Exhibit 10.4
***Text Omitted and Filed Separately
with the Securities and Exchange Commission.
Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4)
and 240.24b-2.
EXECUTION COPY
VERENIUM TRANSITION SERVICES AGREEMENT
This VERENIUM TRANSITION SERVICES AGREEMENT (this "Agreement") is made and
entered into as of September 2, 2010 (the "Effective Date"), by and between
VERENIUM CORPORATION, a Delaware corporation ("Provider"), and BP BIOFUELS
NORTH AMERICA LLC, a Delaware limited liability company (the "Company").
Capitalized terms used in this Agreement have the meanings given to them in the
Purchase Agreement (as defined below) unless otherwise defined herein. Provider
and the Company are each a "Party" and are collectively the "Parties."
RECITALS
WHEREAS, the Company and Provider are parties to that certain Asset Purchase
Agreement dated as of July 14, 2010 (the "Purchase Agreement"), pursuant to
which, among other things, Provider will sell to the Company, and the Company
will purchase from Provider, all of Provider's right, title and interest in and
to the assets used in or that are necessary for the operation of the LC
Business, as described in greater detail in the Purchase Agreement;
WHEREAS, from and after the Effective Date, Verenium Biofuels Corporation
will be a wholly-owned subsidiary of Purchaser (such subsidiary as of the
Effective Date, the "BP Biofuels Subsidiary," and collectively with Verenium
Biofuels Louisiana LLC as of the Effective Date, the "BP Biofuels
Subsidiaries");
WHEREAS, from and after the Effective Date, the Company will be a tenant of
the premises leased pursuant to the San Diego Building A Lease, as amended
(such premises, "Building A");
WHEREAS, from and after the Effective Date, Provider will be a tenant of the
premises leased pursuant to the San Diego Building B Lease, as amended (such
premises, "Building B," and together with Building A, the "San Diego Premises");
WHEREAS, from and after the Effective Date, Provider will sublease certain
premises in Building A (such premises, the "Verenium Sublet Premises") to the
Company pursuant to the Sublease Agreement (as defined in the Purchase
Agreement); and
WHEREAS, in order to facilitate an orderly transition and to provide for the
operation of the LC Business while the Company occupies the Verenium Sublet
Premises, the Parties desire that Provider provide the services described in
this Agreement during the time periods specified herein, on the terms and
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
1. Services; Work Capacity.
(a) Services. Subject to the terms and conditions hereof, Provider shall
provide, or shall cause to be provided, to the Company the services
(individually, a "Service," and collectively, the "Services") described on
the service schedules attached hereto or described on any additional service
schedules entered in accordance with Section 4 hereof (collectively, the
"Service Schedules") during the applicable Service Term (as defined below).
(b) Work Capacity. Provider shall not be obligated to provide any volume
or level of Services in excess of, or allocate any employees or employee
worktime to the performance of Services in excess of, any maximum Work
Capacity requirements specified in the Service Schedules. For purposes of
this Agreement, "Work Capacity" means Provider's allocation of its
employees' work time to the provision of the Services, measured on a full
time equivalent ("FTE") basis, assuming a five-day workweek and eight-hour
workday.
2. Term; Service Terms.
(a) Agreement Term. The term of this Agreement shall commence on the
Effective Date and shall continue in effect until the second anniversary of
the Effective Date, unless extended by mutual written agreement of the
Parties in writing or earlier terminated in accordance with the provisions
of Section 5 hereof (as the same may be extended or earlier terminated, the
"Agreement Term").
(b) Service Term. Each Service described in a Service Schedule attached
hereto shall commence on the Effective Date and shall continue until the
earliest to occur of (i) the expiration or termination of the Agreement
Term, (ii) the expiration of the term of such Services as set forth in such
Service Schedule, as the same may be renewed in accordance with Section 2(c)
if applicable, and (iii) such time as such Service is terminated in
accordance with the provisions of Section 5 hereof (individually, a "Service
Term," and collectively, the "Service Terms"). This Agreement is a master
agreement and each Service Schedule shall be construed as a separate and
independent agreement for the performance of the Services described therein,
subject to the terms and conditions of this Agreement. Any termination of
any Service under a Service Schedule shall not terminate this Agreement or
any Service Schedule with respect to any other Service then being provided
pursuant to this Agreement.
3. Fees.
(a) Service Fees. In consideration for the Services provided to the
Company by Provider hereunder, for each Service provided by Provider during
the applicable Service Term, the Company shall pay to Provider the fee(s)
set forth with respect to such Service on the applicable Service Schedule
(individually, a "Service Fee," and collectively, the "Service Fees") and,
if applicable, any Affected Service Expense (as defined below). The Company
shall be responsible for reimbursing any out-of-pocket travel or
accommodation expenses incurred by Provider in the performance of any
Service.
(b) Payment Terms. Within thirty (30) days following the end of each
calendar month during the Agreement Term, Provider shall deliver to the
Company an invoice setting forth the Service Fees (including a reasonable
itemization) incurred for each of the Services provided, or caused to be
provided, by Provider to the Company during the prior
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calendar month (collectively, the "Monthly Amounts"). The Company shall pay
Provider any undisputed Monthly Amounts reflected in such invoice promptly
upon receipt by the Company of the invoice relating thereto, but in no event
later than thirty (30) days following the receipt of such invoice. Any
amount of any Monthly Amount not paid during such thirty (30) days shall
bear interest, from the thirty-first (31st) day following receipt of the
invoice relating thereto until the date such amount is paid, at the rate of
one percent (1%) per month or the maximum rate permitted by law, if less. In
the event any Service is provided for part of any month, then the Services
Fees payable in respect of such Service shall be pro-rated on a daily basis
in respect of such partial month.
(c) Taxes. Provider will be solely responsible for all tax returns and
payments required to be filed with or made to any federal, state or local
tax authority with respect to Provider's performance of Services and receipt
of Service Fees to be paid by the Company under this Agreement. The Parties
will cooperate with each other in determining the extent to which any tax is
due and owing under the circumstances, and shall provide and make available
to each other any resale certificates, information regarding out-of-state or
country use of materials, services or sale, and other exemption certificates
or information reasonably requested by either Party. If any taxes are
required to be withheld by the Company, the Company will (i) deduct such
taxes from the payment made to Provider, (ii) timely pay the taxes to the
proper taxing authority, (iii) send proof of payment to Provider and certify
its receipt by the taxing authority within thirty (30) days following such
payment, and (iv) shall provide such assistance as Provider may reasonably
require in obtaining any refund of such amounts to which Provider may be
entitled, to the extent that such assistance does not cause the Company to
incur any liability in respect of the taxes asserted to be due.
(d) Adverse Impact. Unless otherwise provided for in this Agreement, if
the Company (i) makes any change to its processes, procedures, practices,
networks, equipment, configurations, or systems and (ii) such change has a
material adverse impact on Provider's ability to provide any of the
Services, Provider shall be excused from performing any such affected
Services until the Company adequately, in Provider's reasonable discretion,
mitigates the material adverse impact of such change on the Provider's
ability to provide such Services, and the Company shall be responsible for
all expenses, if any, incurred by Provider directly as a result of the
cessation and, if applicable, the resumption of the affected Service
("Affected Service Expense").
