Delaware

001-33417

22-2535818

(State or other jurisdiction

of incorporation)

(Commission File Number)

(IRS Employer Identification No.)

1590 Reed Road

Pennington, NJ

08534

(Address of principal executive offices)

(Zip Code)

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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Exhibit No.

Description

10.1

Renewable Energy Demonstration Program Funding Deed, dated as of September 9, 2010, by and between Victorian Wave Partners Pty Ltd. and the Commonwealth of Australia represented by the Department of Resources, Energy and Tourism+

10.2

Deed of Variation to Funding Deed (and Notice of Waiver), dated as of January 9, 2014, by and between Victorian Wave Partners Pty Ltd. and Australian Renewable Energy Agency+

OCEAN POWER TECHNOLOGIES, INC.

Date: July 14, 2014 

By:  

/s/ MARK A. FEATHERSTONE  

Mark A. Featherstone 

Chief Financial Officer 

Exhibit No.

Description

10.1

Renewable Energy Demonstration Program Funding Deed, dated as of September 9, 2010, by and between Victorian Wave Partners Pty Ltd. and Commonwealth of Australia represented by the Department of Resources, Energy and Tourism+

10.2

Deed of Variation to Funding Deed (and Notice of Waiver), dated as of January 9, 2014, by and between Victorian Wave Partners Pty Ltd. and Australian Renewable Energy Agency+

Commonwealth of Australia represented by the Department of Resources, Energy and Tourism

Victorian Wave Partners Pty Ltd

1

Interpretation

4

2

Term

5

3

Conditions precedent

6

4

Warranties and representations

7

5

Payment of funding

9

6

Project obligations

10

7

Subcontractors

16

8

Financial matters

17

9

Claims for payment

19

10

GST

20

11

Group structure, assignment and change in control

21

12

Intellectual property

23

13

Records, reporting, and Commonwealth access

24

14

Independent verification

27

15

Confidential information

29

16

Repayment obligations

30

17

Right of Commonwealth to recover money

31

18

Securities

31

19

Indemnity and Insurance

32

20

Termination with compensation

34

21

Termination by Recipient

35

22

Termination for default

36

23

Consequences of termination

38

24

Program evaluation

39

25

Demonstration, dissemination and public statements

39

26

Force majeure

41

27

Notices

43

28

Entire agreement, variation and severance

43

29

Resolution of Disputes

44

30

General

45

31

Interpretation

47

1

Conditions Precedent (clause 3)

56

2

Not Used

59

3

Grant Funds

59

4

Funding Percentage

59

5

Interest Rate (clause 17.2)

59

6

Notice Details (clause 27)

60

SCHEDULE 2 - Recipient and consortium details (clause 11)  

1

Recipient - ownership and group structure details

61

2

Project Participants

61

3

Project Participants - ownership and group structure details

61

SCHEDULE 3 - Project Details  

1

Title of Project

62

2

Not Used

62

3

Initial Project Budget (clause 8.3)

63

4

Authorisations (clause 6.5)

64

5

Insurance requirements (clause 19.3)

65

SCHEDULE 4 - Key Personnel and Approved Subcontractors  

1

Key Personnel (clause 6.3)

66

2

Approved Subcontractors (clause 7)

66

SCHEDULE 5 - Payment Milestones and Schedule (clause 5.1 and 6.1)  

SCHEDULE 6 - Reports (clause 13.3)  

ATTACHMENT A - Project Description  

ATTACHMENT B - Deed of Guarantee  

Date

9th of September, 2010 

A

The objective of the Renewable Energy Demonstration Program (‘Program’) is to accelerate the commercialisation and deployment of new renewable energy technologies for power generation in Australia by assisting the demonstration of these technologies on a commercial scale, as described in the Renewable Energy Demonstration Program Information Guide.

B

The Recipient is committed to helping achieve the Program Objectives and Outcomes through the conduct of the project.

C

The Commonwealth has agreed to provide the grant funds to the Recipient for the purposes of its project, subject to the terms and conditions of this deed.

D

The Commonwealth is required by law and Australian Government policy to ensure accountability for the grant funds and, accordingly, the Recipient is required to be accountable for all grant funds.

E

The Recipient accepts the grant funds for the purposes of the project, subject to the terms and conditions set out in this deed.

1.1

Definitions

1.2

Interpretation

1.3

Reasonableness

2.1

Commencement

(a)

The following provisions of this deed commence on the execution date:

(i)

clause 1 (Interpretation);

(ii)

this clause 2 (Term);

(iii)

clause 4 (Warranties and representations);

(iv)

clause 6.8 (National Code of Practice for the Construction Industry);

(v)

clause 6.9 (Australian Government Building and Construction OH&S Accreditation Scheme);

(vi)

clause 8.3 (Project budget);

(vii)

clause 8.4 (Other government assistance);

(viii)

clause 11 (Group structure, assignment and change in control);

(ix)

clause 13.1 (Records);

(x)

clause 19 (Indemnity and Insurance);

(xi)

clause 27 (Notices);

(xii)

clause 28 (Entire agreement, variation and severance);

(xiii)

clause 30 (General);

(xiv)

clause 31 (Interpretation); and

(xv)

any provision in a schedule which is relevant for the purposes of the above provisions.

(b)

All provisions of this deed other than those referred to in clause 2.1(a) (remaining provisions) do not commence unless the condition precedent in clause 2.1(e) is satisfied (or is waived by the Commonwealth) on or before the date specified in clause 2.1(e).

(c)

If the condition precedent in clause 2.1(e) is satisfied (or is waived by the Commonwealth) on or before the date specified in clause 2.1(e), the remaining provisions commence on the commencement date.

(d)

If the condition precedent in clause 2.1(e) is not satisfied (or waived by the Commonwealth) on or before the date specified in clause 2.1(e):

(i)

the remaining provisions do not take effect; and

(ii)

this deed terminates with effect from the day after the date specified in clause 2.1(e).

(e)

The condition precedent is:

(f)

The condition precedent in clause 2.1(e) may be waived only by the Commonwealth.

(g)

The Recipient must use its best endeavours to satisfy the condition precedent in clause 2.1(e) on or before the date specified in clause 2.1(e).

(h)

The Recipient must liaise with the Commonwealth in relation to the progress of satisfaction of the condition precedent in clause 2.1(e).

(i)

The Recipient must provide documentary evidence to the satisfaction of the Commonwealth that the condition precedent in clause 2.1(e) has been satisfied on or before the date specified in clause 2.1(e).

2.2

Term

3.1

Conditions precedent to payment of monies

(a)

The obligation of the Commonwealth under this deed to pay any grant funds or other monies to the Recipient will not commence until the Recipient provides documentary evidence to the satisfaction of the Commonwealth that each and every one of the conditions precedent (if any) specified in item 1 of schedule 1 has been fulfilled (or has been waived by the Commonwealth).

