JOINT VENTURE AGREEMENT
Exhibit
10.14
THIS
JOINT VENTURE AGREEMENT (the “JV Agreement“) is made and entered into effective
as of August
4,
2006, by and between SEMO
Milling, LLC,
a
Missouri limited liability company (“SEMO”), and Ethanex
Energy North America, Inc.,
a
Delaware corporation (“Ethanex”). SEMO and Ethanex shall be referred to
individually as a “Party” and collectively as the “Parties.”
RECITALS
A. The
Parties signed a non-binding letter of intent dated July 3, 2006,
as
subsequently amended (the “LOI”) regarding the establishment of a joint venture
company to develop, commercialize and exploit certain technology of SEMO in
connection with the production, distribution and sale of ethanol and
ethanol-related products and corn and corn-based products from SEMO’s Cape
Girardeau, Missouri facility.
B. The
Parties now desire to formally organize a limited liability company under the
laws of the State of Missouri (the “Company”) through which they will develop,
manufacture, distribute, use, and sell ethanol and ethanol-based products and
corn and corn-based products.
C. Each
Party shall collaborate and lend its expertise to the successful achievement
of
the Company’s commercial objectives.
D. The
Parties enter into this JV Agreement to set out the terms governing the
management and operations of the Company and the Parties’ investment and
relationship as Members in the Company.
NOW,
THEREFORE, in consideration of the above Recitals, which are incorporated herein
by this reference, and the mutual promises, agreements and covenants set forth
in this JV Agreement, SEMO and Ethanex
agree as follows:
ARTICLE
1
DEFINITIONS
AND INTERPRETATION
In
this
JV Agreement, unless otherwise clearly indicated by the context, the following
terms, whether used in singular or plural forms, shall have the following
meanings:
|
1.1
|
“Articles
of Organization” means the Articles of Organization to be filed with the
Missouri Secretary of State’s office for purposes of legally organizing
the Company, in the form attached hereto as Exhibit
1.
|
|
1.2
|
“Assignment
Agreement” means the Assignment Agreement between Ethanex and the Company,
in the form attached hereto as Exhibit
5,
to be executed on the Effective Date pursuant to Section
8.1
of
this JV Agreement.
|
|
1.3
|
“Construction
Completion Date” means December 31,
2007.
|
|
1.4
|
“Construction
Start Date” means January 15, 2007.
|
|
1.5
|
“Contribution
Agreement” means the Contribution Agreement between SEMO and the Company,
in the form attached hereto as Exhibit
3,
to be executed on the Effective Date pursuant to Section
8.3
of
this JV Agreement.
|
|
1.6
|
“Corn
Mill” means the dry corn mill and custom bagging and logistics facility
owned and operated by SEMO at the Plant
Site.
|
|
1.7
|
“Corn
Processing Solutions, LLC” or “CPS” means the Colorado limited liability
company managed by SEMO.
|
|
1.8
|
“Deposit”
means the sum of $2,000,000 to be paid by Ethanex to the Company,
as more
fully described in Article
3
below.
|
|
1.9
|
“Effective
Date” means November 20, 2006.
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|
1.10
|
“Governmental
Authority” means the United States of America, any state, commonwealth,
territory or possession thereof and any political subdivision or
quasi-governmental authority of any of the same, including but not
limited
to courts, tribunals, departments, commissions, boards, bureaus,
agencies,
counties, municipalities, and other
instrumentalities.
|
|
1.11
|
“Operating
Agreement” means the Operating Agreement of the Company by and among
Ethanex, SEMO and the Company, in the form attached hereto as Exhibit
2,
to be executed on the Effective
Date.
|
|
1.12
|
“Plant”
means a 100 million gallon per year nameplate ethanol production
plant to
be constructed and operated by the Company on the Plant Site using
the
SEMO Technology licensed by SEMO to the Company.
|
|
1.13
|
“Plant
Site” means certain real property located in Cape Girardeau, Missouri on
which the Corn Mill is located.
|
|
1.14
|
“Reciprocal
Non-Disclosure Agreement” means the “Reciprocal Confidential Disclosure
Agreement” executed between the Parties and made effective on June 8,
2006, as amended from time to time.
|
2
|
1.15
|
“Related
Agreements” means the following agreements each to be dated and deemed
effective as of the Effective Date: (i) Operating Agreement, (ii)
Contribution Agreement, (iii) Technology Licensing Agreement, (iv)
Assignment Agreement, and (v) Services
Agreement.