4. Change Order Requests.
(a) Written Request. Provider has no obligation to provide to the Company
any services under this Agreement other than the Services. Either Party may
at any time after the Effective Date, through the Governance Committee and
pursuant to Section 4(b) below, propose modifications, changes or deletions
to the Services ("Modified Services") or propose that additional services be
added as Services ("Additional Services"), which Modified Services or
Additional Services shall become Services subject to this Agreement if
approved in writing by the Parties pursuant to Section 4(b) below. The Party
requesting the Modified Services or Additional Services is referred to
herein as the "Requesting Party" and the Party receiving the request is
referred to herein as the "Other Party."
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(b) Process. The Parties agree to use the process set forth in this
Section 4(b) to approve requests for Modified Services or Additional
Services. To request Modified Services or Additional Services, the
Requesting Party shall prepare and, through its representatives on the
Governance Committee (as defined below), submit a change order request in
the form of Annex 1 hereto (a "Change Order Request") to the Governance
Committee, pursuant to which the Requesting Party shall (i) in the case of
requested Modified Services, attach to the Change Order Request a proposed
modified Service Schedule relating to the applicable Services to be
modified, or (ii) in the case of Additional Services, attach to the Change
Order Request a new proposed Service Schedule for the Additional Services
being requested, including, in each case, a description of the proposed
functional area, Service Fee, Service Fee basis, Service Term, and estimated
requirements for the Modified Services or Additional Services. Following the
Governance Committee's receipt of a Change Order Request, the Governance
Committee shall in good faith review and approve such Change Order Request
within fifteen (15) days of such receipt, with such changes as the
Governance Committee deems appropriate. After a Change Order Request is
approved by the Governance Committee, the proposed Service Schedule attached
thereto shall be attached hereto and become a "Service Schedule" under this
Agreement, and the Modified Services or Additional Services covered by such
Service Schedule, as the case may be, shall become "Services" under this
Agreement as of the date of approval, and in each case shall be subject to
the terms and conditions set forth herein.
(c) Substitution of Provider Designee. If a Service Schedule specifies a
designated employee of Provider (or any of its Affiliates) who will provide
the Services (such employee, the "Provider Designee"), then only that
Provider Designee, to the extent such Provider Designee is still employed by
Provider, and no other employee or agent of Provider, shall provide such
Services on behalf of Provider unless mutually agreed by the Parties. If a
Provider Designee is unable to provide an applicable Service due to such
Provider Designee no longer being employed at Provider or as a result of
exigent circumstances affecting such Provider Designee, or if circumstances
arise in which Provider's continued provision of the Provider Designee's
Services would materially adversely affect Provider or the conduct of its
business, Provider may identify another designated employee of Provider (or
any of its Affiliates) as a replacement Provider Designee through a Change
Order Request, and if Governance Committee agrees to such replacement
Provider Designee through a mutually agreed Change Order Request, Provider
shall continue to perform the applicable Service through the replacement
Provider Designee. If Provider is unable to identify any other such employee
who has adequate skills to provide the applicable Service, Provider, through
its representatives on the Governance Committee, shall so notify the Company
in writing, and the Governance Committee shall meet and agree upon a
resolution to such situation. If, after such discussion, the Governance
Committee determines that Provider is no longer able to provide the
applicable Service, Provider or the Company shall each be permitted to
terminate such Service.
(d) Expenses. Unless otherwise mutually agreed to by the Governance
Committee, each Party shall bear its own expenses with respect to preparing
any requests or responses to Change Order Requests.
5. Termination.
(a) Termination of Services and Agreement. Provider's obligation to
provide the Services shall terminate on the date provided on the applicable
Service Schedule with respect
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to such Service (each, a "Service Termination Date"). The Company shall have
the right to terminate any Service prior to the applicable Service
Termination Date upon thirty (30) days prior written notice unless a
different termination notice period is specified in the applicable Service
Schedule. Termination of this Agreement shall terminate any and all
outstanding Service Schedules, but termination of any individual Service
shall not constitute a termination of this Agreement or any other Service.
If all Services shall have been terminated under this provision prior to the
expiration of the Agreement Term, this Agreement shall immediately terminate.
(b) Change of Control. Upon the occurrence of a Change of Control,
Provider shall have the right to (i) terminate this Agreement or any Service
Schedule hereunder upon ninety (90) days prior notice, provided that during
such notice period all Service Fees under this Agreement shall be increased
to reflect a pricing of full cost (including overhead) plus ten percent
(10%), as reasonably determined by Provider or (ii) to increase the Service
Fees hereunder to reflect full cost-plus pricing (including overhead), as
reasonably determined by Provider. For the purposes of this Agreement, a
"Change of Control" means the acquisition of the Company by a Third Party by
means of any transaction or series of related transactions to which the
Company is a party (including, any stock acquisition, merger or
consolidation), in which transaction or series of transactions (i) the
holders of outstanding voting securities of the Company immediately prior to
such transaction do not hold, directly or indirectly, at least 50% of the
combined outstanding voting power of the acquiring entity (or of the Company
if it is the surviving entity in such transaction), or its direct or
indirect parent entity, immediately after such transaction or series of
related transactions or (ii) the members of the board of directors of the
Company immediately prior to such transaction or series of related
transactions do not constitute at least a majority of the board of directors
of the surviving entity (or the Company if it is the surviving entity of
such transaction or series of transactions) immediately after such
transaction.
(c) Termination for Default. In the event of a Default (as defined below)
by a Party, the non-Defaulting Party shall have the right, at its sole
discretion, to terminate this Agreement if the Defaulting Party has failed
to cure such Default within thirty (30) days of receipt of written notice of
such Default. Each of the following events shall be deemed a "Default" under
this Agreement:
(i) The Company shall fail to pay to Provider any undisputed amount
of any Monthly Fees within thirty (30) days of receipt of an invoice
therefor or shall fail to pay to Provider any amount of any Monthly Fees
disputed in good faith by the Company within thirty (30) days after
resolution of such dispute;
(ii) Either Party shall default, in any material respect, in the due
performance or observance by it of any of the terms, covenants or
agreements contained in this Agreement, other than those expressly
addressed in clause (i); or
(iii) Either Party shall become or be adjudicated insolvent and/or
bankrupt, or a receiver or trustee shall be appointed for either Party
or its property or a petition for reorganization or arrangement under
any bankruptcy or insolvency law shall be approved, or either Party
shall file a voluntary petition in bankruptcy or shall consent to the
appointment of a receiver or trustee that is not discharged within 90
days.
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(d) Accrued Fees and Obligations. Except in the event of termination of
this Agreement as a result of a Default by Provider under Sections 5(b)(ii),
all accrued and unpaid Monthly Fees shall be due and payable upon
termination of this Agreement. Except as expressly provided herein, the
expiration or termination of this Agreement or the expiration of or
termination of any Service shall not relieve either Party of any obligations
or liabilities accruing prior to the date of such termination or expiration.