(b)

The Recipient must liaise with the Commonwealth throughout the period specified in item 1 of schedule 1 in relation to the progress of satisfaction of conditions precedent.

(c)

A condition precedent may be waived only by the Commonwealth.

3.2

Third party contracts

(a)

liaise with the Commonwealth throughout the period specified in item 1 of schedule 1 in relation to the progress of negotiations and finalisation of that contract;

(b)

ensure that the contract contains only terms and conditions that are consistent with the Recipient’s performance of this deed and the Program Objectives and Outcomes; and

(c)

if required at item 1 of schedule 1 or at the Commonwealth’s request, include as part of the documentary evidence required under clause 3.1(a), a certified copy of the executed version of the contract.

3.3

Failure to meet conditions precedent

(a)

If a condition precedent has not been satisfied or waived by midnight on the date specified in item 1 of schedule 1 (or such later date as the Commonwealth may determine in its absolute discretion), the Commonwealth may immediately terminate this deed by notice in writing to the Recipient.

(b)

If this deed is terminated under clause 3.3(a), the Commonwealth is not obliged to pay the grant funds to the Recipient and the Recipient must repay to the Commonwealth an amount equivalent to any payments of the grant funds it may have received prior to termination, within 7 days of receipt of the termination notice (which shall include a repayment notice).

4.1

Warranties

(a)

it is incorporated under the Corporations Act 2001 (Cth), and has the power and authority to carry on its business as it is now being conducted;

(b)

it has the legal right and power to enter into this deed, to perform or cause to be performed its obligations and exercise its rights under this deed;

(c)

the execution, delivery and performance of this deed by it has been duly and validly authorised by all necessary action on its part;

(d)

subject to changes notified to and approved by the Commonwealth after the date of the application and before the execution date, all information provided by the Recipient in the application is true and correct and not misleading;

(e)

it has or will have available to it sufficient matching funding to pay for eligible expenditure not covered by the grant funds, as and when all amounts of eligible expenditure are due to be paid;

(f)

it has or will have available to it sufficient financial resources to pay for all other project costs and expenses, as and when all such amounts are due to be paid; and

(g)

all information provided by the Recipient and included in this deed is true and correct and not misleading.

4.2

Continuation of representations and warranties

(a)

The Recipient warrants that any information given to the Commonwealth by the Recipient from time to time under this deed (including information contained in any report) is true and correct, save where the information is provided to the Recipient by a third party in which case the Recipient warrants and represents to the Commonwealth that it has made all endeavours to verify the accuracy of the information.

(b)

The Recipient agrees to notify the Commonwealth:

(i)

immediately on becoming aware that any representation or warranty made under this clause 4 was incorrect or misleading when made;

(ii)

on each date it submits a payment claim - of anything that has happened which means it cannot truthfully repeat all the representations and warranties in this clause 4 on that date by reference to the then current circumstances; and

(iii)

immediately of any insolvency event in relation to it.

(c)

In the event that the Recipient gives notice to the Commonwealth under clause 4.2(b), it may request an extension of time under clause 6.2 to correct or address the matter raised in the notice.

4.3

Commonwealth reliance

5.1

Payment of grant funds

(a)

The Commonwealth agrees to pay the grant funds to the Recipient on the terms and conditions of this deed.

(b)

Subject to this deed and clauses 3.1(a) and 5.2(a) in particular, the grant funds will be paid progressively in the amounts set out in schedule 5 (‘progress payments’), within 30 days of the Commonwealth’s approval of a payment claim under clause 9.2, by direct credit to the bank account identified by the Recipient under clause 8.1.

5.2

Conditions precedent to payment

(a)

Notwithstanding any other clause of this deed, the Commonwealth is not obliged to pay the whole or any part of a progress payment if at the due date for that payment:

(i)

sufficient Program funding is not available to the Commonwealth to cover all or any part of that progress payment;

(ii)

the Recipient has failed to provide or maintain any security in accordance with clause 18 (Securities);

(iii)

the Commonwealth has terminated, or has notified the Recipient that it is entitled to terminate, the deed under clause 22 (Termination for default), in which case the Commonwealth will only be liable for progress payments that were due for payment by the Commonwealth before the effective date of termination;

(iv)

the Commonwealth is not satisfied that all representations and warranties contained in clause 4 can be restated by the Recipient as true and correct and not misleading at that date by reference to the then current circumstances; or

(v)

the Recipient has not satisfied any specified or relevant condition precedent under clause 3.1(a) unless any such condition precedent to payment has been waived by the Commonwealth.

(b)

The payment of any progress payment under this deed is not to be taken as evidence of the Recipient having, or a representation by the Commonwealth that the Recipient has, complied with its obligations under this deed.

5.3

Commonwealth maximum grant obligation

5.4

Eligible Expenditure

(a)

If the Recipient fails to substantiate to the Commonwealth’s satisfaction any amount claimed as eligible expenditure under this deed, the Commonwealth may deem that amount not to qualify as eligible expenditure.

(b)

The Commonwealth’s determination as to whether expenditure on the project is eligible expenditure for the purposes of this deed must be made reasonably and in accordance with the Eligible Expenditure Guidelines and item 3 of schedule 3 but shall be final and binding on the Recipient.

6.1

Performance of the project

(a)

in accordance with the project description and, in particular, in a manner sufficient to achieve each payment milestone by the relevant due date specified in schedule 5;

(b)

having regard to and with the aim of achieving the Program Objectives and Outcomes;

(c)

in accordance with the terms and conditions of this deed;

(d)

in accordance with all relevant Australian Standards, best practice and guidelines, or where none apply, relevant international industry standards, best practice and guidelines; and

(e)

diligently, effectively and to a high professional standard including, in accordance with this deed, competent management of the funding provided under this deed.

6.2

Requests for extension of time

(a)

Where the Recipient is required to do any activity under this deed by a specified time, it may apply to the Commonwealth for an extension of time to do that activity. Such application must be made before the expiry of the time specified to do the activity, be in writing and include:

(i)

the reason for the request;

(ii)

the time by which the activity will be done if the extension is granted; and

(iii)

a statement that, apart from the occurrence of a force majeure event, the activity will be done by the time given under clause 6.2(a)(ii).

(b)

If an application is made under clause 6.2(a) the Commonwealth in its sole discretion (but subject to clause 1.3) may:

(i)

agree to the request;

(ii)

agree to the request on conditions (which may include a requirement for compensation for the Commonwealth’s direct costs (including legal costs) in considering the request);

(iii)

agree to the request by way of requiring a variation to this deed or a schedule; or

(iv)

reject the request.

(c)

The Commonwealth agrees to give consideration to any reasonable extension request made in accordance with clause 6.2(a). In evaluating the request, the Commonwealth will give primary consideration as to whether granting the extension of time will assist in meeting the Program Objectives and Outcomes.

(d)

If the Commonwealth rejects the request under clause 6.2(b)(iv) it is not obliged to give any reasons for doing so.

