**Exhibit 10.12**
1**AMENDED AND RESTATED LICENSE AGREEMENT****THIS AMENDED AND RESTATED AGREEMENT**dated December 81997 is made**BETWEEN****ENSYN TECHNOLOGIES INC.**, a corporation incorporated underthe laws of Canada, having its principal place of business at 6847Hiram Drive, Greely, Ontario, Canada K4P 1A2 (“ENSYN”)**AND****ENSYN GROUP, INC.**, a corporation incorporated under the laws ofDelaware, USA, having its principal place of business at 124 MountAuburn Street, Suite 200N, Cambridge, Massachusetts, USA, 02138(“GROUP”)**WHEREAS:**1.     ENSYN has developed and presently possesses certain technical know-how, equipment, operatingexperience and knowledge of processes relating to the rapid heating of carbonaceous material at arate of over 400 degrees Centigrade per second, to a temperature of at least 400 degrees Centigradeand retaining the said carbonaceous materials together with the initial pyrolysis products in apyrolysis reactor at a temperature of at least 400 degrees Centigrade for less than 2 seconds(“RTP”, as defined below);2.     GROUP desires to obtain a license for RTP and ENSYN is willing to grant this license subject tothe existing licenses set out in Schedule C;3.     ENSYN has expertise relating to the design, construction, and operation of RTP Reactors andGROUP wishes to utilize this expertise;4.     The parties have entered into a License Agreement dated August 30, 1996 and wish to amend andrestate this License Agreement as provided herein.**NOW THEREFORE**for good and valuable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties agree as follows:**ARTICLE 1****DEFINITIONS**In this Agreement, unless the context otherwise requires, the following words shall have thefollowing meanings:1.1 **“Business Day”**means and day other than a Saturday, Sunday or statutory holiday;

 

21.2 **“Boiler Fuels”**means fuel oil intended for use in steam or hot water boiler systems or in oilburners or furnaces, for the production of heat, electricity, steam, or other uses to which #2to #6 fuel oil is put to; 1.3 **“Engine Fuel”**means a liquid fuel oil intended for use in an engine, for the production ofelectricity, mechanical power, steam, or other uses to which kerosine and other fuels are putto; 1.4 **“Feedstocks”**means wood, wood residues, agricultural biomass, organic municipal waste, fossilfuels and any other matter, whether liquid, solid or gaseous, capable of being processed inthe RTP Reactor; 1.5 **“Know-how”**means all confidential information, trade secrets, know-how, operating andbusiness data of ENSYN relating to the design, construction, and use of the RTP Reactors forthe manufacture of Product, and includes without limitation, methods, processes, procedures,formulae, compositions, designs, illustrations, drawings, photographs, graphs, tables,specifications, instruction manuals, lists, charts and programs, disclosed orally, visually orin writing to GROUP by ENSYN or gathered by GROUP from inspection; 1.6 **“Improvement”**means any modification or refinement of the Technology or Product or thedevelopment or acquisition of a new Product, whether patentable or not, that is developed oracquired by or on behalf of GROUP or ENSYN during the term of this Agreement and would, ifexploited, improve the operational quality or economic characteristics of the Technology; 1.7 **“Liquid Smoke”**means liquid smoke for use for smoke flavouring purposes, food andpharmaceutical specialty chemicals, fragrances, food flavourings, food browning compounds andfood additives produced by fast pyroysis from food stocks or other biomass feed stocks; 1.8 **“Other Chemicals”**means any chemical or material derived from or that may be made in a RTPReactor but not including Liquid Smoke; 1.9 **“Product”**mean Boiler Fuels, Engine Fuel, Turbine Fuels, Other Chemicals and any liquids,gases or solids which may result from processing in an TRP Reactor from the pyrolysis ofFeedstocks but does not include Liquid Smoke; 1.10 **“Royalty Territory”**means Canada; 1.11 **“RTP”**means the rapid heating of carbonaceous material, at a rate of 400 degrees Centigradeper second, to a temperature of at least 400 degrees Centigrade and retaining the saidcarbonaceous materials together with the initial pyrolysis products in a pyrolysis reactor ata temperature of at least 400 degrees Centigrade for less than 2 seconds; 1.12 **“RTP Reactor”**means a reactor for the rapid heating of carbonaceous materials, at a rate ofover 400 degrees Centigrade per second, to at least 400 degrees Centigrade and retaining thesaid carbonaceous materials together with the initial pyrolysis products in a pyrolysisreactor at least 400 degrees Centigrade for less than 2 seconds;