|
|
1.16
|
“SEMO
Assets” means the assets of SEMO to be contributed as initial capital of
the Company including all of the assets owned, controlled by, or
licensed
to SEMO or its subsidiaries related to (but not including) the SEMO
Technology, and consisting of all leases, transferable licenses,
permits,
governmental authorizations, real property, personal property, equipment,
materials, supplies, prepaid deposits, accounts receivable, claims,
and
causes of action, but excluding the SEMO Excluded Assets.
|
|
1.17
|
“SEMO
Excluded Assets” means the SEMO Technology and all of SEMO’s right, title
and interest in CPS.
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|
1.18
|
“SEMO
Technology” means SEMO’s confidential and proprietary data, processes,
information, intellectual property, and know-how related to corn
milling
and/or dry milling fractionation technology, as more particularly
defined
in the Technology Licensing
Agreement.
|
|
1.19
|
“Services
Agreement” means the Services Agreement between Ethanex and CPS, in the
form of attached hereto as Exhibit
6,
to be executed on the Effective Date pursuant to Section
8.2 of
this JV Agreement.
|
|
1.20
|
“Technology
Licensing Agreement” means the Technology Licensing Agreement between SEMO
and the Company, in the form attached hereto as Exhibit
4,
to be executed on the Effective Date pursuant to Section
8.4
of
this JV Agreement.
|
|
1.21
|
“Third
Party” means any person or legal entity other than SEMO, Ethanex, or the
Company.
|
|
1.22
|
“Member,”
“Membership Interest,” “Board” and “Manager” shall have the meanings set
forth in the Operating Agreement.
|
|
1.23
|
In
this JV Agreement, except to the extent that the context otherwise
requires (i) whenever the words “include,” “includes” or “including” are
used they are deemed to be followed by the words “without limitation,” and
(ii) the definitions contained in this JV Agreement are applicable
to the
singular as well as the plural of such terms.
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ARTICLE
2
ORGANIZATIONAL
MATTERS OF COMPANY
| 2.1 |
3
| 2.2 |
The
name of the Company shall be Ethanex at SEMO Port,
LLC.
|
| 2.3 |
Subject
to the terms and conditions of this JV Agreement, on the Effective
Date,
the Parties shall adopt and execute the Operating Agreement in the
form
attached hereto as Exhibit
2.
The Operating Agreement shall more fully set forth the rights and
obligations of the Members in the Company and, to the extent permitted
by
applicable law, shall be consistent with the terms of this JV Agreement.
|
| 2.4 |
The
duration of the Company shall be perpetual subject to the provisions
of
this JV Agreement and the Operating Agreement.
|
| 2.5 |
The
purpose of the Company will be to (i) construct and operate the Plant,
(ii) develop, manufacture, distribute, use and sell ethanol and
ethanol-based products and corn and corn-based products, and (iii)
engage
in all activities necessary, customary, convenient or incident to
the
activities described herein.
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ARTICLE
3
DEPOSIT;
DISPOSITION OF DEPOSIT
| 3.1 |
Ethanex
shall pay the Deposit to the Company upon (i) the execution of this
JV
Agreement by the Parties, or (ii) the filing of the Articles of
Organization of the Company with the Missouri Secretary of State,
whichever occurs later.
|
| 3.2 |
The
Parties agree that following receipt of the Deposit, the Company
shall use
the Deposit to pay for soil and soil-compaction work at the Plant
Site and
analytical testing, permitting, and other administrative and operating
costs as necessary. The Parties further agree that such work is necessary
to facilitate construction of the Plant.
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| 3.3 |
The
Parties agree that on the Effective Date a sum equivalent to the
Deposit
shall be credited towards the Ethanex Cash Contribution to be contributed
by Ethanex to the Company as set forth in Section
4.1
below. In the event this JV Agreement is terminated prior to the
Effective
Date (except for a termination caused by SEMO’s breach or insolvency as
described Section
12.2
below), the Deposit shall be deemed a cancellation fee and SEMO shall
have
no obligation to return or refund the Deposit to Ethanex.
