Exhibit 10.17

 

LICENSE AGREEMENT

 

 

between

 

Klydon (PROPRIETARY) LIMITED
(Registration Number 1997/019687/07)

 

and

 

ASP Isotopes UK LTD
(Registration Number 14252657)

 

 

 

 

 

 

 

  

INDEX

 

NO   CLAUSE HEADING   PAGE
1   DEFINITIONS AND INTERPRETATION   1 
1.1   Definitions   1 
1.2   Interpretation   4 
2   GRANT OF LICENCE   4 
3   exclusivity and licence restrictions   4 
4   DURATION   5 
5   INTELLECTUAL PROPERTY RIGHTS AND IMPROVEMENTS   6 
5.1   Intellectual Property Rights   6 
5.2   Improvement   8 
6   TECHNICAL INFORMATION AND QUALITY CONTROL   8 
6.1   Technical Information and Assistance   8 
6.2   Quality control   9 
7   PAYMENTS   9 
7.1   Upfront Payment   9 
8   WARRANTIES, EXCLUSION OF LIABILITY AND INDEMNITY   10 
8.1   Warranties   10 
8.3   Indemnity   11 
9   FORCE MAJEURE   12 
10   TERMINATION OF EXCLUSIVITY   12 
11   confidentiality and protection of information   13 
12   BREACH   14 
13   DISPUTE RESOLUTION   15 
14   NOTICES AND DOMICILIA   17 
15   MISCELLANEOUS AND WARRANTY OF AUTHORITY   18 
15.1   Change of control or status   18 
15.2   Non- Assignment   18 
15.3   Warranty of Authority   19 
15.4   Independent Advice   19 
15.5   Implementation   19 
15.6   Payment   19 
15.7   Whole Agreement   19 
15.8   Variation   19 
15.9   Relaxation   19 
15.10   Counterparts   19 

 

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LICENCE AGREEMENT

 

This Agreement is made and entered into between -

 

(1)Klydon Proprietary Limited of Building 46, CSIR Campus, Meiring Naude Road, Brummeria, Pretoria, 0184 (Registration Number 1997/109687/07) (“Licensor”); and

 

(2)ASP Isotopes UK LTD of 128 City Road, London, United Kingdom, EC1V 2NX. Registration Number 14252657 (“Licensee”).

 

RECITALS

 

A.The Licensor owns the Intellectual Property and Technology which it continues to develop, and has the right to grant a licence to use and exploit the Intellectual Property and Technology.

 

B.The Licensor has agreed to grant to the Licensee the exclusive and irrevocable right to use the Intellectual Property Rights and Technology in the Territory.

 

C.The Licensee wishes to acquire from the Licensor the exclusive and irrevocable right to use the Intellectual Property Rights and Technology to produce, distribute, market and sell Subject Isotopes.

 

Accordingly, the Parties agree as follows:

 

1DEFINITIONS AND INTERPRETATION

 

1.1Definitions

 

In this Agreement and the recitals, unless clearly inconsistent with or otherwise indicated by the context -

 

1.1.1“Agreement” means the agreement set out in this document and the appendices hereto;

 

1.1.2Business Day means any Saturday, Sunday or official public holiday in any jurisdiction in which either Party has its registered office;

 

1.1.3“Confidential Information” means all and any information or data in whatever form (including in oral, written, electronic and visual form) relating to a Party or the Technology which by its nature or content is identifiable as, or could reasonably be expected to be, confidential and/or proprietary to either Party and includes, (even if not marked as being confidential, restricted, secret, proprietary or any similar designation), any and all information in respect of the Technology;

 

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1.1.4“Copyright” means copyright in the Territory in respect of the Technology;

 

1.1.5“Designs” means any registered designs and design applications in respect of the Technology;

 

1.1.6“Effective Date” means immediately after the termination of the API License which is the license agreement between the Licensor and API Labs Pharmaceuticals Proprietary Limited entered into on 25 October 2013 and any sub licenses to that license;

 

1.1.7“Improvement” means any change, development, improvement or modification to any aspect of the Technology or any method of development of the Technology, use or application of the Technology including any change, improvement or modification which makes the Technology more efficient or adaptable or enables the Technology to be manufactured more economically or efficiently or to a higher standard;

 

1.1.8“Independent Auditors” means such independent auditors as may be agreed between the Licensor and the Licensee, or failing agreement within 10 (ten) business days from the date of a request by any Party for such agreement, appointed by the Executive President for the time being of the South African Institute of Chartered Accountants from one of the 4 (four) largest (based on number of partners) independent firms of auditors in South Africa at the time;

 

1.1.9“Intellectual Property Rights” means all existing and future proprietary rights of the Licensor relating to the Technology, whether or not such rights have been registered, including the –

 

1.1.9.1Copyright;

 

1.1.9.2Designs;

 

1.1.9.3Know-how;

 

1.1.9.4Patents;

 

1.1.9.5Trade Marks; and

 

1.1.9.6Improvements.

