EXH 10.10
AGREEMENT FOR PLANT DESIGN STUDY AND MARKETING
This Agreement is made and entered into as of July 22, 2000, by and
between RENTECH, INC., a corporation organized under the laws of the
United States (Rentech), and COMART, a business entity organized under
the laws of Italy (Comart).
The circumstances leading to this Agreement are as follows:
A. Rentech has developed a synthesis gas-to-liquids process
incorporating Xxxxxxx-Tropsch technology with a slurry reaction bed and
an iron-based catalyst known as the Rentech Gas-To-Liquids Technology
(Rentech GTL Technology). The Rentech GTL Technology is useful for
converting carbon-bearing gases into various liquid hydrocarbons such as
synthetic diesel fuel, naphtha, waxes, and other liquid hydrocarbon
products.
X. Xxxxxx wishes to obtain certain rights to market the Rentech
GTL Technology for use with natural gas feedstocks. Comart also wishes
to engage Rentech to assist in the preparation of a basic design for a
generic 1,000 barrel per day plant to use the Rentech GTL Technology to
convert natural gas into liquid hydrocarbon products.
Now, therefore, in consideration of the background circumstances
and the following covenants, the parties agree as follows:
1. Marketing Rights. Rentech grants Comart non-exclusive rights
to market Rentech's licenses to use the Rentech GTL Technology anywhere
in the world, except India, for plants using natural gas as feedstock
that have a production capacity of up to 2,000 barrels per
day of liquid hydrocarbons. Rentech also grants Comart the exclusive
right to market Rentech's license to use the Rentech GTL Technology
anywhere in the world except India for plants that may be constructed by
ENI SpA and Edison SpA using only natural gas as feedstock. Comart shall
have no authority, nor shall it represent that it has authority, to bind
or commit Rentech to a license agreement or any other obligation or
commitment with any party. Rentech retains and reserves all rights to
determine the terms and provisions of its license agreements, catalyst
supply contracts and all other agreements related to the use of the
Rentech GTL Technology.
2. Cooperation. If Comart obtains one or more customers that
demonstrate bona fide interest to Rentech in using the Rentech GTL
Technology, Xxxxx and Rentech will jointly consider the opportunity. If
Rentech decides to pursue the opportunity, Rentech will conduct its own
negotiations, with the assistance of Comart, with the prospective
customer. Rentech will negotiate in good faith with each Comart customer
in an effort to reach agreement with the customer as to the terms of a
license agreement and related agreements for use of the Rentech GTL
Technology for each specific site proposed by the customer. If Rentech
and the customer agree upon mutually acceptable terms, Rentech will
provide a license to the customer, or where appropriate a license to
Comart allowing Comart to grant a sub-license to the customer, for each
specific site. To recognize the marketing costs associated with this
Agreement, Rentech shall pay to Comart, as its sole compensation, 15% of
any royalties Rentech actually receives under a license agreement from
production of liquid hydrocarbons in plants originated by Comart.
3. Technical Scope.
3.1 Plant Design Study - Technical Support. Rentech will
conduct engineering services for Comart to help to prepare the basic
designs for a generic plant (one that is not intended for any specific
site or natural gas feedstock) including process flow diagrams for a
1,000 barrel per day plant to use the Rentech GTL Technology to convert
natural gas into liquid hydrocarbon products such as synthetic diesel
fuel, naphtha and waxes. The design for the generic plant will emphasize
efficiency of capital costs and operating costs, which will nevertheless
depend in part upon the location for any plant, with a goal of obtaining
the maximum ratio of performance to cost. If Comart requests, Rentech
will also prepare alternate process flow diagrams to enable Comart to
compare the capital and operating costs of the alternative configurations
to use various natural gas feedstocks.
3.2 Plant Design Study - Fees. For the engineering
services to be carried out by Rentech in support of Comart, as described
in paragraph 3.1, Rentech will invoice Comart monthly for materials and
engineering services. Rentech's invoices will include a description and
the actual cost of the materials used and the designation of level of
experience of each engineer who provided services and the time spent by
each on the plant design study. Comart agrees to pay for the cost of any
travel or other out-of-pocket costs and for the cost of engineering
services at the rates described in Appendix X.
Xxxxxx agrees to pay Rentech's invoices for materials and
engineering services within 30 days from the date of receipt of each
invoice according to Comart's regular month-end payment schedule for its
accounts payable. Interest shall accrue at the four percentage points
over the official Euro LIBOR rate in effect at the time on sums not paid
when due. Comart will pay Rentech's costs of collection for unpaid sums,
including attorneys? fees and costs, and reasonable travel expenses. All
payments to Rentech will be in U.S. dollars by wire transfer to its
designated bank account. Upon default by Comart in timely payment or in
any other obligation under this Agreement, Rentech may, in addition to
any other remedies available to it at law or in equity, discontinue all
its work under this Agreement and hold as its property all payments
previously made by Comart as well as all work product of Rentech not
already paid for by Comart.