 

31.13 **“Technology”**means all patents and patent applications set out in Schedule A and Know-howrelating to the construction, design, manufacture of RTP Reactors and to the operation of RTPReactor for the production of Product; 1.14 **“Territory”**means the world; 1.15 **“this Agreement”**means this agreement (including all schedules to this Agreement) as the samemay from time to time be amended by agreement in writing signed by the parties; 1.16 **“Turbine Fuels”**means a liquid fuel oil intended for use in a turbine, for the production ofelectricity, mechanical power, steam, or other uses to which kerosine and other turbine fuelsare put to.**ARTICLE 2****GRANT OF TECHNOLOGY LICENSE**2.1     **License.**Subject to the terms and conditions of this Agreement including Section 5.1.3 and therestrictions in Section 2.2 and the existing licenses set out in Schedule C, ENSYN hereby grants toGROUP and GROUP accepts a non-transferable exclusive right in the Territory, with the right togrant sub-licenses, to:2.1.1     use the Technology to operate an RTP Reactor;2.1.2     make, use and sell Product; and2.1.3     use any Improvements.2.2     **Restrictions.**2.2.1     ENSYN hereby reserves to itself the exclusive right to use the Technology in the Territoryfor the sole purpose of engineering, designing and constructing RTP Reactors.2.2.2     Unless otherwise agreed to in writing, GROUP shall not use any ENSYN owned Technology for anypurpose other than those pertaining to the exercise of the rights granted by ENSYN or theobligations accepted by GROUP pursuant to this Agreement.**ARTICLE 3****GRANT OF TRADE-MARK LICENSE**3.1     **License.**Subject to the terms and conditions of this Agreement, ENSYN hereby grants to GROUPwith the right to grant sub-licenses, a non-exclusive, non-transferable license to use the

 

4MARKS set out in Schedule B hereto as it may be amended from time to time (“MARKS”), in theTerritory in association with RTP Reactor and Product provided that;3.1.1     GROUP accepts that its usage of the MARKS shall at all times be under the control of ENSYN,and GROUP co-operates with ENSYN in facilitating the exercise of such control by ENSYN;3.1.2     GROUP adheres to the standards that are set from time to time by ENSYN governing the qualityof RTP Reactor and Product, and all related advertising and promotional material provided inassociation with the MARKS;3.1.3     ENSYN shall have the right of access to GROUP’S premises during normal business hours, forthe purpose of inspecting the RTP Reactor and Product provided by GROUP in association with theMARKS in order to ensure the quality thereof;3.1.4     GROUP supplies to ENSYN once each year during the term of this Agreement, or more often ifrequested by ENSYN, specimens of its usage of the MARKS;3.1.5     GROUP uses the MARKS only in the form and manner and only with the following legend, or suchother legend as may be prescribed from time to time by ENSYN “trade-mark owned by ENSYNTechnologies Inc. used under license” or such similar notice in the appropriate language(s) wherethe MARKS are being used;3.1.6     GROUP uses the MARKS only in association with the RTP Reactor and Product and with no othergoods or services; and3.1.7     GROUP does nothing inconsistent with the validity of the MARKS or inconsistent with ENSYN’Sownership of the MARKS.3.2     **Amendments.**The parties may from time to time amend the contents of Schedule B hereto byadding or deleting trade-marks. Such amendments may be effected by an authorized signing officerof each party initialing and dating an amended Schedule B, with the amended Schedule B becomingeffective on the date on which both signing officers have initialed the same. The terms andconditions of this Agreement shall apply to such amended Schedule B as fully and completely asthough it had always formed part of this Agreement.3.3     **Restrictions.**GROUP shall not use the MARKS, or any of them, in its business name without theprior written consent of ENSYN. In the event that such consent is given, GROUP agrees that allsuch usage shall enure to the benefit of ENSYN and shall be in strict accordance with any terms andconditions set by ENSYN. ENSYN hereby confirms its consent to the use of the MARK “ENSYN” as partof the corporate and trade name of GROUP.3.4     **Consequences upon Termination.**Upon the termination of this Agreement, for any reason,whatsoever, GROUP shall immediately cease any and all use of the MARKS and discontinue theprovision of all RTP Reactor and Product in association with the MARKS. If

