Technology access Agreement by and among Gevo, Inc., Phillips 66 Company, and Archer-Daniels-Midland Company Effective as of May 5, 2023
Exhibit 10.3
CONFIDENTIAL
CERTAIN CONFIDENTIAL INFORMATION, IDENTIFIED BY BRACKETED ASTERISKS “[*****]”, HAS BEEN OMITTED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.
Technology access Agreement
by and among
Gevo, Inc.,
Xxxxxxxx 66 Company,
and
Xxxxxx-Xxxxxxx-Midland Company
Effective as of May 5, 2023
#4874-4159-4960v18
TABLE OF CONTENTS
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TABLE OF CONTENTS
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This TECHNOLOGY ACCESS AGREEMENT (the “Agreement”), effective as of [⚫], 2023 (the “Effective Date”), is made by and between Gevo, Inc., a Delaware corporation (“Gevo”), Xxxxxxxx 66 Company, a Delaware corporation (“P66”), and Xxxxxx-Xxxxxxx-Midland Company, a Delaware corporation (“ADM,” and together with P66, the “Potential Partners”). Gevo, P66, and ADM are each referred to herein individually as a “Party” and collectively as the “Parties.” Capitalized terms used in this Agreement have the meanings ascribed to such terms in Section 1.01.
Whereas, Axens North America, Inc., a Delaware corporation (“Axens”), and Gevo entered into that certain Master Framework Agreement for Ethanol to Jet Collaboration dated effective September 22, 2021 (the “Master Framework Agreement”), pursuant to which Axens agreed to (i) Exclusively provide the Axens Services to Gevo in the Exclusive Field within the United States and (ii) not be hired by a third party to perform PDP services or grant a license regarding the Exclusive Field in the United States, in each case during the term of the Master Framework Agreement;
WHEREAS, P66 and ADM are considering the formation of one or more entities to, among other things, develop sustainable aviation fuel, and in connection therewith, P66, ADM or any JV Entity seek the right to receive Axens Services and to be licensed for the use of Axens Processes in connection with three contemplated facilities for the production of sustainable aviation fuel in the United States; and
WHEREAS, simultaneously with the execution of this Agreement, Gevo and Axens are executing a side agreement in the form attached hereto as Exhibit A (the “Axens Side Agreement”).
Now Therefore, in consideration of the mutual covenants and agreements set forth herein and intending to be legally bound, the Parties hereto agree as follows:
“Action” means any action, cause of action, grievance, arbitration, assessment, hearing, claim, demand, suit, proceeding, citation, summons, subpoena, examination, audit, review, inquiry or investigation of any nature, civil, criminal, regulatory or otherwise, in law or in equity, by or before any Governmental Authority or arbitrator.
“ADM” has the meaning given in the preamble.
“Affiliate” means an entity that directly, or indirectly through one or more intermediate entities, has ownership of or is owned by, or controls or is controlled by, that Person or is under common control with that Person. For purposes of the foregoing, “ownership” or “control” of a Person means that an entity possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
“Agreement” has the meaning given in the preamble.
“Applicable Milestone Records” has the meaning given in Section 5.07(a)(ii).
“Applicable Production Records” has the meaning given in Section 5.07(a)(i).
“Approved Advisors” has the meaning given in Section 5.07(c).
“Approved Personnel” has the meaning given in Section 5.07(c).
“Axens” has the meaning given in the recitals.
“Axens Processes” has the meaning set forth in the Master Framework Agreement as of the Effective Date.
“Axens Services” means the “Services” as defined in the Master Framework Agreement as of the Effective Date.
“Axens Side Agreement” has the meaning given in the recitals.
“Business Day” means any day other than a Saturday, Sunday or any other day on which commercial banks in Chicago, Illinois, Houston, Texas or Denver, Colorado are authorized or required by Law to be closed for business.
“Commercial Operation Date” means, with respect to any JV Facility, the date on which [*****].
“Confidential Information” has the meaning given in Section 8.01.
“CSA” has the meaning given in Section 3.01(a).
“Effective Date” has the meaning given in the preamble.
“ESA” has the meaning given in Section 3.01(b).
“Event of Default” has the meaning given in Section 6.01.
“Exclusive Field” has the meaning set forth in the Master Framework Agreement as of the Effective Date.
“Exclusively” has the meaning set forth in the Master Framework Agreement as of the Effective Date.