6. Relationship of the Parties. In providing the Services, Provider shall at
all times be an independent contractor. Nothing contained herein shall be
construed, applied or intended to create the relationship between the parties
hereto of principal and agent or of employer and employee or of a partnership
or joint venture. Provider shall have no authority to act as an agent of the
Company for any purpose and shall not enter into any contract, understanding or
agreement on behalf of the Company or incur any charge or expense in the name
of the Company.
7. Provider Representatives and Company Representative.
(a) Provider has appointed a representative(s) (each, a "Provider
Representative") in respect of each of the Services under this Agreement as
set forth on each of the Service Schedules. If a Service has a specifically
identified Provider Designee, the Provider Designee may also be appointed as
the Provider Representative for that Service. Provider shall at all times be
responsible for giving reasonable directions to each Provider Representative
in relation to the provision of the Services to the Company. Provider may
replace any Provider Representative at any time upon written notice to the
Company. The relevant Provider Representative will manage the day-to-day
provision of the applicable Service and be the first point of contact
between the Company and Provider in respect of the provision of such Service.
(b) The Company shall be represented by a nominee (the "Company
Representative"), who shall be appointed by the Company to act on behalf of
the Company for purposes of this Agreement and may be replaced by the
Company at any time upon written notice to Provider.
(c) The role of the Provider Representative and the Company
Representative shall be, on behalf of Provider and the Company,
respectively, to coordinate the provision of the Services, to discuss and
reach agreement on any proposed changes to the Services, and to escalate any
disputes arising between the Company and Provider to the Governance
Committee.
8. Cooperation Between the Parties.
(a) Provider and the Company acknowledge that the success of this
Agreement will be greatly affected by the good faith cooperation of each
Party. Accordingly, the Parties agree to use commercially reasonable efforts
to achieve the stated purposes of this Agreement.
(b) The Company and Provider will establish a governance committee,
equally represented by the Company and Provider (the "Governance
Committee"). Resolution of all disagreements and disputes between Company
and Provider regarding the obligations and performance of either Party under
this Agreement and Service Schedules will first be attempted by the
Governance Committee. Decisions of the Governance Committee shall be by
unanimous
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vote, with the representatives of the Company on the Governance Committee
collectively having one vote and the representatives of Provider on the
Governance Committee collectively having one vote. In the event the
Governance Committee is unable to resolve the matter within thirty
(30) days, then either Party may seek any and all remedies available to such
Party under the Purchase Agreement or any applicable Transaction Document
and Sections 11.12, 11.13 and 11.14 of the Purchase Agreement shall apply.
Any Modified Services or Additional Services shall be reviewed by the
Governance Committee and incorporated by reference as part of this Agreement
and the Service Schedules through the process set forth in Section 4(b).
(c) At least once every month and at other times as requested to
facilitate a Change Order Request or as determined to be necessary at the
request of either Party, the Governance Committee shall meet to discuss and
give consideration to desired or necessary changes to the scope, level or
type of Services provided hereunder.
(d) In cases where the Parties need or desire to interact through
in-person communications in connection with the Services, such
communications, and the timing and location of such communications, shall be
coordinated between the applicable Provider Representative and the Company
Representative. The Governance Committee may formulate rules and procedures
for in-person communications relating to particular Services or categories
of Services, in which case the Parties shall comply with such rules and
procedures.
9. Personnel. Provider shall select, employ, supervise and direct all
personnel providing the Services hereunder. Provider's employees (or employees
of any of its Affiliates), if any, providing Services under this Agreement are
recognized as employees solely of Provider (or its Affiliates). The Parties
expressly agree that Provider and the Company are not joint or co-employers of
the employees providing such Services, and Provider shall provide and be solely
responsible for all salary, employment and other benefits and liabilities
relating to the employment, in each case, of persons who perform the Services
hereunder, including without limitation the provision of workers compensation
and disability insurance for such persons.
10. Indemnification.
(a) The Company shall indemnify, defend and hold harmless Provider and
its officers, employees, affiliates and agents from and against any losses,
damages, injuries or expenses ("Losses") incurred as a result of any claims
demands or actions by any independent third party arising out of or related
to (i) the Company's breach of this Agreement or the Company's gross
negligence or willful misconduct in connection with the performance of this
Agreement or (ii) the Company's use of Permitted Access to access
Provider's Accessed Premises, except in each case of clause (i) and (ii) to
the extent such Losses arise from Provider's breach of this Agreement or
Provider's gross negligence or willful misconduct.
(b) Provider shall indemnify, defend and hold harmless the Company and
its officers, employees, affiliates and agents from and against any Losses
incurred as a result of any claims demands or actions by any independent
third party arising out of or related to (i) Provider's breach of this
Agreement or Provider's gross negligence or willful misconduct in connection
with the performance of this Agreement or (ii) Provider's use of Permitted
Access to access the Company's Accessed Premises, except in each case of
clause (i) and (ii) to the extent
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such Losses arise from the Company's breach of this Agreement or the
Company's gross negligence or willful misconduct.
(c) NO PARTY SHALL BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS, LOST REVENUES AND LOSS OF BUSINESS), WHETHER
FORESEEABLE OR NOT, WHETHER OCCASIONED BY ANY FAILURE TO PERFORM OR THE
BREACH OF ANY REPRESENTATION, WARRANTY, COVENANT OR OTHER OBLIGATION UNDER
THIS AGREEMENT FOR ANY CAUSE WHATSOEVER. Claims for indemnification under
this Section 10 shall not be considered incidental, consequential, indirect
or special damages hereunder.
11. Limitation of Liability. The maximum aggregate liability of Provider to
the Company arising in relation to this Agreement in respect of the provision
or non-provision of Services, whether for breach of contract, tort (including
negligence), breach of statute or otherwise and whether arising out of any
single act, omission, event or circumstance or series of acts, omissions,
events or circumstances occurring, shall in no circumstances exceed the total
amount paid for Services by the Company to Provider under this Agreement.
12. Performance. The Services shall be performed by Provider for the Company
in a timely, competent and workmanlike manner and quality that are
substantially consistent with Provider's performance of such activities in its
business in the ordinary course. The Parties further acknowledge and agree that
Provider shall not be responsible for and is not guaranteeing the achievement
of any results from the performance of the Services hereunder. Provider's
performance of the Services shall not be subject to any performance criteria or
performance targets unless such criteria or targets are specifically set forth
in the Service Schedules.
13. Notices. All notices to be provided under this Agreement shall be made
in writing and shall be effective when delivered personally to the recipient,
transmitted by facsimile machine or electronic mail, with confirmation of
delivery retained, or one (1) business day after deposit for overnight
delivery, fees prepaid, with a nationally recognized overnight courier service,
or if mailed, five (5) business days after the date of mailing, to the
addresses of the Parties as set forth below:
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If to Provider: Verenium Corporation
00 Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
Fax: (000) 000-0000
If to the Company: BP Biofuels North America LLC
Attention: Director of Business Development
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
14. Governing Law. This Agreement shall be construed in accordance with, and
governed by, the law of the State of New York, without giving effect to its
conflict-of-laws provisions.