 

5applicable, GROUP shall also immediately change its business name to delete the MARKS, or any ofthem, from its name. Further, following termination, GROUP shall not do anything inconsistent withthe validity of the MARKS or inconsistent with ENSYN’S ownership of the MARKS. Without limitation,GROUP shall not use any of the MARKS, or any word or design which may be confused with any of theMARKS, either as a trade-mark or a trade name, or as an element in a trade-mark or a trade name.**ARTICLE 4****IMPROVEMENTS**4.1     **Improvements.**If either party develops any Improvements, each party shall notify the otherparty of such Improvement and, in the case of ENSYN, such notice shall also contain a statement ofthe costs incurred in developing or acquiring such Improvement. Subject to the terms andconditions of this Agreement, each party which owns an Improvement shall grant the other party apaid-up, non-exclusive, non-transferable license to use the Improvement for the purposes set forthin this Agreement.4.2     **Exclusions.**Section 4.1 does not apply to Improvements relating to any non-fast pyrolysistechnology.**ARTICLE 5****OBLIGATIONS****5.1**     **Obligations.**In consideration for the grants herein:5.1.1     GROUP hereby agrees to pay to ENSYN a cash royalty payment in an amount equal to threepercent (3%) of the cost of construction of the RTP at the time of the initial commissioning ofeach and every RTP Reactor in the Royalty Territory during the term of this Agreement.5.1.2     GROUP hereby undertakes to use its best efforts to commercially exploit the Technologythrough the grant of sub-licenses and construction of RTP reactors throughout the Territory.5.1.3     GROUP and ENSYN shall enter into an agreement whereby ENSYN shall be appointed to provide alldesign, engineering, supervision and training services relating to the construction andcommissioning of RTP Reactors by an sub-licensee utilizing Technology so that ENSYN may use itsreserved rights to permit full utilization of sub-licenses granted by GROUP.

 

65.1.4     If ENSYN is unable to materially perform said design, engineering, supervision and trainingservices for any specific sub-licensee, and remains unable to do so after 60 days written notice byGROUP to ENSYN specifying in detail the lack of performance, GROUP may, for that specificsub-licensee, use or sub-license others to use, the Technology in the Territory to design andconstruct the RTP Reactor.**ARTICLE 6****TECHNOLOGY**6.1     **Ownership.**GROUP acknowledges that ENSYN owns all rights in the Technology With respect to allImprovements, it is agreed that the party that has developed or acquired such Improvements shallown them, it being agreed, however, that GROUP shall have the right to purchase any Improvementsdeveloped or acquired by ENSYN by paying to ENSYN the cost of developing or acquiring suchImprovements. GROUP shall have the right to commission ENSYN to research and develop Improvementsfor which GROUP will pay the actual cost and, in such event, GROUP shall be the owner of suchImprovements ab initio. ENSYN agrees to execute and have executed any such documents that GROUPmay reasonably require to give effect to this section.6.2     **Right of First Refusal.**ENSYN herby grants to GROUP the right of first refusal to acquire allor any part of the Technology or Improvements if ENSYN wishes to assign its rights therein. ENSYNshall give a written proposal to GROUP (in accordance with Section 10.13) outlining the materialterms including without limitation, the particular Technology or Improvement or both, as the casemay be, price, and geographic location in sufficient detail so that GROUP may make an informeddecision as to whether to acquire said Technology or Improvements. GROUP shall have 10 days afterreceiving such notice within which to request any additional detail that it may reasonably requireto make an informed decision. If GROUP has not provided its written agreement to ENSYN to enterinto the acquisition on the terms of the proposal within the later of (a) 30 days after receipt ofsaid proposal, or (b) 20 days after receipt of additional detail pursuant to the precedingsentence, ENSYN may enter into an agreement with a third party on substantially the same terms asthose proposed to GROUP.**ARTICLE 7****WARRANTIES, REPRESENTATIONS, AND INDEMNITIES**7.1     **Authority.**Each party represents and warrants that is has good and sufficient power, authorityand right to enter into and deliver to each other this Agreement.