(e)

This clause 6.2 does not apply to requests for extension of time under clause 9.3.

6.3

Key Personnel

(a)

The Recipient must ensure that the key personnel specified in item 1 of schedule 4 (‘key personnel’) perform the work or duties required of their nominated positions. The Recipient must notify the Commonwealth as soon as practicable if key personnel leave or are proposed to be replaced.

(b)

If it is necessary to replace any of the key personnel (whether as a result of illness or otherwise), the Recipient must arrange for a replacement by a substitute person with the necessary qualifications, skills, expertise and experience to perform the work or duties required of the replaced person’s nominated position.

6.4

Project delay

(a)

The Recipient must notify the Commonwealth as soon as practicable, and in any event in its next progress report due under this deed, if any payment milestone has not been achieved, or is unlikely to be achieved, by the due date for achievement of that milestone set out in schedule 5.

(b)

When notifying the Commonwealth under clause 6.4(a), the Recipient must specify:

(i)

the reason for the delay;

(ii)

the action the Recipient proposes to address the delay;

(iii)

the anticipated new date for achievement of the relevant payment milestone;

(iv)

the expected effect (if any) the delay will (or may) have on the then current budget, the manner and timing of delivery of the project, or the project’s achievement of the Program Objectives and Outcomes; and

(v)

whether the Recipient has made or will be making a claim under clause 26 (Force majeure) or seeking an extension of time under clause 6.2 or 9.3.

6.5

Authorisations

(a)

The Recipient must obtain (or satisfy), maintain and, to the satisfaction of the relevant administering authority, comply with all authorisations required for the project including those referred to in item 4 of schedule 3.

(b)

The Recipient must do all things necessary to ensure that any authorisation required for the project is obtained (or satisfied) in advance of the date by which it is required to meet the payment milestones. If any authorisation is unlikely to be obtained (or satisfied) in time, the Recipient must promptly notify the Commonwealth.

(c)

The Recipient must provide to the Commonwealth documentary evidence and any other supporting information the Commonwealth may require for the purpose of demonstrating the Recipient’s compliance with this clause 6.5, within 30 days of the Commonwealth’s request.

6.6

Compliance with law

(a)

The Recipient must perform all work and do all things necessary to ensure that the project complies with all applicable law.

(b)

The Recipient must comply, and procure that all subcontractors comply, with all applicable law in performing its obligations under this deed.

6.7

Change in law

(a)

The Recipient acknowledges that it is not entitled to any increase in funding under this deed as a result of any change in law.

(b)

The parties agree that if a change in law will result in a delay in the project, the Recipient may request an extension of time which the Commonwealth will not unreasonably refuse.

6.8

National Code of Practice for the Construction Industry

(a)

In this clause 6.8:

(i)

‘the Code’ means the National Code of Practice for the Construction Industry. A copy of the Code appears on the Internet at www.workplace.gov.au/building;

(ii)

‘the Guidelines’ means the Australian Government Implementation Guidelines for National Code of Practice for the Construction Industry, Revised September 2005, Reissued June 2006, published by the Department of Education, Employment and Workplace Relations. A copy of the Guidelines appears on the Internet at www.workplace.gov.au/building; and

(iii)

‘the Project Parties’ means all contractors, subcontractors, suppliers, consultants and employees who perform work in relation to the project.

(b)

Where grant funds specifically relate to building and construction activity, subject to the thresholds specified in the Guidelines, the Recipient must comply and ensure that the Project Parties comply with the Code and Guidelines.

(c)

The Guidelines require the Recipient to ensure that:

(i)

all requests for tender, expressions of interest, submissions and invitations to join common use arrangements in relation to the project made by it or any of the Project Parties contain the commitment to apply the Code and Guidelines as set out in the model tender documents; and

(ii)

all contracts entered into in relation to the project by it or any of the Project Parties contain the commitment to apply the Code and Guidelines as set out in the model contract clauses.

(d)

The Recipient must maintain adequate records of compliance by it and each of the Project Parties with the Code and the Guidelines. The Recipient must permit the Commonwealth and those authorised by the Commonwealth, including a person occupying a position in the Office of the Australian Building and Construction Commissioner, full access to the premises and records of the Recipient and the Project Parties to:

(i)

inspect any work, material, machinery, appliance, article or facility;

(ii)

inspect and copy any record relevant to the project and works governed by this deed; and

(iii)

interview any person,

(e)

Additionally, the Recipient must agree, and must ensure that each of the Project Parties agrees, to a request from the Commonwealth, including a person occupying a position in the Office of the Australian Building and Construction Commissioner, to produce a specified document within a specified period, in person, by fax or by post.

(f)

The Commonwealth and those authorised by it may publish or otherwise disclose information in relation to compliance by the Recipient and the Project Parties with the Code and the Guidelines. The Recipient must obtain the consent of the Project Parties to the publication or disclosure of information under this clause 6.8.

(g)

The Recipient must not appoint a subcontractor, consultant or material supplier in relation to the project where the appointment would breach a sanction imposed by the Minister for Employment and Workplace Relations.

6.9

Australian Government Building and Construction OH&S Accreditation Scheme

(a)

all head contracts for building work under the project that are valued at $3 million or more must:

(i)

be notified to the Office of the Federal Safety Commissioner at the earliest possible opportunity (that is, when approaching the market);

(ii)

contain a requirement that the builder:

(A)

is accredited under the Scheme;

(B)

maintains Scheme accreditation for the life of the contract; and

(C)

must comply with all conditions of the Scheme accreditation; and

(b)

if the Recipient is the builder referred to in clause 6.9(a), the Recipient must maintain accreditation and otherwise comply with the requirements of clause 6.9(a).

6.10

Risk management

(a)

clear identification and documentation of all key project risks and categorisation of those risks covering both likelihood of occurrence and potential consequence;

(b)

the proposed mitigation strategies and associated action plans that the Recipient determines necessary to eliminate the risks, or if this is not possible, minimise the likelihood and consequences of those risks occurring; and

(c)

a process for regularly monitoring and updating the risk management plan and reporting to the Recipient’s internal management and board and project participants (if applicable),

6.11

Community consultation

(a)

During the project period, the Recipient must develop, implement and update a community consultation plan for the project which includes the following features:

(i)

identification of all key stakeholder groups, including local communities that are potentially affected by the project,

(ii)

an outline of the proposed community consultation processes to be undertaken that includes the following:

(A)

public notification of meetings;

(B)

itinerary of meetings to be conducted, groups involved and agenda for meetings;

(C)

provision of information at meetings and local information sites;

(D)

documentation of attendees, questions and answers and follow-up issues required arising from meetings; and

(E)

an outline for stakeholders on how to access the latest information in respect of community consultation matters;

(iii)

an outline of how community consultation activities align with payment milestones;

(iv)

a process for maintaining an up-to-date record of complaints and questions arising from community consultations and the responses provided to these complaints and questions; and

(v)

a process for regularly:

(A)

monitoring and updating the community consultation plan and the community consultations undertaken; and

(B)

reporting to the Recipient’s management, project participants (if applicable) and other key groups (whether government or non-government), as required by the Commonwealth to ensure the ongoing improvement of community engagement,

(b)

The Recipient must make the community consultation plan available to any person on request. The Recipient may make the community consultation plan available by publishing it on its website.