 

1.1.10“Know-how” means all information and knowledge of whatever nature relating to the approval, manufacture, distribution, marketing, use and/or sale of the Technology owned or controlled by the Licensor, including technical information, production data, drawings, specifications, engineering and scientific information, manufacturing and tooling information, testing and quality control procedures, secret processes, formulae, marketing and application information, relationship information and other Confidential Information;

 

1.1.11“Licensee” means ASP Isotopes South Africa (Pty) Ltd (Registration Number 2021/701779/07), a company duly registered and incorporated with limited liability in accordance with the laws of the Republic of South Africa, herein represented by Mr. Paul Mann;

 

1.1.12“Licensor” means Klydon (Proprietary) Limited (Registration Number 1997/109687/07), a company duly registered and incorporated with limited liability in accordance with the laws of the Republic of South Africa, herein represented by Dr Einar Ronander (ID Number 500609073088), he being duly authorised thereto;

 

1.1.13“Parties” means the Licensor and Licensee and “Party” shall mean either one of them as the context requires;

 

1.1.14“Patents” means any registered patents and patent applications in respect of the Technology;

 

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1.1.15“Prime Rate” means the publicly quoted basic rate of interest, compounded monthly in arrears and calculated on a 365 (three hundred and sixty five) day year irrespective of whether or not the year is a leap year, from time to time published by the Licensor’s bankers from time to time as being its prime overdraft rate, as certified by any representative of that bank whose appointment and designation it will not be necessary to prove;

 

1.1.16“Quarterly Period” means each period of three (3) consecutive months ending on March 31, June 30, September 30, and December 31, and each successive three (3) month period thereafter except for first and the final period which may be less than three (3) months.

 

1.1.17“Subject Isotopes” means all isotopes produced using the Technology;

 

1.1.18“Technology” means the Licensor’s proprietary Aerodynamic Separation Process Technology that is able to separate isotopes;

 

1.1.19“Term” means a period of 999 (nine hundred and ninety nine) years, unless this Agreement is terminated in accordance with its terms;

 

1.1.20“Territory” means global for the development of the Technology; and globally for the distribution, marketing and sale of that Subject Isotope. All future production of the Subject Isotope will only be in countries whose governments are participating governments of the Nuclear Suppliers Group (NSG) of countries as updated from time to time;

 

1.1.21“ Turnkey Contract ” means Contract No: KTC 1/2021 entered into between the Licensor and PDS Photonica Holdings South Africa Proprietary Limited — a contract for a turnkey molybdenum enrichment plant dated November 1, 2021; and;

 

1.1.22“Trade Marks” means the registered trade marks, trade mark applications and/or common law trade marks in respect of the Technology.

 

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1.2Interpretation

 

1.2.1In this Agreement and the recitals, unless clearly inconsistent with or otherwise indicated by the context -

 

1.2.1.1any reference to the singular includes the plural and vice versa;

 

1.2.1.2any reference to natural persons includes legal persons and vice versa; and

 

1.2.1.3any reference to a gender includes the other genders.

 

1.2.2Where appropriate, meanings ascribed to defined words and expressions in 1.1, shall impose substantive obligations on the Parties.

 

1.2.3The clause headings in this Agreement have been inserted for convenience only and shall not be taken into account in its interpretation.

 

1.2.4Words and expressions defined in any sub-clause shall, for the purposes of the clause of which that sub-clause forms part, bear the meanings assigned to such words and expressions in that sub-clause.

 

1.2.5This Agreement shall be governed by and construed and interpreted in accordance with the law of the Republic of South Africa.

 

2GRANT OF LICENCE

 

The Licensor hereby gives and grants to the Licensee, which hereby accepts, an exclusive and irrevocable licence to use, develop, modify, improve, sub contract and sub license the Intellectual Property Rights and Technology during the Term for the production, distribution, marketing and or sale of the Subject Isotopes in the Territory.

 

3exclusivity and licence restrictions

 

3.1Exclusivity

 

The licence granted by the Licensor under this Agreement is exclusive, such that, whilst this Agreement remains in force, the Licensor shall not be entitled, directly or indirectly, to use, grant or otherwise license any Intellectual Property Rights and Technology rights to any other party for use within the Territory.

 

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Licence Restrictions

 

3.1.1The Licensee will not, without the prior written consent of the Licensor, use the trade names of the Licensor or Trade Marks in combination with any other trade names or trade marks, nor use trade names, symbols or letters which are confusingly similar to the trade names or Trade Marks.

 

3.1.2The Licensee will respect and obey all global and regional regulations governing the production of the Subject Isotopes and the development and transfer of any technology associated with the Technology..

 

3.2Irrevocability

 

3.2.1The license granted by the Licensor to the Licensee under this Agreement is irrevocable and cannot be cancelled, changed or modified without the written agreement of both Parties.

