In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

[Q]: SOFTWARE LICENSE AND MAINTENANCE AGREEMENT     THIS SOFTWARE LICENSE AND MAINTENANCE AGREEMENT (Agreement) is made and entered into as of this 27th day of April  2009 by and between SFG Financial Corp, a/k/a E-Path FX, a Delaware Corporation whose principal address is 575 Madison Avenue, 8th Floor, New  York, NY 10022 (Licensor), and 551 FX IB Associates, LLC a Delaware Limited Liability Company, whose principal address is located at 575 Madison Avenue, 8th Floor, New York, NY 10022 (Licensee).     WHEREAS, Licensor is the owner of a certain proprietary trading software known as the E-Path FX Trading Platform, specifically, and  variations thereof, along with documentation and related information, including the intellectual property rights pertaining thereto: and     WHEREAS, Licensor is the owner of the computer equipment (the Hardware) required for the operation of the Platform that is located  at a single centralized location, specifically at Internap Inc,76 Ninth Avenue, New York, New York10011; and     WHEREAS, Licensee desires to obtain from licensor a Non Exclusive, Non Transferrable license rights and licenses granted herein to the  Platform, for purposes of implementing and marketing an over-the-counter, (OTC) Foreign Currency Exchange Service utilizing the Platform; and     WHEREAS, Licensor shall convey a Non Exclusive license to the Licensee solely for Licensee's use in the field of foreign exchange  transactions only; and     WHEREAS, Licensor is willing to grant such rights, licenses and options under the terms and conditions of this agreement;     NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt  and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:        ARTICLE I  CERTAIN DEFINITIONS     For the purposes of this Agreement:





1.1 AFFILIATE means, in the case of any corporation, partnership, limited liability company or other business or investment entity, a  different business entity or other individual that directly or indirectly, through one or more intermediaries controls, or is controlled by, or  is under common control with the business entity.

1.2 CONFIDENTIAL INFORMATION shall mean, all existing and future information, including but not limited to Software documentation,  Software training and instruction manuals, data, reports, programs, methods, tapes, recorded notes, computer-generated data, tests,  studies and other written documents, computer programs, proprietary trade secrets and know-how, Software, Intellectual Property Rights  and any and all other information embodied in a tangible form relating to and disclosed to the Licensee in connection with this  Agreement, including but not limited to those related to the Licensed Technology. The foregoing items referenced in the preceding  sentence shall be deemed to be confidential within the meaning hereof when, and so long as it is not in possession of the Licensee  prior to the disclosure thereof (except in the event same wrongfully obtained by, or wrongly disclosed to the Licensee); or is not then and  does not become part of the public knowledge and literature through the fault of the Licensee.



















1.3 DERIVATIVE WORK means any additions, modifications, improvements or enhancements based upon or incorporating the Licensed  Technology, such as modifications, enhancements or any other form in which the Licensed Software may be recast, transformed or adapted.

1.4 DOCUMENTATION means documentation developed by Licensor from time to time in printed or computer file format relating to the  installation or use of the Licensed Software.

1.5 FIELD OF USE means, and is limited to, the utilization of the Licensed Technology by the Licensee for the exclusive purpose of  fulfilling Spot FX transactions by transmitting market data and orders. The Field of Use shall not include any functions or applications  not expressly described in the preceding sentence, but shall include functions or applications developed by Licensor to enhance the  performance within the Field of Use.

1.6 INTELLECTUAL PROPERTY RIGHTS means, collectively, all of the following intellectual and similar property rights of Licensor,  whether or not filed, perfected, registered, issued or recorded and whether now or hereafter existing including, but not limited to, all: (i)  patents, patent applications, and patent rights, including any and all continuations, divisions, reissues, reexaminations, or extensions  thereof; (ii) rights associated with works of authorship, including but not limited to copyrights, copyright applications and copyright  registrations. Moral Rights (as defined below) trademarks, trademark applications, service marks, trade dress and mask works; (iii) rights  relating to the protection of trade secrets, know-how and other confidential information including, but not limited to, rights in industrial  property and all associated information and confidential or proprietary information; (iv) industrial design rights; (v) utility models,  inventions, and/or discoveries; (vi) know-how or other data or information, software, databases and all embodiments or fixations thereof; (vii) Licenses, documentations, registrations and franchises, and all additions, improvements and accessions to , and books and records describing or used in connection with, any of the items set forth in the preceding clause and (viii) any rights analogous to those set forth  in the preceding clauses and any other proprietary rights relating to intangible property.

1.7 LICENSED KNOW-HOW means the proprietary know-how and trade secrets related to the Licensed Software and all Intellectual  Property Rights with respect to the Licensed Software.

1.8 LICENSED SOFTWARE means the Platform Software.













      ARTICLE II  LICENSE GRANT AND RESTRICTIONS       I. Licensee acknowledges and agrees that:





1.9 LICENSED TECHNOLOGY means the Licensed Know-How and the Licensed Software, collectively.

1.10 MORAL RIGHTS means and right of paternity or integrity, any right to claim authorship of, to object to or prevent and distortion,  mutilation or modification of, or other derogatory action in relation to, the subject work, whether or not such would be prejudicial to the  author's honor or reputation, to withdraw from circulation or control the publication or distribution of the subject work, or similar right,  existing under judicial or statutory law of any county in the world, or under and treaty, regardless of whether or not such right is  denominated or generally referred to as a moral right.

1.11 PLATFORM SOFTWARE means all Software owned, licensed and/or controlled by Licensor necessary for the Licensee to operate E- Path FX Trading Platform (Platform), which provides real-time consolidation of multiple Electronic Communication Networks (ECN)  markets, exchanges, and other pools of liquidity for Spot FX (collectively the Pools of Liquidity) via proprietary processes and front- end user interface for viewing market data and trading Spot FX.

1.12 SOFTWARE means computer programs and systems, whether embodied in software , firmware or otherwise, including, software  compilations, software, software implementations of algorithms, software tool sets, compilers, and software models and methodologies  (regardless of the stage of development or completion) including any and all: (a) media on which any of the foregoing is recorded; (b)  forms in which any of the foregoing is embodied (whether in Source Code, Object Code, executable code or human readable form); (c)  translation, ported versions and modifications or any of the foregoing. Source Code means fully documented human-readable source  code form of the Software, including programmer's notes and materials and documentation, sufficient to allow a reasonably skilled  programmer to understand the design, logic, structure, functionality, operation and features and to use, operate, maintain, modify,  support and diagnose errors. Object Code means Software in machine-readable form that is substantially or entirely in binary form or  otherwise directly executable by a computer after processing or linking.

i. The Licensed Technology is comprised of Licensor's trade secrets and other proprietary, confidential information; and

ii. Licensee will not sell, lease, lend, transfer, assign, hypothecate, or otherwise distribute the licensed programs to  any third party for use in the field of foreign exchange transactions unless the Licensee receives specific approval  of the Licensor.













   The licensee will not use the Licensed Technology or permit the use of the Licensed Technology for any illegal  purpose, and will use the Licensed Technology only in accordance with the terms of this License Agreement.

   Licensor, specifically and without limiting any of the foregoing assumes neither, responsibility or liability for the  availability, timeliness or accuracy of the system or any equipment, regardless of whether or not the equipment was recommended, selected, is contained for, or is located on the Licensor's premises.     The Licensee has independently evaluated the system, and has concluded that use of the system confers a  significant benefit to the Licensee. Accordingly the Licensee hereby assumes all liabilities and risks associated  with the use of the system and equipment, except for direct damages arising from gross negligence or willful  misconduct of the Licensor.

iii. Licensor hereby, subject to the terms and conditions of this Agreement and provided that Licensee makes  payments to Licensor as required under this Agreement, grants to Licensee a non-exclusive license to utilize  Licensed Technology solely in the Field of Use and subject to the additional restrictions set forth below and otherwise in this License Agreement.

iv. It is hereby acknowledged by Licensor, that Licensee desires to make use of the Licensed Technology to access  consolidated market data and to enter orders for trading Spot FX.

v. The Licensee's rights to access and use the Licensed Technology is limited to Licensor's operating hours, on days  that the foreign exchange markets are open for trading (FX) (Market Day). At the end of the Licensor's  operating hours or each market day the system will automatically transmit cancellation messages for each open  ticket that is processed on the system or on any of the Pools of Liquidity at that time. There is no guarantee that  these cancellations of the open tickets, nor that such tickets will not result in executions outside of the Licensor's  operating hours. The Licensee will be responsible for immediately reporting to the Licensor any apparent failure of  either transmissions or other system failure or delays.

vi. The Licensee will use the Licensed Technology only for (i) receiving market data, and (ii) entering trading tickets in  the ordinary course of the Licensee's business activities.

vii. The Licensee acknowledges and understands neither, the Licensor, nor any of its respective affiliates, employees,  officers or agents shall assume any responsibility or liability for the system's operations, involving the operations  of any equipment, (including but not limited to computer equipment or peripherals, server equipment,  communication equipment and data lines, all such equipment, collectively referred to herein as the Equipment).











   The foregoing shall apply regardless of whether a claim arises in contract, tort, negligence, strict  liability or otherwise.     II. Additional Restrictions. The Licensee expressly agrees and acknowledges that, notwithstanding anything herein to the contrary,  Licensee is not licensed to, and Licensee expressly agrees that it shall not(and shall not permit any third party to);







viii. The Licensee acknowledges and understands that accessing the Licensed Technology triggers and constitutes a  renewed assumption of such liabilities and risk.

i. The Licensee agrees that neither the Licensor, nor any of its respective affiliates, employees, officers,  or agents, shall be liable for any loss, damage, cost or expense, (direct or indirect) except for direct  damages arising from the gross negligence of willful misconduct of the Licensor.

ii. Licensor shall assume no liability, both contingent and otherwise, which may arise out of or be in any  way related to the following; (a) furnishing, performance, maintenance, use of, or inability to use all or  any part of the system, (b) any fault in the delivery or operation of the system, (c) suspension or  termination of the Licensee's ability to use all or part of the system, or any inaccuracies or omissions  in any information or documentation provided, (d) any failure or delay suffered or allegedly suffered  by Licensee in initiating and terminating trades, (e) the termination of all or part of this Licensee  Agreement by the Licensor, (f) the termination or modification of any and all parts of the License.

(a) use the Licensed Technology (all or any portion thereof) other than within the scope of the license granted by Licensor  under this Agreement;

(b) disclose any Licensed Technology to, or permit the use or access of any Licensed Technology by, any third party for any  reason without the prior written consent of Licensor;

(c) sublicense, assign, lease, transfer or distribute any Licensed Technology, or operate and Licensed Technology for  timesharing, rental, outsourcing, or service bureau operations, or to train persons (other than employees of the Licensee on  the use of any Licensed Technology solely in the Field of Use);













   In addition, Licensor acknowledges and agrees that, except to the extent necessary for Licensee to exercise its rights under  the license granted in this Agreement, Licensee is not being granted, and will not hold, any other intellectual property rights  of Licensor whatsoever. Licensee's rights in the Licensed Technology are hereby limited to the license rights expressly  granted to Licensee under this Agreement and all rights not expressly granted to Licensee herein are expressly reserved and  retained by Licensor. Licensee acknowledges that the grant of the license set forth in this Section is a non-exclusive license  and that the Licensor shall have the right to use and to license to other parties the Licensed Technology for any purpose  and in any manner as Licensor may determine in its sole discretion.     Licensee acknowledges and agrees that the restrictions set forth in this Section, constitute a material inducement and  consideration for Licensor's willingness to grant the license set forth herein. Any failure of Licensee to adhere to these restrictions will constitute a material failure of consideration and material breach of this Agreement that will entitle Licensor  to terminate this Agreement and all Licensee's rights and licenses hereunder upon written notice to Licensee in accordance  with the provisions of this Agreement.

(d) create or develop, and/or allow any third party to create or develop, any Derivative Work of any Licensed Technology;

(e) disclose any Licensed Technology to, or permit the use or access of any Licensed Technology by any individuals other  than the employees of the Licensee for use in the Field of Use.

(f) directly or indirectly, reverse engineer, reverse assemble, disassemble or decompile all and/or part of the Licensed  Technology, or otherwise attempt to discover any source code, algorithms, trade secrets or other proprietary rights  embedded in or relating to the Licensed Technology by any means whatsoever (except and solely to the extent that applicable law prohibits reverse engineering restrictions), nor shall it knowingly permit any other individual or corporation,  association, partnership, limited liability Licensee, joint venture, joint stock or other Licensee, business trust, trust,  organization, governmental authority or other entity of any kind to do so.

(g) Modify, alter, improve and/or change in any manner all and/or any portion of the Licensed Technology in any manner  without the prior written consent of Licensor.





   ARTICLE III  OWNERSHIP    Licensee acknowledges that Licensor owns all right, title, and interest in and to the Licensed Technology and all Intellectual Property  Rights therein. Licensee will not delete or in any manner alter the copyright, or other proprietary rights, notices of Licensor appearing on or in the  Licensed Technology as delivered to Licensee. Licensee will not copy or reproduce the Licensed Technology (including Derivative Works of  Licensed Technology), in whole or in part without the prior written consent of Licensor. To the extent Licensee is provided reproduction rights  pursuant to such written consent, Licensee must reproduce on each copy of any Software related to the Licensed Technology, all copyrights,  patent, or trademark notice, and any other proprietary legends that were provided in the originals. In addition, Licensee will use its reasonable  efforts to protect Intellectual Property Rights in the Licensed Technology and will report promptly to Licensor any infringement of such rights of  which the Licensee becomes aware. Licensor reserves the right at its discretion to assert claims against third parties for the infringement or  misappropriation of Licensor's Intellectual; Property Rights in the Licensed Technology and to retain all compensation, damages and other  amount payable to Licensor with regard to such infringement or misappropriation therein.       ARTICLE IV  TERM    I Subject to termination pursuant to this Agreement, the Non Exclusive license granted by Licensor to Licensee shall be for an initial  period of 36 months, commencing from the acceptance date, (the Initial Period). The Agreement may be renewed for an additional period of  seven (7) years at the option of the Licensor. Upon any breach by Licensee of any representation, warranty, covenant and/or obligation  hereunder, the Licensor may immediately terminate this Agreement and prohibit the Licensee's use of any and/or all of the Licensed Technology.  In the event of such immediate termination Licensor shall retain all of it rights under this Agreement and applicable law including but not limited to  the right to receive payments for all trades performed using the Licensed Technology.     II The Initial Period shall be extended by mutual written of the parties within 45 days of the close of the Initial Period.     III Any additional extension of this License Agreement will be by mutual agreement in writing.     ARTICLE V  LICENSEE FEE, TAXES, AND TERM     I As consideration for the Licensee to use the licensed programs and software system as set forth in this agreement, Licensee shall pay to  Licensor the Non Exclusive license fee as set forth below.





   (a) Form of Payment:     Licensee shall remit to Licensor, contemporaneous with the execution of this Agreement, a n  Initial Payment of  $35,000.00 which has previously been advanced by Licensee to the Licensor.     All payments provided for in this Agreement are exclusive of, (and Licensee shall pay) all taxes, customs, duties,  insurance, shipping, and other charges. Payments made to Licensor shall be in United States Dollars.     (b) Taxes:     All taxes in connection with this Agreement including foreign or domestic sales, use, personal property, excise, or other  similar taxes, duties, and charges that may become due as a result of sales of the Platform, however, designated, which charges shall be paid directly by Licensee.



   USER FEES - Non-Exclusive User Fee and Pay Periods

   Charges and Payment Terms



(c) Option

The Licensor shall grant to the Licensee a six month option (the Option) to purchase up to 3,333,333 shares of its  common stock. If the Option is exercised in part or in whole on or before June 30, 2009, the exercise price of the Option  shall be $0.15. However, if the Option is exercised after July 1, 2009, the exercise price of the Option shall be $0.20. The Licensor acknowledges that to date the Licensee has advanced the aggregate sum of $63,309, of which $28,309 shall be  applied against the partial exercise of the Option. Additional sums advanced to SFG, prior to the execution of this  Agreement, and subsequent to the execution of this Agreement shall be detailed in Schedule A and annexed hereto  and will be applied consistent with the terms of the Option granted pursuant to this section.

II. As compensation for the Licensee to use the Licensed Technology during the Initial Period, Licensee shall pay to Licensor, the  following user fees:

Monthly Notional  Volume bands  (US$bn) traded on  Platform by Licensee

Payments to Licensor  Fee rate per US$1million  traded  (for each one-way part  of the trade)

0-10 US$7.50

10-20 US$7.00

20-30 US$6.00

30-50 US$5.50

50+ US$5.00























   The cost of the audit will be borne by Licensor unless a discrepancy of more than five-percent (5%) is discovered, in which  case the cost of the audit shall be borne by Licensee.

i. For the purpose of this Agreement:

(i) Monthly Notional Volume  means the US$ (US Dollar) equivalent of the primary currency traded Client turnover,  provided that US$ (US Dollar) conversion should be made based upon the monthly revaluation rate (last business day) and volume should be rounded to the nearest million; and

(ii) For the avoidance of doubt, if any of the Monthly Notional Volume is reached in one relevant month, the fee rate per  trade applicable to the highest Monthly Notional Volume band reached in that month shall apply to all trades (each  way) in that month; not just to the trades within a particular band. For example, if in any given month the Monthly  Notional volume traded is (US$10.1 billion), the fee rate per (US$1 million trade will be US$7 for the entire amount of  US$10.1 billion.

III. Time of Payment

(a) Each payment for a particular calendar month shall be due no later than the (20th) day of the subsequent calendar month.

(b) The Licensee shall calculate the license fee payable to the Licensor for each month based on the Monthly Notional Volume  bands for that pay period and shall pay the Licensor accordingly. In no event shall the amount payable by the Licensor be  less than the amount recorded by the Licensee as being traded with the Licensed Technology multiplied by the applicable  Fees set forth above.

IV. Record Keeping and Reports

(a) As a condition of Licensee receiving the grant of a license herein, Licensee agrees to maintain reasonable records relating to  all trades conducted through the Licensed Technology and all other uses of the Licensed Technology by the Licensee  under this Agreement. Licensee shall prepare and submit summary quarterly reports to Licensor no later than 20 days  following the last business day of each calendar quarter, which reports must specify a complete record of usage of the  Licensed Technology by the Licensee and shall accompany the payments made to Licensor.

(b) Licensee agrees to allow an independent Certified Public Accountant or other Audit Professional, (selected by mutual  agreement) to audit and analyze appropriate accounting records to ensure compliance with all terms of this Agreement. Any  such audit shall be permitted by Licensee within 30 days of Licensee's receipt of a written request of Licensor.



