15. Assignment; Successors and Assigns. Neither this Agreement nor any
rights or obligations hereunder may be assigned by any Party without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld; provided, however, that either Party may assign this Agreement and
its rights and obligations under this Agreement to any of its affiliates
without the other Party's consent. This Agreement shall be binding upon
successors and permitted assigns of the Parties. Any assignment not in
accordance with this Section 15 will be null and void.
16. No Waiver. No waiver of any breach or default hereunder shall be
considered valid unless in writing and signed by the Party giving such waiver,
and no such waiver shall be deemed a waiver of any subsequent breach or default
of the same or similar nature. No failure on the part of any Party to exercise,
and no delay in exercising, any right, remedy, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege operate as a waiver hereof.
17. Amendments. No change, amendment or modification of this Agreement shall
be valid unless the same shall be in writing and signed by the Parties hereto.
18. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective as to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforcement of such provision in any other jurisdiction.
19. Headings. The section headings used in this Agreement are included for
convenience of reference only and in no way should be used to construe or
interpret this Agreement.
20. Counterparts; Signatures. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute a single instrument. Additionally, the Parties
acknowledge and agree that signatures to this Agreement provided by facsimile
or email in .pdf format shall be recognized as original signatures.
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21. Confidentiality.
(a) "Confidential Information" means any and all information, data and
technology disclosed and/or provided by any Party hereto or any of its
affiliates, as applicable (each a "disclosing party"), to the other Party
hereto or any of its affiliates (each a "receiving party"), including,
without limitation, any and all methods and/or materials used in the
business of the disclosing party or one of its affiliates, as applicable,
technical information, technologies, systems, processes, procedures,
know-how, data, trade secrets (as such are determined under applicable law),
samples, inventions (whether patentable or unpatentable), improvements,
methods, materials and compositions, devices, molecules, genetically
engineered organisms, formulae, illustrations, patent applications,
products, works of authorship, compilations, programs, schematics, designs,
drawings, technical plans, prototypes, production and manufacturing
processes and techniques, research, development activities and plans,
specifications, computer programs, object and source code, databases,
passwords, log on identifiers, algorithms, derivative works, reports, mask
works, business and financial data, business plans, skills and compensation
of employees and consultants, pricing, financial and operational
information, information regarding litigation or other regulatory actions or
complaints, marketing plans, customer and supplier information (including,
without limitation, actual or potential customers or suppliers, customer or
supplier lists, and customer or supplier requirements), regardless of the
form in which such information appears, or by which it is communicated
whether in tangible or intangible form, whether or not marked as
confidential or otherwise identified as confidential, and whether or not
stored, compiled or memorialized physically, electronically, graphically,
photographically or in writing, as well as all documents and other
information which contain or reflect or are generated from any of the
foregoing. Notwithstanding anything to the contrary contained herein, all
Work Product and Inventions shall be the Confidential Information of the
Company.
(b) Requirements. During the Agreement Term and for ten (10) years
thereafter, the receiving party shall hold all Confidential Information of
the disclosing party in confidence and shall not disclose, use, copy,
publish, distribute, display, disseminate, provide access to or in any way
disburse any Confidential Information, except: (i) as reasonably necessary
to carry out its responsibilities under this Agreement; (ii) as otherwise
allowed under this Agreement; or (iii) with written consent of the
disclosing party. The receiving party will use at least the same standard of
care as it uses to protect proprietary or confidential information of its
own (but no less than reasonable care) to ensure that its and its
affiliates' employees, agents, consultants and other representatives do not
disclose or make any unauthorized use of the Confidential Information of the
disclosing party.
(c) Exceptions. The obligations set forth in Section 21(b) shall not
apply to any portion of Confidential Information which the receiving party
can prove by competent evidence:
(i) is now, or hereafter becomes, through no act or failure to act on
the part of the receiving party or its affiliates in breach of this
Agreement, generally known or available;
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(ii) is known by the receiving party or its affiliates at the time of
receiving such information as evidenced by documentation pre-dating
disclosure to the receiving party or its affiliates by the disclosing
party;
(iii) is furnished to the receiving party by a third party that is
free to disclose to others without breach of any obligation of
confidentiality or non-disclosure; or
(iv) was independently developed by the receiving party or its
affiliates without reference to information provided by the disclosing
party, as evidenced by clear documentation.
(d) Permitted Disclosures. The receiving party and its affiliates are
expressly authorized to disclose Confidential Information of the disclosing
party as expressly permitted by this Agreement or if and to the extent such
disclosure is reasonably necessary in the following instances:
(i) exercising the rights and performing the obligations of the
receiving party under this Agreement;
(ii) prosecuting or defending litigation as permitted by this
Agreement;
(iii) complying with applicable laws and regulations;
(iv) disclosure to FDA, DOE, USDA or EPA or any comparable or
successor government agencies worldwide;
(v) disclosure to employees, agents, consultants and independent
contractors of the receiving party and its affiliates only on a
need-to-know basis and solely as necessary in connection with the
performance of this Agreement, provided that each disclosee must be
bound by similar obligations of confidentiality and non-use at least as
equivalent in scope as those set forth in this Section 21 prior to any
such disclosure; or
(vi) disclosure to any bona fide potential investor, investment
banker, acquirer, merger partner, or other potential financial partner;
provided that in connection with such disclosure, the receiving party
shall inform each disclosee of the confidential nature of such
Confidential Information and use reasonable efforts to cause each
disclosee to treat such Confidential Information as confidential.
In the event the receiving party or any of its affiliates are required to
make a disclosure of the Confidential Information of the disclosing party
pursuant to Section 21(d)(ii) or 21(d)(iii), it will, except where
impracticable, provide the disclosing party at least sufficient prior written
notice of any such disclosure so that the disclosing party may seek a
protective order or other appropriate remedy. Notwithstanding the foregoing,
the receiving party and its affiliates shall take all reasonable action to
preserve the confidentiality of the Confidential Information of the disclosing
party, including, without limitation, by cooperating with the disclosing party
to obtain a protective order or other appropriate remedy.
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(e) Notice of Non-Permitted Disclosure. If the receiving party becomes
aware of any unauthorized use or disclosure of the Confidential Information
of the disclosing party, the receiving party shall promptly notify the
disclosing party in writing.
(f) Injunctive Relief. Given the nature of the Confidential Information
and the competitive damage that would result to the disclosing party upon
unauthorized disclosure, use or transfer of its Confidential Information to
any third party, the Parties agree that monetary damages may not be a
sufficient remedy for any breach of this Section 21. In addition to all
other remedies, the disclosing party shall be entitled to seek specific
performance and injunctive and other equitable relief as a remedy for any
breach or threatened breach of this Section 21.
22. Intellectual Property and Work Product.
(a) Work Product. All personal property that is embodied in any tangible
form and that is created or provided by Provider for the Company in
performance of the Services (such personal property is referred to as "Work
Product") shall be owned by the Company. If requested by the Company,
appropriate portions (such as, but not limited to, designs, drawings, plans,
specifications, prints, and reports) of such Work Product will be furnished
in electronic format. Work Product may be in the form of a work of
authorship, a process diagram, a drawing, a blueprint, a model, a
specification, a design, a report, a manuscript, a document, a manual, a
chart, a photograph, a database, a computer program, a design for an
apparatus or process or system, working notes, a plan, or a model. Provider
will periodically furnish Work Product to the Company and at least
one tangible copy of such Work Product, or any part thereof, upon request by
the Company, and at least one (1) tangible copy of the Work Product upon
completion of the Services.