 

77.2     **Matters not Covered by Warranty or Representation.**ENSYN makes no representation or warrantyof any kind whatsoever, express or implied, except as expressly set out herein. Without limitingthe generality of the foregoing, nothing in this Agreement shall be construed as:7.2.1     a warranty or representation by ENSYN as to: the validity or scope of any of the rights inthe Technology or ENSYN’s Improvements; the use of the MAKRS; the ability of GROUP to understandand use the Technology or ENSYN’s Improvements; or the operability or economy of any process orequipment used in accordance with this Agreement;7.2.2     a warranty or representation that any use of the Technology or Improvements will be free frominfringements of third party rights; or7.2.3     an agreement to bring or prosecute actions or suits against third parties for infringement ofthe Technology, MARKS or ENSYN’s Improvements.7.3     **Entire Warranties.**The warranties contained in this Agreement are in lieu of any otherwarranties or conditions express or implied including, but without limitation, implied warrantiesor conditions of merchantable quality or fitness for particular purpose and those arising bystatute or otherwise in law or from a course of dealing or usage of trade other than the saidexpress warranty contained herein.7.4     **Infringement by a Third Party.**If a third party is infringing any of ENSYN’S rights in thepatents or patent applications in Schedule A, ENSYN may, at its own expense and for its ownbenefit, bring legal action to restrain such infringement and for damages. If GROUP elects, itmay, at its own expense, and for its own benefit, join in the action and be represented by counselof its selection, but ENSYN shall have complete control of the action. If ENSYN refuses uponwritten request by GROUP to bring such an action, then GROUP shall have the right to do so but atGROUP’s own expense and for GROUP’s own benefit.7.5     **Infringement of Third Party Patents.**Subject to Sections 7.7 and 7.8, ENSYN will, at itsexpense, defend GROUP against any claim of a third party that the use of the Technology constitutesan infringement of a patent. ENSYN will pay all costs, damages and legal fees that a court finallyawards, or a final settlement amount, if any, as a result of such claim. This defence and paymentis conditional upon GROUP promptly notifying ENSYN of such claim and cooperating fully in thedefence and all related negotiations. If GROUP wishes to be independently represented, it shall beat GROUP’s expense. ENSYN shall have entire control of the defence proceedings. This defence andpayment obligation does not apply if it is established that the infringement was caused bymodifications to the Technology by GROUP.7.6     **Options.**If a claim is made by a third party that use of the Technology infringes itsintellectual property rights, ENSYN may, at its option and at its own expense:

 

87.6.1     procure for GROUP the right to continue using the Technology;7.6.2     with the consent of GROUP replace the same with comparable non-infringing Technology ormodify the Technology so as to avoid the infringement provided that such modification does notmaterially reduce the processing capacity or quality or increase the costs of production.7.7     **Consequential Damages Limitation.**Neither party will be liable to the other for any indirect,special or consequential damages related to or arising out of this Agreement howsoever causedincluding, without limitation, any based on strict product liability theories, even if the partyhas been advised about the possibility of such damages.7.8     **Aggregate Liability Limitation.**ENSYN’s aggregate liability for all the obligations in Section7.5 will not exceed the amount of $2,500,000.00.7.9     **GROUP’s Obligation to Indemnity.**GROUP will indemnify and hold harmless ENSYN, its employeesand agents, against all liability, demands, damages, expenses or losses arising out of use by GROUPof the Technology.**ARTICLE 8****TERM AND TERMINATION**8.1     **Term.**The Term of this Agreement shall be from the date hereof until terminated in accordancewith Article 8.2.8.2     **Grounds for Termination.**8.2.1     **Party in Default.**This Agreement may be terminated by either party immediately upon noticeif the other party is in default of any term of this Agreement and remains in default or has notcommenced reasonable steps to cure such default after six months notice of the default has beengiven by the other party to the defaulting party, or such other time period as mutually agreed bythe parties;8.2.2     **Bankruptcy.**Without limiting the generality of Article 7.2.1, in the event of bankruptcy ofGROUP, an order is made for winding up GROUP, or if any execution, sequestration or other processof any court becomes enforceable against all or substantially all of the assets of GROUP, thisAgreement may be terminated in whole or in part immediately, upon notice to the other party.If GROUP makes a proposal seeking protection from its creditors under legislation other than theBankruptcy Act, ENSYN may, at its option, terminate this Agreement except where prohibited by law.