“First Milestone” has the meaning given in Section 5.01(a).
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“First Milestone Payment” has the meaning given in Section 5.01(a).
“Fourth Milestone” has the meaning given in Section 5.01(d).
“Fourth Milestone Payment” has the meaning given in Section 5.01(d).
“Gevo” has the meaning given in the preamble.
“Governmental Authority” means any federal, national, foreign, regional, state, municipal or local government, any political subdivision or any governmental, judicial, public or statutory instrumentality, tribunal, court, agency, authority, body or entity, including any regulatory bureau, authority, body or entity, having legal jurisdiction over the matter or Person in question.
“Investment Grade Assignee” has the meaning set forth in Section 8.15(b).
“JV Entity” means a Person (i) that owns, directly or indirectly, one or more of the JV Facilities and (ii) in which P66 and ADM each initially possess an equity interest and together initially possess, directly or indirectly, a majority equity interest.
“JV Facilities” means (i) an ethanol wet mill facility in Decatur, Illinois; (ii) a dry mill in Cedar Rapids, Iowa; and (iii) a dry mill and co-generation plant in Columbus, Nebraska, in each case as adapted to produce Renewable Hydrocarbons employing the Axens Processes and ethanol sourced at least in part from the specified, existing mill facility; and “JV Facility” means any such facility individually.
“Law” means any constitution, decree, resolution, law, statute, act, ordinance, rule, directive, order, treaty, code or regulation and any injunction or final non-appealable judgment or any interpretation of the foregoing, as enacted, issued or promulgated by any Governmental Authority.
“Losses” means costs, claims, lost tax credits or other environmental attributes, liabilities, penalties, fines, damages, expenses, causes of action, suits, or judgments, including, without limitation, reasonable attorneys’ and paralegals’ fees and all court costs and experts’ fees (including costs of defense and settlement).
“Master Framework Agreement” has the meaning given in the recitals.
[*****]
“Milestone Payments” means, collectively, the First Milestone Payment, the Second Milestone Payment, the Third Milestone Payment, and the Fourth Milestone Payment; and “Milestone Payment” means any such milestone payment individually.
“Milestones” means, collectively, the First Milestone, the Second Milestone, the Third Milestone, and the Fourth Milestone; and “Milestone” means any such milestone individually.
[*****]
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“P66” has the meaning given in the preamble.
“Party” or “Parties” have the meaning given in the preamble.
“PDP” has the meaning set forth in the Master Framework Agreement as of the Effective Date.
“Permitted Change of Control” has the meaning given in Section 4.02(b).
“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or Governmental Authority or any department or agency thereof.
“Potential Partners” has the meaning given in the preamble.
“Renewable Hydrocarbons” means sustainable aviation fuel, renewable diesel, or renewable gasoline blend stocks produced from corn ethanol, the production of which utilizes the Axens Processes.
“Restricted Entities” means [*****] and “Restricted Entity” means each such entity individually.
“Restricted Period” means the period of time beginning on [*****].
“Royalty Compensation” has the meaning given in Section 5.02.
“Royalty Compensation Cap” has the meaning given in Section 5.03.
“Royalty Compensation Period” has the meaning given in Section 5.03.
“Royalty Compensation Year” means, with respect to each JV Facility, a period of twelve (12) consecutive months commencing initially on the Commercial Operation Date of such JV Facility and subsequently on each anniversary of the Commercial Operation Date of such JV Facility through the Royalty Compensation Period.
“Second Milestone” has the meaning given in Section 5.01(b).
“Second Milestone Payment” has the meaning given in Section 5.01(b).
“Term” has the meaning given in Section 7.01.
“Termination for Cause Effective Date” has the meaning given in Section 7.03(a).
“Termination for Cause Notice” has the meaning given in Section 7.03(a).
“Termination for Convenience Effective Date” has the meaning given in Section 7.02.
“Third Milestone” has the meaning given in Section 5.01(c).
