BATTERY KSP will appoint the initial JSC Chair from its representatives, and thereafter the Parties will alternate in appointing the chairperson for twelve (12)-month
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terms . The JSC Chair will be responsible for calling meetings of the JSC, circulating agenda and minutes and performing administrative tasks required to assure efficient operation of the JSC.
(b)JSC Meetings. The JSC shall meet (in person, or by telephone or videoconference) in accordance with a schedule established by mutual written agreement of the Parties no less frequently than once every three (3) months during the Term. The location for in- person meetings shall be as in as provided in the mutually agreed schedule. Alternatively, the JSC may meet by means of teleconference, videoconference or other similar means. As appropriate, additional employees or consultants may from time to time attend the JSC meetings as nonvoting observers, provided that any such additional attendees shall agree in writing to comply with confidentiality obligations similar in all material respects to those under this Agreement; and provided further that no third party personnel may attend unless otherwise agreed by both Parties in writing. Each Party shall bear its own expenses related to the attendance of the JSC meetings by its representatives. Each Party may also call for special meetings to resolve particular matters requested by such Party upon fifteen (15) Business Days prior written notice to the other Party.
(c)The JSC Chair or his/her designee shall keep minutes of each JSC meeting that records in writing all decisions made, action items assigned or completed and other appropriate matters. The JSC Chair or his/her designee shall send meeting minutes to all members of the JSC promptly after a meeting for review. Each member shall have ten (10) Business Days from receipt in which to comment on and to approve/provide comments to the minutes (such approval not to be unreasonably withheld, conditioned or delayed). If a member, within such time period, does not notify the JSC Chair that s/he does not approve of the minutes, the minutes shall be deemed to have been approved by such member.
(d)JSC Functions. The JSC’s responsibilities are as follows:
(i)Observing the activities of each Party (including those of its Affiliates and third parties acting under its authority) in connection with the Services;
(ii)Periodically reviewing the progress of the activities in connection with the Services;
(iii)Approving any mutually agreed written amendments or changes to the Services;
(iv)Determining the status of Improvements arising in connection with this Agreement; and
(v)Fulfilling such other responsibilities as may be allocated to the JSC by mutual written agreement of the Parties.
(e)JSC Disputes. The JSC will endeavor to make decisions by consensus, with each of FREYR BATTERY KSP’s and 24m’s representatives having, collectively, one vote. If consensus is not reached by the Parties’ representatives pursuant to such vote, the matter will be referred to two (2) internal mediators, one (1) from each Party, each of which is an employee designated by such Party. In the event such mediators cannot resolve an issue that is escalated to them by the JSC, within sixty (60) days after such escalation, the issue will be deemed a dispute and handled in accordance with clause 15.2.
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(f)Authority. For clarity and notwithstanding the creation of the JSC, each Party shall retain the rights and authority granted to it hereunder, and the JSC shall not be delegated or vested with such rights or authority unless such delegation or vesting is expressly provided herein, or the Parties expressly so agree in writing. Unless expressly set forth in this clause 7.7, the JSC shall not have the power to amend, waive or modify any term of this Agreement, and no decision of the JSC shall be in contravention of any terms and conditions of this Agreement.
8RECORD KEEPING, AUDIT AND INSPECTION
8.1Accounting Records. For a period of [***] years following the Calendar Year to which they relate, XXXXX BATTERY KSP shall keep accounting records and financial statements in relation to sales and use in accordance with US GAAP to substantiate the Royalty paid to 24m under this Agreement, including details of the gross and net revenue of the FREYR BATTERY KSP operations that manufacture the Products (the “Accounting Records”).