   Supplemental Payments will be paid by the Licensee to the Licensor within (10) days of receipt of said payments by the Licensee from third parties

   (a) Simultaneously with the execution hereof, the Licensor shall issue to the Licensee 350,000 shares of its common stock as a bonus.

(b) Rebate Shares. During the period commencing on the Acceptance Date through the thirty six (36th) month anniversary of this  Agreement, the Licensor shall remit to Licensee a series of rebates based upon the amount of Notional Volumes traded on the EPath FX  Trading Platform by Licensee. The computation of the rebates received by Licensee shall be expressed as a fixed percentage (15%) of  Billable Platform Fees paid by Licensee to Licensor. The rebates shall be payable in shares of Licensor's Common Stock; priced at $.25  cents per share. The amount of rebates earned by Licensee shall be calculated for each tranche of 30 Billion of Notional Volume traded in  the EPath FX Platform by Licensee. The amount of shares earned by Licensee shall terminate at the earlier of, the expiration of the term of  this Agreement or the receipt of Six (6,000,000) Million shares of Licensor's common stock by Licensee.    By way of illustration, if the Licensee trades 30 Billion of Notional Volume on the Platform, with a Billable Platform Fee of $279,000. The  rebate to Licensee will be calculated as follows:  Rebate = 15% of $279,000 = $41,850;  Shares of Licensor representing $41,850/$.25 = 167,400 shares of Licensor.

V. Enhancements: Supplemental Payments

I. During the term of the non-exclusive license agreement, Licensor shall receive from Licensee one third (33%) of the gross  amounts earned by the Licensee from third parties applicable to the following areas of the Licensed Technology usage (if any),  (Supplemental Payments):

(a) Clearing fees

(b) Banking Rebates (give-up fees)

(c) Processing of half pips

(d) Swap rates (swap interest rate differential)

(e) Currency spreads

II. Shares





  ARTICLE VI  SUB LICENSE AGREEMENT        Licensee agrees it shall not exchange, lease, sublease, distribute, assign, sell or otherwise transfer in any manner any right and/or interest  incident to the License Technology to any third party under any circumstances, without the prior written consent of the Licensor.          ARTICLE VII  TECHNICAL SUPPORT SERVICES       (a) The Licensor shall provide Technical Support Services relating to the maintenance and support of the Software and the Licensee shall pay  the Licensor $2,500 per month for such Technical Support Services.     (b) The Licensee may request that the Licensor performs further development and customization work for creating a unique client front end  and other enhancements to the Platform Software after the effective date. In the event the Licensee desires such services, the Licensee must agree  in writing to a price and the terms for such services based upon the scope of the work requested by Licensee. Until such an agreement is entered  into in writing, the Licensor shall have no obligation to perform such work.     (c) The parties agree that (except for the customization work) (above) all future enhancements to the Software, including any new Revisions,  Versions, updates to, or any other non-customized development work regarding the Software (which the Licensee may accept or decline) shall be  provided to the Licensee during the term of this Agreement at no additional cost.     (d) Except for the Charges set forth above, there shall be no additional fees payable by the Licensee to the Licensor for technical support  services pursuant to this Agreement, unless the parties agree to the contrary in writing.     (e) Licensee and Licensor Responsibilities





i. The Licensor shall provide customer support to Licensee on terms and conditions set forth herein below.

ii. The Licensee agrees to notify the Licensor in writing (including by email) or telephone promptly following the  discovery of any Error. Further, upon discovery of such an Error, Licensee agrees, if requested by the Licensor, to  submit to the Licensor a list of output and any other data that the Licensor may reasonably require to reproduce the  Error (to the extent reasonably available to the Licensee) and the operating conditions under which the Error occurred  or was discovered.









   (f) Error Corrections. During the term of this Agreement, the Licensor shall use commercially reasonable efforts to provide Error  Corrections for Errors in the Software reported by Licensee to the Licensor.     (g) Revisions. During the term of this Agreement, the Licensor shall make available to Licensee any Revisions of the Software or  Documentation at no extra charge, subject to limitations explicitly set forth in this Agreement. The Licensor will make such available to the  Licensee when the Licensor makes such Revisions generally available to its other licensees.     (h) Limitations. The Licensor shall have no obligation under this Agreement to make any modifications, Revisions, or Error Corrections,  other than those required to conform to the requirements of the Specifications and this Agreement. Notwithstanding the foregoing, the Licensor  shall have no obligation under this Agreement to correct Errors which result from the breach by Licensee of this Agreement, or which cannot be  remedied due to any modifications of the Software made by Licensee or any third party without authorization from the Licensor. If the Licensor  agrees to remedy any errors or problems not covered by the terms of this Agreement, Licensee shall pay the Licensor for all such work performed  at the Licensor's then-current standard rates. Licensee acknowledges that the Licensor is under no obligation to perform services with respect to  any hardware or any software which is not the Software.        ARTICLE VIII

CONTACT INFORMATION





Licensor Information:







iii. If required by the Licensee, the Licensor product managers and engineers will host free Web-based training seminars  covering a variety of topics to facilitate the use of the Software. These seminars will be broadcast on a periodic basis,  provided, however, that the Licensor is under no obligation to provide them on any specific schedule.

iv. Any software, modules, or other methods of communication developed by the Licensor in performing duties under this  Agreement shall be kept secure from access by the unauthorized third parties. Any failure of such security shall be  deemed, notwithstanding anything to the contrary, a failure of the Primary Function of the Software.

Account Manager: Michael C. Caska  Telephone: 917-226-9630  Fax: 646-607-9711  E-mail: mcaska@caskaco.com

Billing: Michael C. Caska  Telephone: 917-226-9630  Fax: 646-607-9711  E-mail: mcaska@caskaco.com

Tech Support: Michael C. Caska  Telephone: 917-226-9630  Fax: 646-607-9711  E-mail: mcaska@caskaco.com

Written Notices: SFG Financial Corporation

575 Madison Avenue, 8th Floor,

New York, NY 10022  Att: Michael C. Caska







Licensee Information:









   ARTICLE VIX

WARRANTY DISCLAIMER



THE LICENSED TECHNOLOGY IS PROVIDED ON AN AS IS BASIS WITHOUT WARRANTY OF ANY KIND AND LICENSOR HEREBY

DISCLAIMS ALL WARRANTIES CONCERNING THE LICENSED TECHNOLOGY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT

LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR PARTICULAR PURPOSE ,

COMPLETENESS, USE, ACCURACY AND/OR TITLE. LICENSOR DOES NOT WARRANT THAT THE LICENSED TECHNOLOGY IS ERROR-

FREE OR THAT IT WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED TECHNOLOGY WILL BE

UNINTERRUPTED,TIMELY SECURE OR ERROR-FREE, OR THAT ERRORS IN THE LICENSED TECHNOLOGY OR NONCONFORMITY TO ITS

DOCUMENTATION CAN OR WILL BE CORRECTED.



Account Manager: Name: Fred Miller  Telephone 212-605-0200  Fax: 212-605-0222  E-mail:_____________________________

Billing: Name: Fred Miller  Telephone 212-605-0200  Fax: 212-605-0222  E-mail:_____________________________

Written Notices: 551 FX IB Associates LLC

575 Madison Avenue, 8th Floor,

New York, NY 10022  Att: Fred Miller





   ARTICLE X

CONFIDENTIAL INFORMATION/NON SOLICITATION

   (a) NONDISCLOSURE. The Licensee shall not disclose, publish, or disseminate the Confidential Information to anyone other than the  Licensee's employees with a need to know and who have agreed in writing to be bound by the confidentiality provisions of this Section, or as may  be required by legal process. The Licensee agrees to use the same degree of care with respect to the Confidential Information that it takes to hold  in confidence its own most valuable proprietary information, but not less than reasonable care, to prevent any unauthorized use, disclosure, publication, or dissemination of the Confidential Information. The Licensee agrees to accept and use the Confidential Information only for the  purpose of carrying out its authorized activities under this Agreement. In the event the Licensee is required to disclose the Confidential  Information by an order of a court or governmental agency, then the Licensee shall first give written notice to Licensor to allow Licensor to make a  reasonable effort to obtain a protective order or other confidential treatment for the Confidential Information.     (b) NON SOLICITATION. During the Term of this Agreement and during the three year period after the expiration or termination of this  Agreement, the Licensee will not solicit any person employed by Licensor and/or its Affiliates to leave his or her employment with Licensor. For  purpose of this Article the term Solicit means any affirmative recruitment specifically aimed at one or more individuals identified by name, title or  affiliation, but shall not mean generally advertising job openings or any activities that constitute follow-up to individuals who respond to job  opening advertisements or who voluntarily initiate employment inquiries.        ARTICLE XI  INJUNCTIVE RELIEF    Licensee acknowledges that (i) any breach of its obligations under this Agreement with respect to the Licensed Technology, the  Licensed Know-How Rights, , the disclosure of Confidential Information and/or the Non Solicitation of Licensor Employees; (ii) any failure by  Licensee to use Licensed Technology strictly in accordance with the license rights granted to Licensee under this Agreement and/or (iii) any breach of its obligations under the additional restrictions contained in this Agreement, will cause Licensor irreparable injury for which there are inadequate remedies at law, and therefore, Licensor will be entitled to equitable relief without the posting of any bond or indemnity (including but  not limited to injunctive relief and the remedy of specific performance) in addition to all other rights and remedies provided by this Agreement or  available at law.





   ARTICLE XII  INDEMNITY    Licensee will be solely responsible for any commercial or legal liability that may arise as a result of Licensee's exercise of any of the  license rights granted by Licensor to Licensee under this Agreement, and Licensee shall defend, indemnify, and hold Licensor harmless from and  against any and all suits, claims, proceedings, judgments, awards, damages, loss, liability, cost and expenses (including without limitation  reasonable attorney's fees and other related costs) that are incurred or suffered by Licensor or any of its affiliates, directors, officers, employees, or  agents to the extent they arise or result, directly or indirectly, from (i) Licensee's exercise of any license or other rights granted to Licensee under  this Agreement; (ii) the conduct of Licensee's business directly or through any affiliate of Licensee and/or (iii) the breach by the License of any representation, warranty, obligation, restriction, term and/or covenant under this Agreement.

   ARTICLE XIII  EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY       (a) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT,  INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS)  ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF ANY OF THE  LICENSED TECHNOLOGY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT  (INCLUDING NEGLIGENCE), PRODUCT LIABILITY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION,  MISREPRESENTATION OR OTHERWISE, AND WHETHER OR NOT LICENSORHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS  OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE LICENSED TECHNOLOGY, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OR OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT,  MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE     UNDER NO CIRCUMSTANCE SHALL LICENSOR BE LIABLE FOR ANY ACTIONS, CLAIMS OR THE LIKE BY LICENSEE OR ANY THIRD  PARTY THAT THE USE OF THE LICENSED TECHNOLOGY HAS RESULTED, RESULTS OR MAY RESULT IN ANY INFRINGEMENT,  DEPRIVATION OR VIOLATION OF THE INTELLECTUAL PROPERTY, CONSTITUTIONAL, STATUTORY, CONTRACTUAL, COMMON LAW  OR OTHER RIGHTS OF ANY PERSON     (b) IN NO EVENT SHALL LICENSOR'S AGGREGATE CUMULATIVE TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED ONE  HALF OF THE AMOUNT PAID BY THE LICENSEE TO Licensor HEREUNDER.     (c) THIS SECTION IS A MATERIAL INDUCEMENT TO AND CONDITION FOR LICENSOR ENTERING INTO THIS AGREEMENT.





   ARTICLE XIX  INSOLVENCY    Either party shall have the right to terminate this Agreement immediately upon notice to the other party if the other party: (a) becomes the  subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the  benefit of creditors; or (b) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency,  receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.     ARTICLE XX  CERTAIN OTHER EVENTS OF TERMINATION    (a) Upon the occurrence of any Change of Control (as defined below) this Agreement and all Licensee's rights and licenses hereunder  shall automatically terminate unless, prior to the occurrence of such Change of Control, Licensor has consented to such Change of Control in a  writing executed by an officer of Licensor; provided that Licensor will not unreasonably withhold its consent to the consummation of a Change of  Control. For purposes of the preceding sentence, Licensor will be deemed to have reasonably withheld its consent to a Change of Control if any  person or entity who would acquire direct or indirect control (as defined below) of Licensee pursuant to such Change of Control then conducts a  business that is directly or indirectly competitive with a business then conducted by Licensor or any of its Affiliates and/or Licensor reasonably believes that Licensor's interests will be adversely effected by the continuing of this Agreement upon such a Change in Control. As used herein,  the term CHANGE OF CONTROL means: (i) a transaction or series of related transactions that results in the sale or other disposition of all or substantially all of Licensee's assets; or (ii) a merger or consolidation in which Licensee is not the surviving corporation or in which, if Licensee is  the surviving corporation, the shareholders of Licensee immediately prior to the consummation of such merger or consolidation do not,  immediately after consummation of such merger or consolidation, own stock or other securities of Licensee that possess a majority of the voting  power of all Licensee's outstanding stock and other securities and the power to elect a majority of the members of Licensee's board of directors; or  (iii) a transaction or series of related transactions (which may include without limitation a tender offer for Licensee's stock or the issuance, sale or  exchange of stock of Licensee) if the shareholders of Licensee immediately prior to the initial such transaction do not, immediately after  consummation of such transaction or any of such related transactions, own stock or other securities of Licensee that possess a majority of the  voting power of all Licensee's outstanding stock and other securities and the power to elect a majority of the members of Licensee's board of  directors. As used herein, the term CONTROL (including, with correlative meanings, the terms, CONTROLS CONTROLLING,  CONTROLLED BY or UNDER COMMON CONTROL WITH) with respect to a designated person means the possession, directly or indirectly,  of the power to vote a majority of the securities having voting power for the election of directors (or other persons acting in similar capacities) of  such person or otherwise to direct or cause the direction of the management and policies of such person, whether through the ownership of voting  securities, by contract or otherwise.     (b) In the event Licensee winds up, dissolves or otherwise ceases doing business, Licensor shall be entitled to terminate this Agreement  immediately upon written notice to Licensee.





   ARTICLE XXI  EFFECT OF TERMINATION    Upon termination of this Agreement: for any reason (a) the rights and licenses granted to Licensee pursuant to this Agreement will  automatically terminate, and (b) Licensee shall, within five (5) days, ship to Licensor all Licensed Technology, API's Documentation with respect  to the Licensed Technology and other Confidential Information in Licensee's possession or control, and an officer of Licensee shall certify in  writing that Licensee as complied with the provisions of this Section. All of the Licensor's rights under this Agreement shall survive termination of  this Agreement.



   ARTICLE XXII  RIGHT OF FIRST REFUSAL    During the term of this Agreement, the Licensor shall have the right (the Right of First Refusal), for a period (the Exercise Period)  expiring at 11:59 PM (Eastern Time) on the fifth (5th) business day after the giving of written notice by the Licensee that it has received a bonafide  offer from a third party to (ii) purchase all or substantially all of the assets of Licensee; or (ii) to engage in a merger or consolidation in which  Licensee is not the surviving corporation or in which, if Licensee is the surviving corporation, the owners of Licensee immediately prior to the  consummation of such merger or consolidation do not, immediately after consummation of such merger or consolidation, own stock or other  securities of Licensee that possess a majority of the voting power of all Licensee's outstanding stock and other securities and the power to elect a  majority of the members of Licensee's board of directors.

   In the event the Licensor declines or fails to exercise in full the Right of First Refusal before the expiration of the Exercise Period, the

Licensee shall have the right to consummate the transaction with the third party.

   ARTICLE XXIII  NON EXCLUSIVE REMEDY    Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or  remedy of such party.    NO DAMAGES FOR TERMINATION. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING  WITHOUT LIMITATION INCIDENTAL OR CONSEQUENTIAL DAMAGES, DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE  PROFITS OR ANTICIPATED INCOME, OR DAMAGES RESULTING FROM ANY EXPENDITURES, INVESTMENTS, LEASES OR  COMMITMENTS MADE BY EITHER PARTY ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.





  ARTICLE XXIV

GENERAL PROVISIONS

   (a) GOVERNING LAW. The parties agree that it is to their mutual benefit that their respective rights and obligations under this Agreement  are guided by, and their disputes hereunder are determined in accordance with, a well developed body of law. Accordingly, the parties agree that  the validity, interpretation and legal effect of this Agreement shall be governed by the internal laws of the State of New York, U.S.A., applicable to  contracts entered in and performed entirely within the State of New York, U.S.A. without regard to any conflict of law principles. The parties agree  that any legal suit, action or proceeding arising out of or relating to this Agreement must be instituted in the City of New York, State of New York,  and the parties each (i) irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York, or  any court of the State of New York, and (ii) waives any objection to the venue of any such suit, action or proceeding and any claim relating to  forum non conveniens. In any such suit, action, or proceeding, any summons, order to show cause, writ, judgment, decree or other process may be  delivered to the parties outside the State of New York or outside the United States and when so delivered, such party shall be subject to the  jurisdiction of such court, and amenable to the process so delivered as though the same had been served within the State of New York but outside  the county in which such suit, action or proceeding is pending.    (b) COMPLIANCE WITH LAWS. Licensee agrees to comply in all material respects with all applicable laws, rules, and regulations in connection  with its activities under this Agreement, including without limitation, any applicable export controls imposed by the U.S. Export Administration Act  of 1978, as amended (the ACT) and the regulations promulgated under the Act.    (c) ASSIGNMENT. Licensee may not assign this Agreement or assign, sublicense and/or transfer in any manner its license rights hereunder in  whole or in part without Licensor's prior written consent. Any attempt to assign this Agreement or assign, sublicense and/or transfer in any  manner Licensee's license rights hereunder without such consent will be void and of no effect. For purposes of this Agreement, any Change of  Control (as defined in Section 13.4(a)) shall be governed by the provisions of the section entitled Change Of Control and not the provisions of this  Section Subject to the terms of this Section, this Agreement will bind and inure to the benefit of the parties and their respective successors and  permitted assigns.    (d) ATTORNEYS' FEES. In the event that any action or proceeding is brought in connection with this Agreement, the prevailing party shall be  entitled to recover its costs and reasonable attorneys' fees following a final judgment.    (e) SEVERABILITY. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, then that  provision of the Agreement will not be voided, but rather will be enforced to the maximum extent legally permissible and the other provisions of  this Agreement will remain in full force and effect.