3.3 Xxxxxxx-Tropsch (FT) Synthesis Reactor Module. A
Schedule A package for the FT Synthesis Reactor Module will be prepared
by Rentech and its subcontractors in accordance with the scope of work
set forth in Appendix B. The fixed cost for the Schedule A package,
including deliverables and the payment terms, are set forth in Appendix
B.
3.4. Rentech will not start the work on the plant design
study until it receives written notice to do so from Comart that includes
the chemical composition of the proposed feedstock gas and the basis of
the design selected by Comart, together with payment of the sum described
in Appendix B.
4. Waiver of License Fee. Comart understands and agrees that
Rentech cannot license its technology in violation of any restrictions or
prohibitions imposed by the laws of the United States. No license from
Rentech is required for it to conduct the plant design study for Comart.
Accordingly, Rentech waives its customary charge of a license fee for the
purposes of this plant design study. Rentech will require that a license
agreement providing for payment of license fees and royalties and other
consideration to Rentech be entered into between it and anyone to whom
the Rentech GTL Technology is licensed. In the event of a change in
business approach to accomplish the purposes of this Agreement, Rentech
and Comart will negotiate a new agreement to reflect the new approach.
5. Use of the Plant Design Study. Comart will use the
information provided by the plant design study to obtain capital cost
estimates from contractors and suppliers of its choice for construction
of a 1,000 barrel per day plant using the Rentech GTL Technology for
conversion of natural gas to liquid hydrocarbons. Comart agrees to keep
the capital cost estimates it obtains confidential and not to disclose
them to anyone other than its potential customers. The parties agree
that the engineering drawings and other depictions of the Xxxxxxx-Tropsch
(FT) Synthesis Reactor Module that are proprietary, such as the internal
designs, aspects, configurations, operating conditions and functions of
the reactor module, and catalyst volume and separation of waxes from
catalyst, will remain in Rentech's possession and will not be removed
from the United States until a license agreement has been executed by
Rentech. Rentech and Comart will cooperate to enable Comart and its
contractors and suppliers to examine and study these engineering drawings
at Rentech's facilities in Denver, Colorado, provided that no copies or
other duplications of them may be made.
6. Export Licenses. Any and all obligations of Rentech under
this Agreement to provide Comart with any technical services or
information, for any purpose or pursuant to any other contract between
them, are expressly conditioned upon Rentech obtaining any and all export
and re-expert authorizations and licenses that may from time to time be
required of it for such purposes under United States law. Rentech agrees
to use its best efforts to obtain authorizations and licenses required of
it, but its inability to obtain such authorizations and licenses shall
not constitute a breach of this Agreement. If Rentech is unable to
obtain such authorizations or licenses, Comart may, but is not required
to, attempt to do so at its expense.
7. Reservation of Rights by Rentech. Rentech reserves the
right, by itself or with others, to develop, design, construct, license
and sell all synthesis gas reactors for use of the Rentech GTL Technology
and to prepare their designs and specifications, including without
limitation, processes, plans, flow sheets, drawings related to the
internal designs, aspects, configurations, operating conditions and
functions of the reactors, catalyst volume and catalyst recovery.
Rentech also reserves ownership of any and all rights to all proprietary
information and other know-how, technology and trade secrets contained in
the process flow diagrams, heat and mass balance diagrams, process plans,
engineering designs and specifications, instrumentation drawings,
computer software programs and source and object codes, construction and
fabrication standards and specifications, operating standards and
procedures provided by Rentech in the drawings for the plant design study
or in the course of presenting the plant design study. Comart will own
the plant design study drawings.
8. Term. The term of this Agreement shall extent for two (2)
years from the date stated in the introductory paragraph. The term shall
be automatically renewed for additional successive periods of one (1)
year each, unless either party gives the other written notice ninety(90)
days before the end of the term then in effect that it does not wish to
extend the term. The obligation to pay any fees or other sums of money
for obligations entered into before expiration of hits Agreement will
survive termination of this Agreement.