(b) Inventions. All inventions, improvements and discoveries made,
developed, or conceived by Provider in connection with the Services
performed hereunder shall be promptly and fully disclosed to the Company in
writing by Provider (such inventions, improvements and discoveries are
referred to as "Inventions"). All Inventions shall be owned the Company with
unencumbered title thereto.
(c) Assignment to Effect Ownership. Provider hereby assigns to the
Company any and all rights Provider has or may acquire in Work Product and
Inventions and intellectual property rights therein, or if assignment is not
permitted by law, waives such rights or grants to the Company an exclusive,
fully paid, perpetual irrevocable, worldwide license under such rights in
Work Product and Inventions and intellectual property rights therein for any
and all purposes. Provider agrees to execute any assignment or other
documents reasonably necessary to convey to the Company any right, title or
other interest to Work Product and Inventions and intellectual property
rights therein as necessary to effect the ownership of Work Product and
Inventions and intellectual property rights therein by the Company, and, at
the request of the Company, Provider shall execute all applications for
United States and foreign Letters Patent and any papers relating thereto
which the Company or its nominee deems reasonably necessary or proper. The
Company or its nominee shall have sole responsibility for the preparation,
filing and prosecution of all such applications for Letters Patent and will
bear all costs and expenses in connection therewith. However, the Company
shall have no obligation hereunder to file any patent application, secure
any patent or maintain any patent in force.
12
(d) The Company and Provider agree that any new discoveries or inventions
covered by a pending patent application or a provisional patent application
or otherwise invented or discovered under this Agreement by Provider and
obligated to be assigned to the Company pursuant to this Section 22(d) shall
be considered to be part of a joint research agreement in the context of 35
USC (S)103(c). Further, such invention or discovery shall be considered to
be owned by, subject to an obligation of assignment to, or otherwise
considered to be commonly owned by the same person at the time of the
applicable application for patent was made, and was assigned to the assignee
in accordance with the obligations set forth in 37 CFR 3.11, so as to in all
respects meet the obligations set forth in and not serve as a "prior art"
basis for rejection based on anticipation pursuant to 35 U.S.C. (S)(S)
102(e), (f), or (g). In addition, each Party hereby agrees to cooperate, as
reasonably necessary, and provide such applicable documentation as requested
by the other Party as such Party determines is reasonably necessary to
comply with this Section 22(d) and otherwise avoid rejection based on
anticipation pursuant to 35 U.S.C. (S)(S) 102(e), (f), or (g).
23. Access to Premises.
(a) The performance and receipt of Services hereunder shall not entitle a
Party or its personnel or agents to access the premises, facilities,
equipment or systems of the other Party except as specifically set forth
under a Service Schedule or as specifically authorized by a Receiving Party
Representative (such specified permitted access, "Permitted Access"). The
foregoing sentence does not limit either Party's right to access the Shared
Space (as defined in the Sublease Agreement) under and in accordance with
the Sublease Agreement. All Permitted Access shall be subject to the
requirements set forth in this Section 23 and the applicable Service
Schedule. For purposes of this Agreement, "Accessing Party" means the Party
using Permitted Access to access the Receiving Party's Accessed Premises;
"Receiving Party" means the Party whose Accessed Premises are being accessed
by the Accessing Party; "Accessed Premises" means a Receiving Party's
premises, facilities, equipment, supplies or systems that are accessed by
the Accessing Party; "Receiving Party Representative" means the Provider
Representative (if Provider is the Receiving Party) or the Company
Representative (if the Company is the Receiving Party), as applicable; and
"BP Premises" means the San Diego Premises other than the Verenium Sublet
Premises.
(b) All Permitted Access shall be subject to the following requirements,
in addition to the requirements specified in the applicable Service
Schedules: (i) the Accessing Party shall provide the Receiving Party's
Representative reasonable advance notice each time the Accessing Party plans
to access or use its Permitted Access, with such notice including details
regarding the personnel or agents of the Accessing Party who will be
accessing the Accessed Premises and the timing and nature of such
personnel's or agents' intended activities on the Accessed Premises;
(ii) the Accessing Party's personnel and agents shall comply with all
reasonable scheduling decisions, rules, policies and procedures established
by the Receiving Party Representative in connection with the Accessing
Party's exercise of the Permitted Access; (iii) the Accessing Party and its
personnel and agents shall not perform any activities or work on the
Accessed Premises except as specified in the applicable Service Schedule and
such activities and work shall be subject to the scheduling decisions,
rules, policies or procedures established by the Receiving Party
Representative; and (iv) the Receiving Party Representative and any designee
thereof shall have the right to oversee all uses of Permitted Access by the
Accessing Party and its personnel or agents and to prevent or cease any
particular use of Permitted Access
13
if the Receiving Party Representative or such designee determines that the
Accessing Party has violated any access requirements set forth in this
Section 23 or the applicable Service Schedule.
(c) Each time the Accessing Party uses Permitted Access to the Accessed
Premises, the Accessing Party shall comply with the Receiving Party's
written security policies, procedures and requirements made available by the
Receiving Party, and will not tamper with, compromise, or circumvent any
security or audit measures employed by the Receiving Party. The Accessing
Party shall not allow its personnel or agents to have access to the Accessed
Premises except as expressly permitted under this Section 23 and shall
prevent unauthorized use, destruction, alteration or loss in connection with
such unauthorized access.
(d) The Parties agree that if the Accessing Party accesses or uses
Permitted Access to the Accessed Premises, the Accessing Party shall assume
all responsibility and liability, and the Receiving Party shall not assume
any responsibility or liability, for any Losses (including any Losses
incurred or caused by an employee or agent of the Accessing Party) arising
out of the Accessing Party's use of such Permitted Access.
(e) In cases where the Company stores in, locates on or brings onto the
Verenium Sublet Premises any equipment, machinery, materials, supplies or
other items in connection with the performance of the Services, the Parties
agree that (i) Provider assumes no responsibility for or liability in
respect of any damage caused to such items other than damage caused solely
by Provider's gross negligence or willful misconduct, (ii) Provider shall
have no obligation to maintain or repair such items, (iii) Provider shall
not be a xxxxxx with respect to such items, (iv) Provider shall not use any
such items for any purpose other than performance of the Services, (v) the
Company may request at any time authorization for Permitted Access to remove
any such items, which authorization shall not be unreasonably withheld or
delayed, and (vi) upon expiration or termination of the applicable Services,
Provider may require the Company to remove such items from the Verenium
Sublet Premises promptly.
24. Controlling Provisions. If there is any conflict or inconsistency
between the terms and conditions set forth in the main body of this Agreement
and any of the Service Schedules attached hereto, the provisions of the Service
Schedules attached hereto and thereto shall control with respect to the rights
and obligations of the Parties regarding the Services. If there is any conflict
or inconsistency between the terms and conditions of this Agreement and any
other Transaction Document, the provisions of this Agreement shall control
solely with respect to the rights and obligations of the Parties regarding the
Services.
