Exhibit 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 Retch
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, Retch
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. Retch
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 Retch
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 Retch
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 this
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 Retch
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.