6.12

Notification

(a)

any incident or possible incident in connection with any project activities that constitutes or may constitute a threat to the health, safety and wellbeing of any person or community, or otherwise threatens the environment or any property; and

(b)

any significant concerns of local community groups of which the Recipient becomes aware.

7.1

Engagement of subcontractors

(a)

The Recipient must ensure that the subcontractors specified in item 2 of schedule 4 are engaged by the Recipient in connection with the project for the purposes and within the timeframes described in that item and, where required, comply with the requirements referred to in clause 6.9 of this deed.

(b)

The Recipient must notify and liaise with the Commonwealth as soon as practicable if it intends to subcontract, or allow any subcontractor to assign or enter into a further subcontract for, any major subcontract work.

(c)

The Recipient must ensure that any subcontract for major subcontract work is let with or assigned to a subcontractor with the necessary resources, expertise and experience to undertake the major subcontract work.

(d)

The Recipient must ensure that the terms and conditions of any subcontract are consistent with the Recipient’s performance of this deed and the Program Objectives and Outcomes.

7.2

Recipient’s liability

(a)

remains fully responsible for the performance of all of its obligations under this deed, and is not relieved from any liability whether arising under this deed or otherwise at law; and

(b)

will be liable to the Commonwealth for the acts, defaults or omissions of its subcontractors (and their employees, agents and subcontractors) in the course of their activities for the purposes of the project, as if they were the acts, defaults or omissions of the Recipient.

8.1

Bank account and accounting system

(a)

The Recipient must nominate an account, in its own name and which it solely controls, with an approved financial institution for the receipt of grant funds for the purposes of the project (‘account’). The Recipient must provide to the Commonwealth sufficient details to enable the Commonwealth to identify the account at least 14 days before any payment of grant funds or other monies due to the Recipient under this deed are payable by the Commonwealth.

(b)

The Recipient must have in place an accounting system which enables all receipts of grant funds and all expenditure on the project to be traced and verified by the Commonwealth. The system must enable the separate accurate identification of eligible expenditure and ineligible project expenditure and provide a clear audit trail.

(c)

Within 7 days of the Commonwealth’s request to do so, the Recipient agrees to provide the Commonwealth and the relevant approved financial institution with an authority enabling the Commonwealth to obtain any details relating to the account.

8.2

Use of grant funds

8.3

Project budget

(a)

The parties acknowledge and agree that the budget of total planned expenditure for the project (by financial year) (‘budget’) current at the execution date is set out in item 3 of schedule 3.

(b)

The Recipient must give the Commonwealth:

(i)

by 31 January, 30 April, 31 July and 31 October of each year; and

(ii)

at any other time the Recipient forecasts a change of 10% or greater in the project’s planned eligible expenditure for a financial year;

8.4

Other government assistance

(a)

The Recipient warrants that on or before the execution date, the Recipient has provided to the Commonwealth details of any other grant assistance applied for by or on behalf of the Recipient, obtained for or provided to the project from another Commonwealth, State or Territory program or source, including from any department, agency, authority, organisation or other government controlled entity.

(b)

The Recipient must give the Commonwealth details of any other grant assistance of the kind referred to in clause 8.4(a) that is obtained for or provided to the project after the execution date (whether by the Recipient or a third party), within 14 days of the Recipient (or third party) receiving notice of that assistance.

(c)

If at any time during the period from the execution date to the end of the project period there is a change in an amount of grant assistance referred to in clause 8.4(a) or the terms and conditions applying to the provision of that assistance, the Recipient must give the Commonwealth details of that change within 14 days.

(d)

If at any time during the period from the execution date to the end of the project period the project receives other grant assistance of a kind referred to in clause 8.4(a) or 8.4(b) or there is a change of the type referred to in clause 8.4(c), the Commonwealth may reduce the Recipient’s total eligible expenditure by the amount of that other assistance. Any reduced amount of eligible expenditure determined under this clause 8.4 will be used by the Commonwealth to calculate the ʻtotal value of eligible expenditure incurred by the Recipient’ under clause 16.1.

(e)

To avoid doubt, if at any time before the end of the project period the project receives assistance under the Victorian Government’s Energy Technology Innovation Strategy program, the Commonwealth may reduce the Recipient’s total eligible expenditure by the amount of that assistance. Any reduced amount of eligible expenditure determined under this clause 8.4 will be used by the Commonwealth to calculate the ‘total value of eligible expenditure incurred by the Recipient’ under clause 16.1.

9.1

Payment claim

(a)

On each of the due dates specified in schedule 5, the Recipient must submit to the Commonwealth a claim for payment of the relevant progress payment (‘payment claim’) in accordance with this clause 9.

(b)

A payment claim submitted under clause 9.1(a) must:

(i)

be in the form approved by the Commonwealth from time to time;

(ii)

include a certificate signed and dated by the Recipient’s Chief Executive Officer, Chief Financial Officer or a person authorised by the Recipient to execute documents and legally bind the Recipient by their execution, verifying that each of the payment milestones and other payment criteria specified in schedule 5 for the relevant progress payment have been completed or achieved by that date; and

(iii)

be accompanied by any supporting documentation and other evidence specified in schedule 5 for that payment.

9.2

Assessment of payment claim

(a)

Within 30 days of receiving a payment claim, the Commonwealth will:

(i)

approve the claim - if the Commonwealth considers that the Recipient has completed or achieved all applicable payment milestones, and the payment claim otherwise conforms with clause 9.1;

(ii)

reject the claim - if the Commonwealth considers that the Recipient has not satisfactorily completed or achieved all applicable payment milestones, or the payment claim does not conform with clause 9.1; or

(iii)

seek further supporting evidence or information from the Recipient so that the Commonwealth may either approve or reject the claim under paragraph 9.2(a)(i) or 9.2(a)(ii).

(b)

If the Commonwealth seeks further evidence or information under clause 9.2(a)(iii), the Recipient must provide the additional evidence or information within 14 days of the Commonwealth’s request. On receipt of the evidence or information, the Commonwealth will continue to assess the payment claim in accordance with this clause 9.2 as if the claim had first been submitted to the Commonwealth on the date the Commonwealth received the further evidence or information.

(c)

If the Commonwealth approves a payment claim under clause 9.2(a)(i), the relevant progress payment will become payable by the Commonwealth in accordance with clause 5 (Payment of funding).