9. Confidentiality.
9.1 Information That Is Confidential; Obligation of
Confidentiality. Comart agrees that the terms of this Agreement are to
be strictly confidential except to the extent required to be disclosed by
law. In addition to the provisions of any separate, additional
agreements of confidentiality between them, Comart agrees that all
information that it receives from Rentech relating to the Rentech GTL
Technology; (i) the results of the plant design study, all aspects of the
design and operating process of synthesis gas reactor modules; (ii)
formulas for the use and induction of Rentech's catalyst; (iii) the
designs, plans and prospects of Rentech for development of plants using
the Rentech GTL Technology, and (iv) all other know-how, trade
secrets and proprietary information of Rentech including processes,
formulas, software programs and source and object code, improvements,
inventions, techniques, induction procedures, designs and plans for
Rentech plants, forecasts, new products, customer lists, information
regarding prospective financing sources, feedstocks, competitors, fee and
royalty amounts charged by Rentech, and (v) non-published financial
information relating to Rentech (Confidential Information) shall be
considered confidential, except as specified in the next section of this
Agreement. In addition, all information described as confidential in
other written confidentiality agreements executed by the parties shall be
considered confidential, except as specified in the next section of this
Agreement. Comart agrees that it shall neither use such information,
except pursuant to and in accordance with the terms and conditions of
this Agreement, nor disclose such information to anyone except to its
employees and agents that Comart determines need to know in connection
with the development, financing, construction or operation of any plant
licensed by Rentech to use the Rentech GTL technology and whose knowledge
of such information is necessary to effect the purposes of this
Agreement. Comart may only disclose Confidential Information to such
person if (i) such person has executed a confidentiality agreement
maintained by Comart in substantially the form of these provisions on
confidentiality, or (ii) Comart has taken other reasonable steps to
ensure that such person will maintain the confidentiality of the
Confidential Information during the term of this Agreement, and for the
additional period after termination or expiration of this Agreement until
such time as the information ceases being Confidential Information
pursuant to the provisions of the next section. Comart shall maintain
the confidentiality of the Confidential Information during the
continuance of this Agreement and thereafter until the information ceases
being confidential pursuant to the provisions of the next section.
9.2 Exception to Confidentiality. It is agreed, as an
exception to the foregoing obligations of confidentiality, that
information received by Comart from Rentech as a result of this Agreement
shall not be considered confidential, and Comart shall not be limited in
disclosing the same, if and to the extent that the information, as shown
by competent evidence, (i) is or becomes, through no fault of the party
obligated to maintain confidentiality, in the public domain; (ii) is
lawfully obtained by Comart from a source other than Rentech or its
agents; (iii) was already known by Comart at the time of its receipt, as
shown by reasonable proof filed with Rentech within a reasonable time
after its receipt; or (iv) required to be disclosed by law or order of
any court or governmental authority having jurisdiction. Disclosures that
are specific, including but not limited to operating conditions such as
pressures, temperatures, formulas, procedures and other like standards
and conditions, shall not be deemed to be within the foregoing exceptions
merely because they are embraced by general disclosures available to the
general public or in Comart's possession. Additionally, any combination
of features shall not be deemed to be within the foregoing exceptions
merely because the individual features are available to the general
public or in Comart's possession unless the combination itself and its
principle of operation are available to the general public.
9.3 Published Disclosure. It is agreed that the disclosure
of certain information by Rentech in a publication, such as in letters
patent or by otherwise placing it in the public domain, will not free
Comart from its obligation to maintain in confidence any information not
specifically disclosed in or fairly ascertainable from the publication or
other disclosure, such as, for example, the fact that information in the
publication or any portion of it is or is not used by either party.
Comart shall have the right to publish information or articles pertaining
to the Rentech GTL Technology, and its liquid hydrocarbon products only
if such information is not confidential, and, with respect to
Confidential Information, only upon prior written approval by Rentech,
which Rentech may withhold in its absolute discretion.
9.4 Non-Use after Termination. Comart shall not use the
Confidential Information after termination or expiration of this
Agreement unless and until such time as the information ceases being
Confidential Information pursuant to the provisions of this section.
10. Consequential Damages. In no event shall either Comart or
Rentech be liable to the other, whether arising under contract, tort
(including negligence), or otherwise, for loss of anticipated profits or
revenue, or opportunities if the design prepared for Comart is not used
in any plant constructed to use the Rentech GTL Technology. Comart
assumes the risk that it may not be able to find customers who can obtain
a license from Rentech, for legal reasons or otherwise. Comart will in
any event pay the sums due to Rentech for the plant design study.
Rentech makes no warranties, express or implied, with respect to use of
the Rentech GTL Technology.
11. Applicable Law. This agreement shall be governed by and
construed in accordance with the laws of the state of Colorado, United
States of America, (without regard to conflicts of law). All suits,
actions or proceedings arising out of or related to this agreement
(related proceedings) shall be brought in a court of competent
jurisdiction located in Denver County, Colorado, each of which courts
shall be an appropriate forum for all such related proceedings. Each
party hereby waives any objection which it ay now or hereafter have to
the jurisdiction of any such court over, or the laying of venue in any
such court or any such related proceeding.