  (f) INDEPENDENT CONTRACTOR. The parties to this Agreement are independent contractors and this Agreement will not establish any  relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the  other or incur obligations on the other's behalf without the other's prior written consent.    (g) NOTICES. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission,  by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications to a party  will be sent to the address of the party set forth in the preamble above or to such other address as may be specified by such party to the other in  accordance with the Section called Contact Information. Either party may change its address for notices under this Agreement by giving written  notice to the other party by the means specified in this Section.    (h) COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed an original, but both of which  together will constitute one and the same instrument.    (e) ENTIRE AGREEMENT. This Agreement, constitutes the complete and exclusive agreement between the parties with respect to the  subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, communications, and understandings (both  written and oral) regarding such subject matter.    (h) MODIFICATION. No modification to this Agreement, nor any waiver of any rights, shall be effective unless consented to in writing  and the waiver of any breach or default shall not constitute a waiver of any other right or of any subsequent breach or default.    (i) FORCE MAJEURE. Except for the obligations to make payments hereunder, each Party shall be relieved of the obligations hereunder to  the extent that performance is delayed or prevented by any cause beyond its reasonable control, including without limitation, acts of God, public  enemies, war, civil disorder, fire, flood, explosion, labor disputes or strikes or any acts or orders of any governmental authority.    (j) CONSTRUCTION. The parties agree that no ambiguity (if any) found in this Agreement shall be resolved against any party by virtue  of its participation in the drafting of this Agreement.    (k) REPRESENTATION BY COUNSEL. Each party acknowledges that it has had the opportunity to be represented by separate  independent counsel in the negotiation of this Agreement, that any such respective attorneys were of its own choosing, that each authorized  representative has read this Agreement and that it understands its meaning and legal consequences to each party. Each Party warrants and  represents that it has consulted with its attorney of choice, or voluntarily chose not to do so, concerning the execution, the meaning and the import of this Agreement, and has read this Agreement and fully understands the terms hereof as signified by its signature below, and is executing  the same of its own free will for the purposes and consideration herein expressed. Each Party warrants and represents that it has had sufficient time  to consider whether to enter into this Agreement and that it is relying solely on its own judgment and the advice of its own counsel, if any, in  deciding to execute this Agreement. Each Party warrants and represents that it has read this Agreement in its entirety and has consulted with its  attorney, if any concerning the execution of this Agreement. If any or all Parties have chosen not to seek counsel, said party or parties hereby  acknowledge that it or they refrained from seeking counsel entirely of its or their own volition and with full knowledge of the consequences of  such a decision.





     IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date by their duly authorized  representatives.









SFG FINANCIAL CORP. 551 FX IB ASSOCIATES LLC

By: /s/ Michael C. Caska By: /s/ Fred Miller

Name: Michael C. Caska Fred Miller

Title: Chief Executive Officer Title: Member Manager 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
[A]: Licensor shall assume no liability, both contingent and otherwise, which may arise out of or be in any  way related to the following; (a) furnishing, performance, maintenance, use of, or inability to use all or  any part of the system, (b) any fault in the delivery or operation of the system, (c) suspension or  termination of the Licensee's ability to use all or part of the system, or any inaccuracies or omissions  in any information or documentation provided, (d) any failure or delay suffered or allegedly suffered  by Licensee in initiating and terminating trades, (e) the termination of all or part of this Licensee  Agreement by the Licensor, (f) the termination or modification of any and all parts of the License.


[Q]: [INITIALS ILLEGIBLE]                                        [INITIALS ILLEGIBLE]       20.3.98                                                     30.4.98

                                       5

                                   SCHEDULE 3

Project Managers

The Publishers:

Project Manager - --------------- Ian Bannerman Blackwell Science Ltd Osney Mead Oxford OX2 0EL UK e-mail: ian.bannerman@blacksci.co.uk tel: +44 (0)1865 206101

Deputy Project Manager - ---------------------- Martin Clutterbuck Blackwell Science Ltd Osney Mead Oxford OX2 0EL UK e-mail: martin.clutterbuck@blacksci.co.uk tel: +44 (0)1865 206110

Deputy Project Manager - ---------------------- Anders Geertsen Munksgaard International Publishers Ltd 35 Norre Sogade, P.O. Box 2148 1016 Copenhagen K Denmark e-mail: ag@mail.munksgaard.dk tel: +45 77 33 31 03

HealthGate:

Project Manager - --------------- Mark Israel HealthGate 380 Pleasant Street Suite 230 Malden MA 02148 USA tel: 781 321 6000 Ext 248 e-mail: misra@healthgate.com

Deputy Project Manager - ---------------------- Rick Lawson HealthGate 380 Pleasant Street Suite 230 Malden MA 02148 USA tel: 781 321 6000 Ext 211 e-mail: lawson@healthgate.com

[INITIALS ILLEGIBLE]                                        [INITIALS ILLEGIBLE]       20.3.98                                                     30.4.98

                                       6

                                   SCHEDULE 4

                                        3

SCHEDULE 4

ESCROW AGREEMENT

When the annexed escrow agreement is entered, the terms shall include those set out in the annexed letter from NCC Escrow International, the escrow agent, of 12 March 1998 by way of variation of NCC document STD001Y2K.UK.

The Required Information at ii) shall be provided by the parties. The date of the Licence Agreement shall be the date of this agreement. The name of the





package shall be HealthGate Electronic Journal Proprietary Software. These words shall also appear in Schedule 1 of the escrow agreement. The parties shall provide the medium on which the source code shall be supplied, which in default of agreement shall be such medium as the escrow agent NCC Escrow International Limited thinks fit.

The fees to be inserted in Schedule 4 of the Escrow Agreement shall be the then applicable fees of NCC Escrow International Limited.

The Escrow Agreement shall be signed by HealthGate and Blackwell Science Limited.

[INITIALS ILLEGIBLE]                                        [INITIALS ILLEGIBLE]       20.3.98                                                     30.4.98

                                                   NCC ESCROW INTERNATIONAL

12 March 1998                                      National Computing Centre                                                    Oxford House, Oxford Road                                                    Manchester M1 7ED, UK

                                                   Telephone: +44(O)161 228 6333                                                    Facsimile: +44(0)161 242 2275                                                    e-mail: escrow@ncc.co.uk

Mr J S  Saunders                                   [NCC LOGO] Linnells, Solicitors Greyfriars Court Paradise Square Oxford OX1 1BB

Dear Mr Saunders

Proposed Escrow Agreement: Healthgate Data Corp / Blackwell Science Ltd / NCC

I confirm that NCC is willing to enter into our standard form escrow agreement std001y2k.uk with the following amendments by reference to the appropriate clauses:

(2)   Add the words and/or companies in the Blackwell Science Ltd group after       Blackwell Science Ltd.

6.1.6 A new clause: there is a Change in Control of the Owner. For the purposes       of this clause, a person shall have Control of a company if he holds,       directly or indirectly, shares which together with shares held by any       persons acting in concert with him carry 50% or more of the voting rights       of that company, and Change in Control shall be interpreted accordingly.       Words and phrases in the City Code on Take-overs and Mergers shall have       the same meaning here.

6.1.7 A new clause: the Licensee exercises its option under clause 10.4.1 of       the Licence Agreement.

11.4  Replace with: If the obligations in clause 31 of the Licence Agreement       have terminated this Agreement will automatically terminate on the same       date.

Yours sincerely

/s/ Carmel Gorman

Carmel Gorman NCC Escrow International

[INITIALS ILLEGIBLE]                                        [INITIALS ILLEGIBLE]       20.3.98                                                     30.4.98

[NCC Escrow International logo]

This document is to be used where an Owner deposits source code on behalf of a single user only.

PROCEDURE:

      The required information sheet on page ii should be completed, detached       and returned by fax or post to NCC at the following address:

      Contracts Administrator       NCC Escrow International Limited       Oxford House, Oxford Road       Manchester M1 7ED, England

      Telephone: +44 (0) 161 242 2109       Facsimile: +44 (0) 161 242 2275       E-mail: escrow@ncc.co.uk

i.    NCC will check the required information and will then send out signature       copies of the Escrow Agreement, together with the relevant invoices. A       reference number will be given in respect of that agreement which must be       quoted in all correspondence.

ESCROW 2000





ii.   When the Owner and the Licensee have signed the Escrow Agreement all       copies must be returned to NCC.

iii.  NCC will sign and date the Agreement and a signed copy will be sent to       each party.

iv.   The Owner should then lodge the Material.

NB: Until all parties sign the Escrow Agreement no binding escrow arrangements have been made.

                                     single                                     licensee                                    ----------                                            UK

Version 1: August 1997                                                         i

FAO: P. FLEMING                                             REQUIRED INFORMATION - --------------------------------------------------------------------------------

- -------------------------------------------------------------------------------- OWNER

[-1] Company Name                  ---------------------------------------------------------------

[-2] Registered Office                       ----------------------------------------------------------

- --------------------------------------------------------------------------------

Correspondence Address                       ----------------------------------------------------------

*[-3] Company Registration Number                   *VAT Number                                  -------------------           -----------------

Telephone Number                                    Fax Number                 ------------------------------------          ------------------

Contact Name                               Position in Company             -------------------------------                   ------------------

*only applicable to countries within the EU - --------------------------------------------------------------------------------

- -------------------------------------------------------------------------------- LICENSEE

[-4] Company Name                  ---------------------------------------------------------------

[-5] Registered Office                       ----------------------------------------------------------

- --------------------------------------------------------------------------------

Correspondence Address                       ----------------------------------------------------------

*[-6] Company Registration Number                   *VAT Number                                  -------------------           -----------------

Telephone Number                                    Fax Number                 ------------------------------------          ------------------

Contact Name                               Position in Company             -------------------------------                   ------------------

*only applicable to countries within the EU - --------------------------------------------------------------------------------

- -------------------------------------------------------------------------------- OTHER DETAILS

[-7] Name of Package                     ------------------------------------------------------------

- --------------------------------------------------------------------------------

INSURANCE FEE (complete if appropriate) - -------------------------------------------------------------------------------- Standard NCC limitation of liability is St(pound)500,000 (no charge).

There is a charge of St(pound)100 (annual fee) for each additional St(pound)500,000.

Maximum liability is St(pound)5,000,000.





Please indicate required liability                                        --------------------------

- --------------------------------------------------------------------------------

                                            ------------------------------------ FEES PAYABLE (tick as appropriate)                 Owner       Licensee - -------------------------------------------------------------------------------- Initial Fee - -------------------------------------------------------------------------------- Annual Fee - -------------------------------------------------------------------------------- Update Fee (payable in the event of more than 4 updates per annum) - -------------------------------------------------------------------------------- Storage Fee (payable if the source code exceeds one cubic foot) - -------------------------------------------------------------------------------- Annual liability fee payable (if appropriate) - -------------------------------------------------------------------------------- Release Fee (plus NCC's reasonable expenses)                      X - --------------------------------------------------------------------------------

ii                                                        Version 1: August 1997

(C) NCC Escrow International Limited 1997                           STD001Y2K.UK

[NCC Escrow International logo]

                                                            SINGLE LICENSEE (UK)                                                                      ESCROW 2000 - -------------------------------------------------------------------------------- ESCROW AGREEMENT:                                DATED:

Between:

(1)   [-1] whose registered office is at [-2] (CRN: [-3]) (the Owner);

(2)   [-4] whose registered office is at [-5] (CRN: [-6]) (the Licensee); and

(3)   NCC ESCROW INTERNATIONAL LIMITED whose registered office is at Oxford       House, Oxford Road, Manchester M1 7ED, England (CRN:3081952) (NCC).

Preliminary:

(A)   The Licensee has been granted a licence to use a software package       comprising computer programs.

(B)   Certain technical information and documentation describing the software       package are the confidential property of the Owner and are required for       understanding, maintaining and correcting the software package.

(C)   The Owner acknowledges that in certain circumstances the Licensee may       require possession of the technical information and documentation held       under this Agreement.

(D)   Each of the parties to this Agreement acknowledges that the considerations       for their respective undertakings given under it are the undertakings       given under it by each of the other parties.

It is agreed that:

1     Definitions

      In this Agreement the following terms shall have the following meanings:

      1.1   Full Verification Service means those bespoke tests agreed between             the Licensee and NCC for the verification of the Material;

      1.2   Intellectual Property Rights means copyright, trade secret,             patent, and all other rights of a similar nature;

      1.3   Licence Agreement means the licence granted to the Licensee for             the Package;

      1.4   Material means the source code of the Package comprising the             latest technical information and documentation described in             Schedules 1 and 2;

      1.5   Package means the software package licensed to the Licensee under             the Licence Agreement; and

      1.6   Standard Verification Service means those tests detailed in the             Standard Verification Service published by NCC from time to time.

2     Owner's Duties and Warranties

      2.1   The Owner shall:

            2.1.1 deliver a copy of the Material to NCC within 30 days of the                   date of this Agreement;





            2.1.2 at all times ensure that the Material as delivered to NCC is                   capable of being used to generate the latest version of the                   Package issued to the Licensee and shall deliver further                   copies of the Material as and when necessary;

            2.1.3 deliver to NCC a replacement copy of the Material within 12                   months of the last delivery;

            2.1.4 deliver a replacement copy of the Material within 14 days of                   receipt of a notice served upon it by NCC under the provisions                   of Clause 4.1.5; and

            2.1.5 deliver with each deposit of the Material the information                   detailed in Schedule 2.

      2.2   The Owner warrants that:

            2.2.1 it owns the Intellectual Property Rights in the Material and                   has authority to enter into this Agreement; and

            2.2.2 the Material lodged under Clause 2.1 shall contain all                   information in human-readable form and on suitable media to                   enable a reasonably skilled programmer or analyst to                   understand, maintain and correct the Package without the                   assistance of any other person.

3     Licensee's Responsibilities

      It shall be the responsibility of the Licensee to notify NCC of any change       to the Package that necessitates a replacement deposit of the Material.

Version 1: August 1997                                                    1 of 6

4     NCC's Duties

      4.1   NCC shall:

            4.1.1 hold the Material in a safe and secure environment;

            4.1.2 inform the Owner and the Licensee of the receipt of any copy                   of the Material;

            4.1.3 in accordance with the terms of Clause 9 perform those tests                   that form part of its Standard Verification Service from time                   to time;

            4.1.4 at all times retain a copy of the latest verified deposit of                   the Material; and

            4.1.5 notify the Owner if it becomes aware at any time during the                   term of this Agreement that the copy of the Material held by                   it has been lost, damaged or destroyed.

      4.2   NCC shall not be responsible for procuring the delivery of the             Material in the event of failure by the Owner to do so.

5     Payment

      NCC's fees are payable in accordance with Schedule 4.

6     Release Events

      6.1   Subject to the provisions of Clauses 6.2 and 6.3, NCC shall release             the Material to a duly authorised officer of the Licensee if at any             time or times any of the following events or circumstances occur,             arise or become apparent:

            6.1.1 the Owner enters into any composition or arrangement with its                   creditors or (being a company) enters into liquidation whether                   compulsory or voluntary (other than for the purposes of                   solvent reconstruction or amalgamation) or has a receiver or                   administrative receiver appointed over all or any part of its                   assets or undertaking or a petition is presented for an                   Administration Order or (being an individual or partnership)                   becomes bankrupt, or an event occurs within the jurisdiction                   of the country in which the Owner is situated which has a                   similar effect to any of the above events in the United                   Kingdom; or

            6.1.2 the Owner ceases to trade; or

            6.1.3 the Owner assigns copyright in the Material and the assignee                   fails within 60 days of such assignment to offer the Licensee                   substantially similar protection to that provided by this                   Agreement without significantly increasing the cost to the                   Licensee; or

            6.1.4 the Owner without legal justification, has defaulted to a                   material degree in any obligation to provide maintenance or                   modification of the Package under the Licence Agreement or any                   maintenance agreement entered into in connection with the                   Package and has failed to remedy such default notified by the                   Licensee to the Owner; or





            6.1.5 coding of the Package is such that either the accuracy or the                   functionality or the performance of the Package is or becomes                   or is demonstrably likely to become significantly adversely                   affected by the entry or processing of data incorporating any                   date or dates whether prior or subsequent to or including 31                   December 1999, including but not limited to any of the                   following:

                  6.1.5.1  the Package crashes at any time while processing any                            such data;

                  6.1.5.2. the Owner has warranted or represented that the                            Package is capable of accurately and correctly                            processing such data in accordance with the Package's                            current functional specification and the Licensee                            demonstrates that the Package is not so capable;

                  6.1.5.3  the Owner has undertaken or attempted to procure the                            Package to be so capable and the Licensee                            demonstrates that the Package is still not so                            capable;

                  6.1.5.4  no such warranty, representation, undertaking or                            attempt has been given or made and the Licensee                            demonstrates that the Package is not so capable.

      6.2   The Licensee must notify NCC of any event or circumstance of any of             the kinds specified in Clause 6.1 by delivering to NCC a statutory             or notarised declaration (the Declaration) made by an officer of             the Licensee attesting that such event has occurred and that the             Licence Agreement was still valid and effective up to the occurrence             of such event and exhibiting:

            6.2.1 such documentation in support of the Declaration as NCC shall                   reasonably require;

            6.2.2 a copy of the Licence Agreement; and

            6.2.3 a signed confidentiality undertaking as detailed in Schedule 3

            then NCC will release the Material to the Licensee upon receipt of             the release fee stated in Schedule 4.

      6.3   Upon receipt of a Declaration from the Licensee claiming a release             event under Clause 6.1.4:

            6.3.1 NCC shall send a copy of the Declaration to the Owner by                   registered post; and

            6.3.2 unless within 14 days after the date of delivery the Owner                   delivers to NCC a counter-notice signed by a duly authorised                   officer of the Owner stating that no such failure has occurred                   or that any such failure has been rectified

            then NCC will release the Material to the Licensee upon receipt of             the release fee stated in Schedule 4.

2 of 6                                                    Version 1: August 1997

(C) NCC Escrow International Limited 1997                           STD001Y2K.UK

      6.4   Where there is any dispute as to the occurrence of any of the events             or circumstances set out in Clause 6.1.1 to 6.1.4, 6.2 or 6.3 or the             fulfilment of any obligations detailed therein, such dispute will be             referred at the request of either the Owner or the Licensee to the             Managing Director for the time being of NCC for the appointment of             an expert who shall give a decision on the matter within 14 days of             the date of referral or as soon as practicable thereafter. The             expert's decision shall be final and binding as between the Owner             and the Licensee except in the case of manifest error.

      6.5   Where there is any dispute as to the occurrence of any of the events             or circumstances set out in Clause 6.1.5 or the fulfillment of any             obligations referred to therein, such dispute will be referred to             arbitration in accordance with Clause 12.

7     Confidentiality

      7.1   The Material shall remain the confidential property of the Owner and             in the event that NCC provides a copy of the Material to the             Licensee, the Licensee shall be permitted to use the Material only             in accordance with a confidentiality undertaking in the form             contained in Schedule 3.