(d)

If the Commonwealth rejects a claim under clause 9.2(a)(ii), the parties will seek to negotiate in good faith a new date for the Recipient to re-submit the payment claim. If the parties fail to reach agreement within 30 days of the claim being rejected (or such further period as the Commonwealth allows), the Recipient may not re-submit the claim and the Commonwealth may reduce the grant funds by the amount of the relevant progress payment forgone.

9.3

Extension of time for submission of payment claim

(a)

Prior to the due date for submission of a payment claim, the Recipient may seek an extension of time for the submission of that claim. An extension request under this clause 9.3(a) must be in writing, contain detailed reasons in support of the request, and nominate a new date for submission of that payment claim.

(b)

The Commonwealth agrees to give consideration to any reasonable extension request made in accordance with clause 9.3(a).

10.1

Construction

10.2

Consideration GST exclusive

10.3

Payment of GST

10.4

Tax invoice

(a)

Except where clause 10.4(b) applies:

(i)

the supplier must deliver a tax invoice or an adjustment note to the recipient of the supply before the supplier is entitled to payment of an amount under clause 10.3; and

(ii)

the recipient of the supply can withhold payment of the amount payable under clause 10.3 until the supplier provides a tax invoice or an adjustment note as appropriate.

(b)

If GST is imposed on any supply made by the Recipient to the Commonwealth under this deed in return for all or any part of the grant funds, the Commonwealth may issue a ‘recipient created tax invoice’ to the Recipient for the supply in question (and an adjustment note for any adjustment event in respect of that supply) and the Recipient must not issue a tax invoice (or adjustment note) for or in respect of the supply. Each party warrants that it is GST registered and agrees that it will promptly notify the other party if it ceases to be GST registered.

10.5

Adjustment event

10.6

Reimbursements

11     

11.1

Group structure

(a)

The Recipient warrants and represents to the Commonwealth that the legal and beneficial ownership of the Recipient and of each project participant, and the group structure of the Recipient and of each project participant, at the execution date are set out in schedule 2.

(b)

At all times during the period from the execution date to the end of the project period the Recipient must ensure that:

(i)

the composition of the project group does not change; and

(ii)

the terms of any joint venture, joint participation or consortium agreement binding the project group are not varied, supplemented or deleted in any material respect;

11.2

Assignment

(a)

The Recipient must not assign, novate, mortgage, charge or otherwise encumber or declare itself trustee or purport to so assign, novate, mortgage, charge or otherwise encumber or declare itself trustee of or in relation to any of its rights or obligations (as applicable) under this deed, without the prior written consent of the Commonwealth, which must not be unreasonably withheld or delayed.

(b)

The Commonwealth may impose conditions (a breach of which is a breach of this deed) in giving its consent under clause 11.2(a), including by requiring the Recipient and any other person concerned in a transaction referred to in clause 11.2(a) to execute documentation as specified by the Commonwealth.

11.3

Change in control

(a)

as soon as possible but within 30 days of the Recipient becoming aware of the occurrence of the change of control, notify the Commonwealth of the event and advise whether it believes the change of control will have any material adverse effect on the conduct or continuation of the project, and

(b)

as soon as possible but within 90 days of the Recipient becoming aware of the change of control, provide a written undertaking that the Recipient will continue with the project.

11.4

Consequence of Assignment and Change in control

(a)

If the Commonwealth considers:

(i)

an assignment, novation, mortgage, charge, encumbrance or declaration of trust referred to in clause 11.2; or

(ii)

a change in control under clause 11.3;

(b)

If the Commonwealth terminates this deed under clause 11.4(a), it may by notice to the Recipient require the repayment to the Commonwealth of all amounts paid to the Recipient under this deed in accordance with clause 16.3.

12.1

Project Intellectual Property

(a)

Other than as expressly provided in this deed, the Commonwealth does not assert ownership of, or any rights in relation to, background IP or foreground IP.

(b)

The Recipient warrants and represents that:

(i)

it owns or is licensed to use (at all times during the period from the execution date to the end of the project period) all background IP, unless otherwise agreed in writing with the Commonwealth; and

(ii)

it is entitled to grant the rights in relation to, or otherwise deal with, background IP in the manner required by this deed and that any such dealings in background IP will not infringe the intellectual property rights of any person.

(c)

The Recipient grants to the Commonwealth, its representatives or persons authorised by the Commonwealth, permanent, irrevocable and royalty free access to read, review, consider or test (but no rights to otherwise use, reproduce, publish, electronically transmit, electronically distribute, adapt, modify, commercially exploit or deal with), for any purpose related to this deed, the project or the Program or for the Commonwealth’s reporting and accountability obligations, all intellectual property related to or developed for the project and owned by or licensed to the Recipient or an associated entity.

(d)

The Commonwealth may provide all relevant intellectual property related to or developed for the project and owned by or licensed to the Recipient or an associated entity to an expert appointed under clause 14.1 for the purpose only of the conduct of the activities for which the expert is appointed.

(e)

The Recipient undertakes to procure from each project participant in favour of the Commonwealth the same rights that it grants in clause 12.1(c) and 12.1(d).

12.2

Deed Material

(a)

The Recipient grants to the Commonwealth a permanent, irrevocable, royalty free, worldwide, non-exclusive licence to use, reproduce, publish, electronically transmit, electronically distribute, adapt, modify or otherwise deal with any deed material for any purpose related to this deed, the project or the Program or for the Commonwealth’s reporting and accountability obligations but not to commercially exploit any deed material.

(b)

The Commonwealth may provide all relevant deed material to an expert appointed under clause 14.1 for the purpose only of the conduct of the activities for which the expert is appointed.

12.3

Warranty

12.4

Recipient’s consent

(a)

Subject to clause 12.2(b), the Commonwealth must not disclose any intellectual property or technical data of the Recipient or a third party in the deed material without the prior written consent of the Recipient which must not be unreasonably withheld or delayed.

(b)

A withholding of consent by the Recipient under clause 12.4(a) is not unreasonable if it is withheld because the Recipient believes that the disclosure of the material would compromise the rights of the Recipient or a third party in such intellectual property or technical data.

12.5

Documentation

13.1

Records

(a)

The Recipient must keep and maintain in accordance with this deed and all generally applicable Australian accounting standards and principles:

(i)

all records (including original receipts, invoices and bank statements) necessary to provide (at any given point in time) a complete, detailed, up-to-date and accurate record and explanation of:

(A)

all project expenditure (and which separately identifies eligible expenditure from other project costs);

(B)

matching funding (including the source, amount and timing of such funds);

(C)

project activities and progress of the project; and

(D)

any amounts of GST paid by the Recipient in respect of any supply made under or in connection with this deed;

(ii)

any other records relating to the project or this deed that the Commonwealth may require from time to time.

(b)

The Recipient must ensure that:

(i)

all records required to be kept under this clause 13.1 are kept for at least the term of this deed, or seven years from the date of their creation, whichever is the greater period; and

(ii)

for so long as any records are required to be kept under this clause 13.1, these records are kept at a location reasonably accessible to the Commonwealth.