25. Insurance. At all times during the Agreement Term and for a period of
one year thereafter, Provider shall maintain sufficient insurance coverage to
enable it to meet its obligations under this Agreement and by law. Without
limiting the generality of the foregoing, Verenium will maintain (and shall
cause each of its Affiliates responsible for performing the Services to
maintain) at its sole cost and expense at least the following insurance:
(a) Commercial General Liability including (i) bodily injury,
(ii) property damage, (iii) contractual liability coverage, and
(iv) personal and advertising injury, in an amount not less than $1,000,000
per occurrence;
14
(b) Workers Compensation at statutory limits and Employer's Liability at
limits not less than $1,000,000 per occurrence; and
(c) Professional Liability Insurance covering errors and omissions and
wrongful acts in the performance of the Services. Such errors and omissions
insurance will include coverage for claims of infringement of the
copyrights, trademarks, and patents and misappropriation of trade secrets.
Such insurance will bear a combined single limit per occurrence of not less
than $2,000,000.
26. Force Majeure. Neither Party shall be liable for any failure of
performance attributable to acts or events (including but not limited to war,
acts of terrorism, conditions or events of nature, industry-wide supply
shortages, civil disturbances, work stoppage, labor disturbance, power
failures, failure of telephone lines and equipment, fire and earthquake, or any
law, order, proclamation, regulation, ordinance, demand or requirement of any
governmental authority) beyond its control which prevent in whole or in part
performance by such Party hereunder.
27. Survival. The provisions of Section 5(d) (Accrued Fees and Obligations),
Section 6 (Relationship of the Parties), Section 10 (Indemnification),
Section 11 (Limitation of Liability), Section 14 (Governing Law), Section 15
(Assignment; Successors and Assigns), Section 21 (Confidentiality) Section 22
(Intellectual Property and Work Product), Section 25 (Insurance), this
Section 27 (Survival) and Section 28 (Entire Agreement) shall survive
termination of this Agreement.
28. Entire Agreement. This Agreement, together with the Service Schedules
and other Transaction Documents, constitutes the complete agreement and
understanding among the Parties regarding the subject matter of this Agreement
and such other agreements and supersedes any prior agreement (including,
without limitation, the Term Sheet) understanding or representation regarding
the subject matter of this Agreement or such other agreements.
[Signature Page Follows]
15
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their duly and lawfully authorized officers or legal representatives effective
as of the date first set forth above.
BP BIOFUELS NORTH AMERICA LLC VERENIUM CORPORATION
By: By:
------------------------------- ------------------------------
Name: Xxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxx
Title: President Title: President and Chief Executive
Officer
[Signature Page - Verenium Transition Services Agreement]
SCHEDULE A
San Diego Premises Services
Provider Representative: Name: [...***...] *
Phone: [...***...] *
Email: [...***...] *
Location of Services: San Diego Premises.
Description of Services: Provider Work Capacity:
Designee:
Fiber Technology Services. [...***...] [...***...] *
Provider shall arrange for the Provider
Designee to provide consulting services and
training regarding the methodology of fiber
characterization and solids analysis.
Service Termination Date: December 31, 2010
Robotic Services. [...***...] [...***...] *
Provider shall arrange for the Provider
Designee to provide consulting services and
training regarding robotics operation and
maintenance.
Service Termination Date: August 31, 2011
Regulatory Consulting Services. [...***...] [...***...] *
Provider shall arrange for the Provider
Designee to provide consulting services and
training regarding regulatory issues.
Service Termination Date: August 31, 2012
Procedures: The Company's requests for services under this Service
Schedule shall be made in writing (including email) and such requests
shall detail the services requested by the Company and the dates and
times (during normal business hours) during which the services are
requested to be performed. Provider shall use commercially reasonable
efforts to accommodate the Company's requests as to the tasks to be
performed, the scheduling of the services and the duration of the
services. The Provider Representative and the Company Representative
shall be responsible for coordinating the details regarding the
provision of the requested services. The Company shall be responsible
for providing instructions to the Provider Designees regarding the
requested services. Access by a Provider Designee to the Company's
premises in accordance with the foregoing procedures for purposes of
performing the Services set forth in this Service Schedule shall be
"Permitted Access" under the Agreement.
A-1
Service Fee: [...***...] *
A-2
SCHEDULE B
General Finance & Tax Services
Provider Representative: [...***...] *
[...***...] *
[...***...] *
Location of Services: San Diego, Cambridge and Xxxxxxxx
Premises.
Service Term: Earlier of six months or January 31,
2011
Description of Services:
General Finance & Tax Services ("GFT Services"):
PeopleSoft/Oracle ERP
Provider shall provide the services necessary to support the
PeopleSoft ERP application software and server, in order to
provide ERP services, including financial and procurement
transaction activity processing. The suite of modules includes:
1. Financial Modules:
a. AP - Payables
b. GL - General Ledger
2. Supply Chain Modules:
a. PO - Purchasing
3. Nvision Reporting
Financial Accounting: Provider shall provide financial accounting
services for the BP Biofuels Subsidiaries utilizing Provider's
PeopleSoft ERP in accordance with the following requirements:
1. any transaction backlog shall not exceed one working day;
2. any banking transaction requests shall be executed
promptly; and
3. the financial ledgers shall be closed by the second
business day after the end of each calendar month subject to
materiality thresholds agreed by both parties.
Account Reconciliations and Information: Provider shall provide
reconciliations and analyses of the BP Biofuels Subsidiaries'
balance sheet and income statement accounts by the third business
day after every month end. Provider shall respond within five
business working hours (8 a.m. to 5 p.m. local time) to any
queries regarding transactions of the BP Biofuels Subsidiaries,
their suppliers, tax matters (including data for preparing
returns such as for income tax, property tax, sales and use tax,
excise tax), and similar services.
Budgeting and Forecasting: Provider shall provide support
services with respect to the creation and maintenance of budgets
and forecasts.
Xxxxxxxx Project and Manufacturing Accounting Services: Provider
shall provide consulting and management accounting services in
the following categories with respect to the Xxxxxxxx operations;
1. Xxxxxxxx capex reporting;
2. Xxxxxxxx manufacturing and processing costs; and
3. account reconciliations and information requirements.
Procurement/Purchasing:
Provider shall support the following functions related to the
Peoplesoft Purchasing Module
B-1
.. Set up new vendors in Peoplesoft for BP entities until cut over to
SAP.
.. Close purchasing activities in PeopleSoft at month end until cut
over to SAP.
.. Run receipt accrual reports at month end close until cut over to
SAP.
.. Provide assistance resolving PeopleSoft PO matching issues until
cut over to SAP.
.. Provide PeopleSoft training for BP procurement staff as needed
until cut over to SAP.