      7.2   NCC agrees to maintain all information and/or documentation coming             into its possession or to its knowledge under this Agreement in             strictest confidence and secrecy. NCC further agrees not to make use             of such information and/or documentation other than for the purposes             of this Agreement and will not disclose or release it other than in             accordance with the terms of this Agreement.

      7.3   Termination of this Agreement will not relieve NCC or its employees,             or the Licensee or its employees, from the obligations of             confidentiality contained in this Clause 7.





8     Intellectual Property Rights

      The release of the Material to the Licensee will not act as an assignment       of any Intellectual Property Rights that the Owner possesses in the       Material.

9     Verification

      9.1   Subject to the provisions of Clauses 9.2 and 9.3, NCC shall bear no             obligation or responsibility to any person, firm, company or entity             whatsoever to determine the existence, relevance, completeness,             accuracy, effectiveness or any other aspect of the Material.

      9.2   Upon the Material being lodged with NCC, NCC shall perform those             tests in accordance with its Standard Verification Service and shall             provide a copy of the test report to the parties to this Agreement.

      9.3   The Licensee shall be entitled to require that NCC carries out a             Full Verification. Any reasonable charges and expenses incurred by             NCC in carrying out a Full Verification will be paid by the Licensee             save that if in the opinion of the expert appointed by the Managing             Director of NCC the Material is substantially defective in content             any such reasonable charges and expenses will be paid by the Owner.

10    NCC's Liability

      10.1  NCC shall not be liable for any loss caused to the Owner or the             Licensee either jointly or severally except for loss of or damage to             the Material to the extent that such loss or damage is caused by the             negligent acts or omissions of NCC, its employees, agents or             sub-contractors and in such event NCC's total liability in respect             of all claims arising under or by virtue of this Agreement shall             not (except in the case of claims for personal injury or death)             exceed the sum of (pounds)500,000.

      10.2  NCC shall in no circumstances be liable to the Owner or the Licensee             for indirect or consequential loss of any nature whatsoever whether             for loss of profit, loss of business or otherwise.

      10.3  NCC shall be protected in acting upon any written request, waiver,             consent, receipt or other document furnished to it pursuant to this             Agreement, not only in assuming its due execution and the validity             and effectiveness of its provisions but also as to the truth and             acceptability of any information contained in it, which NCC in good             faith believes to be genuine and what it purports to be.

11    Termination

      11.1  NCC may terminate this Agreement after failure by the Owner or the             Licensee to comply with a 30 day written notice from NCC to pay any             outstanding fee. If the failure to pay is on the part of the Owner             the Licensee shall be given the option of paying such fee itself.             Such amount will be recoverable by the Licensee direct from the             Owner.

      11.2  NCC may terminate this Agreement by giving 60 days written notice to             the Owner and the Licensee. In that event the Owner and the Licensee             shall appoint a mutually acceptable new custodian on terms similar             to those contained in this Agreement.

      11.3  If a new custodian is not appointed within 30 days of delivery of             any notice issued by NCC in accordance with the provisions of Clause             11.2, the Owner or the Licensee shall be entitled to request the             President for the time being of the British Computer Society to             appoint a suitable new custodian upon such terms and conditions as             he shall require. Such appointment shall be final and binding on all             parties.

      11.4  If the Licence Agreement has expired or has been lawfully terminated             this Agreement will automatically terminate on the same date.

      11.5  The Licensee may terminate this Agreement at any time by giving             written notice to the Owner and NCC.

      11.6  The Owner may only terminate this Agreement with the written consent             of the Licensee.

Version 1: August 1997                                                    3 of 6

STD001Y2K.UK                           (C) NCC Escrow International Limited 1997

      11.7  This Agreement shall terminate upon release of the Material to the             Licensee in accordance with Clause 6.

      11.8  Upon termination under the provisions of Clauses 11.2, 11.4, 11.5 or             11.6 NCC will deliver the Material to the Owner. If NCC is unable to             trace the Owner NCC will destroy the Material.

      11.9  Upon termination under the provisions of Clause 11.1 the Material             will be available for collection by the Owner from NCC for 30 days             from the date of termination. After such 30 day period NCC will             destroy the Material.

      11.10 NCC may forthwith terminate this Agreement and destroy the Material





            if it is unable to trace the Owner having used all reasonable             endeavours to do so.

12    Arbitration

      12.1  Any dispute arising under Clause 5.1.5 shall be referred to a panel             of arbitrators (the Panel) constituted as follows:

            12.1.1 the Owner and the Licensee shall each appoint one member; and

            12.1.2 the third member who shall act as chairman of the Panel shall                    be appointed by the President for the time being of the                    International Chamber of Commerce.

      12.2  The Owner and the Licensee shall pay the fees and disbursements of             its own member and half the fees and disbursements of the chairman             of the Panel.

      12.3  Should any member of the Panel die, become ill or incapacitated,             resign or retire from his appointment, become disqualified from             acting or otherwise cease to act as arbitrator before the dispute is             resolved, he shall be replaced by a new member appointed by the             party who appointed his predecessor.

      12.4  Upon the appointment of such new member, the proceedings shall not             be held de nova but shall continue from the stage at which the             previous member ceased to act.

      12.5  Proceedings under Clause 12 may be commenced by any party to a             dispute by:

            12.5.1 serving upon the other or others notice of its intention to                    refer such dispute to arbitration and nominating a member of                    the Panel; and

            12.5.2 requesting the President of the International Chamber of                    Commerce for the time being to appoint a chairman of the                    Panel.

      12.6  The Panel shall determine its own rules of procedure.

13    General

      13.1  This Agreement shall be governed by and construed in accordance with             the laws of England and Wales.

      13.2  This Agreement represents the whole agreement relating to the escrow             arrangements between the parties for the Package and supersedes all             prior arrangements, negotiations and undertakings.

      13.3  All notices to be given to the parties under this Agreement shall be             deemed to have been duly given or made when delivered personally or             7 days after posting of it sent by facsimile, 12 hours after             despatch to the party to which such notice is required to be given             or made under this Agreement addressed to the principal place of             business, or for companies based in the UK, the registered office.

SCHEDULE 1

The Material

The source code of the Package known as [-7].

SCHEDULE 2

Material: Technical Information

The Material shall be supplied with details of the following:

      1     Details of the deposit: full name and version details, number of             media items, media type and density, file or archive format, list or             retrieval commands, archive hardware and operating system details.

      2     Name and functionality of each module/application of the Material.

      3     Names and versions of development tools etc.

      4     Documentation describing the procedures for building / compiling /             executing / using the software (technical notes, user guides).

      5     Hardcopy directory listings of the contents of the media.

      6     Name and contact details of employee(s) with knowledge of how to             maintain and support the Material.

SCHEDULE 3

Confidentiality Undertaking

This undertaking is given on release of the Material pursuant to an Escrow Agreement dated [        ] between:

(1)   [-1] (the Owner);

(2)   [-4] (the Licensee); and





(3)   NCC ESCROW INTERNATIONAL LIMITED (NCC);

1     Definitions contained in the Escrow Agreement will apply to this       undertaking.

4 of 6                                                    Version 1: August 1997

2     In consideration of NCC delivering the Material to the Licensee, the       Licensee undertakes with the Owner and NCC:

      2.1   to use the Material only for the purpose of understanding,             maintaining and correcting the Package exclusively on behalf of the             Licensee;

      2.2   not to use the Material for any other purpose nor disclose it to any             person save such of its employees or contractors who need to know             the same in order to understand, maintain and correct the Package             exclusively on behalf of the Licensee. In that event such             contractors shall enter into a Confidentiality Undertaking direct             with NCC in similar terms to this Undertaking;

      2.3   to hold all media containing the Material in a safe and secure             environment when not in use; and

      2.4   forthwith to destroy the same should the Licensee cease to be             entitled to use the Package.

SCHEDULE 4

NCC's Fees (St(pound))

- --------------------------------------------------------------------------------       DESCRIPTION                                  FEE       OWNER      LICENSEE - -------------------------------------------------------------------------------- 1     Initial Fee (payable on completion of       this Agreement) - -------------------------------------------------------------------------------- 2     Annual Fee (payable on completion of       this Agreement and on each anniversary       thereafter) - -------------------------------------------------------------------------------- 3     Update Fee (per update after the first       4 updates per annum) - -------------------------------------------------------------------------------- 4     Storage Fee (per annum, per cubic foot       payable if the source code exceeds 1       cubic foot) - -------------------------------------------------------------------------------- 5     Liability Fee (per annum, (pound)100 per       (pound)500,000 of liability exceeding       (pound)500,000) - -------------------------------------------------------------------------------- 6     Release Fee (plus NCC's reasonable       expenses)                                               NIL         100% - --------------------------------------------------------------------------------

      1     All fees are subject to VAT where applicable*

      2     All fees are reviewed by NCC from time to time

      * only applicable to countries within the EU.

Signed on behalf of [-1]

Name      --------------------------------------:------------------------------------ Position:          ----------------------------------:              (Authorised Signatory)

Signed on behalf of [-4]

Name      --------------------------------------:------------------------------------ Position:          ----------------------------------:              (Authorised Signatory)

Signed on behalf of NCC ESCROW INTERNATIONAL LIMITED

Name      --------------------------------------:------------------------------------ Position:          ----------------------------------:              (Authorised Signatory)

Version 1: August 1997                                                    5 of 6

STD001Y2K.UK                           (C) NCC Escrow International Limited 1997

Any queries regarding this document should be directed to:

Contracts Administrator NCC Escrow International Limited Oxford House





Oxford Road Manchester M1 7ED England

Telephone: +44 (0) 161 242 2109 Fax:       +44 (0) 161 242 2275 E-mail:    escrow@ncc.co.uk

The following information is referenced within this agreement:

[-1] Owner's Name [-2] Owner's Registered Office [-3] Owner's Company Registration Number* [-4] Licensee's Name [-5] Licensee's Registered Office [-6] Licensee's Company Registration Number* [-7] Name Of Package

[INITIALS ILLEGIBLE]                                        [INITIALS ILLEGIBLE]       20.3.98                                                     30.4.98 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
[A]: NCC shall not be liable for any loss caused to the Owner or the             Licensee either jointly or severally except for loss of or damage to             the Material to the extent that such loss or damage is caused by the             negligent acts or omissions of NCC, its employees, agents or             sub-contractors and in such event NCC's total liability in respect             of all claims arising under or by virtue of this Agreement shall             not (except in the case of claims for personal injury or death)             exceed the sum of (pounds)500,000.


[Q]: EXHIBIT 10.1

JOINT DEVELOPMENT AGREEMENT

between

FUELCELL ENERGY, INC.

and

EXXONMOBIL RESEARCH AND ENGINEERING COMPANY

Source: FUELCELL ENERGY INC, 8-K, 11/6/2019





TABLE OF CONTENTS ARTICLE 1 - DEFINITIONS 1 ARTICLE 2 - PROGRAM 1 ARTICLE 3 - PROGRAM GOVERNANCE 2 ARTICLE 4 - DISCLOSURE, CONFIDENTIALITY AND RESTRICTED USE 3 ARTICLE 5 - PUBLICITY AND PUBLICATIONS 5 ARTICLE 6 - OWNERSHIP / PROCUREMENT OF PROGRAM RESULTS 6 ARTICLE 7 -LICENSE TO PROGRAM RESULTS 7 ARTICLE 8 - LICENSE TO BACKGROUND INFORMATION AND PATENTS 8 ARTICLE 9 - INFRINGEMENT OF THIRD PARTY PATENTS 11 ARTICLE 10 - PAYMENT 11 ARTICLE 11 - REPRESENTATIONS, WARRANTIES, INDEMNITIES AND LIABILITIES 13 ARTICLE 12 - TERM AND TERMINATION 14 ARTICLE 13 - ARBITRATION AND GOVERNING LAW 17 ARTICLE 14 - ASSIGNMENT 18 ARTICLE 15 - FORCE MAJEURE 18 ARTICLE 16 - ADDRESSES AND NOTICES 18 ARTICLE 17 - COMPLIANCE 19 ARTICLE 18 - RECORDS AND AUDIT 20 ARTICLE 19 - TAXES 20 ARTICLE 20 - ADDITIONAL PROVISIONS 20 APPENDIX A - DEFINITIONS 24 APPENDIX B - SAMPLE PROJECT DESCRIPTION FORMAT 30

Source: FUELCELL ENERGY INC, 8-K, 11/6/2019





JOINT DEVELOPMENT AGREEMENT

This Agreement is made as of the Effective Date between:

ExxonMobil Research and Engineering Company, a corporation of the State of Delaware having offices at 1545 Route 22 East, Annandale, New Jersey 08801 (ExxonMobil); and

FuelCell Energy, Inc., a corporation of the State of Delaware having offices at 3 Great Pasture Road, Danbury, Connecticut 06810 (FCE).

ExxonMobil and FCE are engaged in collaborative research and development projects to evaluate and develop Molten Carbonate Fuel Cells (MCFCs) to reduce carbon dioxide emissions (i.e., achieve low cost carbon dioxide capture). ExxonMobil and FCE wish to further the research and development efforts to evaluate and develop new and/or improved MCFCs to reduce carbon dioxide emissions from industrial and power sources (Scope). Therefore, in consideration of the foregoing premises and mutual covenants contained herein, ExxonMobil and FCE (each a Party and collectively the Parties) agree as follows:

ARTICLE 1 - DEFINITIONS

1.01 Definitions. The terms appearing in this Agreement in initial capital letters, not otherwise defined in the preamble or body of this Agreement, are defined in Appendix A.

ARTICLE 2 - PROGRAM

2.01 Program / Projects. The collaborative research and development effort will comprise one or more mutually agreed upon projects within the Scope during the Term of this Agreement (each a Project and, collectively, the Projects or the Program). The details of each Project will be described in a written, mutually agreed upon document (Project Description) - a template for which is set forth in Appendix B. Each Project Description will specify the scope and content of the Project, the work to be undertaken by each Party and potential third parties, the deliverables, the timing, any payments to be made not otherwise set forth in this Agreement, and any other related objectives and expectations. When completed and signed by duly authorized representatives of both Parties, each Project Description will become part of this Agreement and will be governed by the terms and conditions of this Agreement. Neither Party makes any representations as to the number, frequency, or monetary value of the Projects, except as otherwise set forth herein or in any Project Description.

2.02 Subcontracting. ExxonMobil hereby consents to FCE hiring trade contractors commonly used for facility modifications and individual engineering contractors and individual staff from temporary agencies as needed to perform work pursuant to a Project Description, provided that such contractors and staff are under confidentiality and use restrictions no less restrictive than the terms and conditions set forth herein.

2.03 Work Exclusivity/Independent Work. During the Term of this Agreement, FCE will not conduct any Work using Generation 1 Technology in Carbon Capture Applications or any Work using Generation 2 Technology, independently or with third parties outside this Agreement, without prior written approval from ExxonMobil. Notwithstanding the foregoing, ExxonMobil hereby grants approval for FCE solely to conduct Authorized Work using Generation 1 Technology with Authorized Third Parties for Carbon Capture Applications and any Work using Generation 2 Technology solely for Power Applications and Hydrogen Applications.

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ARTICLE 3 - PROGRAM GOVERNANCE

3.01 Steering Committee. Promptly after the Effective Date, the Parties will establish a committee that will oversee technical support and provide overall supervision and administrative guidance for the Program (Steering Committee or SC), further detailed as follows -

(a) Composition. Each Party will appoint in writing one or more of its employees as SC members. Each Party will have the right to change its SC members at any time by giving written notice of such change to the other Party.

(b) Meetings. Meetings of the SC will be in person or by phone at a location and time agreed to in advance by the SC members.

(c) Other Attendees. In addition to the attendance of SC members, with prior written notice to the other Party's SC members, each Party may also bring to any SC meeting such technical and other advisors as it may deem appropriate, provided that such advisors are employees of a Party or its Affiliates and are under written confidentiality and use restrictions at least as strict as those imposed herein. Otherwise, a Party's additional invitees may attend a SC meeting only with the other Party's advance written approval.

(d) Responsibilities. The responsibilities of the SC will include, but are not limited to:

i. Project Endorsement and Monitoring. The SC will review and approve each Project Description and amendment thereto prior to execution by the Parties. (However, no Project Description or amendment thereto will be effective unless and until it is executed by duly authorized representatives of both Parties.) The SC will periodically monitor the ongoing status of all Projects, and make adjustments to priorities within and between the Projects.

ii. Dispute Resolution. Assist the Parties in resolving any disputes.

(e) Votes. Each Party only gets one vote on the SC regardless of the number of SC members it appoints. Except as otherwise stated in this Agreement, all decisions by the SC will be by unanimous agreement. In the absence of unanimity, ExxonMobil's SC representatives will have final decision making authority with respect to only the following decisions required by the SC: whether and where to seek patent protection and whether to maintain patent assets, subject to the provisions of Paragraph 6.04 (Solicitation of Program Patents Discretionary).

(f) Minutes. All decisions by the SC will be documented in agreed upon minutes distributed to SC members after the meeting.

(g) No Amendment Rights. The SC may recommend but has no authority to amend the terms and conditions of this Agreement.

(h) Costs. ExxonMobil will bear its own costs associated with participating in the SC. FCE's costs and expenses associated with its participation in the SC are included in each Project's budget as Direct Costs.

3.02 Technical Managers. Each Party will appoint one manager for each Project (Technical Manager). The Technical Managers will be responsible for the coordination of all technical activities arising under such Project, and will serve as their Party's technical liaison with the SC for the Project. Each Party will promptly notify the other Party in writing upon changing the appointments. The Technical Managers for each Project will be the primary technical contacts between the Parties for that Project. The Technical Managers for each Project will jointly:

• direct the work performed under a Project in accordance with the terms and conditions of the Project Description;

Page 2 of 31

Source: FUELCELL ENERGY INC, 8-K, 11/6/2019





• report to the SC on the progress of technical activities conducted under the Project;

• monitor and coordinate all intellectual property activities relative to each Project; and

• make recommendations to the SC on proposed publications containing Program Information.

Unless otherwise mutually agreed, the Technical Managers for a Project will meet in person at least once each calendar quarter during a Project at such locations as the Technical Managers agree. The Technical Managers will communicate regularly by telephone or similar means between such meetings.

ARTICLE 4 - DISCLOSURE, CONFIDENTIALITY AND RESTRICTED USE

4.01 Program Information Disclosure, Confidentiality and Use Restriction. FCE will promptly disclose to ExxonMobil, in written or other tangible form, any and all Program Information including any Program Inventions. Except as otherwise permitted under this Agreement, FCE agrees to hold Program Information in confidence, and not to disclose or make it available to any third party without the express prior written consent of ExxonMobil, for a period commencing on the Effective Date and ending twenty (20) years thereafter. Without the express prior written consent of ExxonMobil, FCE agrees to use and practice Program Information only for the Program or as authorized in Article 7 (License to Program Results).