8.2Audits. 24m shall have the right at its own cost and on an annual basis to appoint independent third-party auditors reasonably acceptable to FREYR BATTERY KSP (the “Auditors”) to inspect and audit the accounting records of FREYR BATTERY KSP to validate and verify the Royalty paid to 24m. FREYR BATTERY KSP shall provide the Auditors with such reasonable assistance as they may require for the purpose of validating and verifying the Royalties paid by XXXXX BATTERY KSP. The Auditors shall disclose to 24m only the information necessary to determine the amount and accuracy of payments reported and actually paid or otherwise payable under this Agreement. The Auditor will send a copy of the report to XXXXX BATTERY KSP at the same time it is sent to 24m. Such inspections may be made no more than once each Calendar Year and during normal business hours. Such records for any particular Calendar Quarter shall be subject to no more than one audit. The Auditors shall be obligated to execute a reasonable confidentiality agreement prior to commencing any such inspection. The Parties will endeavor in such inspection to minimize disruption of FREYR BATTERY KSP’s normal business activities to the extent reasonably practicable. If an audit reveals an underpayment of the Royalty, FREYR BATTERY KSP shall have fifteen (15) days to communicate in writing any objections to the audit findings (“FREYR BATTERY KSP Objection”). If XXXXX BATTERY KSP fails to timely deliver a FREYR BATTERY KSP Objection to 24m, FREYR BATTERY KSP shall promptly make payment of the underpaid amount to 24m, plus any interest as required under clause 5.5. If such underpayment is more than [***] of the royalty actually paid, then XXXXX BATTERY KSP will reimburse 24m its audit fees. If an audit reveals an overpayment, 24m shall have fifteen (15) days to communicate in writing any objections to the audit findings (“24m Objection”). If 24m fails to timely deliver a 24m Objection to FREYR BATTERY KSP, 24M promptly reimburse FREYR BATTERY KSP for such overpayment . If XXXXX BATTERY KSP timely delivers a FREYR BATTERY KSP Objection or 24m timely files a 24m Objection, the Parties shall select an independent review auditor within thirty (30) days of delivery of the objection. The independent review auditor will review the audit findings and evidence, and make a final determination of any underpayment of the Royalty. Such final determination shall be final and binding on the Parties. The objecting Party (FREYR BATTERY KSP or 24m as applicable) shall pay all independent review auditor fees.
9REPRESENTATION, WARRANTIES AND UNDERTAKINGS
9.1Mutual Representations, Warranties and Undertakings
Each Party represents, warrants and undertakes to the other Party that as of the Effective Date:
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(a)it is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, is duly qualified or licensed to do business and is in good standing as a foreign corporation in each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification;
(b)it has all requisite power and authority to enter into this Agreement, to grant the rights and licenses it grants hereunder and to perform its obligations hereunder;
(c)the persons entering into this Agreement on its behalf have been duly authorized to do so, including by all necessary corporate and stockholder action, if required, and no further corporate or stockholder action is required on the part of it to authorize this Agreement, to grant the rights and licenses set out in this Agreement, and to perform its obligations under this Agreement;
(d)this Agreement and the obligations created hereunder are binding upon it and enforceable against it in accordance with their terms (subject to applicable principles of equity) and do not and will not violate the terms of any other agreement, or any judgment or court order, to which it is bound;
(e)there is no proceeding pending or threatened, or any other event, matter, occurrence or circumstance which to the Party’s knowledge, challenges or may have a material adverse impact on this Agreement or the ability of the Party to perform its obligations pursuant to this Agreement;
(f)once duly executed and delivered, and assuming due execution and delivery by the other Party, this Agreement (i) will constitute its legal, valid and binding obligations, enforceable in accordance with its terms except as enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, and general equitable principles (whether considered in a proceeding in equity or at law) and (ii) does not conflict with: (A) any provision of its certificate of incorporation or bylaws; (B) any law, rule, regulation, order, writ, judgment, decree, determination or award of any court, governmental body or administrative or other agency having jurisdiction over it; or (C) any agreement, instrument or understanding, oral or written, to which it is a party or by which it is bound; and
(g)no consent, notice, waiver, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or regulatory authority or any third party is required by, or with respect to, it in connection with the execution and delivery of this Agreement.