 

4DURATION

 

4.1This Agreement shall commence on the Effective Date and shall continue in full force for the Term.

 

4.2The duration of this Agreement shall not be affected by –

 

4.2.1the lapsing of one or more of the Intellectual Property Rights, whether by effluxion of time or otherwise;

 

4.2.2any Patent, Design Copyright or Trade Mark comprising the Intellectual Property Rights failing to proceed to grant or final prosecution or being held to be invalid; or

 

4.2.3any change in control or status of the Licensor or Licensee or disposition, sale, devolvement, or assignment of the Intellectual Property Rights and/or Technology.

 

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5INTELLECTUAL PROPERTY RIGHTS AND IMPROVEMENTS

 

5.1Intellectual Property Rights

 

5.1.1The Licensee acknowledges and agrees that the Intellectual Property Rights and Technology is and are and shall remain the sole and absolute property of the Licensor and further acknowledges that the reputational use thereof in terms of this Agreement shall enure for the benefit of the Licensor.

 

5.1.2The Licensee shall not anywhere in the Territory, whether during or after the Term -

 

5.1.2.1oppose or contest any intellectual property application by the Licensor or the ownership of the Licensor therein;

 

5.1.2.2dispute, contest or question the validity of the Intellectual Property Rights and Technology and shall not assist or counsel any other person to do so;

 

5.1.2.3directly or indirectly register the Trade Marks, or any confusingly similar trade marks, anywhere in the Territory; or

 

5.1.2.4directly or indirectly use any trade marks confusingly similar to the Trade Marks anywhere in the Territory.

 

5.1.3No right, title or interest in and to the Intellectual Property Rights and Technology is hereby assigned except the right to use the Intellectual Property Rights and Technology during the Term of this Agreement in the manner and subject to the terms and conditions set out in this Agreement. The Licensor shall have no right to sell, assign, transfer, alienate, hire, lease, pledge, hypothecate, otherwise dispose of or encumber or to reproduce the whole or any part of the Intellectual Property Rights and Technology without the specific prior written consent of the Licensee.

 

5.1.4The Licensee shall not in any way represent that it has any rights of any nature in and to the Intellectual Property Rights and Technology, other than those which it enjoys in terms of this Agreement. The Licensee shall only use the Intellectual Property Rights in respect of the Technology, as permitted by this Agreement.

 

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5.1.5The Licensor shall have the right from time to time to lay down in writing or otherwise reasonable standard and/or specific procedures for the use of the Intellectual Property Rights and Technology and from time to time to add to, amend, vary, supplement, change, alter or repeal such standard and/or specific procedures with the prior written consent of the Licensee.

 

5.1.6The Licensee shall not do or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of the Licensor’s exclusive right, title and interest in and to the Intellectual Property Rights and Technology.

 

5.1.7The Licensee undertakes to use its reasonable endeavours to ensure that the reputation and goodwill of the Intellectual Property Rights and Technology are protected, maintained and wherever possible enhanced.

 

5.1.8The prosecution and/or defence of any claim in relation to the Intellectual Property Rights and Technology shall be the sole responsibility and shall be undertaken within the sole and absolute discretion of the Licensor, provided that the Licensee shall forthwith notify the Licensor of any claims or possible infringements of the Intellectual Property Rights and Technology of which the Licensee becomes aware and the Licensee shall, if required by the Licensor and at the Licensor’s cost, join with the Licensor as a party to such proceedings, and/or assist the Licensor in any such proceedings in the manner and to the extent reasonably required by the Licensor. The Licensee shall not be entitled to make any admissions of liability in regard to any such claim or to negotiate any settlement in respect thereof without the specific prior written consent of the Licensor. Notwithstanding the aforesaid, the Licensee shall be entitled to defend any claim as contemplated in this clause 5.1.8 if the Licensor fails to take any steps in relation to such claim or assert the Intellectual Property Rights and/or Technology if the Licensor fails to do so provided that any action taken by the Licensee is at its cost.

 

5.1.9The Licensor shall, at the Licensor’s expense maintain the Intellectual Property Rights and Technology and the Licensor shall pay all renewal fees and do such other acts as may be necessary for this purpose. Notwithstanding the aforesaid, the Licensee shall have the right to do such other acts and make any such payment and recover the payment from the Licensor if the Licensor fails to make any such payments or do such other acts. Should the Licensee wish for any aspect or right forming part of the Intellectual Property Rights and/or Technology to be protected via a patent, trade mark, copyright, design and/or like intellectual property protection, the Licensor shall do so and maintain same at the Licensee’s cost.

 

5.1.10Both Parties acknowledge that the objective of this Agreement is to develop and enhance the protection of the Intellectual Property Rights and the Technology. Both Parties hereby agree to use their best endeavours and take all such steps and do all such acts as are necessary toward achieving this purpose, including where appropriate, filing formal applications for the registration of the Intellectual Property Rights, monitoring and policing trade secrecy, non-disclosure or similar agreements, maintaining intellectual property registers, maintaining, facilitating and enhancing regulatory approvals and international assistance, and disclosing information to each other necessary for this purpose.