13.2

Access

(a)

Subject to safety and operational requirements and limitations, at all reasonable times and on reasonable notice, the Recipient must allow the Commonwealth, and any person authorised in writing by the Commonwealth (‘authorised representative’), access to its premises, work sites and records in order to monitor, review or verify (‘review’):

(i)

performance of, or expenditure on, the project;

(ii)

the Recipient’s compliance with this deed; or

(iii)

any details included in, or attached to, a payment claim or report submitted under clause 13.3.

(b)

The Recipient must give or procure for the Commonwealth or its authorised representative all necessary facilities and assistance for the purposes of any review under clause 13.2(a). In the case of any document or record stored on a medium other than in writing, the Recipient must make available on request facilities to enable a legible reproduction to be created.

(c)

In conducting a review under clause 13.2(a) the Commonwealth or its authorised representative may take copies of any records or reproductions thereof created under clause 13.2(b) that the Commonwealth or its representative considers relevant to the review.

(d)

Without in any way affecting the statutory powers of the Auditor-General under the Auditor-General Act 1997 and subject to the provisions of that Act, the Auditor-General is an authorised representative for the purposes of clause 13.2(a) to 13.2(c) inclusive, even if not authorised in writing by the Commonwealth.

13.3

Reporting requirements

(a)

The Recipient must give the Commonwealth reports under schedule 6 in the form required by the Commonwealth from time to time, by each of the dates and containing at least the details specified in schedule 6, or as otherwise notified by the Commonwealth.

(b)

The Recipient must arrange for those reports identified in schedule 6 as being the subject of a financial audit to be financially audited prior to their submission to the Commonwealth under clause 13.3(a).

(c)

Where the Commonwealth requires a report to be financially audited, the report must be audited by a member of the Institute of Chartered Accountants in Australia, a member of CPA Australia or a Public Practice Certified Member of the National Institute of Accountants and accompanied by a signed statement from the auditor substantially in the form of the audit report notified by the Commonwealth from time to time verifying the truth, accuracy and reliability of the report.

(d)

Any auditor appointed to carry out an audit under clause 13.3(c) must not be an employee, shareholder, director, other officeholder or related entity of the Recipient, a project participant, or any other person having (or having had) a significant involvement in the project, the application, or any other report submitted under this deed.

(e)

If in the Commonwealth’s opinion either the form or the content of a report (including any audit report) does not meet the requirements of this deed or is not adequate for the Commonwealth’s purposes, the Commonwealth may require the Recipient to submit a revised report satisfactory to the Commonwealth within 30 days of the Commonwealth’s request.

(f)

Without the authority or agreement of the Commonwealth, the Recipient will not provide any person with a copy of any report to the Commonwealth given or required under this deed. This clause 13.3(f) does not apply to copies of reports given for good reason to:

(i)

a project participant;

(ii)

an associated entity of the Recipient or of a project participant; or

(iii)

the Recipient’s auditors, financiers or legal advisers.

13.4

Further information

(a)

The Commonwealth may at any time by notice to the Recipient request that the Recipient provide any additional information (including any independent or other expert report) required by the Commonwealth which relates to the reports provided under clause 13.3 and the Recipient’s compliance with, or performance of, obligations under this deed, the project (including the involvement or role of any project participant), the Recipient’s participation in the Program or the project’s achievement (or anticipated achievement) or otherwise of the Program Objectives and Outcomes. Any information requested under this clause 13.4(a) must be provided to the Commonwealth at the times and in the form specified in the notice.

(b)

Clause 13.4(a) extends to information of an associated entity or related entity of the Recipient but does not extend to reports or other documents prepared solely for the Recipient’s Board.

(c)

Where any necessary consent of a third party (including an associated entity or related entity of the Recipient) is required for the provision of information under clause 13.4(a), the Recipient will make all efforts to obtain such consent. Despite clause 13.4(a), the Recipient is not required to provide any information if the consent of the relevant third party (not being an associated entity or related entity of the Recipient) cannot be obtained.

13.5

Other participants

(a)

keeps like records to those required under clause 13.1; and

(b)

gives the Commonwealth (and any of its authorised representatives) access to its premises, records and work sites in accordance with clause 13.2.

14.1

Engagement of expert

(a)

Without limiting any of its other rights under this deed, the Commonwealth may at any time engage an expert to:

(i)

verify, review or monitor the Recipient’s compliance with this deed, performance of the project, or the details of any payment claim or report submitted under clause 13.3;

(ii)

verify, review or monitor performance of the project against the Program Objectives and Outcomes; or

(iii)

assist with the administration or management of this deed or the Program generally.

(b)

The Commonwealth and the Recipient may at any time jointly engage an independent expert to verify, review or monitor the performance of the project against the Program Objectives and Outcomes (including whether the technologies or processes to which the project relates are or will be capable of being substantively proved or successfully implemented). The precise terms of reference upon which the independent expert is to report will be agreed between the parties prior to each reference to an independent expert under this clause 14.1(b). A party must not refuse to jointly engage an independent expert in accordance with this clause 14.1(b).

(c)

The Recipient must provide any expert engaged under this clause 14 with access to its premises, work sites and records, and with any facilities or assistance requested by the Commonwealth or the expert, for the purpose of the expert performing the terms of their engagement. The timing of such access will be subject to safety and operational requirements and limitations.

(d)

The Recipient must:

(i)

ensure that any project participant or subcontractor specified in item 2 of schedule 4; and

(ii)

use its best endeavours to ensure that any other subcontractor engaged for the purposes of the project;

(e)

Any expert appointed under this deed must act independently, honestly and impartially.

14.2

Expert reports

(a)

The Commonwealth may use information contained in a report of an expert engaged under clause 14.1(a) for any purpose related to this deed it sees fit.

(b)

Subject to clause 14.2(c), all costs associated with engaging an expert under this clause 14 will be met by the party, or in equal shares by the parties, engaging the expert.

(c)

Without limiting the Commonwealth’s other rights under this deed, if the Commonwealth considers that a report provided by an expert under clause 14.1(a) identifies a material adverse event, the Commonwealth may:

(i)

terminate this deed by notice in writing to the Recipient if the Recipient does not remedy that material adverse event within 30 days of being notified in writing by the Commonwealth of that material adverse event or within such further time as the Commonwealth agrees; and

(ii)

require that the Recipient meet all (or part) of the costs of that verification or review.

(d)

At the Recipient’s request, the Commonwealth will provide the Recipient with a copy of any report provided by an expert under clause 14.1(a) that identifies a material adverse event.

(e)

If the parties agree that an independent expert jointly engaged under clause 14.1(b) has reasonably reported negatively in respect of one or more of the matters included in the expert’s terms of reference agreed between the parties under clause 14.1(b) and that the project should not continue, they may terminate this deed by agreement.