9.224m Representations, Warranties and Undertakings
24m represents, warrants and undertakes to FREYR BATTERY KSP that:
(a)except as set forth in Schedule 4A, it is the sole and exclusive owner of, and holds all rights in, the 24m Proprietary Technology, free of any encumbrance, lien, or claim of ownership by any third party;
(b)except as set forth in Schedule 4B, 24m does not possess, use or provide to its other licensees any Related Information that it does not have the right to disclose, deliver and
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license to FREYR BATTERY KSP as 24m Licensed Technology on the terms set forth in this Agreement;
(c)during the Term, all of 24m’s and its Affiliates’ rights, title and interest in any 24m Proprietary Technology shall be and remain owned or held, as applicable, by 24m, except where 24m has, in its reasonable business judgment, decided to cancel, abandon, allow to lapse or not renew such issuance, registration or application in any 24m Proprietary Technology;
(d)as of the Effective Date, Schedule 1 ([***]) and Schedule 1a ([***]) comprises a true and complete list of all 24m Licensed Patents, and other than the 24m Licensed Patents listed on Schedule 1 ([***]) and Schedule 1a ([***]) 24m and its Affiliates, do not own or otherwise have rights to any other patents or patent applications;
(e)it has the right to grant the licenses and rights, and perform the Services, set out in this Agreement and has not, and will not during the Term, grant or permit an Affiliate to grant any right to any third party that would conflict with the licenses and rights set out in this Agreement;
(f)it will identify any Reserved IP in writing;
(g)except as set forth in Schedule 4E, neither 24m nor any of its Affiliates has previously entered into any agreement, whether written or oral, with respect to the assignment, transfer, license, conveyance or encumbrance of, or otherwise assigned, transferred, licensed, conveyed or encumbered its right, title, or interest in or to any patent, patent application, Information or IPR (including by granting any covenant not to sue with respect thereto) that would otherwise be (or rights to which would otherwise be) included in the 24m Proprietary Technology but for such assignment, transfer, license, conveyance, or encumbrance;
(h)neither 24m nor any of its Affiliates has received any written notice from any person, or has knowledge of, any claim or potential claim, whether or not asserted, that: (i) the 24m Licensed Patents are invalid or unenforceable, or (ii) the use or practice of the 24m Proprietary Technology for the manufacture or sale of Semi-Solid Battery cells, Semi- Solid Battery modules, or components thereof, does or would be reasonably expected to, violate, infringe or misappropriate the IPR of a third party;
(i)the Services under this Agreement will be performed in a professional and xxxxxxx- like manner;
(j)there are no actual, pending, or alleged or threatened in writing, adverse actions, suits, claims, interferences or formal governmental investigations by or against 24m or any of its Affiliates in or before any court or governmental authority;
(k)there are no material unsatisfied judgments or outstanding orders, injunctions, decrees, stipulations or awards (whether rendered by a court, an administrative agency or by an arbitrator) against 24m;
(l)during the Term, it will inform XXXXX BATTERY KSP promptly of the existence of any proceedings, pending or threatened, or of any other event, matter, occurrence or
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circumstance to which 24m is a party which may have a material adverse effect upon the performance of the Services or the fulfilment of 24m’s liabilities, responsibilities and obligations pursuant to this Agreement, including the licenses; and
9.3FREYR BATTERY KSP Representations, Warranties and Undertakings FREYR BATTERY KSP represents, warrants and undertakes to 24m that:
(i)it will obtain and continue to hold all necessary licenses and regulatory approvals to manufacture the Products in accordance with this Agreement;
(ii)it will not do or omit to do anything to diminish the rights of 24m in the 24m Proprietary Technology or impair the registration of any patent related to the 24m Proprietary Technology by 24m; and
(iii)during the Term, it will inform 24m promptly of the existence of any proceedings, pending or threatened, or of any other event, matter, occurrence or circumstance to which FREYR BATTERY KSP is a party which may have a material adverse effect upon the performance its obligations or the fulfilment of FREYR BATTERY KSP’s liabilities, responsibilities and obligations pursuant to this Agreement.
9.4Export Control. FREYR BATTERY KSP acknowledges that the technology provided by 24M pursuant to this Agreement is subject to U.S. export control laws, including the U.S. Export Administration Regulations (“EAR”), and may be subject to the export control laws of other jurisdictions (collectively, the “Export Control Laws”). XXXXX BATTERY KSP agrees not to sell, export, reexport, transfer, divert, or otherwise dispose of the products provided by 24M, directly or indirectly, in violation of the EAR or any applicable Export Control Laws. FREYR BATTERY KSP further warrants that the products provided by 24M pursuant to this Agreement will not be used, exported, reexported, or transferred without prior authorization from the U.S. government to any “military end user” or for a “military end use.”