|
4
ARTICLE
4
INITIAL
CAPITAL CONTRIBUTIONS
| 4.1 |
Upon
the Effective Date, and contemporaneously with the execution of the
Related Agreements, Ethanex shall make an initial capital contribution
to
the Company in the amount of $30,000,000 (the “Ethanex Cash
Contribution”).
|
| 4.2 |
Upon
the Effective Date, and contemporaneously with the execution of the
Related Agreements, SEMO shall make an initial capital contribution
to the
Company in the form of the SEMO Assets (but excluding the SEMO Excluded
Assets) having a net asset value, in accordance with generally accepted
accounting principles before depreciation and amortization, of at
least
$15,000,000 and an agreed value of $30,000,000.
|
| 4.3 |
The
capital contribution provided by Ethanex pursuant to Section
4.1
above shall be used by the Company, to the extent practical, to fund
the
capitalizable assets of the Company including, without limitation,
the
design, engineering and construction costs of the Plant and the purchase
of equipment to be used in the operation of the
Plant.
|
| 4.4 |
The
capital contribution provided by SEMO pursuant to Section
4.2
above shall be used by the Company, to the extent practical, to facilitate
the construction and operation of the Plant, and to serve as security
for
third party financing to fund the capitalizable assets of the Company
including, without limitation, the design, engineering and construction
costs of the Plant and the purchase of equipment to be used in the
operation of the Plant.
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ARTICLE
5
OWNERSHIP
| 5.1 |
Subject
to the satisfaction of each Party’s contribution obligations as set forth
in Article
4
above, the initial Membership Interests of the Company shall be owned
fifty percent (50%) by SEMO and fifty percent (50%) by Ethanex.
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| 5.2 |
Without
the prior written consent of the other Party, a Party shall not acquire,
by purchase or otherwise, directly or indirectly, ownership or voting
control of Membership Interests of the Company representing more
than the
other Party’s Membership Interest of the Company on a fully diluted basis.
Profits and losses of the Company shall be allocated among the Parties
in
accordance with their relative Membership Interests.
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ARTICLE
6
GOVERNANCE
| 6.1 |
The
management of the Company and the responsibility for preparation
and
adoption of the Company’s business plan shall be vested in the Board of
Directors (the “Board) and such executives, officers and employees as the
Board may authorize and designate from time to time. The Board initially
shall be comprised of five (5) persons, two (2) of whom shall be
nominated
by SEMO, two (2) to be nominated by Ethanex, and one (1) to be nominated
by the Parties jointly. The Board shall have authority, on behalf
and in
the name of the Company, to perform those acts as provided in the
Operating Agreement, subject to those powers that are reserved to
the
Members of the Company, also as provided in the Operating Agreement.
|
5
| 6.2 |
The
Chairperson of the Board shall initially be appointed by SEMO and
shall
serve for a two (2) year term commencing on the Effective Date, after
which Ethanex shall appoint the Chairperson who shall serve for the
following two (2) years. Thereafter, the Parties shall alternate
the
appointments accordingly. The Chairperson shall preside over all
Board
meetings and, in the event of a deadlock by the Board, shall cast
the
deciding vote of the Board. The Chairperson of the Board also shall
serve
as the Manager of the Company as set forth in the Operating
Agreement.
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| 6.3 |
The
day-to-day management and operation of the Company shall be performed
by a
President/CEO appointed by and serving under the direction of the
Board.
The initial President/CEO of the Company shall be Xxxxxx Xxxxxxxxx.
The
President/CEO of the Company shall have the rights and duties provided
in
the Operating Agreement.
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| 6.4 |
The
Parties agree that neither the Board nor the Company shall have the
authority to do or undertake certain actions which are reserved to
the
Members as provided in the Operating Agreement. Certain actions of
the
Company shall require the approval of Members owning at least seventy-five
percent (75%) of the Membership Interests of the Company as set forth
in
the Operating Agreement.