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“Third Milestone Payment” has the meaning given in Section 5.01(c).
| (a) | All references in this Agreement to Exhibits, Articles, Sections, subsections and other subdivisions refer to the corresponding Exhibits, Articles, Sections, subsections and other subdivisions of or to this Agreement unless expressly provided otherwise. Exhibits referred to herein are attached hereto. |
| (b) | Titles appearing at the beginning of any Articles, Sections, subsections or other subdivisions of this Agreement are for convenience only, do not constitute any part of this Agreement and shall be disregarded in construing the language hereof. |
| (c) | The words “this Agreement,” “herein,” “hereby,” “hereunder” and “hereof,” and words of similar import, refer to this Agreement as a whole and not to any particular Article, Section, subsection or other subdivision unless expressly so limited. The words “this Article,” “this Section” and “this subsection,” and words of similar import, refer only to the Article, Section or subsection hereof in which such words occur. |
| (d) | The word “including” (in its various forms) means “including without limitation.” |
| (h) | The word “or” when used in a list shall not indicate that the listed items are exclusive of each other and shall mean “and/or”. |
| (i) | References to any Law, contract, agreement or other instrument shall mean such contract, agreement or other instrument as it may be amended, restated, supplemented, modified or replaced from time to time (and, for the avoidance of doubt, in the case of the references to the Axens Side Agreement or Master Framework Agreement, as amended, restated, supplemented, modified or replaced from time to time in accordance with Section 4.01). |
| (j) | References to any Person shall include such Person’s successors and permitted assigns. |
| (k) | The phrases “delivered,” “provided,” “furnished,” “made available” or words of similar import when used with respect to information or documents means that such information |
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| or documents have been physically or electronically delivered to the relevant receiving party. |
| (l) | The phrase “to the extent” shall mean the degree to which the subject matter thereof extends and shall not simply mean “if.” |
| (a) | Gevo is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware, with all requisite organizational power and authority required to enter into this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby, and Gevo is duly qualified or licensed to do business and is in good standing in each jurisdiction in which such qualification or licensing is required; |
| (d) | (i) no Actions are pending or, to the knowledge of Gevo, threatened against or affecting Gevo or any of its assets, at law or in equity, (ii) to the knowledge of Gevo, there is no basis for any such Action, and (iii) there are presently no outstanding judgments, decrees, or orders of any Governmental Authority against or affecting Gevo or any of its businesses or assets, in each case except for such Actions, judgments, decrees, and orders which, individually or in the aggregate, could not reasonably be expected to (A) have a material adverse effect on Gevo’s ability to perform its obligations under this Agreement or (B) adversely affect the legality, validity, or enforceability of this Agreement; |
| (e) | Subject to the Axens Side Agreement, Gevo has (i) an exclusive license to use the Axens Processes in the Exclusive Field within the United States and (ii) the exclusive right to receive the Axens Services from Axens in the Exclusive Field within the United States; |
| (f) | Each of the Master Framework Agreement and the Axens Side Agreement is in full force and effect and constitute a legal, valid and binding obligation of Gevo and are enforceable |
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| (a) | P66 is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware, with all requisite organizational power and authority required to enter into this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby, and P66 is duly qualified or licensed to do business and is in good standing in each jurisdiction in which such qualification or licensing is required; |
| (c) | this Agreement has been duly and validly executed by P66 and (assuming due authorization, execution and delivery by the other Parties) constitutes the legal, valid and binding obligation of P66, enforceable against P66 in accordance with the terms and conditions hereof, except as the enforceability thereof may be limited by applicable bankruptcy laws affecting creditors’ rights generally and by general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law; and |
| (d) | (i) no Actions are pending or, to the knowledge of P66, threatened against or affecting P66 or any of its assets, at law or in equity, (ii) to the knowledge of P66, there is no basis for any such Action, and (iii) there are presently no outstanding judgments, decrees, or orders of any Governmental Authority against or affecting P66 or any of its businesses or assets, in each case except for such Actions, judgments, decrees, and orders which, individually or in the aggregate, could not reasonably be expected to (A) have a material adverse effect on P66’s ability to perform its obligations under this Agreement or (B) adversely affect the legality, validity, or enforceability of this Agreement. |