9.5DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS ARTICLE 9, EACH PARTY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ABSENCE OF ERRORS, ACCURACY, COMPLETENESS OF RESULTS, THE PROSPECTS OR LIKELIHOOD OF SUCCESS (FINANCIAL OR OTHERWISE) OF THE EVALUATION, OR THE VALIDITY, SCOPE, OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY.
10.INDEMNITIES
10.1IPR Indemnity
Subject to 11.3, 24m shall on written request indemnify, defend and hold harmless FREYR BATTERY KSP and all of its Affiliates, respective officers and employees (“FREYR BATTERY KSP Indemnified Persons”) in respect of any third party claims brought against any of the FREYR BATTERY KSP Indemnified Persons that the use of the 24m Proprietary Technology by FREYR BATTERY KSP in accordance with licenses granted by 24m under clause 3 (Grant of Licence) infringes or otherwise misappropriates any IPR of any third party.
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10.2Exceptions to IPR Indemnity
XXXXX BATTERY KSP shall not be entitled to recover for third party claims under the IPR indemnity set out in clause 10.1 (IPR Indemnity) to the extent that such third party claim is based upon:
(a)any modifications made to the 24m Proprietary Technology by FREYR BATTERY KSP or its Affiliates (except where pursuant to the specific written direction of 24m);
(b)any combination by, or for, FREYR BATTERY KSP or any of its Affiliates of the 24m Proprietary Technology with products, data or materials not provided by 24m, including FREYR BATTERY KSP Developed IPR; unless such claim is solely based on the 24M Proprietary Technology; or
(c)failure to use, within a reasonable time of them having been provided, any corrections or enhancements of the 24m Proprietary Technology; provided that any relevant corrections or enhancements are provided free of charge and provide equivalent functionality and in any event, no less functionality than the original 24m Proprietary Technology,
provided in each case that 24m notifies XXXXX BATTERY KSP of any potential infringement of such third party rights of which 24m is reasonably aware.
10.3Treatment of Infringing IPR
If a claim is brought which is the subject of clause 10.1 (IPR Indemnity) then, in addition to the IPR indemnity obligation and notwithstanding clause 10.5 (Defence of Claims), 24m may, at its option:
(a)use commercially reasonable efforts to procure the necessary rights to provide and use such IPR in the 24m Proprietary Technology as required in order to continue to grant the licenses under this Agreement; or
(b)if 24m cannot procure such rights, use commercially reasonable efforts to replace or modify the infringing elements of the 24m Proprietary Technology so that they no longer infringe third party rights, provided that the replacement or modification does not materially degrade the functionality and performance of the 24m Proprietary Technology.
(c)[***].
10.4FREYR BATTERY KSP Indemnities
Subject to 11.3, XXXXX BATTERY KSP shall upon written request indemnify, defend and hold harmless 24m and all of its Affiliates, respective officers and employees (the “24m Indemnified Persons”), against any costs, claims, losses, liabilities, expenses (including reasonable legal costs) or damages assessed against, or incurred by any of the 24m Indemnified Persons, to the extent arising out of or in connection with any third party claims brought against any of the 24m Indemnified Persons:
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(a)as a result of a defect in the manufacture of the Products by FREYR BATTERY KSP; and
(b)that FREYR BATTERY KSP has failed to perform its obligations under this Agreement in accordance with Applicable Law.
10.5Defence of Claims
(a)Upon a third party threatening or bringing a claim in respect of which a Party has given an indemnity pursuant to this Agreement:
(i)the Indemnitee will notify the Indemnitor as soon as reasonably practicable upon becoming aware of the claim; and
(ii)the Indemnitor will defend the claim in accordance with sub-clause (b).
(b)The Indemnitor will assume control of the defence and settlement of the claim, as follows:
(i)Subject to 11.3, the Indemnitor will, at its own expense, defend the claim and have control of the conduct of the defence and settlement of the claim, provided however that the Indemnitee will have the right to:
(A)participate in any defence and settlement, such participation to be at its own cost where it is not pursuant to a request for participation from the Indemnitor;
(B)review the terms of any settlement and reasonably veto any proposed admission of liability by the Indemnitee and any such settlement or admission (including its terms) will be Confidential Information of both Parties; and
(C)join the Indemnitor as a defendant in legal proceedings arising out of the claim; and
(ii)the Indemnitee will:
(A)not make admissions (except under compulsion of Applicable Law), agree to any settlement or otherwise compromise the defence or settlement of the claim without the prior written approval of the Indemnitor, which will not be unreasonably withheld, delayed or conditioned; and
(B)give, at the Indemnitor’s request and cost, all reasonable assistance in connection with the defence and settlement of the claim; and
(C)the Indemnitor will be subrogated to the rights and defences of the Indemnitee in respect of the claim.