 

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5.2Improvement

 

If at any time during the Term –

 

5.2.1the Licensor makes, or receives the benefit of any Improvement or Know-how to the Technology, the Licensor undertakes to inform the Licensee of such Improvement or Know-how and the Licensee may make use of such Improvement or Know-how under the provisions of this Agreement. If such Improvement involves additions to the Know-how, such additions will also be deemed to be part of the Intellectual Property Rights licensed in terms of this Agreement; and

 

5.2.2the Licensee makes any Improvement to the Technology, the Licensee will promptly inform the Licensor thereof in writing and all rights in such Improvement shall belong to the Licensee and the Licensor will assist the Licensee to obtain patent, design, trade mark, copyright and all similar forms of protection for such Improvement at the expense of the Licensee.

 

6TECHNICAL INFORMATION AND QUALITY CONTROL

 

6.1Technical Information and Assistance

 

6.1.1The Licensor shall on the Effective Date and during the Term supply, free of charge, to the Licensee -

 

6.1.1.1copies of all such documents containing technical information as may be required or necessary to enable the Licensee to use the Intellectual Property Rights and Technology for the production, distribution, marketing and or sale of the Subject Isotopes in the Territory; and

 

6.1.1.2such further information and Know-how relating generally to the materials, methods and processes required by the Licensor for the production, distribution, marketing and or sale of the Subject Isotopes in the Territory.

 

6.1.2The Licensor shall –

 

6.1.2.1provide, sufficient adequately skilled technical staff able to provide technical assistance to the Licensee in establishing the plant and production facilities necessary to develop the Technology and produce, distribute, market and sale of the Subject Isotopes;

 

6.1.2.2advise the Licensee on all matters relating to the purchase of suitable plant, machinery, tools, fixtures and fittings necessary to establish plant and production facilities;

 

6.1.2.3advise the Licensee on matters relating to the purchase of suitable sources of raw materials necessary for the use of the Technology;

 

6.1.2.4during the Term provide ongoing technical expertise, support, assistance and advice to the Licensee for the purpose of enabling the Licensee to develop the Technology and to produce, distribute, market and sale of the Subject Isotopes. The Licensor will, at the reasonable request of the Licensee make available, for such period as the Licensor in its sole reasonable discretion may determine, technical and other staff for the purposes of fulfilling the Licensor’s obligations in terms hereof;

 

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6.1.2.5provide the Licensee with such assistance as the Licensee may reasonably require, at no charge to the Licensee, to obtain any regulatory approvals as may be required for the Licensee to use the Intellectual Property Rights and the Technology and to produce, distribute, market and sell the Subject Isotope; and

 

6.1.2.6do all things and acts that are necessary to ensure that the Licensee can enjoy the full benefits of the license granted under this Agreement and transfer of Know How which shall include allowing the Licensee access to locations where the Know How and other Intellectual Property Rights and/or Technology is kept or stored and generally enabling the Licensee to enjoy those benefits through the release of any passcodes, locks, encryptions or other protection mechanisms designed to secure the Know How and to educate and provide full disclosure on how the Intellectual Property Rights and Technology can be exploited under this Agreement.

 

6.1.3It is expressly recorded that the Licensor shall not be responsible or liable for consequential damages or loss of profit which might arise out of the use by the Licensee of any technical information or advice furnished to the Licensee under this Agreement, unless the Licensee can prove on a balance of probabilities that the technical information or advice was wrong or misleading, and that an expert in the field would have known it to be wrong or misleading.

 

6.2Quality control

 

The Licensee shall –

 

6.2.1use the Technology and produce, distribute and market the Subject Isotopes strictly in accordance with the specifications and quality standards from time to time prescribed by the Licensor;

 

6.2.2ensure that the highest standards of workmanship and material available are employed in the use of the Intellectual Property Rights and Technology for the production of the Subject Isotopes; and

 

6.2.3upon receipt of reasonable notice, permit the Licensor’s duly authorised representatives at all reasonable times to enter the premises where the Technology is being used, or the Subject Isotopes are being produced in order to ascertain whether the Licensor’s quality control standards are being adhered to and for this purpose will also have the right to take necessary samples of the Subject Isotopes for examination, testing and analysis.

 

7PAYMENTS

 

7.1Upfront Payment

 

7.1.1In consideration of the rights and licenses granted under this Agreement, the Licensee shall pay to the Licensor, concurrently with the execution of this Agreement, an initial payment of One Hundred Thousand US Dollars (US$100,000) (the “Upfront Payment”) which will be included within the payments currently being made by the Licensee to the Licensor under the Turnkey Contract. The Upfront Payment is not refundable. In addition, there will be a deferred payment of Three Hundred Thousand US Dollars (US$300,000), which will be paid over 24 months, subject to a right of set-off against any other liability owed to the Licensee by the Licensor.