4.02 Background Information Disclosure, Confidentiality and Use Restriction. Each Party will make available its Background Information to the other Party that it believes will be useful in carrying out work under the Program. Except as otherwise permitted under this Agreement, each Party agrees to hold the Background Information it receives from the other Party in confidence, and to not disclose or make available the other Party's Background Information to any third party without the express prior written consent of the other Party, for a period commencing on the Effective Date and ending twenty (20) years thereafter. Without the express prior written consent of the other Party, each Party agrees to use and practice the other Party's Background Information only for the Program or as authorized in Article 8 (License to Background Information and Patents).

4.03 Non-Analysis of Background Samples. Except as otherwise agreed by the Parties in writing, each Party agrees not to determine or have determined the composition or physical structure of any Background Sample received from the other Party, which includes unused, used and spent Background Samples or portions thereof, whether by analyzing, having analyzed, inspection, reverse engineering or otherwise.

4.04 Information Handling Obligations. Each Party will endeavor to mark Confidential Information as follows:

(a) Confidential Information first disclosed in tangible form or electronically will be marked by the Disclosing Party as confidential or proprietary or with words of similar import when provided, indicating whether the information is Program Information or Background Information;

(b) Confidential Information first disclosed orally or by visual display will be identified by the Disclosing Party as confidential or proprietary or with words of similar import at first disclosure and subsequently confirmed as confidential in a summary provided in an e-mail or other written communication delivered to the other Party within thirty (30) days after first disclosure, that references the date of the confidential disclosure indicating whether the information is Program Information or Background Information; and

(c) If a Sample is sent to the other Party, the Sample will be marked by the Disclosing Party as confidential or proprietary or with words of similar import at the time of disclosure indicating whether the Sample is Program Information or Background Information.

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The failure to appropriately mark information/materials as confidential or proprietary upon initial disclosure to the Receiving Party will not be considered a waiver of confidentiality. Information/materials marked as proprietary or confidential when first disclosed, without further identification of the category of confidential information, will be presumptively considered and treated as Program Information until the Disclosing Party notifies the Receiving Party otherwise in writing.

4.05 Exceptions. For the purposes of this Agreement, the obligations of confidentiality and restricted use herein shall not apply to any information or materials to the extent the Receiving Party can establish by documentary evidence that one or more of the following exceptions apply:

a. the information or material was already in the Receiving Party's or its Affiliate's lawful possession (free of any confidentiality and use restrictions) and was not previously acquired directly or indirectly from the other Party under a current obligation of confidentiality;

b. the information or material was already in the public domain or subsequently entered the public domain after disclosure through no fault of the Receiving Party;

c. the information or material was or is hereafter furnished to the Receiving Party, or its Affiliate, on a non- confidential basis by a third party legally entitled to provide the information or material without restriction;

d. the information or material was independently developed by employees or agents of the Receiving Party or its Affiliate who did not have access to relevant information provided by the Disclosing Party; and/or

e. the information or material was released from the confidentiality obligations of this Agreement by the Disclosing Party's written authorization.

The later occurrence of any one of the aforementioned exceptions will not excuse any failure to adequately protect Confidential Information pursuant to this Agreement prior to the existence of the exception. More specific Confidential Information will not be deemed to be within the foregoing exceptions merely because it is embraced by more general information that is publicly available or in the possession of Receiving Party pursuant to one of the exceptions. Also a combination of features will not be deemed within the foregoing exceptions merely because individual features are publicly available or in Receiving Party's possession pursuant to one of the exceptions.

4.06 Disclosure to Affiliates, Contractors, and Sub-licensees. Notwithstanding anything to the contrary in this Agreement, a Receiving Party may disclose a Disclosing Party's Confidential Information to its Affiliates, and said Receiving Party may disclose the Disclosing Party's Confidential Information to their respective contractors providing services in furtherance of a Project as well as to permitted sub-licensees hereunder, provided such Affiliates, contractors, and sub-licensees have agreed to be bound by confidentiality and limited use obligations no less protective of Disclosing Party's Confidential Information than the terms contained herein. The Receiving Party will be liable to the Disclosing Party for any unauthorized disclosure or misuse of the Disclosing Party's Confidential Information by such Affiliates, contractors, and sub-licensees.

4.07 Compelled Disclosure. In the event that a Receiving Party (or its Affiliate) is required by law, court order or rule, or government authority to disclose the Confidential Information that Receiving Party is obligated to hold in confidence pursuant to Paragraph 4.01 (Program Information Disclosure, Confidentiality and Use Restriction) and/or Paragraph 4.02 (Background Information Disclosure, Confidentiality and Use Restriction), then the Receiving Party will promptly notify the Disclosing Party prior to disclosure in order to enable the Disclosing Party to seek a protective order at the Disclosing Party's sole expense. In any event, the Receiving Party who is required to disclose such information will request confidential treatment of the information and only disclose the minimum amount of information reasonably necessary to comply with such law, court order or rule, or government authority.

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4.08 Disclosures in Patent Applications. Notwithstanding anything else in this Agreement, ExxonMobil may disclose the minimum amount of FCE's Confidential Background Information reasonably necessary to support a Program Patent subject to the review process in Paragraph 6.02 (Solicitation of Program Patents).

4.09 Return/Destruction. At the Disclosing Party's written request, the Receiving Party agrees to return to Disclosing Party or, at Disclosing Party's option, dispose of or destroy, Disclosing Party's Confidential Background Information and any of Disclosing Party's unused Background Samples. However, notwithstanding anything else in this Paragraph, the Receiving Party may retain such documents and materials to the extent such documents and materials are identified as necessary for beneficial use of a further Project or a license granted herein and the Receiving Party has notified the Disclosing Party in writing of the need for such documents and materials. Any dispute over whether such documents and materials are necessary shall be escalated to senior management for resolution. Furthermore, notwithstanding anything else in this Paragraph 4.09, the Receiving Party may retain one (1) copy of such documents and materials in its secure files for the sole purpose of administering its obligations under this Agreement and the Receiving Party will not be required to purge or cause others to purge electronic archival media automatically generated by backup computer systems if said media will be destroyed pursuant to a systematic records retention process and not otherwise utilized.

4.10 Third Party Information. Neither Party will knowingly disclose to the other Party any proprietary or confidential information belonging to a Non-Affiliated Third Party without the Receiving Party's prior written consent.

ARTICLE 5 - PUBLICITY AND PUBLICATIONS

5.01 Publicity. During the Term, and except for disclosures pursuant to Paragraphs 4.06 (Disclosure to Affiliates, Contractors and Sub-licensees), 4.07 (Compelled Disclosure), 4.08 (Disclosure in Patent Applications), or as otherwise permitted in this Agreement, the Parties agree that they will not disclose to any Non-Affiliated Third Party that they have entered into this Agreement, nor make any publications or publicity releases concerning the nature of this Agreement, without first acquiring the written consent of the other Party, which consent will not be unreasonably withheld, conditioned or delayed.

Notwithstanding the foregoing, either Party may make such disclosure as it may determine to be required by applicable law (such as filing with the U.S. Securities and Exchange Commission), provided that in such case the Disclosing Party will provide advance notice of such disclosure to the other Party and, where legally permitted, an opportunity to redact its sensitive proprietary information from such disclosure.

Further, during the Term, each Party agrees that it will not use the name, service mark or trademark of the other Party, or any Affiliate of the other Party, or provide any indication from which the identity of the other Party or its Affiliate may reasonably be inferred in any publicity release or other announcement, without first obtaining the written approval of the other Party. Notwithstanding the foregoing, each Party hereby grants approval for the other Party to use its name, service mark or trademark in promotional materials that have a generally accepted description of the Scope, which such generally accepted description shall be mutually agreed to in writing beforehand. An exception to this Paragraph will include U.S. patent prosecution that refers to this Agreement as a joint research agreement under 35 U.S.C. § 102(c).

Further, each Party agrees to include appropriate attribution of the other Party in any publicity release, advertising, print, media or other announcement concerning the use of MCFCs for carbon capture, the Program or the Program Results.

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5.02 Publications. The Parties recognize that Program Information may be suitable for publication either jointly or individually. Unless the other Party specifically requests in writing not to be credited, appropriate recognition of the support or encouragement of the other Party will be included in such publications. The Parties agree to cooperate with each other on the preparation of any such publications. If any proposed publication contains the non-publishing Party's Background Information, such information (including reference thereto) will be deleted at the non-publishing Party's request. No publication that violates Article 4 (Disclosure, Confidentiality and Restricted Use) or Paragraph 5.01 (Publicity) will be permitted without the prior written consent of the other Party which may be obtained from a duly authorized member of each Party.

ARTICLE 6 - OWNERSHIP / PROCUREMENT OF PROGRAM RESULTS

6.01 Ownership of Program Results. ExxonMobil will solely own Program Information, Program Patents, and copyrightable works resulting from the Program (collectively, Program Results), irrespective of whether the Program Results are conceived, created, developed or acquired by employees or other representatives of FCE, ExxonMobil, or both. FCE will assign, and hereby assigns, to ExxonMobil ownership of Program Results.

6.02 Solicitation of Program Patents. ExxonMobil will have the sole responsibility and the exclusive right to prepare, file, prosecute, and maintain Program Patents pursuant to Paragraph 6.01 (Ownership of Program Results). Such right will include the right to determine if, where, and when patent applications are filed, and the scope of such patent applications. Notwithstanding the foregoing, ExxonMobil shall provide FCE notice of its intent to file any patent application containing FCE's Confidential Background Information and an opportunity for FCE to review any such patent application for FCE's Confidential Background Information. If FCE does not respond within thirty (30) days from ExxonMobil seeking such consent, then ExxonMobil may proceed with such filing. The cost of preparing, filing, prosecuting, and maintaining any such patent applications that ExxonMobil decides to pursue and maintain, as well as the cost of maintaining any patents resulting therefrom, will be paid in full by ExxonMobil. For Program Patents, if one or more employees or other representatives of FCE are determined to be inventors, then FCE will:

(i) cause its employees, contractors, and consultants to render reasonable and timely assistance to ExxonMobil and its attorneys or agents;

(ii) assign, and will cause its and its Affiliates' employees, contractors, and consultants to assign, its right, title, and interest in and to such Program Patent to ExxonMobil for filing; and

(iii) cause its and its Affiliate employees, contractors, and consultants, to execute any documents as may be required to effect such assignments, or file, prosecute, and maintain any patent applications or patents that are based on, derived from, or protect such Program Patent.

ExxonMobil will hold formal legal title to all such patent applications, and resulting patents.

6.03 Cooperation in Soliciting Program Patents. The Parties agree to cooperate in the preparation, filing, prosecution, and securing of patent applications and patents, all without charge to such other Party. When ExxonMobil's patent counsel sends to FCE documents for review that contains FCE Confidential Background Information, the Parties will follow the review process pursuant to Paragraph 6.02 (Solicitation of Program Patents). Upon FCE's written request, ExxonMobil will provide a courtesy copy of any Program Patent that does not contain any FCE Confidential Background Information prior to filing such document. All Program Patent filings, and the status thereof, will be reported to the Steering Committee.

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6.04 Solicitation of Program Patents Discretionary. ExxonMobil has the unencumbered right to file or not to file, prosecute, defend, maintain, abandon, or enforce any Program Invention or Program Patent. Notwithstanding the foregoing, in the event ExxonMobil decides not to prosecute, defend, enforce, maintain or decides to abandon any Program Patent, then ExxonMobil will provide notice thereof to FCE, and FCE will then have the right, but not the obligation, to prosecute or maintain the Program Patent and sole responsibility for the continuing costs, taxes, legal fees, maintenance fees and other fees associated with that Program Patent. The ownership of such Program Patent will remain with ExxonMobil.

The abandonment of a pending patent application in favor of a continuation patent application, continuation-in-part patent application, or divisional patent application, or in favor of another application of a related subject (e.g. to overcome a double patenting rejection) and ExxonMobil's decision not to file any Program Patent, will not be deemed to be an election not to continue to prosecute, issue, or maintain any Program Patent under Paragraph 6.04. In addition, (a) the failure to appeal a patent office or any administrative tribunal or judicial decision adverse to any patent or patent application, or (b) in the case of a co-pending non-provisional application in the U.S., (i) failure to enter an international patent application into the national phase, or (ii) to ratify a patent in any country, will not be deemed to be an election not to continue to prosecute, issue, or maintain any Program Patent under Paragraph 6.04.

6.06 Joint Research Agreement. The Parties acknowledge and agree that this Agreement is a joint research agreement as defined in 35 U.S.C. §100(h). The specification of any patent application filed pursuant to this Agreement may contain (or may be amended to contain) language required to invoke 35 U.S.C. §102(b)(2)(C) and §102(c) as applicable. Notwithstanding anything to the contrary in Paragraph 5.01 (Publicity), ExxonMobil will have the right to invoke these statutory provisions when exercising its rights to file patent applications under this Agreement, without the prior written consent of FCE, subject to the provisions of Paragraph 6.02 (Solicitation of Program Patents). Where ExxonMobil intends to invoke these statutory provisions, FCE, upon request, will cooperate and coordinate its activities with ExxonMobil with respect to any submissions, filings or other activities in support thereof.

6.07 Inventor Awards. A Party will not be responsible for any inventor awards or compensation that may be owed to the other Party's employee(s) or to any employees of the other Party's Affiliates, agents, consultants, or contractors, who are inventors of any Program Invention.

6.08 Disposal of Prior JDA Project Patents. During the Term of this Agreement and for two (2) years thereafter, in the event that either Party decides to sell or convey its interest in or otherwise dispose of any Prior JDA Project Patent to any Non-Affiliated Third Party, such Party will inform the other Party, who will then have the right of first refusal to purchase or otherwise acquire the sole interest at same or better terms. Any sale of a Prior JDA Project Patent to a Non-Affiliated Third Party is subject to the licenses granted and other obligations set forth in this Agreement.

ARTICLE 7 - LICENSE TO PROGRAM RESULTS

7.01 Grants to FCE of Program Results.

(a) FCE's R&D Rights. ExxonMobil grants FCE a worldwide, non-exclusive, royalty-free, non-transferable (except pursuant to Article 14 (Assignment)), non-sub-licensable (except as set forth in this Paragraph 7.01(a)) right and license to practice Program Results solely to conduct research and development for the Program. More particularly, said right and license to practice includes the right to use, reproduce, and create derivative works of Program Information under applicable copyrights and to make, use, and import (but not sell or offer to sell) under the claims of Program Patents, in each case solely for research and development for the Program. Said right and license may be extended to contractors performing work on behalf of FCE but is not otherwise sub-licensable.

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(b) FCE's Commercial Rights. ExxonMobil agrees to grant or hereby grants FCE the following rights and licenses:

(1) Power Applications and Hydrogen Applications. ExxonMobil grants FCE a worldwide, non-exclusive, royalty-free, perpetual, irrevocable (except as stated in Paragraphs 12.03 (Failure to Perform), 12.04 (Other Termination), and 12.05 (Bankruptcy)), sub-licensable, non-transferable (except pursuant to Article 14 (Assignment)), right and license to practice Program Results solely for Power Applications and Hydrogen Applications. More particularly, said right and license to practice Program Results solely for Power Applications and Hydrogen Applications includes the right to use, reproduce, and create derivative works of Program Information under applicable copyrights and to make, use, import, and sell or offer to sell under the claims of Program Patents; and

(2) Carbon Capture Applications. In the event ExxonMobil notifies FCE that it has formally decided not to pursue Generation 2 Technology for Carbon Capture Applications, then upon FCE's written request, ExxonMobil agrees to negotiate a grant to FCE, under commercially reasonable terms to be determined in good faith, a worldwide, non-exclusive, royalty-bearing (with the royalty to be negotiated), non-sub- licensable (except as set forth in this Paragraph 7.01(b)(2)), non-transferable (except pursuant to Article 14 (Assignment)), right and license to practice Program Results solely for Carbon Capture Applications. More particularly, said right and license to practice Program Results solely for Hydrogen Applications and Carbon Capture Applications will include the right to use, reproduce, and creative derivative works of Program Information under applicable copyrights and to make, use, import, and sell or offer to sell under the claims of Program Patents. Said right and license will be extendable to contractors performing work on behalf of FCE but will not otherwise sub-licensable. Nothing in this Paragraph 7.01(b)(2) will create an obligation on the part of ExxonMobil to grant FCE a right or license under Program Results if the Parties do not agree on the terms and conditions of such license.

ARTICLE 8 - LICENSE TO BACKGROUND INFORMATION AND PATENTS

8.01 Ownership Retained. Each Party will retain its title and ownership rights to its Background Information and Background Patents in all applicable jurisdictions.

8.02 Grant of Rights to Background Information and Background Patents.

(a) Grant to ExxonMobil.

1) Carbon Capture Applications and Hydrogen Applications. To the extent not already granted pursuant to the License Agreement, FCE grants ExxonMobil and its Affiliates a worldwide, non-exclusive, royalty-free, irrevocable, perpetual, sub-licensable, non-transferable (except pursuant to Article 14 (Assignment)) right and license to practice FCE Background Information and FCE Background Patents for Generation 2 Technology in Carbon Capture Applications and Hydrogen Applications. More particularly, said right and license to practice FCE Background Information and FCE Background Patents for Generation 2 Technology in Carbon Capture Applications and Hydrogen Applications includes the right to use, reproduce, and create derivative works of FCE Background Information under applicable copyrights and the right to make, use, import, and sell or offer to sell under the claims of FCE Background Patents.

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2) Other Applications. In the event FCE notifies ExxonMobil that it has formally decided not to pursue Generation 2 Technology for Power Applications, then upon ExxonMobil's written request, FCE agrees to negotiate a grant to ExxonMobil and its Affiliates, under commercially reasonable terms to be determined in good faith, a worldwide, royalty-bearing (with the royalty to be negotiated), non-exclusive, sub-licensable right and license to practice FCE Background Information and FCE Background Patents for Generation 2 Technology in any application outside of Carbon Capture Applications and Hydrogen Applications. More particularly, said right and license to practice FCE Background Information and FCE Background Patents for Generation 2 Technology in any application outside of Carbon Capture Applications and Hydrogen Applications will include the right to use, reproduce, and create derivative works of FCE Background Information under applicable copyrights and the right to make, use, import, and sell or offer to sell under the claims of FCE Background Patents. Nothing in this Paragraph 8.02(a)(2) will create an obligation on the part of FCE to grant ExxonMobil a license or right under FCE Background Patents or FCE Background Information if the Parties do not agree on the terms and conditions of such license.

(b) Grant to FCE.