11.LIMITS OF LIABILITY
11.1Notwithstanding anything in clause 11.2 below, nothing in this Agreement shall exclude or restrict either Party’s liability for:
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(a)[***];
(b)[***]; or
(c)[***];
(d)[***];
(e)[***];
(f)[***];
(g)[***]; or
(h)[***].
11.2TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE, OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR THE PARTY AGAINST WHOM SUCH LIABILITY IS CLAIMED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. SUBJECT TO CLAUSE 10.1, EACH PARTY’S AGGREGATE, CUMULATIVE LIABILITY FOR DAMAGES (DIRECT, INDIRECT OR CONSEQUENTIAL – IF ANY) INCURRED IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED [***] (“LIABILITY CAP”).
11.3With respect to 24m’s performance of indemnification obligations under clause 10.3, 24m’s aggregate, cumulative liability for damages (direct, indirect and consequential – if any) incurred in connection with such indemnification obligations shall not exceed [***] of the total amounts paid under this Agreement [***]. With respect to each party’s performance of other indemnification obligations under clause 10 (that is, excluding 24m’s performance of indemnification obligations under clause 10.3), each party’s aggregate, cumulative liability for damages (direct, indirect and consequential– if any) incurred in connection with such indemnification obligations shall not exceed [***] of the total amounts paid under this Agreement [***]. Additionally, with respect to any breach by 24m of its obligations in clause 6, 24m’s aggregate, cumulative liability for direct damages incurred in connection with this Agreement shall not exceed [***] the Liability Cap.
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11.4Each Party acknowledges its general duty at law to mitigate its losses incurred in relation to this Agreement.
12.TERMINATION
12.1Either Party may terminate this Agreement, by giving written notice to the other Party if such other Party:
(a)commits a material breach of this Agreement (including, in the case of FREYR BATTERY KSP, non-payment of the Royalties in accordance with clause 5) that is not cured within [***] days of being given written notice to do so; provided that if the Party alleged to be in breach disputes such breach by written notice to the other Party within such [***]-day period, then the non-breaching Party shall not have the right to terminate this Agreement pursuant to this clause 12.1(a) unless and until it has been determined that this Agreement, as applicable, was materially breached in accordance with clause 15 (Dispute Resolution) below, and the breaching Party fails to comply with its obligations hereunder within [***] days after such determination; or
(b)suffers an Insolvency Event.
12.224m may convert all exclusive licenses under this Agreement to non-exclusive licenses on written notice if FREYR BATTERY KSP fails to achieve a sustained production rate of 1 GWh per year by December 31, 2025; provided that any delay by 24m in providing Services under this Agreement that impacts FREYR BATTERY KSP’s ability to achieve this milestone shall automatically result in a [***] extension of such date, without regard to any default or non-performance by XXXXX BATTERY KSP. Such date may also be extended in 24m’s sole discretion.
12.3At any time on or after [***], and provided that FREYR BATTERY KSP has not commercially sold Products hereunder for a period of [***] consecutive months prior to the date this clause is invoked, FREYR BATTERY KSP shall have the right to terminate this Agreement in whole with respect to the entire license grant, for any reason or no reason, upon [***] days’ prior written notice to 24m referencing this clause 12.3. In such case FREYR BATTERY KSP and its Affiliates shall be prohibited from the manufacture, use, sale or import of Products in a manner that would infringe or otherwise misappropriate 24m Proprietary Technology no longer licensed to FREYR BATTERY KSP hereunder; provided that without granting FREYR BATTERY KSP any rights or licenses under any patents or copyrights, this sentence does not restrict FREYR BATTERY KSP from using 24m Licensed Technology upon and after the earlier of (a) the 24m Licensed Technology becoming publicly known through no wrongful act or breach of this Agreement by XXXXX BATTERY KSP and (b) the [***] anniversary of the Effective Date; provided that all 24m exclusivity and non-compete obligations (e.g., 3.3, 6 and 12.4) shall expire.