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ARTICLE
7
OBLIGATIONS
OF THE PARTIES
| 7.1 |
In
addition to the other obligations set forth in this JV Agreement,
Ethanex
agrees that it shall:
|
| (a) |
use
all commercially reasonable efforts to obtain and secure non-recourse
debt
financing from one or more Third Party in the amount necessary to
complete
the Plant and Corn Mill (the “Third Party Financing”) on or before the
Effective Date to ensure sufficient project financing for the timely
design and construction of the Plant;
|
6
| (b) |
use
its commercially best efforts to cooperate with SEMO and in interacting
with engineers, contractors, vendors and other consultants engaged
by the
Company to provide products or services for the Company in order
to
complete construction of the Plant by December 31, 2007 (the “Construction
Completion Date”);
|
| (c) |
provide,
from time to time as required by the Company, management support
and local
logistical support integral to completion of the Plant on or before
the
Construction Completion Date;
|
| (d) |
use
its commercially best efforts to coordinate with Delta T Corporation
and
TIC Holdings, Inc., or firms of equivalent experience and resources,
together with the other necessary design and construction professionals,
to begin construction of the Plant no later than January 15, 2007
(the
“Construction Start Date”);
|
| (e) |
use
its commercially best efforts to enter into a written contract with
a
nationally recognized engineering firm to provide preliminary engineering
and design work for the Plant as is necessary to secure all applicable
permits required by the Missouri Department of Natural Resources
and any
other Governmental Authority to commence construction of the Plant
(the
“Preliminary Engineering Work”), upon terms and conditions acceptable to
SEMO including, without limitation, a requirement that the Preliminary
Engineering Work be completed no later than August 31,
2006;
|
| (f) |
use
its commercially best efforts to enter into a written contract with
a
nationally recognized EPC contractor no later than September 30,
2006 to
provide detailed engineering, procurement, and construction work
as is
necessary to ensure that construction of the Plant shall commence
no later
than the Construction Start Date (the “EPC Contract”), upon terms and
conditions acceptable to SEMO.
|
| (g) |
in
accordance with the terms and conditions of this JV Agreement, execute
and
deliver on the Effective Date the following Related
Agreements:
|
| (i) |
the
Operating Agreement, in the form attached hereto as Exhibit
2;
|
| (ii) |
the
Assignment Agreement, in the form attached hereto as Exhibit
5,
as more fully described in Section
8.1
below; and
|
7
| (iii) |
the
Services Agreement, in the form attached hereto as Exhibit
6,
as more fully described in Section
8.2
below; and
|
| (h) |
take
any further actions as may be necessary to complete and implement
the
transactions contemplated by this JV
Agreement.
|
| 7.2 |
In
addition to the other obligations set forth in this JV Agreement,
SEMO
agrees that it shall:
|
| (a) |
provide
reasonable assistance to Ethanex and the Company in connection with
Ethanex’s obligation to raise the Third Party Financing, including,
without limitation, by making key SEMO executives available for investor
meetings and providing financial, technical and market related information
in SEMO’s control to aid in the preparation of private placement
materials, subscription documentation or loan
documentation;
|
| (b) |
use
its commercially best efforts to assist Ethanex and the Company with
the
coordination and direction of engineers, contractors, vendors and
consultants engaged by the Company to provide products or services
to the
Company in order to complete the construction of the Plant by the
Plant
Completion Date;
|
| (c) |
use
its commercially best efforts to complete construction of the Corn
Mill on
or before the Effective Date;
|
| (d) |
in
accordance with the terms and conditions of this JV Agreement, execute
and
deliver on the Effective Date the following Related
Agreements:
|
| (i) |
the
Operating Agreement, in the form attached hereto as Exhibit
2;
|
| (ii) |
the
Contribution Agreement, in the form attached hereto as Exhibit
3,
as more fully described in Section
8.3
below; and
|
| (iii) |
the
Technology Licensing Agreement, in the form attached hereto as
Exhibit
4,
as more fully described in Section
8.4
below; and
|
|
(e)
|
take
any further actions as may be necessary to complete and implement
the
transactions contemplated by this JV Agreement.
|
8
ARTICLE
8
RELATED
AGREEMENTS
| 8.1 |
Unless
otherwise agreed in writing by the Parties, on the Effective Date,
Ethanex
shall execute and deliver to the Company the Assignment Agreement
whereby
Ethanex shall assign or otherwise transfer to the Company, and the
Company
shall assume or otherwise take or acquire from Ethanex, the EPC Contract
to construct a large scale, multi-million gallon per year ethanol
plant at
the Plant Site. The execution and delivery by Ethanex of the Assignment
Agreement shall be deemed a condition precedent to the obligation
of SEMO
to execute and deliver the Contribution Agreement as described in
Section
8.3
below.