15.1

Non disclosure obligation

15.2

Exceptions

(a)

is disclosed by a party to its professional advisers or employees or employees of an associated entity solely in order to comply with its obligations or exercise rights under this deed;

(b)

is disclosed to a party’s internal management personnel for the purpose of enabling effective management or auditing of activities related to this deed;

(c)

subject to clause 13.3(f), is disclosed by a party to a State Government for purposes directly related to this deed or an agreement covering assistance of the kind referred to in clause 8.4;

(d)

is disclosed by the Commonwealth to a responsible Minister or the Auditor-General, or a delegate or authorised nominee of either of them;

(e)

is disclosed by the Commonwealth in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;

(f)

is disclosed within the Department, or to another Commonwealth department, agency, authority or body, where this serves the Commonwealth’s legitimate interests;

(g)

is disclosed by the Commonwealth for a purpose directly related to the enforcement or investigation of a possible breach of any law;

(h)

is disclosed to the Australian Stock Exchange pursuant to a Listing Rule or other requirement to do so; or

(i)

is required by law or authorised by this deed to be disclosed.

16.1

Payment in excess of funding percentage

16.2

Misspent progress payments

16.3

Repayment terms

16.4

Timing of notice

(a)

under clause 3.3(b) - must be sent with the termination notice;

(b)

under clause 11.4(b), or 22.4 - must be sent within a reasonable time of termination of this deed;

(c)

under clause 16.1 - must be sent on or within a reasonable time of project completion, termination of this deed or the end of the financial year (as applicable);

(d)

under clause 16.2 - must be sent within a reasonable time of the Commonwealth becoming aware of any progress payment (or part thereof) having been misspent; or

(e)

under clause 21(d) - must be sent within a reasonable time after the date the notice of intention to terminate is given by the Recipient under clause 21(a).

17.1

Debt due to the Commonwealth

(a)

at the rate set out in item 5 of schedule 1;

(b)

on a daily compounding basis upon the principal amount specified in the notice as repayable or owing to the Commonwealth; and

(c)

from and including the date (or dates) of payment of the amount to the Recipient, up to but excluding the day on which the Recipient repays or pays the total amount specified in the notice as repayable or owing to the Commonwealth, without any set off, counter-claim, condition, abatement, deduction or withholding.

17.3

Set off

18.1

Guarantee

(a)

The Recipient must, within 14 days of the commencement date and before any grant funds are paid to the Recipient, provide to the Commonwealth a properly executed deed of guarantee of the Recipient’s obligations under this deed (‘the guarantee’) in the form set out in attachment B.

(b)

The guarantor(s) making the guarantee must be:

(i)

a shareholder in the Recipient;

(ii)

an associated entity of the Recipient; or

(iii)

another party;

(c)

The Commonwealth may rely on the guarantee:

(i)

to obtain amounts due to the Commonwealth in the event that the Recipient fails to perform its obligations under this deed, including upon termination under clause 22 (Termination for default);

(ii)

to recover any debts due to the Commonwealth under or in relation to this deed; and/or

(iii)

otherwise as provided in the guarantee.

19.1

Indemnity

(a)

The Recipient agrees to indemnify (and keep indemnified) the Commonwealth, its officers, employees and agents (referred to in this clause as ‘those indemnified’) from and against any loss, liability and expense incurred by those indemnified and arising out of or as a consequence of:

(i)

a negligent, reckless, wilful or unlawful act or omission of the Recipient, its employees, agents or other persons acting on its behalf or under its direction in the conduct of the project;

(ii)

the exercise of any intellectual property or other rights licensed or granted in accordance with this deed;

(iii)

the breach of any material obligation under this deed;

(iv)

the breach of any representation or warranty given by the Recipient under this deed; or

(v)

the breach or infringement of the moral rights of any person in intellectual property, deed material or technical data.

(b)

The Recipient’s liability to indemnify those indemnified under this clause 19.1 will be reduced proportionally to the extent that any negligent, reckless, wilful or unlawful act or omission on the part of those indemnified contributed to the relevant loss, liability or expense.

(c)

The right of those indemnified to be indemnified under this clause is in addition to, and not exclusive of, any other right, power or remedy provided by law, but those indemnified are not entitled to be compensated in excess of the amount of the relevant liability, damage, loss, or expense.

(d)

In the event of a claim against those indemnified of the type referred to in clause 19.1(a), those indemnified must:

(i)

promptly notify the Recipient;

(ii)

take all reasonable measures to mitigate any relevant loss; and

(iii)

take all reasonable measures (including court action if necessary) to reduce their exposure to the claim or the quantum of the claim.

(e)

Subject to clause 19.1(f), the liability of the Recipient to indemnify the Commonwealth under this clause 19.1 is capped at an amount equal to the grant funds together with interest thereon calculated from the date of each progress payment.

(f)

The cap in clause 19.1(e) does not apply in relation to claims brought against the Commonwealth by, or a liability of the Commonwealth to or in respect of, a person other than the Recipient.

(a)

Without in any way limiting or affecting the Recipient’s obligations or liabilities under this deed, before commencing any work on the project the Recipient must effect the following insurances, providing cover in amounts acceptable to the Commonwealth and maintain such insurances until all work to which they relate is completed:

(i)

public liability insurance as set out in item 5 of schedule 3;

(ii)

insurance over any asset acquired pursuant to this deed (Contract Works Insurance) as set out in item 5 of schedule 3;

(iii)

professional indemnity insurance as set out in item 5 of schedule 3;

(iv)

statutory workers’ compensation insurance and employers’ liability insurance covering employers’ liability at common law (if not covered under statute) as set out in item 5 of schedule 3;

(v)

any other insurances required by law; and

(vi)

any other insurances required by the Commonwealth from time to time including those set out in item 5 of schedule 3.

(b)

The Recipient must provide to the Commonwealth evidence of the currency of the insurances referred to in clause 19.3(a), including a copy of the policy wording if required, within 14 days of the Commonwealth’s request.

(c)

At no cost to the Commonwealth, the insurances referred to in clause 19.3(a) must nominate the Commonwealth and all project participants as insureds.

(d)

The Recipient must notify the Commonwealth immediately if there is a change of insurer or of other details set out in item 5 of schedule 3 or if required insurance cover is lost, withdrawn, reduced, not renewed, not proposed to be renewed or if renewal is not invited.

(a)

In addition to any other rights it has under this deed or at law, the Commonwealth may terminate this deed by providing the Recipient with at least 3 months notice in writing of its intention to terminate under this clause 20.

(b)

If the Commonwealth provides a notice under clause 20(a), the Recipient must:

(i)

stop work on the project in accordance with the notice (unless the Recipient advises the Commonwealth in writing that it wishes to proceed with the project without further funding from the Commonwealth under this deed and that it will not claim such funding);

(ii)

comply with any directions given to the Recipient by the Commonwealth to the extent that compliance with such directions does not restrict the Recipient from proceeding with the project if it has given advice to the Commonwealth as provided in clause 20(b)(i); and

(iii)

do everything possible to mitigate all losses, costs and expenses arising from the termination.