12.4At any time after [***], and provided FREYR BATTERY KSP has not commercially manufactured Products for a period of [***] consecutive months prior to the date this clause is invoked, FREYR BATTERY KSP shall have the right to terminate this Agreement in part on a patent-by-patent, product-by-product or country-by-country basis, for any or no reason, upon [***] days’ prior written notice to 24m referencing this clause 12.3.
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12.5In the event of an early termination of this Agreement (a) by 24M in accordance with clause 12, all Royalty and Service Fee payments then-paid or accrued shall be fully earned and non- refundable; and (b) by either Party in accordance with clause 12, FREYR BATTERY KSP’s licenses with respect to the 24m Proprietary Technology (other than FREYR BATTERY KSP Developed Improvements and any patents and patent applications claiming FRYER Developed Improvements) will terminate; and (c) the exclusivity and non-compete shall expire (e.g., 3.3, 6 and 12.4).
12.6Clauses 4 (with the exception of Clause 4.4), 5 (with the exception of Clauses 5.2 and 5.3) (with respect to Royalty and Service Fee payments then accrued), 8 (limited, in the case of Clause 8.2, to the [***] period following termination of this Agreement), 11, 13, and 15 and Clauses 2.1 (last sentence only), 3.1 (last sentence only), 3.2 (last sentence only), 9.4, 9.5, 10.1, 10.2, 10.4, 10.5, 12.3 (last sentence only), 12.5, and 12.6 shall survive termination of this Agreement.
13.CONFIDENTIALITY
13.1Subject to clause 13.2, each Party:
(a)shall treat as strictly confidential all Confidential Information received from the other Party; and
(b)shall not, and shall procure that its Affiliates shall not, except with the prior written consent of the other Party (which shall not be unreasonably withheld, conditioned or delayed), make use of (save for the purposes of performing its obligations under this Agreement) or disclose to any person (other than its representatives in accordance with clause 13.3) any Confidential Information.
13.2Notwithstanding the foregoing, either Party shall have the limited right to disclose Confidential Information in the event:
(a)such disclosure is required by Applicable Law or by any stock exchange or any supervisory, regulatory, governmental or anti-trust body having applicable jurisdiction and the Party using or disclosing Confidential Information (or whose Affiliate uses or discloses such Confidential Information) has (to the extent legally permissible and reasonably practicable in the circumstances) given the other Party sufficient prior notice in order for such other Party to obtain a protective order or other appropriate remedy;
(b)such disclosure is required pursuant to governmental or judicial order requirement, provided, however, that the other Party shall give the Party reasonable prior written notice so that the Party may seek a protective order or other legal remedy to maintain such information in confidence; or
(c)such disclosure is required in order to facilitate any assignment or proposed assignment of the whole or any part of the rights or benefits under this Agreement which is permitted by this Agreement or actual or potential Financing Party; provided, however, such disclosure is made only to those parties on an as-needed basis and any third party who has access to the Confidential Information signs a non-disclosure agreement containing restrictions on confidentiality at least as protective of the Confidential Information as set forth herein.
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13.3Each Party undertakes that it shall (and shall procure that its Affiliates shall) only disclose Confidential Information to its representatives where it is reasonably required for the purposes of exercising its rights or performing its obligations under this Agreement and only where the representatives are informed of the confidential nature of the Confidential Information and the provisions of this clause 13 (Confidentiality).
13.4The provisions of this clause shall survive the termination of this Agreement.
14.FORCE MAJEURE
14.1A Party shall not be in breach of this Agreement, or liable for any failure or delay to perform, in whole or in part, its obligations under this Agreement if such failure is due to any Force Majeure Event, provided that it shall:
(a)promptly notify the other Party in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance; and
(b)use best endeavours to prevent or mitigate the effect of the Force Majeure Event to carry out its obligations under this Agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
15.DISPUTE RESOLUTION
15.1Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, between the Parties (“Dispute”)_shall be settled through friendly negotiations by the Parties to occur within thirty (30) days of the Dispute first being raised by a Party.
15.2If any Dispute cannot be settled through negotiations within such thirty (30) days period, the Dispute shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The seat of the arbitration shall be Delaware, United States. The number of arbitrators shall be 3. The language of arbitration shall be English.