1) Generation 1 Technology.

i. Outside of Carbon Capture Applications. ExxonMobil grants FCE a worldwide, non-exclusive, royalty- free, non-sub-licensable (except as set forth herein), perpetual, irrevocable (except as stated in Paragraphs 12.03 (Failure to Perform), 12.04 (Other Termination), and 12.05 (Bankruptcy)), non- transferable (except pursuant to Article 14 (Assignment)) right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 1 Technology in any applications outside of Carbon Capture Applications. More particularly, said right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 1 Technology in any applications outside of Carbon Capture Applications includes the right to use, reproduce, and create derivative works of ExxonMobil Background Information under applicable copyrights and the right to make, use, import, and sell or offer to sell under the claims of ExxonMobil Background Patents. All rights and licenses in this Paragraph (b)(1)(i) may be extended to contractors performing work on behalf of FCE but are not otherwise sub-licensable.

ii. Authorized Third Parties. ExxonMobil grants FCE a worldwide, non-exclusive, royalty-free, non-sub- licensable (except as set forth herein), perpetual, irrevocable (except as stated in Paragraphs 12.03 (Failure to Perform), 12.04 (Other Termination), and 12.05 (Bankruptcy)), non-transferable (except pursuant to Article 14 (Assignment)) right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 1 Technology in Carbon Capture Applications, solely to conduct Authorized Work with Authorized Third Parties. More particularly, said right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 1 Technology in Carbon Capture Applications includes the right to use, reproduce, and create derivative works of ExxonMobil Background Information under applicable copyrights and the right to make, use, and import (but not sell or offer to sell) under the claims of ExxonMobil Background Patents, solely to conduct Authorized Work with Authorized Third Parties. All rights and licenses in this Paragraph (b)(1)(ii) may be extended to contractors performing work on behalf of FCE but are not otherwise sub-licensable.

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iii. Carbon Capture Application. In the event that ExxonMobil fails to notify FCE before the end of the Term of the Agreement of ExxonMobil's intent to negotiate a subsequent or follow-on commercial agreement, ExxonMobil agrees to negotiate a grant to FCE, under commercially reasonable terms to be determined in good faith, a worldwide, royalty-free, non-exclusive, non-sub-licensable (except as set forth herein) right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 1 Technology in Carbon Capture Applications. More particularly, said right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 1 Technology in Carbon Capture Applications will include the right to use, reproduce, and create derivative works of ExxonMobil Background Information under applicable copyrights and the right to make, use, import, and sell or offer to sell under the claims of ExxonMobil Background Patents. The rights and licenses in this Paragraph (b)(1)(iii) will be extendable t o contractors performing work on behalf of FCE but will not otherwise sub-licensable. Nothing in this section will create an obligation on the part of ExxonMobil to grant FCE a license or right under ExxonMobil Background Patents or ExxonMobil Background Information if the Parties do not agree on the terms and conditions of such license.

2) Generation 2 Technology.

i. Power Applications and Hydrogen Applications. ExxonMobil grants FCE a worldwide, non-exclusive, royalty-free, non-sub-licensable (except as set forth herein), perpetual, irrevocable (except as stated in Paragraphs 12.03 (Failure to Perform), 12.04 (Other Termination), and 12.05 (Bankruptcy)), non- transferable (except pursuant to Article 14 (Assignment)) right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 2 Technology in Power Applications and Hydrogen Applications. More particularly, said right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 2 Technology in Power Applications and Hydrogen Applications includes the right to use, reproduce, and create derivative works of ExxonMobil Background Information under applicable copyrights and the right to make, use, import, and sell or offer to sell under the claims of ExxonMobil Background Patents. The right and license in this Paragraph (b)(2)(i) may be extended to contractors performing work on behalf of FCE but is not otherwise sub-licensable.

ii. Outside of Power Applications and Hydrogen Applications. In the event ExxonMobil notifies FCE that it has formally decided not to pursue Generation 2 Technology for Carbon Capture Applications, then upon FCE's written request, ExxonMobil agrees to grant to FCE, under commercially reasonable terms to be determined in good faith, a worldwide, royalty-bearing (with the royalty to be negotiated), non- exclusive, sub-licensable, right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 2 Technology in any application outside of Power Applications and Hydrogen Applications. More particularly, said right and license to practice ExxonMobil Background Information and ExxonMobil Background Patents for Generation 2 Technology in any application outside of Power Applications includes the right to use, reproduce, and create derivative works of ExxonMobil Background Information under applicable copyrights and the right to make, use, import, and sell or offer to sell under the claims of ExxonMobil Background Patents. Nothing in this section will create an obligation on the part of ExxonMobil to grant FCE a license or right under ExxonMobil Background Patents or ExxonMobil Background Information if the Parties do not agree on the terms and conditions of such license.

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(c) No Further Rights. Notwithstanding any other provision in this Agreement, under no circumstances will a Party to this Agreement, as a result of this Agreement, have any right under or to the Background Information and Background Patents of the other Party except as set forth in this Article. Any other right and license to Background Information and Background Patents not found in this Article will be subject to a separate license agreement to be negotiated between the Parties, as necessary.

ARTICLE 9 - INFRINGEMENT OF THIRD PARTY PATENTS

9.01 Notification of Potential Infringement. If either Party becomes aware of alleged infringement of a third party's intellectual property rights relating to its work under this Agreement, such Party will promptly notify the other Party of such discovery and the Parties will consult with each other and discuss any action to be taken.

9.02 Defense of Infringement Claims. Each Party will be responsible for all expenses (including attorney fees) and damages (e.g. royalties, settlement costs) incurred in defense of a claim of infringement by its own equipment, products, or processes, or by equipment, products, or processes of its Affiliates, contractors or consultants.

9.03 Settlements. Each Party may resolve any risk or threat, or settle any suits or action related to use of any Program Results, without the prior approval of the other Party unless such resolution or settlement would cause the other Party to be: (a) obligated to make any payment or part with any tangible or intangible property right, or (b) obligated to assume any obligations with respect thereto, or (c) subject to any injunction.

ARTICLE 10 -PAYMENT

10.01 Project Costs.

a) ExxonMobil will reimburse FCE for Research Costs (i.e., cumulative FTE Costs and Direct Costs) for each Project subject to total caps set forth herein and in the relevant Project Description. Research Costs of FCE paid for by ExxonMobil will be limited to FTE Costs for time actually spent on the Program and Direct Costs actually incurred and approved in advance by the Steering Committee. The cumulative Research Costs for the Program will not exceed forty-five million United States dollars ($45,000,000 USD) over the Term of the Agreement (Total Research Cost). ExxonMobil will reimburse FCE for Research Costs after receipt of invoices on a monthly basis. Invoices for Direct Costs will be supported by relevant third party invoices received by FCE documenting such costs. Materials shall be invoiced as incurred and subject to a thirty percent (30%) service fee. All such payments will be made after ExxonMobil's receipt of invoices in accordance with the invoicing procedures specified in Paragraphs 10.01(b)-(e) and in Paragraph 10.04 (Invoices).

b) First Invoice. FCE will invoice ExxonMobil an advance payment on or promptly after the Effective Date (Initial Payment), said Initial Payment not to exceed one-twelfth (1/12) of the Total Research Cost (i.e., three-million and seven-hundred and fifty thousand United States dollars ($3,750,000 USD)). Notwithstanding anything contained herein to the contrary, including Paragraph 10.04 (Invoices), such payment will be made within fifteen (15) days after ExxonMobil's receipt of invoice.

c) Subsequent Monthly Invoices. Within fifteen (15) days after the end of each calendar month that occurs during the remainder of the Term of the Agreement, subject to Paragraph 10.01(e), FCE will calculate and invoice ExxonMobil for the actual amounts incurred (for charges permitted in accordance with the respective Project Description(s)) during the immediately preceding calendar month.

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d) End of Term of the Program.

i. By the fifteenth (15th) day of the last month of the Term of the Agreement, ExxonMobil will have been invoiced for the actual charges incurred in all of the prior months of the Term of the Agreement, but the most recently issued invoice will not be due. Therefore, at such time ExxonMobil will not have yet paid for the last two (2) months of the Term of the Agreement. When FCE issues the invoice during the last month of the Term of the Agreement (8th Inning Invoice), FCE will apply some or all of the Initial Payment, as applicable, as credit against the amount due.

ii. Within fifteen (15) days after the end of the Term of the Agreement, FCE will issue an invoice (9th Inning Invoice) for the actual charges incurred during the last month of the Term of the Agreement, subject to Paragraph 10.01(a). FCE will apply any balance of the Initial Payment remaining after the 8th Inning Invoice as a credit towards the amount due on the 9th Inning Invoice. If after applying such credit, a balance of the Initial Payment still remains, FCE will refund the balance to ExxonMobil within thirty (30) days, unless otherwise mutually agreed (such as the Parties mutually agreeing to enter into a new Project and apply the balance as a credit towards amounts payable by ExxonMobil thereunder).

e) Maximum Charges. The invoices sent by FCE under the foregoing procedure for each year of the Agreement may not in the aggregate be more than half the Total Research Cost, without prior written consent of ExxonMobil or amendment to the Project Description. All such payments will be made after ExxonMobil's receipt of invoice in accordance with the invoicing procedures specified Paragraph 10.04 (Invoices).

10.02 Up-Front Exclusivity and Technology Access Payment. In exchange for FCE working exclusively with ExxonMobil during the Term of the Agreement, pursuant to Paragraph 2.03 (Work Exclusivity/Independent Work), and ExxonMobil's access to FCE Background Patents, pursuant to Paragraph 8.02(a) (Grant of Rights to Background Information and Background Patents), on the Effective Date, FCE will separately invoice, and ExxonMobil will pay a one-time up-front fee (Exclusivity and Technology Access Fee) of five million United States dollars ($5,000,000 USD).

Such payment will be made within fifteen (15) days after ExxonMobil's receipt of invoice, notwithstanding anything contained herein to the contrary, including Paragraph 10.04 (Invoices).

10.03 Milestone Payments. As further consideration for technical progress in the Program, ExxonMobil shall pay the following sums upon achievement of the following Program milestones (Milestone Payments):

(a) ExxonMobil will pay FCE a first Milestone Payment of five million United States dollars ($5,000,000 USD) upon FCE achieving Milestone 1 to ExxonMobil's satisfaction; and

(b) ExxonMobil will pay FCE a second and final Milestone Payment of five million United States dollars ($5,000,000 USD), upon FCE achieving Milestone 2 to ExxonMobil's satisfaction.

All such Milestone Payments will be made after ExxonMobil's receipt of invoice in accordance with the invoicing procedures specified Paragraph 10.04 (Invoices). The obligation to pay any such installment ends upon termination of this Agreement by either Party for any reason prior to FCE achieving the respective milestone.

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10.04 Invoices. FCE will invoice ExxonMobil for any amount due under a Project at the address (including the email address) in Article 16 (Addresses and Notices). Each invoice will identify this Agreement's identification number LAW-2019-3608, the number of the particular Project Description to which it pertains, and details of FTE Costs (including unique employee identifiers of the FTEs) and Direct Costs. FCE will not include charges relating to more than one Project Description in any given invoice. Except as otherwise specifically provided herein, ExxonMobil agrees to pay FCE the amount of each invoice under this Agreement within thirty (30) days following ExxonMobil's receipt. Notwithstanding the foregoing, if ExxonMobil has a good faith dispute regarding any amounts invoiced by FCE, ExxonMobil may withhold payment for the disputed amount, provided that ExxonMobil pays the undisputed amount and notifies FCE in writing of the specific amount and nature of the dispute promptly upon receipt of FCE's invoice in which case the Parties shall attempt to resolve the dispute in good faith. The Parties shall endeavor to resolve such dispute within fifteen (15) days of notice of the dispute, and ExxonMobil shall remit payment to FCE within fifteen (15) days of resolution of such dispute.

All such payments by ExxonMobil to FCE will be made by wire transfer in United States Dollars. FCE shall provide the Bank Name, Bank Address, Bank Account, and Swift Code in each invoice.

ARTICLE 11 - REPRESENTATIONS, WARRANTIES, INDEMNITIES AND LIABILITIES

11.01 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other, to the best of its knowledge, that:

(a) as of the Effective Date:

1. the execution, delivery and performance of this Agreement by such Party does not conflict with any agreement, instrument or undertaking, oral or written, to which it is a party or by which it may be bound, and

2. all necessary consents, approvals and authorizations of all governmental authorities and third parties required to be obtained by such Party in connection with the execution, delivery, and performance of this Agreement have been or will be obtained;

(b) it owns or controls, in the same sense of having the right to license or convey, any Background Information to be provided to the other Party hereunder, and at the date of transmittal to the other Party, such Background Information in the Disclosing Party's good faith belief will not be subject to any encumbrances or restrictions on use by any third party that would materially affect the Receiving Party's exploitation of the rights granted in this Agreement; and

(c) all of its professional and technical personnel who perform services on or for all Projects are under written obligation:

(1) not to disclose secret or confidential information except as authorized under this Agreement or by their employer;

(2) to assign to their employer all Program Inventions; and

(3) to assign to their employer sole ownership of copyrights to all copyrightable works created in connection with any Project.

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11.02 Warranty and Liability Disclaimers. RECEIVING PARTY IS RESPONSIBLE FOR DETERMINING HOW TO USE THE INFORMATION AND MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DISCLOSING PARTY DISCLAIMS LIABILITY FOR ANY LOSS OR DAMAGE SUSTAINED BY RECEIVING PARTY (BUT NOT ANY THIRD PARTY) THAT MAY OCCUR FROM RECEIVING PARTY'S USE OF, OR RELIANCE ON, SUCH INFORMATION AND MATERIALS AND RECEIVING PARTY RELEASES DISCLOSING PARTY AND ITS AFFILIATES FROM AND FOR ANY SUCH LIABILITY, LOSS OR DAMAGE, EVEN IF CAUSED BY DISCLOSING PARTY'S OR ITS AFFILIATES' NEGLIGENCE EXCEPT AS PROVIDED IN PARAGRAPH 11.04 (EXCEPTIONS TO LIMITATIONS ON LIABILITY). NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IS MADE REGARDING SUCH INFORMATION AND MATERIAL,  OR ITS COMPLETENESS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

11.03 Indirect or Enhanced Damages. In no event will either Party be liable to the other Party under this Agreement for any consequential, indirect, special, incidental, punitive or exemplary loss or damage, including, without limitation, business interruption, cost of capital, loss of anticipated revenues and profits, loss of goodwill or increased operating costs, whether arising from contract, warranty, tort, strict liability or otherwise regardless of whether the possibility of such losses or damages have been made known to the first Party, and each Party hereby expressly waives all such rights and remedies, except for breach of any confidentiality or restricted use provisions of this Agreement and except as provided in Paragraph 11.04 (Exceptions to Limitations of Liability).

11.04 Exceptions to Limitations of Liability. Notwithstanding anything to the contrary in this Agreement, each Party will bear full responsibility, without limit, for the following:

(i) Gross Negligence or Willful Misconduct attributable to its personnel, and, in no event, will a Party be required to release or indemnify the other Party for Gross Negligence or Willful Misconduct attributable to the other Party; and

(ii) its legal obligations to third parties wherein nothing in this Agreement is intended to impair a party's contribution and indemnity rights under law with respect to third party claims.

ARTICLE 12 - TERM AND TERMINATION

12.01 Term. Unless sooner terminated in accordance with this Article, this Agreement will continue in full force beginning on the Effective Date and ending two (2) years thereafter (Term).

12.02 Early Termination. The Parties recognize that circumstances may arise where this Agreement's early termination would be desirable. Accordingly, either Party may terminate this Agreement or all/part of a Project for any reason and at any time upon giving the other Party sixty (60) days prior written notice. In the event of early termination of a Project or this Agreement. In addition, if this Agreement is terminated by ExxonMobil, ExxonMobil will pay FCE reasonable non- refundable expenses incurred by FCE in satisfying authorized commitments entered into by FCE with third parties prior to receipt of the termination notice. FCE will uses its best efforts to minimize termination expenses and will give appropriate credit to ExxonMobil where applicable. The total amount paid FCE under this Agreement or for a Project, including all amounts paid following termination, will not exceed the maximum authorized charge specified in this Agreement or for a Project.

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12.03 Failure to Perform. If ExxonMobil fails to fulfill a material monetary obligation or FCE fails to execute material tasks or obligations in material compliance with all criteria set forth in a respective mutually agreed upon Project Description, in the time and manner required herein, provided that in the case of FCE's tasks or obligations any non-compliance or delay in meeting said criteria is not due to ExxonMobil or force majeure pursuant to Paragraph 15.01 (Force Majeure), the non- defaulting Party may give written notice of intent to terminate this Agreement, specifying the details of such default. Unless the defaulting Party has remedied such default within the Cure Period, this Agreement may be terminated, without penalty, payment or prejudice to claims then accrued, by written notice to the defaulting Party by the non-defaulting Party specifying the date of termination which will be of immediate effect. In the event of termination under this Paragraph 12.03 where FCE is the defaulting Party, FCE's royalty-free licenses described in Paragraph 7.01(b)(1), 8.02(b)(1)(i), 8.02 (b)(1)(ii), 8.02(b)(1)(iii), and 8.02(b)(2)(i) will immediately convert to royalty-bearing licenses, with the royalty rate to be negotiated by the Parties in good faith.

12.04 Other Termination. ExxonMobil may terminate this Agreement upon fifteen (15) days written notice, without penalty, payment or prejudice to claims and obligations then accrued, if FCE undergoes a Change in Control. Subject to requirements of applicable law, FCE will provide notice to ExxonMobil prior to, or promptly after, it becomes aware of any such Change in Control, and if prior notice is prohibited by applicable Law, as soon as practicable or after such notice is no longer prohibited, but in no event later than one (1) business day after any public announcement with respect to any such asset transfer or Change in Control. Notwithstanding anything else in this Agreement, in the event of termination under this Paragraph 12.04 ExxonMobil may terminate any licenses granted to FCE under this Agreement that would otherwise survive termination, taking into account the circumstances surrounding the Change in Control. Any licenses granted to ExxonMobil under this Agreement that would otherwise survive termination will continue to survive termination.

12.05 Bankruptcy.

(A) To the extent a court of competent jurisdiction determines that this Agreement is subject to assumption or rejection under Title 11 of the U.S. Code (the Bankruptcy Code) or the applicable law of a bankruptcy or insolvency proceeding in a non-U.S. jurisdiction:

(i) All rights and licenses granted to ExxonMobil and its Affiliates under or pursuant to this Agreement are, and will otherwise be deemed to be, for all purposes of Section 365(n) of the Bankruptcy Code, licenses of rights to intellectual property as defined in section 101 of the Bankruptcy Code.