 

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8WARRANTIES, EXCLUSION OF LIABILITY AND INDEMNITY

 

8.1Warranties

 

8.1.1The Licensor warrants that to the best of its knowledge, as at the Effective Date–

 

8.1.1.1it is the sole beneficial owner of the Intellectual Property Rights and Technology and that it has the right to licence the Intellectual Property Rights and Technology in the Territory;

 

8.1.1.2it is free to grant the licence conferred by this Agreement including that it is not prohibited by an regulation or law in granting this license and acting pursuant to this Agreement, and that it has not granted any other licence to the Intellectual Property Rights and Technology in the Territory;

 

8.1.1.3the Intellectual Property Rights and Technology is/are valid, enforceable and unencumbered;

 

8.1.1.4the Intellectual Property Rights and Technology and the use thereof does not infringe the intellectual property rights of any third party;

 

8.1.1.5it’s rights in and to the Intellectual Property Rights and Technology have not been contested, in whole or in part, by anyone whomsoever;

 

8.1.1.6it has no knowledge of any circumstances or facts that might render the Intellectual Property Rights and Technology invalid, unenforceable, or encumbered; and

 

8.1.1.7it has not taken any action or omitted to take any action as a result of which the Intellectual Property Rights and Technology or any part thereof could become unenforceable.

 

8.1.2The Licensee expressly acknowledges that under this Agreement the Licensor does not in any way warrant or guarantee either expressly or impliedly the merchantability or fitness of the Technology or the Subject Isotopes.

 

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8.2Exclusion of liability

 

8.2.1Subject to this Agreement and to the extent permitted by applicable law, the Licensor disclaims all warranties and representations not recorded in this Agreement, either express or implied with respect to the Intellectual Property Rights and Technology, including but not limited to any implied warranties of merchantability or fitness for any particular purpose.

 

8.2.2Save for any claim for damages arising from a breach of warranty in terms of this Agreement, and subject to clause 8.2.3, the Licensor shall not be liable for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the use, or licensing of the Intellectual Property Rights and Technology in any manner by the Licensee.

 

8.2.3Save for any claim for damages arising from a breach of warranty in terms of this Agreement, neither Party will be liable to the other Party for any indirect, special, incidental or consequential loss or damage which may arise in respect of the Intellectual Property Rights and Technology, its use or licensing or in any manner by the other Party.

 

8.3Indemnity

 

8.3.1The Licensee hereby indemnifies the Licensor against all claims, costs, damages, losses and expenses which the Licensor may suffer arising from the use of the Intellectual Property Rights and Technology by the Licensee, any breach by the Licensee of its statutory obligations or any breach by the Licensee of its obligations as set forth in clause 11.

 

8.3.2The Licensor hereby indemnifies and holds the Licensee harmless against all claims, costs, damages, losses and expenses which the Licensee may suffer or sustain as a direct result of any claim –

 

8.3.2.1against the Licensee arising as a result of the failure of any warranty given in this Agreement to be true and correct;

 

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8.3.2.2that the conduct of the Licensee contemplated in this Agreement has resulted in an infringement of the intellectual property rights of any third party; or

 

8.3.2.3that to their knowledge any third party has a prior right in respect of any of the Intellectual Property Rights.

 

8.3.3The Licensee undertakes that it will not continue using the Intellectual Property Rights and Technology and will cease producing, distributing, marketing and selling the Subject Isotopes where these activities will increase the potential damages which the Parties could suffer as a result of any claim against them, unless:

 

8.3.3.1the Licensee is obligated to do so in terms of any agreement, or

 

8.3.3.2the Independent Auditors confirm that the potential damages award will be less than potential profits from ongoing activities such that the risk is mitigated. The Independent Auditors shall act as experts and not as arbitrators, and their determination shall be final and binding on the Parties. The cost of the Independent Experts shall be borne equally by the Parties, or

 

8.3.3.3the claim is spurious as agreed between the Parties.

 

9FORCE MAJEURE

 

9.1Delay or failure to comply with or breach of any of the terms and conditions of this Agreement if occasioned by or resulting from an act of God or public enemy, fire, explosion, earthquake, perils of the sea, flood, storm or other adverse weather conditions, war declared or undeclared, civil war, revolution, civil commotion or other civil strife, riots, strikes, blockade, embargo, sanctions, epidemics, act of any government or other authority, compliance with government orders, demands or regulations, or any circumstances of like or different nature beyond the reasonable control of the Party so failing (“force majeure”), will not be deemed to be a breach of this Agreement nor will it subject either Party to any liability to the other.

 

9.2Should either Party be prevented from carrying out its contractual obligations by reason of force majeure lasting continuously for a period of 30 (thirty) days, the Parties will consult with each other regarding the future implementation of this Agreement. If no mutually acceptable arrangement is arrived at within a further period of 10 (ten) days after the expiration of such 30 (thirty) day period, either Party will be entitled to cancel this Agreement forthwith on written notice to the other Party.