15.3In all cases, the award rendered by the arbitrators shall be final and binding upon the Parties.
15.4When any Dispute occurs and when any Dispute is under arbitration, except for the matters in dispute, the Parties shall continue to fulfil their respective obligations, and shall be entitled to exercise their respective rights under this Agreement.
16.MISCELLANEOUS
16.1Further Assurance. Each Party will do and execute, or arrange for the doing and executing of, each necessary act, document and thing reasonably within its power to implement and give effect to this Agreement.
16.2Assignment / Novation. Neither Party may assign, sub-license (except as provided in clause 3), or otherwise transfer, or purport to assign, sub-license (except as provided in clause 3), or otherwise transfer any right or obligation (as applicable), pursuant to this Agreement without the prior approval of the other Party except that either party may assign this Agreement to (a) an Affiliate, or (b) a successor in connection with a change of control. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and
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permitted assigns. Notwithstanding the foregoing, FREYR BATTERY KSP may, without the prior approval of 24m, assign, mortgage, pledge or otherwise directly or indirectly assign its rights under this Agreement to (A) any reputable Financing Party that is not a competitor to 24m or a manufacturer of lithium-ion batteries or (B) any entity through which FREYR BATTERY KSP is obtaining financing from a reputable Financing Party where neither the entity nor the Financing Party are competitors to 24m or manufacturers of lithium-ion batteries.
16.3Financing. The Parties acknowledge that XXXXX BATTERY KSP may obtain debt or equity financing or other credit support from lenders, investors or other third parties (each, a “Financing Party”) in connection with the manufacturing and commercialization of the Semi-Solid Battery cells and modules. In furtherance of XXXXX BATTERY KSP’s financing arrangements and in addition to any other rights or entitlements of FREYR BATTERY KSP under this Agreement, 24m shall use good faith efforts to timely execute any consents to assignment (which may include notice, cure, attornment and step-in rights) or estoppels and negotiate any amendments to this Agreement that may be reasonably requested by XXXXX BATTERY KSP or the Financing Parties; provided, that such estoppels, consents to assignment or amendments do not alter the fundamental economic terms of this Agreement.
16.4Continuation of Rights in Bankruptcy. All rights and licenses granted under or pursuant to this Agreement by 24m to FREYR BATTERY KSP are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, licenses of rights to “intellectual property” as defined under Section 101(56) of the Bankruptcy Code. The parties agree that FREYR BATTERY KSP, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against 24m under the Bankruptcy Code, FREYR BATTERY KSP shall be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, and same, if not already in its possession, shall be promptly delivered to FREYR BATTERY KSP (i) upon any such commencement of a bankruptcy proceeding upon written request therefor by FREYR BATTERY KSP, unless 24m elects to continue to perform all of its obligations under this Agreement, or (ii) if not delivered under (i) above, upon the rejection of this Agreement by or on behalf of 24m upon written request therefor by XXXXX BATTERY KSP.
16.5Compliance with Laws and Anti-bribery and Corruption. Each Party shall perform its obligations, and exercise its rights, pursuant to this Agreement in accordance with Applicable Laws and shall refrain from any conduct that would cause the other Party to be in violation of any Applicable Laws related to bribery and corruption, including the United States Foreign Corrupt Practices Act, 15 U.S.C. § 78dd-1, et seq. (the “FCPA”).
16.6Independent Contractors. Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorise any Party to make or enter into any commitments for or on behalf of any other Party.
16.7CFIUS. If the Committee on Foreign Investment in the United States (“CFIUS”) inquires about the transaction or requests the Parties or a Party to file a declaration or notice with respect to the transaction, then each of 24m and FREYR BATTERY KSP shall use reasonable best efforts to (A) provide as promptly as practicable to each other’s counsel and to CFIUS
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any additional or supplemental information and documentary material as may be necessary, proper or advisable in connection with the transaction, including preparing and submitting a joint voluntary declaration or notice and thereafter to achieve CFIUS approval; (B) permit the other party to review reasonably in advance any communication (subject to mutually acceptable appropriate redactions to maintain confidentiality of business information) proposed to be given by it to CFIUS, and consult with each other in advance of any meeting or conference with CFIUS, and, to the extent permitted by CFIUS, give the other party reasonable opportunity to attend and participate in any such meeting or conference; and (C) keep each other timely apprised of the status of any communications with, and any inquiries or requests for additional information or documentary material from, CFIUS, in each case (A)-(C), to the extent permitted by applicable law and subject to customary and mutually acceptable confidentiality practices and all applicable privileges (including the attorney- client privilege). For the sake of clarity, neither 24M nor XXXXX BATTERY KSP shall have any obligation under this agreement to take any action, or refrain from taking any action, in order to satisfy any conditions or mitigation measures that CFIUS may deem necessary to obtain CFIUS approval . Each party shall account for its own costs associated with obtaining such approval, and the parties agree to share any such costs equally, as calculated following the submission of final accountings by each party.