|
| 8.2 |
On
the Effective Date, Ethanex shall execute and deliver to SEMO the
Services
Agreement whereby Ethanex shall retain CPS to perform certain services
consisting of installing the Technology in ethanol facilities owned
or
controlled by Ethanex and in Third Party ethanol facilities identified
by
Ethanex. Subject to the terms and conditions of the Services Agreement,
SEMO shall cause CPS to perform its services exclusively for Ethanex
during the term of the Services Agreement. The execution and delivery
by
Ethanex of the Services Agreement shall be deemed a condition precedent
to
the obligation of SEMO to execute and deliver the Technology Licensing
Agreement as described in Section
8.4
below.
|
| 8.3 |
Unless
otherwise agreed in writing by the Parties, on the Effective Date,
SEMO
shall execute and deliver to the Company the Contribution Agreement
relating to the SEMO Assets to be contributed to the Company as described
in Section
4.2
above. The execution and delivery by SEMO of the Contribution Agreement
shall be deemed a condition precedent to the obligation of Ethanex
to
execute and deliver the Assignment Agreement as described in Section
8.1
above.
|
| 8.4 |
On
the Effective Date, SEMO shall execute and deliver to the Company
the
Technology License Agreement granting the Company the right to use
and
commercialize the Technology in the field of ethanol production for
the
Company’s business purposes as outlined in Section
2.5
above. The execution and delivery by SEMO of the Technology Licensing
Agreement shall be deemed a condition precedent to the obligation
of
Ethanex to execute and deliver the Services Agreement as described
in
Section
8.2
above.
|
ARTICLE
9
TRANSFER
RESTRICTIONS
| 9.1 |
Any
sale, gift, transfer or other disposition, whether voluntary or by
operation of law, of a Member’s Membership Interest, other than in
accordance with the terms of this JV Agreement and the Operating
Agreement
shall be void and shall transfer no right, title or interest in or
to any
such Membership Interest to the purported
transferee.
|
9
| 9.2 |
Any
permitted transfer of a Membership Interest of the Company shall
be
performed in accordance with the terms and provisions set forth in
Article
XI
of
the Operating Agreement.
|
ARTICLE
10
REPRESENTATIONS
AND WARRANTIES
| 10.1 |
Each
Party represents and warrants to the other that it has the legal
right,
power and authority to enter into this JV Agreement and the Related
Agreements, and to fully perform its obligations hereunder and thereunder,
and that the performance of such obligations shall not conflict with
its
charter or organizational documents or any agreements, contracts
or other
arrangements to which it is a party.
|
| 10.2 |
EXCEPT
AS EXPRESSLY SET FORTH IN THIS JV AGREEMENT OR THE RELATED AGREEMENTS,
NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER
EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT.
|
| 10.3 |
IN
NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES,
OR AGENTS BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITIES,
WHETHER BASED UPON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE,
STRICT LIABILITY OR OTHER TORT, OR OTHERWISE, ARISING OUT OF THIS
AGREEMENT.
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ARTICLE
11
NON-EXCLUSIVE
RELATIONSHIP
|
11.1
|
The
Parties acknowledge that the Company is not intended to be the exclusive
vehicle for either Party to participate in the ethanol industry.
To the
extent the parties can pursue or exploit other business opportunities
relating to the manufacture, use, distribution and sale of ethanol
and
ethanol-based products and corn and corn-based products without a
breach
of their respective obligations to each other and to the Company
under
this JV Agreement, the Related Agreements, and the Reciprocal
Non-Disclosure Agreement, they shall be free to do so.
|
10
ARTICLE
12
TERM
AND
TERMINATION
|
12.1
|
This
JV Agreement shall commence when fully signed by the Parties hereto
and
shall continue in effect unless terminated pursuant to the provisions
of
this Article
12
or
by mutual written agreement of the Parties.
|
| 12.2 |
This
JV Agreement may be terminated and the transactions contemplated
hereby
abandoned by a Party sending written notice to other Party upon the
occurrence of one or more of the following
events:
|
| (a) |
If
the other Party shall fail to make its initial capital contribution
to the
Company as required in Sections
4.1 and 4.2,
as applicable;
|
| (b) |
if
the other Party shall commit a material breach of any of its obligations
under this JV Agreement, which, if remediable, is not remedied within
thirty (30) business days from the giving of written notice requiring
said
breach to be remedied;
|
| (c) |
if
the other Party, its creditor(s), or any Third Party shall file for
the
other Party’s liquidation, bankruptcy, reorganization, or dissolution, or
if the other Party is unable to pay any debts as they become due,
or if
the creditor(s) of the other Party have taken over its management.