 

10TERMINATION OF EXCLUSIVITY

 

10.1The Licensor may terminate the exclusivity of this Agreement with immediate effect upon written notice to the Licensee in the event that the Licensee ceases to use the Intellectual Property Rights and Technology or carry on activities related to isotope enrichment for a period longer than 24 consecutive months (except for reasons of extended force majeure or circumstances beyond the Licensee’s control).

 

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11confidentiality and protection of information

 

11.1Each Party undertakes that during the operation of, and after the expiration, termination or cancellation of, this Agreement for any reason, it will keep confidential all Confidential Information of the other Party.

 

11.2If the receiving Party is uncertain about whether any information is to be treated as confidential in terms of this clause 11, it shall be obliged to treat it as such until written clearance is obtained from the disclosing Party.

 

11.3Each Party undertakes, subject to clause 11.4, not to disclose any Confidential Information of the other Party, nor to use such information for its own or anyone else’s benefit.

 

11.4Notwithstanding the provisions of clause 11.3, the Licensee shall be entitled to disclose any Confidential Information if and to the extent only that the disclosure is bona fide and necessary for the purposes of using the Intellectual Property Rights and Technology and/or producing, distributing, marketing and selling the Subject Isotopes pursuant to this Agreement, and only if the party to whom the information is disclosed provides a written undertaking to both the Licensee and Licensor that such information shall be kept confidential.

 

11.5The obligation of confidentiality placed on the receiving Party in terms of this clause 11 shall cease to apply to the receiving Party in respect of any Confidential Information which –

 

11.5.1is or becomes generally available to the public other than by the negligence or default of the receiving Party or by the breach of this Agreement by the receiving Party;

 

11.5.2the disclosing Party confirms in writing is disclosed on a non-confidential basis;

 

11.5.3has lawfully become known by or come into the possession of the receiving Party on a non-confidential basis from a source other than the disclosing Party having the legal right to disclose same, provided that such knowledge or possession is evidenced by the written records of the receiving Party existing at the Effective Date; or

 

11.5.4is disclosed pursuant to a requirement or request by operation of law, regulation or court order, to the extent of compliance with such requirement or request only and not for any other purpose,

 

provided that –

 

11.5.5the onus shall at all times rest on the receiving Party to establish that information falls within the exclusions set out in clauses 11.5.1 to 11.5.4;

 

11.5.6information will not be deemed to be within the foregoing exclusions merely because such information is embraced by more general information in the public domain or in the receiving Party’s possession; and

 

11.5.7any combination of features will not be deemed to be within the foregoing exclusions merely because individual features are in the public domain or in the receiving Party’s possession, but only if the combination itself and its principle of operation are in the public domain or in the receiving Party’s possession.

 

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11.6In the event that the receiving Party is required to disclose Confidential Information as contemplated in clause 11.5.4, the receiving Party will –

 

 

11.6.1advise the disclosing Party thereof in writing prior to disclosure, if possible;

 

11.6.2take such steps to limit the disclosure to the minimum extent required to satisfy such requirement and to the extent that it lawfully and reasonably can;

 

11.6.3afford the disclosing Party a reasonable opportunity, if possible, to intervene in the proceedings;

 

11.6.4comply with the disclosing Party’s reasonable requests as to the manner and terms of any such disclosure; and

 

11.6.5notify the disclosing Party of, and the form and extent of, any such disclosure or announcement immediately after it is made.

 

11.7All documentation concerning the Intellectual Property Rights remains the exclusive property of the Licensor and upon termination of this Agreement will be returned to the Licensor. The Licensee undertakes to prevent the unauthorised use of such documentation and will not make copies of any such documentation without the prior written consent of the Licensee.

 

12BREACH

 

Should any Party (“Defaulting Party”) commit a breach of any of the provisions of this Agreement, then the other Party (“Aggrieved Party”), shall be obliged to give the Defaulting Party 10 (ten) Business Days written notice or such longer period as may be reasonably required in the circumstances, to remedy the breach. If the Defaulting Party fails to comply with the notice, the Aggrieved Party shall be entitled to claim immediate payment and/or specific performance by the Defaulting Party of all the Defaulting Party’s obligations without prejudice to the Aggrieved Party’s rights to claim damages. The foregoing is without prejudice to any other rights as the Aggrieved Party may have at law, provided that the Aggrieved Party shall not be entitled to cancel this Agreement for any breach by the Defaulting Party.