(ii) If a case is commenced under the Bankruptcy Code by or against FCE and this Agreement is rejected as provided in the Bankruptcy Code, and ExxonMobil or any of its Affiliates elects to retain its rights hereunder as provided in the Bankruptcy Code, then ExxonMobil and its Affiliates shall retain all rights hereunder in perpetuity without further royalty payments of any kind and FCE (in any capacity, including debtor-in- possession) and its successors and assigns (including, without limitations, a trustee) shall not interfere with such rights.

(iii) In the event of bankruptcy or insolvency proceedings of FCE in a non-U.S. jurisdiction, the rights, powers and remedies of ExxonMobil and its Affiliates shall be applied under any applicable laws which are equivalent to Section 365(n) of the Bankruptcy Code, or if there is no such equivalent, the Parties will take all such actions as are permissible under applicable law to permit the continuation of the licenses contained in this Agreement to the maximum extent possible.

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(iv) In the event FCE admits in writing its inability generally to pay its debts as they fall due in the general course, becomes or is determined to be insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or a substantial part thereof, or becomes subject to a proceeding under any statute or act relating to insolvency or the protection of rights of creditors, ExxonMobil receives, at its election, continued access to all Program Information, including the Project materials, equipment, and FCE's Background Information and Background Patents, and ExxonMobil will have access to relevant lab notebooks, computers containing technical information and know-how, journals, ledgers and manuals containing technical information and know-how in each case relating to the Program Information and FCE's Background Information and Background Patents.

(B) To the maximum extent permitted under law, ExxonMobil may terminate this Agreement upon fifteen (15) days written notice, without penalty, payment or prejudice to claims and obligations then accrued, if FCE commences a voluntary case under the Bankruptcy Code or a similar voluntary bankruptcy or insolvency proceeding in a non- U.S. jurisdiction, or if an order for relief is entered in an involuntary case filed against FCE under the Bankruptcy Code, and such case is not dismissed within sixty (60) days of the entry of such order, or if FCE makes a voluntary general assignment for the benefit of creditors, or suffers or permits agrees to the entry of an order appointing a receiver in an action actually pending in a court of competent jurisdiction for that portion of its business or assets related to the Project. In the event of termination under this Paragraph 12.05 and subject to ExxonMobil's waiver (in its sole discretion), any licenses granted to FCE under this Agreement that would otherwise survive termination will automatically terminate and any licenses granted to ExxonMobil under this Agreement that would otherwise survive termination will continue to survive termination.

12.06 Continuing Rights and Obligations. Except as otherwise stated in this Agreement, the following Articles and Paragraphs will survive termination of this Agreement:

o Article 1 (Definitions);

o Article 4 (Disclosure, Confidentiality and Restricted Use);

o Article 6 (Procurement and Ownership of Program Results)

o Article 7 (License to Program Results), subject to Paragraphs 12.03 (Failure to Perform), 12.04 (Other Termination), and 12.05 (Bankruptcy);

o Article 8 (License to Background Information and Patents), subject to Paragraphs 12.03 (Failure to Perform), 12.04 (Other Termination), and 12.05 (Bankruptcy);

o Article 10 (Payment), but only to the extent there are continuing license and/or royalty share obligations pertaining to the commercial use of Program Results, Background Information and/or Background Patents;

o Article 11 (Representations, Warranties, Indemnities and Liabilities);

o Article 12 (Term and Termination) to the extent any clause therein speaks to post termination rights and obligations;

o Article 13 (Arbitration and Governing Law);

o Article 14 (Assignment);

o Article 16 (Addresses and Notices);

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o Paragraph 17.03 (Export Controls and Trade Sanctions);

o Article 18 (Records and Audit);

o Article 19 (Taxes);

o Paragraphs 20.02 (Independent Contractors), 20.03 (Independent Entities), 20.06 (No Third-Party Beneficiaries), 20.07 (Internal Conflict), 20.08 (Severability), 20.09 (Amendments; Modification; Waiver), 20.10 (Integration), and 20.11 (Execution); and

o any rights and obligations contained in this Agreement which by their nature should continue.

Any rights and obligations that have accrued to either Party against the other prior to the effective date of termination or expiration of this Agreement in any respect will survive such termination or expiration, and rights that have accrued to an Affiliate of a Party will continue regardless of any change in Affiliate status during the Term of this Agreement or thereafter.

ARTICLE 13 - ARBITRATION AND GOVERNING LAW

13.01 Governing Law. The validity and interpretation of this Agreement and the legal relations of the Parties to it will be governed by the laws of the State of New York without recourse to its conflicts of law rules.

13.02 Arbitration Proceedings. Both Parties will try to amicably resolve any dispute arising out of or relating to this Agreement by involving representatives of the Parties with authority to settle such disputes. In the event the Parties are unable to agree upon a resolution within a reasonable period of time, not to exceed sixty (60) days after first notice of the difference unless otherwise agreed in writing, any dispute arising out of or relating to this Agreement may be referred to final and binding arbitration before three arbitrators under the Rules of Arbitration of the International Chamber of Commerce. Each Party will appoint one arbitrator within thirty (30) days of notice of such referral and the two (2) so appointed will, within thirty (30) days from the appointment of the last of the two (2) arbitrators, select a third arbitrator who will act as the Chairman. The arbitration will take place in New York City, New York and the proceedings will be conducted in the English language. The arbitrators will decide all questions and settle all disputes strictly in accordance with the provisions of this Agreement, including the relevant indemnities and liability limitations. The arbitrators will have no authority to award exemplary or punitive damages, and the arbitral panel will certify in the decision that no part of the award includes such damages. The Parties waive their rights to seek rulings from any court on issues of law that arise during the arbitration and to challenge the award on the grounds that the arbitrators made errors of law. Awards made pursuant to this Paragraph will be final and binding on the Parties from the date made and judgment upon any award may be entered in any court having jurisdiction. No Party hereto will raise defenses based on sovereign immunity with respect to the arbitration, any judicial proceeding or ancillary thereto or with respect to enforcement of any award, order or judgment rendered in the arbitration or related judicial proceedings.

13.03 Cost of Arbitration. The prevailing Party in an arbitration proceeding will be entitled to recover from the other Party reasonable attorneys' fees, reasonable out-of-pocket costs and disbursements, as well as any charges for the cost of the arbitration and the fees of the arbitrators.

13.05 Injunctive Relief. No provision of this Agreement will prohibit any Party from approaching any court having competent jurisdiction to seek injunctive relief in case of urgency to prevent disclosure of its Confidential Information.

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ARTICLE 14 - ASSIGNMENT

14.01 Assignment. The Agreement is not assignable, including any assignment by operation of law (including but not limited to as a result of a merger or other corporate action), by either Party without the prior written consent of the other Party. Any and all assignments of this Agreement or of any part thereof not made in accordance with this Article will be void. Notwithstanding the foregoing, ExxonMobil may assign this Agreement to its Affiliates and FCE may assign this Agreement to any of its wholly-owned and wholly-controlled Affiliates, with prior written notice to the other Party, provided that (i) such assignment by FCE shall be void if at any point such Affiliate ceases to be both wholly-owned and wholly- controlled by FCE, (ii) Article 12, including but not limited to Paragraphs 12.03, 12.04 and 12.05, shall be applicable to both FCE and any Affiliate assignee of FCE, and (iii) no assignment pursuant to this sentence will relieve the Parties of their obligations under this Agreement.

14.02 Assignees Bound. Any assignee permitted in Paragraph 14.01 (Assignment) will agree in writing to be bound by all the obligations of the assigning Party under this Agreement, and a copy of such written agreement will be promptly provided to the other Party. Any Party making an assignment of this Agreement as permitted in Paragraph 14.01 (Assignment) will remain bound by the continuing obligations of confidentiality and nonuse applicable to such Party prior to the assignment.

ARTICLE 15 - FORCE MAJEURE

15.01 A Party will not be liable to the other Party and will not be considered in breach of this Agreement for delays or failures in performance resulting from causes beyond the reasonable control of that Party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, new governmental regulations, communication or utility failures, or casualties. In such instance, the Party so affected will promptly notify the other Party in writing of such prevention, restriction or interference. ExxonMobil or FCE, as the case may be, will be excused from performing such obligations to the extent of such prevention, restriction or interference; provided, however, that the Party so prevented, restricted or interfered with will take all appropriate and reasonable steps to remedy such failure or delay and will resume its performance under this Agreement with all proper dispatch whenever such causes are removed.

ARTICLE 16 - ADDRESSES AND NOTICES

16.01 All notices, demands, requests, or other communications which a Party may desire or be required to give under this Agreement to the other Party will be in writing addressed as follows or to such other address designated by notice in writing:

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ExxonMobil: ExxonMobil Research and Engineering Company 1545 Route 22 East Annandale, NJ 08801-0900 Attention: Timothy Barckholtz, Senior Scientific Advisor Email: tim.barckholtz@exxonmobil.com FCE: FuelCell Energy, Inc. 3 Great Pasture Road Danbury, CT 06810 Attention: Anthony Leo, Executive Vice President Email: tleo@fce.com With a copy to: FuelCell Energy, Inc. 3 Great Pasture Road Danbury, CT 06810 Attention: Legal Department Such notice, demand, request, or other communications will be deemed to have been sufficiently given by and will be effective upon the earliest of: (a) delivering the same to a reputable courier service that requires a signature upon delivery; (b) mailing the same by registered or certified first-class mail, postage prepaid, return receipt requested; (c) if an e-mail is provided, then by e-mail with receipt confirmation followed by mailing the same or (d) actual receipt by the addressee.

ARTICLE 17 - COMPLIANCE

17.01 Business Standards. The Parties have established and maintain standards, policies, and/or guidelines (Policies) applicable to lawful and ethical conduct when conducting their business activities. Upon written request, a Party will provide to the other Party a copy of, or electronic access to, such Policies. The Parties agree to comply with such Policies when conducting activities under this Agreement. These Policies pertain to, but may not be limited to, gifts/entertainment/and other things of value and drugs and alcohol. These Policies are communicated to the Parties' employees, along with an expectation that the employees will comply with these Policies.

17.02 Compliance with Laws. All actions by each Party related to this Agreement will comply with applicable laws and regulations. Notwithstanding anything in this Agreement to the contrary, no provision will be interpreted or applied so as to require a Party or its Affiliates, to do, or to refrain from doing, anything which would constitute a violation of, or be penalized by, any applicable laws and regulations or result in a loss of economic benefit under such laws or regulations.

17.03 Export Control and Trade Sanctions. Neither Party will furnish, deliver, or release the technology, services, software, or commodities made available to it hereunder to any individual, entity, or destination, or for any use, except in full accordance with all applicable laws, regulations, and requirements of the United States with regard to export control and trade sanctions. Both Parties agree and understand that each will be responsible for ongoing compliance with all such applicable laws, regulations, and requirements. It will be a material breach if a Receiving Party takes any action or uses any of a Disclosing Party's information in any manner which would violate United States laws, regulations, or requirements restricting the export, re-export, transfer or release to certain entities or destinations, including to persons within the Receiving Party or its Affiliates, or to unrelated Third Parties.

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ARTICLE 18 - RECORDS AND AUDIT

18.01 Recordkeeping. FCE will keep, or cause to be kept, true books, records, and accounts in accordance with Generally Accepted Accounting Principles and containing all information necessary for the accurate determination of all amounts payable to FCE under this Agreement, and any other obligations under this Agreement. Such books, records and accounts will be maintained for a period of at least three (3) years following the termination or expiration of this Agreement, provided there are no pending disputes between the Parties. In the case of a dispute, the books, records, and accounts will be maintained for one (1) year following resolution of such dispute.

18.02 Audit Rights. At the request of ExxonMobil, FCE will permit, at reasonable intervals and during regular business hours, during the Term of this Agreement and at least three (3) years thereafter, but no more than once per fiscal year, an independent certified public accounting firm of nationally recognized standing selected by ExxonMobil (and approved by FCE, which approval will not be unreasonably withheld) to inspect, during regular business hours, such books, records, and accounts and any part of the applicable operations and facilities of FCE relevant to this Agreement, and to have access to FCE's knowledgeable personnel, as may be necessary to determine the completeness and accuracy of any accounting and payments required to be made under this Agreement and compliance with other terms of this Agreement, subject to the following:

(a) ExxonMobil and its employees or other representatives will have the right to reproduce for its internal records any of the documents kept by FCE in accordance with Paragraph 18.01 (Recordkeeping), such reproduced documents shall be subject to the confidentiality and use provisions contained in Article 4; and

(b) all expenses of each such audit, including any pre-approved reasonable expenses incurred by FCE for such audit, will be for the account of ExxonMobil.

FCE will cause any subcontractors to preserve documentation and allow ExxonMobil to audit such books, records, and accounts of subcontractors by way of auditing FCE.

18.03 Accurate Records. Both Parties agree that all records relating to any Project, including invoices, financial reports, accounting reports, and other financial records relating to any Project will be complete and reflect accurately the facts about all activities and transactions, and both Parties may rely on all such records as being complete and accurate in any further recordings and reports made by the Parties for any purpose. If either Party becomes aware that any such records are inaccurate or incomplete, that Party will promptly notify the other Party in writing and provide accurate and complete information.

ARTICLE 19 - TAXES

19.01 Tax Responsibility. Each Party will be responsible for and will bear its own tax liabilities, of whatever kind and imposed by whatever taxing entity or entities incurred in connection with the existence or any performance of any activities under this Agreement or the granting of licenses or other rights and considerations hereunder.

19.02 Tax Cooperation. Each Party will reasonably cooperate with the other Party to assist the other Party in providing information to support tax filings associated with this Agreement.

ARTICLE 20 - ADDITIONAL PROVISIONS

20.01 Site Requirements. Each Party agrees that if any employees of the Party or its Affiliates visit, or are physically located at, the facilities of the other Party, during the course of the Program, then such employees will abide by all site requirements of the other Party made known to them, including but not limited to, site requirements pertaining to safety, security, health and the environment.

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20.02 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement, or any course of action by either Party pursuant to this Agreement, will be construed or deemed to constitute or create a joint venture, partnership, agency or employment relationship between the Parties or between either Party and the employees or other representatives of the other Party.

20.03 Independent Entities. Each Party enters into this Agreement solely on its own behalf and not on behalf of any other person or entity. Each Party warrants that it is an independent legal entity with the power and authority to enter into Agreements solely on its own behalf. No Party hereto will assert any defense of sovereign immunity that may be available to it in any resolution of any dispute under this Agreement; all such defenses are expressly waived by the Parties.

20.04 Future Work. This Agreement shall not constitute or imply any promise or intention: (a) to enter into any other agreement of any nature, (b) to make any purchase of products or services by either Party or its Affiliates, or (c) to make any commitment by either Party, its Affiliates, or licensees with respect to present or future marketing or supply of any product or service.

Notwithstanding the foregoing, prior to the end of the Term of this Agreement and subject to FCE achieving Milestone 1 and Milestone 2 to ExxonMobil's satisfaction, the Parties agree to negotiate in good faith commercially reasonable terms for the demonstration of Generation 2 Technology at one or more of ExxonMobil's commercial facilities.

20.05 Workplace Harassment. Each Party's employees, agents, and subcontractors who will perform work hereunder or communicate with the other Party's employees, agents, customers, or contractors will not engage in any harassment of the other Party's employees, agents, customers, or contractors. The term harassment as used herein includes all forms of unlawful harassment based on race, color, sex, religion, national origin, citizenship status, age, genetic information, physical or mental disability, veteran, sexual orientation, gender identity or other legally protected status; as well as all other forms of harassment, which, while not unlawful, are inappropriate in a business setting. If any of one Party's employees, agents, or subcontractors who perform work hereunder or communicate with the other Party's employees, agents, customers, or contractors have not been informed of the standard of conduct above, the one Party will inform them. Each Party will promptly notify the other Party contact for the applicable services of any report or complaint of harassment or of any violation of the above standard of conduct. Each Party will cooperate with the other Party in any investigation the other Party may make, including making each Party's employees, agents and subcontractors available for questioning by the other Party's designated investigators. Each Party agrees not to retaliate against anyone who reports an incident of harassment or who cooperates in any investigation of a report of an incident.

20.06 No Third Party Beneficiaries. No third parties are intended to be third party beneficiaries under this Agreement. None of the provisions of this Agreement will be enforceable by a third party. For the avoidance of doubt, permitted assignees of a Party pursuant to Article 14 (Assignment) will not be considered third parties for purposes of this Paragraph.

20.07 Internal Conflict. In the event of a conflict between the provisions in the body of this Agreement and any Project Description, the terms of the body of this Agreement will control.

20.08 Severability. The provisions of this Agreement are deemed severable. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision hereof which can be given effect without the invalid or unenforceable provision, and to this end the provisions of this Agreement are declared to be severable and the balance of this Agreement will be construed and enforced as if this Agreement did not contain such invalid or unenforceable provision.

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20.09 Amendment; Modification; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by authorized representatives of each party hereto. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

20.10 Integration. The Parties have entered into the following related agreements: Prior JDA, Non-Disclosure Agreement, License Agreement, and Memorandum of Understanding. This Agreement (including, for the avoidance of doubt, any fully executed Project Descriptions) constitutes the entire agreement between the Parties and it supersedes all negotiations, representations or agreements, oral or written, express or implied, as to its specific subject matter. Notwithstanding the foregoing, the status of the related agreements shall be as follows:

Prior JDA. As of the Effective Date of this Agreement, the Prior JDA is terminated. Any rights and obligations that were to survive termination of the Prior JDA (pursuant to Section 14.06 of the Prior JDA) are also terminated, except the confidentiality and use restrictions on Prior JDA Background Information and Prior JDA Project Results. Such confidentiality and use restrictions, as set forth in the Prior JDA, will survive termination but will be superseded and replaced by the confidentiality and use restrictions set forth in Article 4 (Disclosure, Confidentiality, and Restricted Use) of this Agreement.

Memorandum of Understanding. As of the Effective Date of this Agreement, the Memorandum of Understanding is terminated, but the confidentiality obligations set forth in the Memorandum of Understanding shall survive termination.

Non-Disclosure Agreement and License Agreement. This Agreement does not modify, abrogate, terminate or supersede any other prior written agreements between the Parties except as specifically noted herein, and such agreements will continue to be applicable in accordance with their terms. For clarity, this Agreement does not modify, abrogate, terminate or supersede the terms and conditions of the Non-Disclosure Agreement or the License Agreement.

20.11 Arm's Length Transaction. This Agreement represents a negotiated, arm's length transaction. The transactions contemplated under this Agreement are being made by each Party for reasonably equivalent value and fair consideration. The transactions contemplated in this Agreement will not constitute a fraudulent transfer or fraudulent conveyance or any act with similar consequences or potential consequences under 11 U.S.C. Section 548 and other similar laws, or otherwise give rise to any right of any creditor of a Party whatsoever to lodge any claim against the other Party or avoid the transactions hereunder.