 

98.3     **Obligations upon Termination.**8.3.1     If termination is for cause by ENSYN pursuant to Section 8.2, upon termination, all licensesgranted herein cease. GROUP shall, at ENSYN’s option, either immediately return to ENSYN ordestroy the Know-how and Confidential Information and all copies thereof, in any form whatsoever,which are in the possession of or under the power or control of GROUP. Upon request, GROUP shallprovide ENSYN with a certificate of an appropriate officer of GROUP certifying such return ordestruction.8.3.2     If termination is for cause by GROUP pursuant to Section 8.2, all licenses granted hereinshall be deemed, effective one day prior to the precipitating event including without limitation,the bankruptcy, to be irrevocable, perpetual, and transferable licenses, which shall survivetermination of this Agreement.8.4     **Existing Sub-licenses.**Termination of this Agreement howsoever caused, shall not affectexisting sub-licenses granted pursuant to this Agreement.8.5     **Force Majeure.**Neither party shall be liable for delay or failure to perform its obligationshereunder for causes beyond its reasonable control and without the fault or negligence of thatparty provided that that party shall use due diligence in attempting to remove the cause. In theevent that any such cause should continue for a period of 90 days, the other party shall have theright to terminate this Agreement by giving notice of its intention to terminate to that party.**ARTICLE 9****CONFIDENTIALITY**9.1     **Confidential Information.**The parties acknowledge that the Technology and Improvements,excluding patents and published patent applications, are confidential (“Confidential Information”)except for the exclusions set out in Section 9.2.9.2     **Obligations.**Each party to this Agreement will keep the other party’s Confidential Informationsecret and confidential, and will refrain from disclosing the said information to any third party,using the same standard of care as it would use for its own proprietary information of similarnature except, when and to the extent that such information was previously known on anon-confidential basis and is not subject to another obligation of secrecy and non-use, asdocumented by reasonably convincing written records possessed by the disclosing party prior todisclosure; or9.2.1     such information at the time of disclosure is in the public domain or which thereafterbecomes part of the public domain through no fault of the disclosure; or9.2.2     such information is received in good faith on a non-confidential basis and without a userestriction by the disclosing party from a third party who lawfully obtained and disclosed suchinformation; or

 

109.2.3     such information is required to be disclosed by enforceable legal process; or9.2.4     prior written consent is obtained from the other party.Each party hereby warrants that its employees will only by given access to the other party’sConfidential Information on a next-to-know basis, and that such employees are obligated toconfidentiality and non-use obligations at least as restrictive as those assumed by the partiesherein.9.3     **Surviving Termination.**This provision survives termination of this Agreement.**ARTICLE 10****GENERAL**10.1     **Laws of England.**This Agreement shall be governed by and construed in accordance with thelaws in force in England.10.2     **Extended Meanings.**In this Agreement, words importing the singular number include the pluraland vice versa, and words importing gender include all genders.10.3     **Headings.**The division of this Agreement into Articles, Sections, Clauses and Subclauses, andthe insertion of headings are for convenience of reference only and shall not affect itsconstruction or interpretation.10.4     **References.**References to a specified Section or Schedule shall be construed as reference tothat specified Section of or Schedule to this Agreement unless the context otherwise requires.10.5     **Business Day.**In the event that any action to be taken under this Agreement falls on a daywhich is not a Business Day, then such action shall be taken on the next succeeding Business Day.10.6     **Schedules.**The following is a list of Schedules attached to and incorporated into thisAgreement by reference and deemed to be a part of this Agreement:Schedule A          Patents and Patent Applications