Tax Return Preparation: Provider shall prepare Louisiana and California
Sales and Use and Property tax returns for the BP Biofuels
Subsidiaries. All such returns shall be submitted to the Company for
review and filing no later than 5 business days before the due date of
the return. Provider shall arrange for ADP to prepare 2010 Form W-2s and
associated filings for the BP Biofuels Subsidiaries, and to provide those
returns to the affected employees and file them with the IRS in a timely
manner. The Company shall reimburse Provider for a reasonable fee charged
by ADP for such payroll filings. Provider shall have no responsibility
for preparing Federal or State Income Tax Returns for periods after the
Effective Date, but shall provide the information necessary for the
preparation of such returns as described under Account Reconciliations
and Information.
Support Grant Transfer and Audit Documentation to Company: Provider shall
provide services to facilitate the smooth transition of two State of
Florida grants from Provider to the Company.
.. Provide all hardcopy and electronic documentation/correspondence
and financial records associated with the two State of Florida grants.
.. Complete the 2009 financial audit (currently in progress) by the
State mandated date of September 30, 2010.
.. Provide the Company with backup documentation sufficient to carry
out the 2010 audit.
PeopleSoft ERP Data Maintenance: Provider shall provide help desk and
maintenance services with respect to master data such as suppliers,
customers, charts of accounts, cost centers, hierarchies for general
ledger analysis, fixed assets, project codes, and inventory items.
Records Storage and Access: Provider shall provide records storage and
access services both to original documentation and/or electronic access
from the San Diego Premises and Xxxxxxxx Premises.
IT Support: IT support for the PeopleSoft ERP Application shall be
provided, Monday through Friday 8:00 a.m. to 5:00 p.m. local time.
Emergency coverage shall be available twenty-four hours a day, seven-days
a week by cell phone. Provider shall be responsible for ensuring that the
individuals providing such extended coverage shall have at hand during
the times of their coverage the necessary equipment and tools to provide
remote support services under this Service Schedule from whichever
location such services are provided. All such IT support will be
performed in same manner and using the same degree of diligence and care
as Provider normally uses to provide such IT support for its own similar
operations and processing.
Provider shall provide services enabling the transfer of accounting
services from Provider to the Company or a designated third-party ERP, as
the Company may request from time to time.
Support Cut-Over to Company ERP: Provider shall provide services enabling
the transfer of accounting services from Provider to the Company or a
designated third-party ERP, as the Company may request from time to time.
B-2
Other: Provider shall maintain a contract with Pitney
Xxxxx for a postage meter at the San Diego facility,
and shall provide the Company access to use such
meter during the term of this Service Schedule.
Procedures: The Company's requests for services not
specifically detailed in this Service Schedule shall
be made in writing (including email) and such
requests shall detail the services requested by the
Company and the dates and times (during normal
business hours) during which the services are
requested to be performed. Provider shall use
commercially reasonable efforts to accommodate the
Company's requests as to the tasks to be performed,
the scheduling of the services and the duration of
the services. The Provider Representative and the
Company Representative shall be responsible for
coordinating the details regarding the provision of
the requested services. The Company shall be
responsible for providing instructions to the
Provider Designees regarding the requested services.
Security: Provider shall implement security
safeguards to ensure access to all systems, data and
information related to the Company and the BP
Biofuels Subsidiaries residing in Provider's
PeopleSoft ERP Application shall be limited to
employees of the Company, and employees or
contractors of the BP Biofuels Subsidiaries and
Provider, in each case, who are authorized by the
Company to have such access (for clarification, all
Provider Designees are authorized by the Company to
have such access). All such systems, data and
information shall be deemed to be Confidential
Information within the meaning of Section 21 of this
Agreement, and Provider shall ensure that all
systems, data and information are kept secure in the
same manner, and using the same degree of care and
diligence, as Provider normally uses to safeguard its
own similar systems, data and information.
Provider Designees: Provider shall arrange for the
following FTEs to provide the GFT Services during
normal weekday business hours: [...***...]
*
Service Fee: [...***...]
*
Monthly Cost Charge: [...***...] *
B-3
SCHEDULE C
Network & SharePoint Services
Provider Representative: [...***...] *
[...***...]
[...***...] *
*
Service Term: 90 days.
Company's Termination 15 days.
Notice Period:
Location of Services: San Diego Premises, Xxxxxxxx
Premises and Tampa, Florida offices
(the "Service Locations").
Description of Services: 1. Network Services. Provider shall
provide the following network
services:
(a) Provider will cause its
network identifications to be
maintained for the Company's use
after the Effective Date, in order
to facilitate access to existing
infrastructure and bioinformatics
applications.
(b) Internet access and shall
provide the services necessary to
support internet access.
(c) Wireless services for the
Company's guest users
(d) Telephony services and e-mail
forwarding services to the Company's
employees at the Service Locations,
and shall provide administrative
technical support for the Company's
Cisco VOIP telephony. The
administrative support will include
voice and voicemail functionality
support including forwarding Cisco
Voicemail to Company e-mail accounts.
(e) Provider shall cause Direct
Inward Dial to be available to the
Company for the Company's Cisco VOIP
telephony and Provider shall assist
with the transfer of the telephony
system to the Company's network
after the Company's network is
installed.
2. SharePoint Services. Provider
shall provide the following
SharePoint services: Provider will
cause its SharePoint system to be
available for the Company's use,
will provide backup services for
SharePoint data, and will provide
necessary support services to
maintain the SharePoint system, up
to a maximum Work Capacity of 50%
FTE per month.
3. Support. To support the network
services and SharePoint services,
Provider will cause to be provided
(i) IT support by Provider's
employees with expertise in IT
support, including incident
management and service desk support
and (ii) IT support by the product
vendor's specialists to the extent
necessary and appropriate. IT
support shall be provided, Monday
through Friday 8:00 a.m. to 5:00
p.m. local time. Emergency coverage
shall be available twenty-four hours
a day, seven-days a week by cell
phone. The IT support service
providers shall always have at hand
all the required tools to provide
remote support from the locations
they take calls for extended
coverage. All such IT support will
be performed in same manner and
C-1
using the same degree of diligence and care as
Provider normally uses to provide such IT support for
its own similar operations and processing.
4. Security: As applicable, Provider shall implement
security safeguards and protocols to ensure access to
all systems, information and data related to Company
and the BP Biofuels Subsidiaries is limited to only
employees or agents of Company and the BP Biofuels
Subsidiaries. As applicable, Provider shall ensure
that all systems, information and data of the Company
and the BP Biofuels Subsidiaries are kept secure and
confidential in the same manner, and using the same
degree of care and diligence, as Provider normally
uses to safeguard its own similar systems, information
and data.
Service Fees: [...***...] *
C-2
SCHEDULE X
Xxxxxxxx Premises Services
Provider Representative: [...***...] *
[...***...] *
[...***...] *
Location of Services: Xxxxxxxx Premises.
Description of Service:
Engineering Consulting Services: Provider shall arrange to provide
engineering consulting services regarding Xxxxxxxx Capex Work as
the Company may request, up to a maximum Work Capacity of 100% FTE
per month for one month.
Provider Designee: [...***...]
*
Service Termination Date: September 30, 2010.