 

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13DISPUTE RESOLUTION

 

13.1The Parties agree that the terms of this Agreement will be performed in the spirit of mutual co-operation, trust and confidence. The Parties further agree to use their reasonable endeavours to resolve, through mutual consultation, without involving any third party or parties, any dispute which may arise under, out of, or in connection with or in relation to this Agreement. If following such mutual consultation, the dispute still remains outstanding, the matter shall be referred to the chief executive officer of each Party to the dispute or their respective representatives, who shall negotiate for a period of up to 5 (five) Business Days from the date of such referral in an attempt to resolve such dispute. If following the expiry of such 5 (five) Business Day period, the dispute is still unresolved, then, save where otherwise provided in this Agreement, the matter shall be referred to arbitration in accordance with the remaining provisions of this clause 13.

 

13.2This clause 13 is a separate, divisible agreement from the rest of this Agreement and shall -

 

13.2.1not be or become void, voidable or unenforceable by reason only of any alleged misrepresentation, mistake, duress, undue influence, impossibility (initial or supervening), illegality, immorality, absence of consensus, lack of authority or other cause relating in substance to the rest of the Agreement and not to this clause 13, which issue, the Parties intend, shall be subject to arbitration in terms of this clause 13; and

 

13.2.2remain in effect even if the Agreement terminates or is cancelled.

 

13.3Save Any dispute between the Parties as referred to in clause 13.4 that revolves around a factual matter, shall be referred to an expert for determination, which determination in the absence of manifest error in calculation, shall be final and binding on the Parties, and shall not be referred to arbitration. If the Parties cannot agree on the identity of such an expert, or whether the matter is a factual matter for determination, those determinations shall be referred to a person appointed in accordance with the provisions of clause 13.5 below.

 

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13.4Save to the extent to the contrary provided for in this Agreement, any dispute arising out of or in connection with this Agreement or the subject matter of this Agreement including, without limitation, any dispute concerning –

 

13.4.1the existence of this Agreement apart from this clause 13;

 

13.4.2the interpretation and effect of this Agreement;

 

13.4.3the Parties’ respective rights or obligations under this Agreement;

 

13.4.4the rectification of this Agreement;

 

13.4.5the breach, termination or cancellation of this Agreement or any matter arising out of such breach, termination or cancellation;

 

13.4.6damages in contract, in delict, compensation for unjust enrichment; or

 

13.4.7any other claim whether or not the rest of this Agreement apart from this clause 13 is valid and enforceable,

 

shall be decided by arbitration as set out in this clause 13.

 

13.5The Parties to this dispute shall agree on the arbitrator. If agreement is not reached within 10 (ten) Business Days after any Party to the dispute in writing calls for agreement, the arbitrator shall be a practising commercial attorney or advocate of at least 10 (ten) years standing on the panel of arbitrators of the Arbitration Foundation of Southern Africa (“AFSA”) nominated at the request of any Party to the dispute by the Registrar of AFSA for the time being.

 

13.6The request to nominate an arbitrator shall be in writing outlining the claim and any counterclaim of which the Party to the dispute concerned is aware and, if desired, suggesting suitable nominees for appointment, and a copy shall be furnished to the other Parties to the dispute who may, within 5 (five) Business Days, submit written comments on the request to the addressor of the request.

 

13.7The arbitration shall, unless otherwise agreed between the Parties to the dispute, be held in Johannesburg and the Parties shall endeavour to ensure that it is completed as soon as reasonably possible after notice requiring the claim to be referred to arbitration is given.

 

13.8The proceedings in the arbitration shall as far as practicable take place in private and be kept confidential.

 

13.9The arbitration shall be governed by the Arbitration Act, No. 42 of 1965, as amended, or any replacement act and shall take place in accordance with the Commercial Arbitration Rules of AFSA.

 

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13.10The decision resulting from such arbitration shall be subject to a right of appeal to a panel of 3 (three) arbitrators as provided for in the Commercial Arbitration Rules of AFSA whose decision shall, or, in the event that the single arbitrator’s decision shall not have timeously been taken on appeal, the decision of the single arbitrator shall, in the absence of manifest error, be final and binding upon the Parties to the dispute, and may be made an order of any court of competent jurisdiction.

 

13.11This clause 13 shall not preclude any Party to a dispute from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator or panel of arbitrators, on appeal.

 

13.12A written notice by any Party to the dispute requesting the nomination of an arbitrator, shall be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, No. 68 of 1969.

 

14NOTICES AND DOMICILIA

 

14.1The Parties choose as their domicilia citandi et executandi their respective addresses set out in this 14 for all purposes arising out of or in connection with this Agreement, at which addresses all the processes and notices arising out of or in connection with this Agreement, its breach or termination, may validly be served upon or delivered to the Parties.