|
| 12.3 |
This
JV Agreement may be terminated by SEMO and the transactions contemplated
hereby abandoned if: (i) Ethanex has not fulfilled its obligations
pursuant to Section
7.1(e)
above and the Preliminary Engineering Work has not been completed
by
August 31, 2006; (ii) Ethanex has not fulfilled its obligations pursuant
to Section 7.1(f) above and the EPC Work has not been completed by
August
31, 2006; (iii) Ethanex has not secured the Third Party Financing
on or
before the Effective Date; or (iv) construction of the Plant has
not
commenced on or before the Construction Start
Date.
|
| 12.4 |
This
JV Agreement may be terminated by Ethanex and the transactions
contemplated hereby abandoned if SEMO has not completed construction
of
the Corn Mill on or before the Effective
Date.
|
11
| 12.5 |
Termination
of this JV Agreement shall be without prejudice to the accrued rights
and
liabilities of the Parties at the date of termination, unless waived
in
writing by mutual agreement of the Parties.
|
| 12.6 |
Upon
termination of this JV Agreement, each Party shall discontinue use,
cancel
and return to the other Party, all confidential and/or proprietary
information of the other Party that has been furnished or obtained
in
contemplation of the transactions contemplated hereunder or in connection
with this JV Agreement, the Related Agreements, or the Reciprocal
Non-Disclosure Agreement, together with all reproductions and copies
thereof and other written documents related thereto retaining no
reproductions or copies or other written documents relating to such
confidential and/or proprietary information.
|
| 12.7 |
If
this JV Agreement is terminated and the transactions contemplated
hereby
are abandoned, this JV Agreement shall become null and void, except for
the provisions of this Article
12
and the other provisions of this JV Agreement which, by their nature,
are
intended to survive.
|
ARTICLE
13
FORCE
MAJEURE
| 13.1 |
The
failure or delay of either Party to perform any obligation under
this JV
Agreement solely by reason of acts of God, acts of government (except
as
otherwise enumerated herein), riots, wars, embargoes, strikes, lockouts,
accidents or other causes beyond its control (each a “Force Majeure
Event”) shall not be deemed a breach of this JV Agreement; provided,
however, that the Party so prevented from complying herewith shall
not
have procured such Force Majeure Event, shall have used all reasonable
diligence to avoid such Force Majeure Event and ameliorate its effects,
and shall continue to take all actions within its power to comply
as fully
as reasonably possible with the terms of this JV Agreement.
|
| 13.2 |
Except
where the nature of the Force Majeure Event shall prevent it from
doing
so, the Party suffering such Force Majeure Event shall notify the
other
Party in writing within three (3) days after the occurrence of such
Force
Majeure Event and shall in every instance, to the extent possible
and
lawful under the circumstances, use its commercially best efforts
to
remove or remedy such Force Majeure Event with all reasonable dispatch.
|
12
ARTICLE
14
GOVERNING
LAW AND WAIVER OF JURY TRIAL
|
14.1
|
The
validity, performance, construction and effect of this JV Agreement
shall
be governed by the laws of the State of Missouri, without regard
to
conflict of law principles.
|
|
14.2
|
Each
Party hereby waives any right to a trial by jury in any action, lawsuit
or
proceeding to enforce or defend any right under this JV Agreement,
or any
amendment thereto, and agrees that any action, lawsuit or proceeding
will
be tried before a court and not before a jury.
|
ARTICLE
15
NON-WAIVER
AND OTHER REMEDIES
|
15.1
|
Failure
of any Party to insist upon the strict and punctual performance of
any
provision hereof shall not constitute waiver of nor estoppel against
asserting the right to require such performance, nor shall a waiver
or
estoppel in one instance constitute a waiver or estoppel with respect
to a
later breach whether of similar nature or
otherwise.
|
|
15.2
|
Subject
to Section
14.2
above, nothing in this JV Agreement shall prevent a Party from enforcing
its rights by such remedies as may be available in lieu of or in
addition
to termination.