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| (a) | ADM is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware, with all requisite organizational power and authority required to enter into this Agreement, perform its obligations hereunder and consummate the transactions contemplated hereby, and ADM is duly qualified or licensed to do business and is in good standing in each jurisdiction in which such qualification or licensing is required; |
| (c) | this Agreement has been duly and validly executed by ADM and (assuming due authorization, execution and delivery by the other Parties) constitutes the legal, valid and binding obligation of ADM, enforceable against ADM in accordance with the terms and conditions hereof, except as the enforceability thereof may be limited by applicable bankruptcy laws affecting creditors’ rights generally and by general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law; and |
| (d) | (i) no Actions are pending or, to the knowledge of ADM, threatened against or affecting ADM or any of its assets, at law or in equity, (ii) to the knowledge of ADM, there is no basis for any such Action, and (iii) there are presently no outstanding judgments, decrees, or orders of any Governmental Authority against or affecting ADM or any of its businesses or assets, in each case except for such Actions, judgments, decrees, and orders which, individually or in the aggregate, could not reasonably be expected to (A) have a material adverse effect on ADM’s ability to perform its obligations under this Agreement or (B) adversely affect the legality, validity, or enforceability of this Agreement. |
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| engineering support related to the application of the Axens Processes pursuant to an engineering services agreement (the “ESA”), the form of which shall be mutually agreed to by the Parties, subject to additional consideration payable to Gevo as contemplated by such ESA. |
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| (a) | [*****] (the “First Milestone”), [*****] (the “First Milestone Payment”); [*****]; |
| (b) | [*****] (the “Second Milestone”), [*****] (the “Second Milestone Payment”); |
| (c) | [*****] (the “Third Milestone”), [*****] (the “Third Milestone Payment”); and |
| (d) | [*****] (the “Fourth Milestone”), [*****] (the “Fourth Milestone Payment”). |
[*****]
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| pursuant to Section 5.03(b)) or Royalty Compensation paid pursuant to Section 5.02) an aggregate amount equal to (x) [*****] multiplied by (y) [*****] (this subclause (ii) with respect to each JV Facility, the “Royalty Compensation Cap”). |
| (a) | Reporting Requirements and Records. |
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| produced by such JV Facility for the immediately preceding calendar year (such records “Applicable Production Records”). |
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| (c) | if such Party becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency Law, makes or seeks to make a general assignment for the benefit of its creditors, or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business. |
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| (a) | In the event the Potential Partners make a determination (in their sole discretion) not to utilize any of the Axens Services and license the Axens Processes in connection with the JV Facilities, the Potential Partners may jointly agree to terminate this Agreement by delivering written notice to Gevo, which shall be effective thirty (30) days following delivery thereof (the “Termination for Convenience Effective Date”). |
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| respect to the Potential Partners). In the event of termination pursuant to this Section 7.03(c), Gevo shall be relieved of all further obligations to the Potential Partners under this Agreement from and after the Termination for Cause Effective Date. For the avoidance of doubt, upon such termination, the Potential Partners shall not be relieved of payment obligations due and owing to Gevo, including the obligation to cause any applicable JV Entity to satisfy such JV Entity’s payment obligations due and owing to Gevo, in each case, pursuant to Article V hereof, as of the Termination for Cause Effective Date. |
| (a) | Except as required to perform its obligations pursuant to this Agreement, the Parties shall not publish, disclose, or otherwise divulge Confidential Information (as defined below) to any Person, at any time during or for a period of five (5) years after the termination or expiration of the Term, without the prior written consent of each of the other Parties. A Party may disclose Confidential Information to those Affiliates, directors, managers, officers, employees, agents and advisors who have a need to know such information in order to perform such Party’s obligations under this Agreement; provided that, in connection with any such disclosure, such Party will (i) inform each such Person of the confidential nature of such Confidential Information and (ii) be liable for any breach of this Section 8.01 by such Persons. A Party may also disclose Confidential Information to the extent required by Law, including the rules of any securities exchange, or in response to legal process, applicable governmental regulations or governmental agency request, but only that portion of such Confidential Information which, at the opinion of such Party’s counsel, is required or would be required to be furnished to avoid liability. In the event of a disclosure made pursuant to the prior sentence, such disclosing Party shall: (A) notify each of the other Parties of the disclosing Party’s obligation to provide such Confidential Information prior to disclosure (unless notification is prohibited by applicable Law or court order); and (B) cooperate to reasonably protect the confidentiality of such Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean all confidential, proprietary or non-public information pertaining to any Party or any JV Entity or JV Facility that is disclosed to another Party by or on behalf of such Party or JV Entity, including any Applicable Production Records and Applicable Milestone Records. The term “Confidential Information” does not include any information which (1) at the time of disclosure or thereafter is generally available to the public (other than as a result of a disclosure by a Party or its representatives in violation of this Agreement), (2) was available to a Party on a non-confidential basis, provided that such Person making such information available is not bound by a confidentiality agreement that was applicable to the Confidential Information or (3) has been independently acquired or developed by a Party without violating any of its obligations under this Agreement or any other agreement between any Parties. |
| (b) | Excluding as to Gevo with respect to the Master Framework Agreement, no Party shall publish, disclose, or otherwise divulge the Master Framework Agreement or the Axens Side Agreement, together with all amendments, exhibits, annexes or other supplements |
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| thereto, to any Person. Notwithstanding anything to the contrary herein, each of P66 and ADM may disclose, or permit any JV Entity to disclose, the Master Framework Agreement, the Axens Side Agreement, this Agreement and the transactions contemplated hereby and thereby, in each case together with all amendments, exhibits, annexes or other supplements hereto or thereto, to any current, future or prospective investors, debt or equity financing sources, joint venturers, shareholders, members, partners, insurers or advisors so long as each of such Persons is subject to appropriate confidentiality obligations to the disclosing Person by way of execution of a non-disclosure agreement or pursuant to an ethical, professional or fiduciary obligation of confidentiality; provided, that, for the avoidance of doubt, any financial advisor shall be required to enter into a non-disclosure agreement. |
| (c) | With respect to Gevo, this Section 8.01 is subject to the further limitations and restrictions set forth in Section 5.07. |
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If to Gevo:
000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxxx X, Xxxxx 000
Englewood, Colorado 80112
Attn: Chief Commercial Officer
Email: [*****]
With a copy to:
000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxxxxx X, Xxxxx 000
Englewood, Colorado 80112
Attn: Legal Department
Email: [*****]
If to ADM:
ADM
00 Xxxx Xxxxxx Xxxxx
Suite 4600
Chicago, Illinois 60601
Attn: Xxxx Xx
Email: [*****]
Attn: Xxxxxxx Xxxxx
Email: [*****]
If to P66:
Xxxxxxxx 66 Company
0000 XxxxXxxx Xxxx.
Houston, TX 77042
Attn: Xxxx X. Xxxxx
Email: [*****]
Attn: Xxxxxx X. Task
Email: [*****]
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| by legal counsel to each of P66 and ADM. Each of P66 and ADM acknowledges that it may hereafter discover facts different from, or in addition to, those which it knows or believes to be true with respect to such Losses, and agrees that this provision shall be and remain effective in all respects notwithstanding such different or additional facts or the discovery thereof. |
| (c) | The foregoing in Section 8.13(a) and Section 8.13(b) shall not limit any Party’s duties, obligations and liabilities under this Agreement, including for Losses arising out of any breach or non-compliance of this Agreement. |
| (a) | Notwithstanding anything express or implied herein to the contrary, the liability of each of P66 and ADM for any performance, amount or obligation under this Agreement or in connection with any of the transactions contemplated herein shall be individual and several to each of P66 and ADM, respectively, and not joint and several with the other Potential Partner. With respect to any payment obligation of the Potential Partners under this Agreement to cause one or more of the JV Entities to make a payment, ADM and P66 shall each be responsible and severally liable for fifty percent (50%) of the total amount of such payment obligation. |
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| Partner(s) shall in no way become again obligated for Person as would otherwise be provided by Section 8.06(b). As used in this Agreement, an “Investment Grade Assignee” means an assignee or transferee (including, without limitation, a JV Entity) that at the time of presentment to Gevo is rated, or has a class of any security rated, BBB- or better by Standard & Poor’s Ratings Services, BBB- or better by Fitch Ratings, Inc., Baa3 or better by Moody’s Investor Services, Inc. or is otherwise rated investment grade by a nationally recognized rating agency; provided that such nationally recognized rating agency (e.g., not Standard & Poor’s Ratings Services, Fitch Ratings, Inc. or Moody’s Investor Services, Inc.) shall be subject to the prior written consent of Gevo, which consent shall not be unreasonably withheld, conditioned or delayed. |
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the undersigned has executed this Technology Access Agreement as of the date first written above.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Commercial Officer
Xxxxxxxx 66 Company
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: EVP, Emerging Energy & Sustainability
Xxxxxx-Xxxxxxx-Midland Company
By: /s/ Xxxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxxx X. Xxxxx
Title: | Senior Vice President and President, Carbohydrate Solutions |
[Signature Page to Technology Access Agreement]