 

14.2For the purposes of this Agreement, the Parties’ respective addresses shall be -

 

14.2.1as regards the Licensor at Building 46, CSIR Campus, Meiring Naude Road, Brummeria, Pretoria, 0184

 

facsimile number: (012) 349 2128

 

email address: einar.ronander@klydon.co.za

 

marked for the attention of: Dr E Ronander

 

14.2.2as regards the Licensee at, Unit 19 2nd floor , 1 Melrose Boulevard, Melrose Arch, Gauteng, 2076

 

Email address: pmann@aspisotopes.com

 

marked for the attention of: Paul Mann

 

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14.3Any notice given in terms of this Agreement shall be in writing and shall -

 

14.3.1if delivered by hand, be deemed to have been duly received by the addressee on the 1st (first) Business Day following the date of delivery;

 

14.3.2if transmitted by facsimile, be deemed to have been duly received by the addressee on the 1st (first) Business Day following the date of despatch; and

 

14.3.3if delivered by recognised international courier service, be deemed to have been duly received by the addressee on the 1st (first) Business Day following the date of such delivery by the courier service concerned,

 

provided that the relevant notice is marked for the attention of the relevant Party’s designated person for receipt of any processes and notices in connection with this Agreement as contemplated in 14.2.

 

14.4Notwithstanding anything to the contrary contained in this Agreement, a written notice or communication actually received by the relevant Party’s designated person for receipt of any processes and notices in connection with this Agreement as contemplated in 14.2 from another Party, shall be adequate written notice or communication to such Party.

 

15MISCELLANEOUS AND WARRANTY OF AUTHORITY

 

15.1Change of control or status

 

If there is a change of control or status of the Licensor or Licensor commits an act of insolvency or the ownership of the Intellectual Property Rights and/or Technology become vulnerable to claims by third parties, the Licensee shall have the right to call for the immediate and permanent assignment of the Intellectual Property Rights and Technology into its name for no additional consideration and the Licensor shall, if called upon to do so, assign over such Intellectual Property Rights and Technology.

 

15.2Non- Assignment

 

Neither Party may assign, directly or indirectly, this Agreement or any of the rights under it to a third party without the other Party’s prior written consent which cannot unreasonably be withheld, except that the Licensee may assign such rights for the purpose of re-structuring without the need for the consent of the Licensor.

 

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15.3Warranty of Authority

 

Each Party warrants to each of the other Parties that it has the power, authority and legal right to sign and perform this Agreement and that this Agreement constitutes valid and binding obligations on it in accordance with the terms of this Agreement and, in respect of each Party that is a company, has been duly authorised by all necessary actions of its directors.

 

15.4Independent Advice

 

Each Party hereto acknowledges that it has been free to secure independent legal advice as to the nature and effect of all of the provisions of this Agreement and that it has either taken such independent legal advice or dispensed with the necessity of doing so. Further, each Party hereto acknowledges that all of the provisions of this Agreement and the restrictions herein contained are fair and reasonable in all the circumstances and are part of the overall intention of the Parties in connection with the Company.

 

15.5Implementation

 

The Parties undertake to do all such things, perform all such acts and take all steps to procure the doing of all such things and the performance of all such acts, as may be necessary or incidental to give or be conducive to the giving of effect to the terms, conditions and import of this Agreement.

 

15.6Payment

 

15.6.1Any payment payable in terms of this Agreement shall be net of any withholding taxes, other taxes, duties or levies, if any, payable in respect of such payment except to the extent that VAT is payable on such amount in which case the relevant amount shall include the relevant VAT amount.

 

15.6.2Any amount not paid when due and payable under this Agreement shall bear interest at the Prime Rate from the due date to date of payment in full.

 

15.7Whole Agreement

 

This Agreement constitutes the whole agreement between the Parties as to the subject matter hereof and no agreement, representations or warranties between the Parties other than those set out herein are binding on the Parties. This Agreement may only be varied by mutual written agreement. This Agreement overrides, supersedes and cancels all other license agreements between the Parties in respect of the Intellectual Property and/or Technology namely the agreements signed on 30 September 2021 (as amended in June 2022) and 25 January 2022.

 

15.8Variation

 

No addition to or variation, consensual cancellation or novation of this Agreement and no waiver of any right arising from this Agreement or its breach or termination shall be of any force or effect unless reduced to writing and signed by each of the Parties or their duly authorised representatives.

 

15.9Relaxation

 

No latitude, extension of time or other indulgence which may be given or allowed by either Party to the other Party in respect of the performance of any obligation hereunder or enforcement of any right arising from this Agreement and no single or partial exercise of any right by either Party shall under any circumstances be construed to be an implied consent by such Party or operate as a waiver or a novation of, or otherwise affect any of that Party’s rights in terms of or arising from this Agreement or estop such Party from enforcing, at any time and without notice, strict and punctual compliance with each and every provision or term hereof.

 

15.10Counterparts

 

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.

 

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Signed at Pretoria on this the 26th day of July 2022

 

/s/ Carl Ronander For: Klydon (PTY) Limited
Duly Authorised    
     
Name: Carl Ronander    
     
Designation: Financial Manager / Director    
     
Signed at Pretoria on this the 26th day of July 2022  
     
/s/ Robert Ainscow   For: ASP Isotopes UK LTD
Duly Authorised    
     
Name: Robert Ainscow    
     
Designation: Director    

 

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