|
ARTICLE
16
NOTICE
|
16.1
|
All
notices, requests, demands and other communications under this Agreement
or in connection herewith shall be given by letter (delivered by
hand or
by air courier) or by facsimile transmission confirmed by such letter,
and
shall be addressed to the Parties as
follows:
|
|
If
to SEMO:
|
SEMO
Milling, LLC
|
|
|
c/o
Xxxxxxx X. XxXxxx
|
||
|
000
X. Xxxxxxxx Xxxx, Xxxxx 000
|
||
|
Xxxx,
Xxxxxxxx 00000
|
||
|
Fax:
000.000.0000
|
||
|
With
a copy to:
|
Xxx
X. Xxxxxxxxxx, Esq.
|
|
|
Bennington
Xxxxxxx Xxxxxxxx & Craigmile
|
||
|
000
00xx
Xxxxxx, Xxxxx 0000
|
||
|
Xxxxxx,
Xxxxxxxx 00000
|
||
|
Fax:
000.000.0000
|
13
|
If
to Ethanex:
|
Ethanex
Energy North America, Inc.
|
|
|
c/o
McGuireWoods LLP
|
||
|
1345
Avenue of the Xxxxxxxx, 0xx
Xxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Attn:
Xxxxx X. Xxxxx, Esq.
|
||
|
Fax:
000.000.0000
|
||
|
With
a copy to:
|
Xxxxx
X. Xxxxx, Esq.
|
|
|
McGuireWoods
LLP
|
||
|
1345
Avenue of the Xxxxxxxx, 0xx
Xxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Fax:
000.000.0000
|
|
16.2
|
Any
notice, request, demand or other communication shall be effective
(i) if
given by facsimile, at the time such facsimile is transmitted and
the
appropriate confirmation is received (or, if such time is not during
a
normal business day, at the beginning of the following business
day), or
(ii) if given by air courier, when delivered at the applicable
address
specified above. Either Party may change its address at any time
by
written notice to the other Party given pursuant to this Article
16.
|
ARTICLE
17
MISCELLANEOUS
| 17.1 |
In
the event that any provision of this JV Agreement becomes or is declared
by a court or other tribunal of competent jurisdiction to be illegal,
invalid, unenforceable or void, such provision(s) shall be limited
or
eliminated to the extent necessary so that this JV Agreement shall
otherwise remain in full force and effect without said provision.
|
| 17.2 |
Each
Party shall pay all costs and expenses that it incurs with respect
to the
negotiation, execution, delivery and performance of this JV Agreement.
|
| 17.3 |
Neither
this JV Agreement nor any rights hereunder shall be assignable, directly
or indirectly, by any Party hereto without the prior written consent
of
the other Party, which consent shall not be unreasonably withheld
or
delayed.
|
| 17.4 |
This
JV Agreement supersedes all previous and contemporaneous representations,
understandings or agreements, oral or written, between the Parties
with
respect to the subject matter hereof, and the agreements and documents
contemplated hereby contain the entire understanding of the Parties
as to
the terms and conditions of their relationship. No changes, alterations
or
modifications hereto shall be effective unless they are in writing
and are
signed by an authorized representative of each
Party.
|
14
| 17.5 |
The
headings in this JV Agreement are included for convenience of reference
only and do not substantively affect the terms or interpretation
of this
JV Agreement.
|
| 17.6 |
This
JV Agreement may be executed in one or more counterparts, each of
which,
when executed, shall be deemed to be an original and all of which
together
will be deemed to be one and the same instrument. Delivery of an
executed
counterpart of a signature page to this JV Agreement by facsimile
transmission shall be effective as delivery of a manually executed
counterpart of this JV Agreement.
|
[Signature
Page to Follow]
15
IN
WITNESS WHEREOF, the Parties have executed this JV Agreement as of the date
first set forth above.
| SEMO: | |||
|
SEMO MILLING, LLC, a Missouri
limited
liability company
|
|||
| |
|
|
|
| By: | /s/ Xxxxxxx X. XxXxxx | ||
|
Name: Xxxxxxx X. XxXxxx |
|||
| Title: |
Manager |
||
|
|
|||
| ETHANEX: | |||
|
ETHANEX ENERGY NORTH AMERICA, INC.,
a
Delaware corporation
|
|||
| |
|
|
|
| By: | /s/ Xxxxx X. Xxxxxxxxx | ||
|
Name: Xxxxx X. Xxxxxxxxx |
|||
| Title: |
President and CEO |
||
|
|
|||
16