20.12 Execution. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Where provided for in applicable law, this Agreement may be executed and delivered electronically. If executing this Agreement using a handwritten signature, a Party may deliver a copy of such signature via electronic transmission and may provide the other Party a duplicate original so each Party retains an original for its records.

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in their respective corporate names by their duly authorized officers. FUELCELL ENERGY, INC. EXXONMOBIL RESEARCH AND ENGINEERING COMPANY

By: /s/ Jason B. Few By: /s/ Vijay Swarup

Name: Jason B. Few Name: Vijay Swarup

Title: President, Chief Executive Officer and Chief Commercial Officer Title: VP R&D

Date: November 5, 2019 Date: November 5, 2019

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APPENDIX A - DEFINITIONS

Affiliate(s) means any legal entity which, directly or indirectly, at the time in question, controls, is controlled by, or is under common control with the designated Party. For the purposes of this definition, control is defined as direct or indirect ownership of fifty percent (50%) or more of the voting interest or economic interest in the controlled entity or such other relationship whereby the controlling entity determines or has the right to determine the majority of the Board of Directors or an equivalent governing body of the controlled entity.

Agreement means this agreement, together with the appendices attached to this agreement and any Project Descriptions, extensions, renewals, or amendments hereof agreed to in writing and signed by the Parties.

Authorized Third Parties means Drax Group Plc. and Alberta Innovates Corporation, and, subject to FCE obtaining the prior written consent of ExxonMobil, which consent will not be unreasonably withheld, conditioned, or delayed, the respective successors, assigns, joint venturers, partners and contractors of each of them.

Authorized Work means non-commercial activities restricted to research and development, pilot plant, deployment, and demonstration projects, and commercial activities for which FCE has obtained the prior written consent of ExxonMobil.

Background Information in connection with a designated Party means technical information, data, know-how, expertise, materials (including hardware, samples, models, algorithms, and software), calculations, innovations, inventions, discoveries, improvements, formulations, manufacturing techniques, equipment designs, methods, processes, and the like, of the designated Party or its Affiliates that is:

(a) owned or controlled by the designated Party or its Affiliates (in the sense of having the right to license without accounting to others); and

(b) conceived, created, developed, or acquired by the designated Party or its Affiliates:

(1) prior to the Effective Date of this Agreement; or

(2) at any time, but independently of any Project prior to the termination of this Agreement.

Background Information includes Background Samples but does not include Program Information.

Background Information further includes any business or financial information of the indicated Party relating to the subject matter of this Agreement that is disclosed to the other Party under this Agreement, including, but not limited to, financial data, costs, margins, overhead, returns on capital employed, marketing strategies, and licensing strategies and terms.

Background Patents in connection with a designated Party means all patents and patent applications (including continuations, continuations-in-part, or divisions thereof, any patent resulting therefrom, and reissues, re-exams or extensions thereof, and revisions thereof arising from oppositions, inter or ex parte proceedings, or other patent office or judicial proceedings) of all countries, whenever filed, that are:

(a) owned or controlled by the designated Party or its Affiliates (in the sense of having the right to license without accounting to others); and

(b) based solely on Background Information and not included in the definition of Project Patents.

Background Sample(s) means ExxonMobil Background Sample(s) and/or FCE Background Sample(s) depending on the context in which the term is utilized.

Bankruptcy Code is defined in Paragraph 12.05 (Bankruptcy).

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Capture Rate means the percentage of CO2 transferred from the cathode inlet to the anode outlet.

Carbon Capture Applications means applications in which the MCFCs concentrate carbon dioxide from industrial or power sources, and for any other purpose attendant thereto or associated therewith.

Carbonate Transference means the current density that is due to carbonate transfer as a percentage of total current density.

Change in Control means the occurrence of any one or more of the following at any time after the date hereof with respect to FCE:

a) a merger or consolidation with any Person which results in the holders of the voting securities of FCE outstanding immediately prior thereto (other than the acquirer, its affiliates and associates (as such terms are used in the Securities Exchange Act of 1934)) ceasing to represent at least fifty percent (50%) of the combined voting power of the surviving entity (or, if applicable, its parent company) immediately after such merger or consolidation;

b) any Major Competitor is or becomes the beneficial owner by purchasing directly from FCE, voting securities representing ten percent (10%) or greater than the actual voting power of any such entity;

c) the sale to any Major Competitor of all or substantially all of the business of FCE to which this Agreement relates (whether by merger, consolidation, sale of stock, sale of assets or other similar transaction);

d) any Person (which shall not be any trustee or other fiduciary holding securities under an employee benefit plan of such Person, or any corporation owned directly or indirectly by the stockholders of such Person, in substantially the same proportion as their ownership of stock of such Person), together with any of such Person's affiliates or associates, as such terms are used in the Securities Exchange Act of 1934, becoming the beneficial owner of fifty percent (50%) or more of the combined voting power of the outstanding securities of FCE or by contract or otherwise having the right to control the board of directors or equivalent governing body of FCE or the ability to cause the direction of management of FCE (or, if applicable, its parent company);

e) the approval by such entity's board of directors or shareholders of any reorganization or transaction that would cause any of the situations described in clauses (a) through (d) to occur; or

f) the approval by the board of directors or other governing body or the shareholders or other equity holders of FCE of any plan or proposal for its liquidation or dissolution.

The occurrence or non-occurrence of a Change in Control does not alter or limit section 14.01 of this Agreement.

Confidential Background Information means, collectively, any and all Background Information that a Party is required to keep confidential pursuant to the terms and conditions of this Agreement.

Confidential Information means, collectively, any and all Confidential Program Information, Confidential Background Information, and any other types of information, that a Party is required to keep confidential pursuant to the terms and conditions of this Agreement.

Confidential Program Information means, collectively, any and all Program Information that FCE is required to keep confidential pursuant to the terms and conditions of this Agreement.

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Cure Period means a period commencing on the date the defaulting Party receives the written notice of breach or default from the non-defaulting Party pursuant to Paragraph 12.03 and continuing until thirty (30) calendar days thereafter; provided, however, that if prior to the expiration of this period the defaulting Party provides the non-defaulting Party with written evidence that the breach or default cannot reasonably be cured within such period and the defaulting Party has promptly commenced and is diligently pursuing efforts to cure the breach or default, then the Cure Period shall continue as long as such diligent efforts to cure continue, but not beyond the date that is sixty (60) days after the expiration of the initial thirty (30) calendar day Cure Period.

Definition Agreement means the agreement between the Parties effective as of October 31, 2019, bearing ExxonMobil Document No. LAW-2019-3850.

Disclosing Party means the Party that discloses, directly or indirectly, information or other materials to the Receiving Party hereunder.

Direct Costs means reimbursable costs, approved in advance by the Steering Committee, which are (i) operational expenditures of FCE associated with the Program not included in the FTE Cost, including subcontractors, (ii) material or capital expenditures of FCE associated with the Program; and (iii) approved FCE travel costs to attend SC meetings or conferences, and use of contractors in furtherance of a Project.

Effective Date means October 31, 2019.

Exclusivity and Technology Access Fee is defined in Paragraph 10.02 (Up-front Exclusivity and Technology Access Fee Payment).

ExxonMobil is defined in the preamble.

ExxonMobil Background Information means Background Information that: (a) was developed or acquired by ExxonMobil independently of a Project, and (b) is provided by ExxonMobil for use in a Project under this Agreement. ExxonMobil Background Information does not include Program Information.

ExxonMobil Background Sample means a non-commercial sample of material, component, device, or the like that: (a) was developed or acquired by ExxonMobil independently of the Project, and (b) is provided by ExxonMobil for use in a Project under this Agreement. ExxonMobil Background Samples does not include Program Samples.

FCE is defined in the preamble.

FCE Background Information means Background Information that: (a) was developed or acquired by FCE independently of a Project, and (b) is provided by FCE for use in a Project under this Agreement. FCE Background Information does not include Program Information.

FCE Background Sample means a non-commercial sample of material, component, device, or the like that: (a) was developed or acquired by FCE independently of a Project, and (b) is provided by FCE for use in a Project under this Agreement. FCE Background Samples does not include Program Samples.

FTE means a full-time employee of FCE or an equivalent thereof, dedicated to the conduct of the Program based on a total of one thousand eight hundred and fifty-six (1,856) hours per year of direct project work per year. FTEs will include engineers, scientists, and any other functions mutually agreed to by the Steering Committee. Non-devoted personnel (e.g., FCE's Board of Directors, management, secretarial, administrative, human resources, finance, purchasing, shipping and receiving, information technology specialists, lawyers, cleaning and food service personnel) are not FTEs. Individuals may be counted as fractional FTEs by using the individual's total hours of work for FCE on the Program (as opposed to total hours of work) as the numerator and 1,856 as the denominator. For clarity, the phrase direct project work means the applicable person is engaged in activities contemplated to be performed by Project Description and excludes time incurred by a person on indirect work-related functions, such as time spent on management, training, general meetings, workplace events, completing time cards, and similar administrative functions, except for attendance at Steering Committee meetings.

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FTE Costs means the product of the FTE Rate and the hours worked of the total number of FTEs.

FTE Rate means the hourly amount agreed to by the Parties per FTE. As of the Effective Date, the FTE Rate for scientists and engineers is three-hundred and twenty-seven United States dollars ($327.00 USD) and the FTE Rate for all other FTEs is one- hundred and ninety-four United States dollars ($194.00 USD). Increases in the FTE Rate must be approved by the Steering Committee.

Generation 1 Technology is defined in the Definition Agreement.

Generation 2 Technology is defined in the Definition Agreement.

Gross Negligence means any act or failure to act (whether sole, joint or concurrent) which seriously and substantially deviates from a diligent course of action or which is in reckless disregard of or indifference to the harmful consequences.

Hydrogen Applications means applications in which the MCFCs are used solely for hydrogen generation in combination with power generation or combined heat and power generation.

Initial Payment is defined in Paragraph 10.01(b) (Project Costs).

Inlet CO2 Concentration means CO2 concentration in the cathode inlet measured at room temperature conditions (about 23oC) via gas chromatography, as calibrated according to conventional methods.

Inlet O2 Concentration means O2 concentration in the cathode inlet measured at room temperature conditions (about 23oC) via gas chromatography, as calibrated according to conventional methods.

Inlet Water Concentration means water concentration in the cathode inlet measured at room temperature conditions (about 23oC) via gas chromatography, as calibrated according to conventional methods.

8th Inning Invoice is defined in Paragraph 10.01(d) (Project Costs).

9th Inning Invoice is defined in Paragraph 10.01(d) (Project Costs).

License Agreement means the agreement between the Parties effective June 11, 2019 entitled License Agreement bearing ExxonMobil Document No. LAW-2019-3245.

Major Competitor means a company with a market capitalization in excess of fifty billion United States dollars ($50 billion USD) and whose principal business involves exploration for, and/or production of, crude oil and/or natural gas, manufacture of petroleum products and/or transportation and/or sale of crude oil, natural gas, and/or petroleum products.

Memorandum of Understanding means the non-binding agreement between ExxonMobil and FCE effective August 26, 2019.

Milestone 1 is defined in the Definition Agreement.

Milestone 2 is defined in the Definition Agreement.

Milestone Payments is defined in Paragraph 10.03 (Milestone Payments).

Molten Carbon Fuel Cells or MCFCs means a powerplant system including MCFC Stacks and Balance of Plant based on a fuel cell that comprises an electrolyte, an anode, and a cathode wherein the electrolyte comprises one or more carbonate salts that are molten (liquid) at operating temperatures. An MCFC Stack is a set of fuel cells connected electrically in series, arranged vertically or horizontally, that share common ducting for the cathode and anode streams. The ducting is considered part of the MCFC Stack. Further, the MCFC Stack may include Reformer Units, which are non-electrochemical units that catalytically reform the anode feed to H2 and CO, but do so without producing any electricity. Balance of Plant or BOP means all other equipment besides the MCFC Stack that is required to operate the MCFC as a stand-alone device, i.e., not in CO2 capture mode or in H2/syngas generation mode. For power generation this can include the dc-to-ac power conversion, fuel and water processing, air supply, and heat exchange equipment.

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Source: FUELCELL ENERGY INC, 8-K, 11/6/2019





Non-Affiliated Third Party means a third party who is not Party or an Affiliate of a Party.

Non-Disclosure Agreement means the agreement between the Parties effective December 7, 2018 entitled Mutual Non- Disclosure Agreement bearing ExxonMobil Document No. EM11762.

Party and Parties is defined in the preamble.

Person means any trust, natural person, firm or partnership, company, corporation, or other entity that is given, or is recognized as having, legal personality by the law of any jurisdiction, country, state or territory, unincorporated body and association (including joint venture and consortium), any emanation of a sovereign state or government, whether national, provincial, local or otherwise, any international organization or body (whether or not having legal personality), and any other juridical entity, in each case wherever resident, domiciled, incorporated or formed, and more than one of the foregoing acting as a group.

Policies are defined in Paragraph 17.01 (Business Standards).

Potential Decay Rate is defined in the Definition Agreement.

Power Applications means applications in which the MCFCs are solely used for power generation, combined heat and power generation, or both.

Power Density means the product of the average cell or stack current density and the average cell potential.

Prior JDA means the agreement between the Parties effective April 30, 2016 entitled Joint Development Agreement bearing ExxonMobil Document No. EM09080.

Prior JDA Background Information means Background Information as defined in the Prior JDA.

Prior JDA Project Patents means Project Patents as defined in the Prior JDA, which by definition are jointly-owned by the Parties.

Prior JDA Project Results means Project Results as defined in the Prior JDA, which by definition are jointly-owned by the Parties.

Project(s) is defined in Paragraphs 2.01 (Program / Projects).

Project Description is defined in Paragraph 2.01 (Program / Projects).

Program is defined in Paragraph 2.01 (Program / Projects).

Program Information means all information and associated copyrights, whether or not patentable, that is conceived, created, developed or acquired in or for the Program during the Term of the Agreement from any source (including from any employee of either Party or its Affiliates, or from any Party's or its Affiliates' contractors or consultants, whether alone or jointly with one or more others) in the course of and as a result of working directly on the Program. Program Information shall be owned by ExxonMobil and its Affiliates.

Program Information specifically includes Program Inventions and Program Samples. Program Information also includes improvements to either Party's Background Information conceived, created, developed or acquired in or for the Program and resulting directly from activities performed in the course of and as a result of working directly on the Program.

Program Inventions means Program Information that is characterized as inventions, discoveries, or improvements (whether patentable or not) that are conceived, created, developed, or acquired by or on behalf a Party or its Affiliates during the Term of this Agreement and one (1) year thereafter, and in the course of and as a result of working directly on the Program. Program Inventions shall also include Project Inventions (as defined in the Prior JDA) that have not been filed with any national, regional, or international patent body or organization by the Effective Date of this Agreement. Program Inventions shall be owned by ExxonMobil and its Affiliates.

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Program Patents means all patents and patent applications (including continuations, continuations-in-part, or divisions thereof, any patent resulting therefrom, and reissues, re-exams or extensions thereof, and revisions thereof arising from oppositions, inter or ex partes proceedings, or other patent office or judicial proceedings) filed with any national, regional, or international patent body or organization after the Effective Date of this Agreement, that are based upon and/or claim one or more features of Program Inventions. Program Patents shall be owned by ExxonMobil and its Affiliates.

Program Results means, collectively Program Information, Program Patents, and copyrightable works resulting from the Program.

Program Sample means a sample of material, component, device, or the like that is developed during the Term of this Agreement, in the course of and as a result of working directly on the Program.

Receiving Party means the Party that receives, directly or indirectly, information or other materials from the Disclosing Party.

Research Costs means Direct Costs plus FTE Costs.

Scope is defined in the preamble.

Steering Committee or SC is defined in Paragraph 3.01 (Steering Committee).

Sample means collectively FCE Background Sample, ExxonMobil Background Sample, and Program Sample.

Technical Manager is defined in Paragraph 3.02 (Technical Managers).

Term or Term of this Agreement is defined in Paragraph 12.01 (Term).

Total Research Cost is defined in Paragraph 10.01(a) (Project Costs).

Willful Misconduct means an intentional disregard of good and prudent standards of performance or of any of the substantive terms of this Agreement.

Work means any activities of any kind, including but not limited to, research and development, pilot plant, manufacture testing, demonstration, or commercial development/deployment.

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Source: FUELCELL ENERGY INC, 8-K, 11/6/2019





APPENDIX B - SAMPLE PROJECT DESCRIPTION FORMAT

PROJECT DESCRIPTION No. ____

Project Name: __________________

LAW-2019-3608

FCE Agreement No. :____________

Date: ________________________

Receiving Company Name & Address

Attention: ______________________

Dear ______________,

This Project Description No. [NUMBER] is issued pursuant to the Joint Development Agreement, effective [EFFECTIVE DATE] between ExxonMobil Research and Engineering Company (ExxonMobil) and FuelCell Energy, Inc. (FCE), bearing ExxonMobil Agreement No. LAW-2019-3608 (Agreement). Each Party's activities hereunder will be conducted in accordance with and subject to the terms and conditions of the Agreement. The specific terms which will apply to this Project are described below.

1. PROJECT DESCRIPTION/OBJECTIVES:

_________________

2. TIME SCHEDULE:

Commencement Date: ____________

Completion Date: ________________

3. STEERING COMMITTEE MEMBERS / TECHNICAL MANAGERS:

FCE: ______________________

ExxonMobil: __________________________

4. PROJECT BUDGET Task 1A 1B 1C ….

N u m b e r  o f FTEs

FTE Cost

Direct Costs

TOTAL

5. DELIVERABLES:

____________________

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If the foregoing is satisfactory, please have a duly authorized representative of your company sign duplicate originals of this Project Description and return both to for counter-execution on behalf of our company. A fully-executed original will be returned for your files. Very truly yours, EXXONMOBIL RESEARCH AND ENGINEERING COMPANY By: Name: Title: Date:

ACCEPTED AND AGREED TO: FUELCELL ENERGY, INC. By: Name: Title: Date:

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Source: FUELCELL ENERGY INC, 8-K, 11/6/2019 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
[A]:
In no event will either Party be liable to the other Party under this Agreement for any consequential, indirect, special, incidental, punitive or exemplary loss or damage, including, without limitation, business interruption, cost of capital, loss of anticipated revenues and profits, loss of goodwill or increased operating costs, whether arising from contract, warranty, tort, strict liability or otherwise regardless of whether the possibility of such losses or damages have been made known to the first Party, and each Party hereby expressly waives all such rights and remedies, except for breach of any confidentiality or restricted use provisions of this Agreement and except as provided in Paragraph 11.04 (Exceptions to Limitations of Liability).