(c)

If the deed is terminated under this clause 20, the Commonwealth will be liable only for:

(i)

progress payments that were due for payment by the Commonwealth before the effective date of termination; and

(ii)

subject to clause 20(e), any reasonable costs incurred by the Recipient that are directly attributable to the termination of this deed.

(d)

Any project expenditure incurred by the Recipient after the “stop work” date specified in the termination notice given under clause 20(a), will be deemed not to qualify as eligible expenditure.

(e)

The Commonwealth’s liability to pay any compensation or other amount under this clause 20:

(i)

is subject to the Recipient’s strict compliance with the requirements of this clause 20 and substantiation of any amount claimed under clause 20(c)(ii) to the Commonwealth’s satisfaction; and

(ii)

is limited to the amount calculated by multiplying the funding percentage by the Recipient’s total eligible expenditure, less all progress payments paid to the Recipient under this deed.

(a)

The Recipient may terminate this deed by giving the Commonwealth with at least 3 months notice in writing of its intention to terminate under this clause 21.

(b)

If the Recipient gives notice of termination under clause 21(a) the Recipient must:

(i)

not later than at the expiration of the period of notice given under clause 21(a), stop work on the project (unless the Recipient advises the Commonwealth in writing that it wishes to proceed with the project without further funding from the Commonwealth under this deed and that it will not claim such funding);

(ii)

comply with any directions given by the Commonwealth to the Recipient to the extent that compliance with such directions does not restrict the Recipient from proceeding with the project if it has given advice to the Commonwealth as provided in clause 21(b)(i);

(iii)

deliver copies of any deed material requested by the Commonwealth at the times, to the locations and in the form requested by the Commonwealth;

(iv)

prepare and submit to the Commonwealth within 30 days of the expiration of the period of notice given under clause 21(a) a final project report in the approved form and with content satisfactory to the Commonwealth; and

(v)

do everything possible to mitigate all losses, costs and expenses to the Commonwealth arising from the termination.

(c)

Any project expenditure incurred by the Recipient after the date notice of intention to terminate is given under clause 21(a) will be deemed not to qualify as eligible expenditure.

(d)

If the Recipient terminates this deed under clause 21(a), the Commonwealth may by notice to the Recipient require the repayment by the Recipient of all amounts paid to the Recipient under this deed, in accordance with clause 16.3.

(e)

The Commonwealth must not require repayment under clause 21(d) if the Recipient satisfies the Commonwealth that it acted on reasonable technical grounds in deciding to terminate this deed and the project. ‘Technical grounds’ includes where the technology being demonstrated through the project is not commercially viable (for example, because a new technology is more efficient).

(f)

Termination of this deed by the Recipient under this clause 21 does not of itself mean the project has been abandoned by the Recipient.

22.1

Immediate termination

(a)

a representation or warranty made by the Recipient under this deed is incorrect or misleading when made;

(b)

the Recipient has committed any breach or has done any act in respect of which this deed (other than this clause 22) provides that a notice of termination may be given;

(c)

the Recipient has

(i)

abandoned the project;

(ii)

notified the Commonwealth of an intention to abandon the project; or

(iii)

stated an intention to abandon the project;

(d)

the Recipient has ceased to carry on business or any material part of its business;

(e)

the Recipient has assigned its rights other than in accordance with this deed;

(f)

there is a persistent breach in accordance with clause 22.2;

(g)

an insolvency event has occurred in relation to the Recipient or any project participant;

(h)

there is fraud, misleading or deceptive conduct on the part of the Recipient or any project participant in the performance of the project or any part of it; or

(i)

the Recipient is otherwise in breach of a material obligation under this deed and the breach is not capable of being remedied.

22.2

Persistent breach

(a)

If the Recipient commits [***] material breaches of the same type or class (whether or not any or all of those breaches have been remedied), the Commonwealth may issue a warning notice to the Recipient:

(i)

setting out details of the various past breaches; and

(ii)

stating that if any of those breaches continues unremedied for more than [***] after the date of the notice, or any further new breach of the same class or type occurs within [***] of the date of the notice, this may result in termination of the deed.

(b)

If following the Recipient’s receipt of a warning notice under clause 22.2(a), any of the matters or events referred to in clause 22.2(a)(ii) occurs or exists, the Commonwealth may issue a final notice to the Recipient:

(i)

making reference to the prior warning notice and setting out details of the continuing breach or any new breach that may have occurred (as applicable); and

(ii)

stating that if any breach identified in the earlier warning notice or this final notice continues unremedied for more than [***] after the date of the final notice, or any new breach of the same class or type occurs at any time within the period of [***] from the date of the final notice, the Recipient will be deemed to have committed a ‘persistent breach’ and the Commonwealth may terminate this deed under clause 22.1(f).

(c)

The Commonwealth’s determination as to whether any [***] breaches are of the same type or class for the purposes of this clause 22.2 is final and binding on the Recipient.

22.3

Termination following default notice

(a)

For the purposes of this clause 22.3, a ‘default’ exists if the Commonwealth considers that the Recipient has:

(i)

failed to commence work under this deed within three months after the commencement date (unless otherwise agreed in writing by the Commonwealth);

(ii)

failed to complete any payment milestone by the relevant milestone due date specified in schedule 5 (except where the failure is due to a force majeure event in relation to which the Recipient has complied with clause 26, in which case a ‘default’ exists if the Commonwealth considers that the Recipient has failed to complete the payment milestone as soon as reasonably practicable after the period of the force majeure event is taken to have ended under clause 26.5);

(iii)

failed to comply with clause 6.10, 6.11 or 6.12;

(iv)

failed to comply with clause 14.1(c) or 14.1(d); or

(v)

failed to comply with any other material obligation to be performed or observed under this deed that the Commonwealth considers is capable of being remedied.

(b)

On the happening of a default, the Commonwealth may notify the Recipient in writing of that default and require the Recipient to remedy the default within [***] (or any longer period specified in the notice or agreed by the parties) of the date of the notice.

(c)

If the Commonwealth is satisfied that the Recipient has failed to remedy the default within the period specified in the notice (or any longer period agreed by the parties), the Commonwealth may immediately terminate this deed by issuing a second notice to the Recipient.

22.4

Consequences of termination for default

23.1

Recipient’s obligations after termination notice

(a)

On receipt of a termination notice under clause 14.2(c), 22.1, 22.3(c), 26.4 or upon the parties agreeing to terminate this deed under clause 14.2(e), the Recipient must:

(i)

immediately stop work on the project (unless the Recipient advises the Commonwealth in writing that it wishes to proceed with the project without further funding from the Commonwealth under this deed and that it will not claim such funding);