12. Compliance. Comart and Rentech agree to strictly comply with
all applicable laws, regulations and orders of the United States. Each
party acknowledges and agrees that certain laws of the United States,
including the foreign Corrupt Practices Act, (15 U.S.C. Sections
78dd-1 et seq.), prohibits any person subject to the jurisdiction of the
United States from making any payment of money or anything of value,
directly or indirectly, to any foreign government official, foreign
political party, or candidate for foreign political office for the
purpose of obtaining or retraining business. Each party represents and
warrants that, in the performance of its obligations under this
Agreement, it has not made, and will not make, any such proscribed
payment. Each party shall indemnify and hold the other party and its
affiliates, officers, directors, agents and employees harmless against
any and all claims, losses and liabilities attributable to any breach of
this provision.
13. Invalidity of Provision. If any of the provisions of this
Agreement shall be held by a court or administrative agency of competent
jurisdiction to contravene the laws of any country, it is agreed that
such invalidity or illegality should not invalidate the whole Agreement,
but this Agreement shall be construed as if it did not contain the
provision or provisions held to be invalid or illegal in the particular
jurisdiction concerned, and insofar as such construction does not affect
the substance of this Agreement and the rights and obligations of the
parties hereto, it shall be construed and enforced accordingly. In the
event, however, that such invalidity or illegality shall substantially
alter the relationship between the parties hereto, affecting adversely
the interest of either party, then the parties hereto shall negotiate a
mutually acceptable alternative provision not conflicting with such laws.
14. Notices. Any notice, payment, request, demand or other
communication hereunder shall be in writing and shall be deemed to have
been duly given when (i) delivered personally, upon personal delivery to
the party to be notified; or (ii) one business day after sent
by facsimile transmission with confirmation by the sending party's
facsimile machine that the message was received by the party to be
notified, or (iii) seven business days after sent by airmail, registered
or certified mail, postage paid, to the party to be notified, at the
address set forth below:
Rentech, Inc.: COMART:
Xxxxxx X. Xxxxxxxx, President Massimillano Guglielminetti, Vice
President
Rentech, Inc. Comart
0000 00xx Xx., Xxxxx 000 Via Xxxxxxxxx Xxxxxx 2d
Xxxxxx, Xxxxxxxx 00000 21013 Gallarate (VA) - Italy
Either party may change its address, facsimile number or representative
to be notified by written notice to the other party.
15. Assignment. Neither party shall transfer or assign any of
its rights, liabilities, or obligations under this Agreement without the
express written consent of the other party, other than to one of its
subsidiary or affiliated companies; provided, however, that the assigning
party shall not be relieved of any of its obligations under this
Agreement. This Agreement is binding upon the successors and permitted
assigns of the parties.
16. Expenses. Except as may be otherwise agreed to in writing
each party shall be responsible for and bear its own costs and expenses
incurred in connection with the performance of its obligations under this
Agreement.
17. Miscellaneous. This Agreement contains every obligation and
understanding between the Parties relating to the subject matter hereof
and merges all prior discussions, negotiations and agreements, if any,
between them, except for the Pre-Bid Agreement between them dated May 24,
2000. Neither of the parties shall be bound by any conditions,
definitions, understandings, warranties or representations relating to
the subject matter hereof other than as expressly provided for or
referred to in this Agreement. This Agreement can be amended only by
written instrument properly executed by the parties; any purported
amendment not in writing and properly executed shall be null and void and
of no effect.
18. Counterparts. This Agreement may be executed in several
counterparts, and all copies so executed shall constitute but one and the
same agreement, which shall be binding on all the parties hereto
notwithstanding that less than all of the parties may have signed the
original or the same counterpart.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the date herein above first stated.
RENTECH, INC. COMART
By: By:
/s/ /s/
Name: Xxxxxx X. Xxxxxxxx Name: Massimillano Guglielminetti
Its: President Its: Vice President
APPENDIX A
Charges for Engineering Services
Designation of Engineer or Technician Hourly Rate
Senior Scientist $293/hour
Senior Engineer $250/hour
Engineer $152/hour
Rentech estimates that the cost of these engineering services will not
exceed US $50,000.
APPENDIX B
SCHEDULE A
The following outline describes the information to be provided.
The fixed cost of Rentech, Inc. for the following Schedule A package is
US $250,000. One-half of the payment (US $125,000) is due at the start of
this task and one-half (US $125,000) upon submittal of the Schedule A
package to Comart or other payment terms as may be negotiated between the
parties.