16.8Waiver. No delay or omission by either Party in enforcing or exercising any right, power or remedy will impair that right, power or remedy or be construed to be a waiver of it. A waiver by either Party of any of its rights, powers or remedies or of any breach will not be construed to be a waiver of any other right, remedy or power or any other succeeding breach. No waiver or discharge of any kind will be valid unless in writing and signed by an authorised representative of the Party against whom such waiver or discharge is sought to be enforced.
16.9Severability. If a court of competent jurisdiction or other competent body decides that any provision of this Agreement is void or otherwise ineffective but would be valid and effective if appropriately modified, then such provision will apply with the modification necessary to make it valid and effective. If such a provision cannot be so modified, the provisions’ invalidity or ineffectiveness will not affect or impair the validity or legal effect of any other provision of this Agreement.
16.10Variation. No variation or amendment of this Agreement shall be valid unless it is in writing and duly executed by or on behalf of each of the Parties to this Agreement.
16.11Notices. Any notice given by a Party to the other Party will be in English and will be sent by registered air mail, fax or electronic mail to the respective addresses as set herein. Any notice sent by registered air mail will be deemed to have been served seven (7) days after posting . Any notice sent by fax or electronic mail will be deemed to have been served one (1) day after dispatc h. Either Party may change its address for notices upon prior seven (7) days’ written notice to the other Parties.
24m:
Address: 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000, X.X.X. Email: [***]
Attention: Xxxxx Xxx, CEO
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FREYR BATTERY KSP:
Address: Xxxxxxxxxxx 00, 0000 Xxxxxxx, Xxxxxx
E-mail: [***] and xxxxxxxx-xxxxxxxxxxxxx@xxxxxxxxxxxx.xxx
Attention: Xxx Xxxxx Xxxxxx, FREYR CEO
16.12Rights of Third Parties. Except as expressly provided otherwise in this Agreement, a person who is not a Party to this Agreement shall have no right to benefit from this Agreement or to enforce any of its terms.
16.13Counterparts. This Agreement may be executed in counterparts.
16.14Entire Agreement. Except in the case of fraud or fraudulent misrepresentation:
(a)this Agreement sets out the entire agreement between the Parties and supersedes any prior drafts, representations, negotiations, understandings and arrangements of any nature, relating thereto;
(b)each Party acknowledges that, in entering this Agreement, it has not relied on any statement, representation, assurance or warranty other than those expressly set out in this Agreement; and
(c)if there is any conflict between the terms of this Agreement and any other agreement, this Agreement shall prevail unless expressly stated otherwise in such agreement and agreed to in writing by both Parties.
16.15Governing Law. This Agreement, and all questions regarding the existence, validity, interpretation, breach or performance of this Agreement, shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, United States, without reference to its conflicts of law principles.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives.
FREYR BATTERY KSP JV, LLC | 24m Technologies, Inc. | |||||||
/s/ Balazs Xxxxx Xxxxxx | /s/ Xxxxx Xxx | |||||||
Name: Xxxxxx Xxxxx Xxxxxx Title: Manager | Xxxxx Xxx Chief Executive Officer | |||||||
/s/ Xxxxxx Xxxxxx | ||||||||
Name: Xxxxxx Xxxxxx Title: Manager | ||||||||
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SCHEDULE 1
[***]
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SCHEDULE 2 SERVICES MILESTONES AND DELIVERABLES
[***]
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SCHEDULE 4
EXCEPTIONS TO 24M REPRESENTATIONS AND WARRANTIES
[***]