Service Fee: [...***...] *
Engineering Support Services: Provider shall arrange to provide
engineering support services for Xxxxxxxx Capex Work as the Company
may request, up to a maximum Work Capacity of 300% FTE per month.
Provider Designees: [...***...]
Service Termination Date: September 30, 2010.
Service Fee: [...***...] *
Manufacturing Support for Xxxxxxxx Operations: Provider shall
arrange for the Provider Designee(s) to provide, at the Company's
request, technical consulting services in connection with the
Company's provision of manufacturing and technical service support
to its Xxxxxxxx operations with regards to process development at
scale, process trouble shooting, and process improvement at scale.
Provider shall provide such services up to a maximum Work Capacity
of 25% FTE per month.
Provider Designee(s): [...***...] *
Service Termination Date: [...***...] *
Service Fee: [...***...] *
Agriculture Development Services: Provider shall arrange for the
Provider Designee to provide technical consulting and assistance
with, among other things, work associated with feedstock supply at
the Xxxxxxxx facility and farm development at the Company's project
in Highlands, Florida. Provider shall provide such services up to a
maximum Work Capacity of 100% FTE per month.
Provider Designee: Xxxxx Xxxxxx
*
Service Termination Date: [...***...]
*
Service Fee: [...***...]
*
D-1
SCHEDULE E
Technical Consulting Services
Provider [...***...] *
Representative: [...***...] *
[...***...] *
Location of Services: San Diego Premises.
Service Termination August 31, 2012 unless specified below
Date:
Description of Services: At the Company's request, Provider
shall provide such technical consulting services as the Company
shall specify. Requests shall be submitted, no later than during
the facility operations meeting held during the week prior to
the week for which the technical consulting services are
requested. Provider shall use reasonable efforts but shall not
be responsible for assuring that the requested services will be
made available. Provider shall provide such services (by
employees designated by Provider to provide such services) up to
the following limitations on hours:
2010: up to 4 hours per week
2011: up to 3 hours per week
2012: up to 2 hours per week.
Service Fee:
2010: [...***...] *
2011: [...***...] *
2012: [...***...] *
Bioinformatics Consulting Services
At the Company's request, Provider shall provide such
bioinformatics services as the Company shall specify. Supported
systems shall include but are not limited to bioinformatics
systems such as SciLect, ADAMAS, Symphony, Reporting Services,
Speed Database, Automation Systems, and the Shipping Request
System. Provider shall provide such services (by employees
designated from Designee list below to provide such services) up
to the following limitations:
Up to 50% FTE per month through September 30, 2010
Up to 25% FTE per month from October 1, 2010 through
February 28, 2011
Provider Designee(s): [...***...]
Service Termination Date: February 28, 2011
*
Service Fee: [...***...]
*
E-1
SCHEDULE F
Intellectual Property Transition Services
Provider Representative: Name: [...***...] *
Phone: [...***...] *
Email: [...***...] *
Location of Services: San Diego Premises.
Service Term: 12 months
Provider Designee: Verenium IP Department Personnel
Permitted Access:
Any access by the Provider's consultants to the Company's premises
required for the performance of consultation services constitutes
'Permitted Access' as defined in section 23 of the agreement.
Description of Services: Upon the Company's request, Provider will
cause the Provider Designee to provide intellectual property
transition services up to a maximum Work Capacity of 75% FTE per month
for the first twelve (12) months of the Service Term, including but
not limited to the following services:
. Preparing and filing assignments relating to transferred
assets;
. Preparing and filing powers of attorney and/or change of
address forms relating to transferred assets;
. Notifying domestic and/or foreign agents of the transfer of
IP assets to the Company;
. Verifying the name of the legal entity holding IP assets to
be transferred to the Company and making assignment corrections
as appropriate;
. Performing diligence and follow-up to ensure that all
maintenance fees and annuities are paid by Provider through the
third quarter and facilitating the process of transferring
responsibility for payment of maintenance fees and annuities to
the Company;
. Performing diligence and follow-up to ensure that all agents
fees and taxes have been received and paid through closing;
. Facilitating the transfer of all invention disclosure IP
assets to be transferred to the Company (including related
notes, files, and related notebooks);
. Facilitating the transfer of all files - electronic and
physical (paper) - as requested by the Company, including a CD
of any and all sequence listings for patents and patent
applications filed within transferred IP assets;
. Facilitating the convergence of Provider's CPI data base
with the Company's CPI data base with respect to the
transferred IP assets;
. Being available for and providing phone assistance to the
Company docket and legal staff facilitating the transition
process;
. Facilitating meetings in San Diego between the Company
docket and legal staff regarding the transition process;
. Providing phone assistance and historical context to
attorneys assuming control of transferred IP assets in the
prosecution of those IP assets and the filing of other related
patent applications; and
. Providing services and assistance relating to the various IP
and technology data bases to which you have knowledge,
including but not limited to, [...***...].
. Providing training, support, and preparing instructional *
documentation for Company IP staff who will be assuming the
future IP interface role with the various IP and technology
F-1
databases to which you have knowledge, *
including [...***...];
. Preparing and/or filing:
. Responses to domestic and/or foreign
patent office matters; and
. Patent applications, such as new
applications, provisionals,
non-provisionals, PCTs, national phase
entries, etc., for certain IP assets to be
transferred to the Company:
. Assisting in any freedom to operate and/or
clearance matters as needed, particularly
related to IP assets to be transferred and
including appropriate interface with the
[...***...] databases;
. Informing the Company of any IP related
issues that emerge and that the Company should
be aware of as they emerge and providing
assistance as appropriate; and
. Paying annuities and maintenance fees for
all BP related patent cases (fully reimbursed
to V2 by BP for payments made for September
2010 on-xxxx).
Service Fee: [...***...]
Monthly Cost Charge: [...***...]
F-2
APPENDIX 1
CHANGE ORDER REQUEST
Date: __________________, 20__
Change Order Request Number:__________
_______________ (the "Requesting Party") hereby submits this Change Order
Request to _____________ (the "Other Party") pursuant to Section 4(b) of the
Transition Services Agreement, dated as of [__________], 2010 (the
"Agreement"), between the Requesting Party and the Other Party.
This Change Order Request pertains to the following (check one):
[_]Modified Services, as set forth in Schedule 1 hereto.
[_]Termination of Services, as set forth in Schedule 1 hereto.
[_]Additional Services, as set forth in Schedule 1 hereto.
The Requesting Party requests that the Other Party approve this Change Order
Request by signing in the designated space below. Upon the Other Party's
approval of this Change Order Request, the Modified Services or Additional
Services covered by this Change Order Request, as applicable, shall become
"Services" under the Agreement and the attached Schedule 1 shall become a
"Service Schedule" to the Agreement, in each case, subject to the terms and
conditions set forth therein.
Submitted by Requesting Party:
--------------------------------------
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
Approved by the Other Party:
on _______________, 20__:
----------------------------------
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
SCHEDULE 1 to
Change Order Request No. ____
FORM OF SCHEDULE FOR MODIFIED SERVICES OR ADDITIONAL SERVICES
Services
Provider Name:
Representative: Phone:
Email:
Service Term:
Location of Services:
Description of Services:
Service Fees:
