Exhibit 10.12
***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
BP NON-COMPETITION AGREEMENT
by and between
BP BIOFUELS NORTH AMERICA LLC
and
VERENIUM CORPORATION
BP NON-COMPETITION AGREEMENT
THIS BP NON-COMPETITION AGREEMENT (the "Agreement") is made as of
September 2, 2010 (the "Effective Date"), by and between BP Biofuels North
America LLC, a Delaware limited liability company ("BP") and Verenium
Corporation, a Delaware corporation ("Verenium").
RECITALS
Verenium and BP have entered into that certain Asset Purchase Agreement
dated as of July 14, 2010 (the "Asset Purchase Agreement"), pursuant to which,
among other things, Verenium will sell to BP, and BP will purchase from
Verenium, all of the assets, rights and properties of Verenium and its
Non-Biofuels Subsidiaries (as defined in the Asset Purchase Agreement) used in
or related to Verenium's lignocellulosic biofuels business and all of the
capital stock of the Biofuels Subsidiaries (as defined in the Asset Purchase
Agreement), but excluding the Excluded Assets (as defined in the Asset Purchase
Agreement) used exclusively in the Enzyme Business (as hereinafter defined); and
In the interest of protecting the Excluded Assets, the Enzyme Business and
the goodwill associated therewith, Verenium has required as a material
inducement to Verenium entering into the Asset Purchase Agreement and as a
condition precedent to its consummation of the transactions thereunder, that BP
enter into and deliver this Agreement.
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants contained in this Agreement, to induce the Parties to enter into the
Asset Purchase Agreement and consummate the transactions contemplated thereby,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the Parties, Verenium and BP agree as follows:
1. Definitions.
For the purposes of this Agreement, the following terms have the following
meanings:
1.1 "Affiliate" means any Person that directly, or indirectly through one or
more intermediaries, (a) controls, (b) is controlled by, or (c) is under common
control with, any other Person referred to in this Agreement. As used in this
Section 1.1, "control" means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of another
Person, whether through the ownership of voting securities, by contract, or
otherwise. One Person is presumed to control another Person if the first Person
possesses, directly or indirectly, fifty percent (50%) or more of the voting
rights in the second Person entitled to vote at a meeting of shareholders,
members, partners or other equity or ownership interest holders.
1.2 "Biofuels Affiliates" means, upon the consummation of the transaction
contemplated by the Asset Purchase Agreement, the Biofuels Subsidiaries (as
defined in the Asset Purchase Agreement), their successors and assigns, and any
Affiliate of BP which carries on or conducts any of the LC Business.
1.3 "Biomass" means material that originates from any monocotyledonous or
dicotyledonous plant, or an angiosperm, a gymnosperm or a pteridophyte, which
material can be or is intended to be used as a feedstock in the production of
biofuels, including agricultural, food and non-food crops and their residues
and wastes (e.g., normally non-food material from crops such as stalks, leaves,
husks, seed fiber, hulls), forestry residues and wastes (e.g., wood chips,
sawdust, cardboard, pressboard, dead trees, tree branches), municipal solid
waste (e.g., household garbage and paper products), food processing and other
industrial wastes, energy crops (e.g., fast growing trees and grasses grown for
this purpose), including corn xxxxxx, switchgrass, and sugar cane bagasse, as
well as trees. Biomass is often significantly composed of cellulose,
hemicelluloses and lignin structures and may also include oil crops and starch
components of crops.
1.4 "BP" means BP Biofuels North America LLC, a Delaware limited liability
company, or any successor or assign pursuant to Section 11.5.
1.5 BP License Agreement" means the BP License Agreement between BP and
Verenium, dated the Effective Date, as may be amended in accordance with its
terms.
1.6 "Confidential Information" means any and all information, data and
technology disclosed and/or provided by any of Verenium or BP or any of their
respective Affiliates, as applicable, and disclosures contemplated hereby,
including, without limitation, any and all methods and/or materials, 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.
1.7 "Disclosing Party" means a Party or its Affiliate that furnishes or
provides access to Confidential Information of such Party or its Affiliate to
another Party or its Affiliate.
1.8 "Effective Date" means the date as of which this Agreement is made as
set forth in the introductory paragraph.
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1.9 "Enzyme Business" means the business conducted by Verenium and its
Affiliates as of the Effective Date of research, development, manufacture and
commercialization of enzyme services and products for sale to Third Parties for
use in their businesses, including without limitation, within the biofuels,
specialty industrial processes, food processing and food ingredients, baking
and flour, detergents, cheese and dairy, oil seed processing, pulp and paper,
oil and gas, pharmaceuticals, electronics, diagnostic enzymes, reagents,
transgenic enzymes (non-biofuels), human and animal therapeutic proteins,
prebiotics, probiotics, waste process, water treatment, carbon sequestration,
algae protein expression, non-biofuels fermentation, chemicals, textiles and
animal nutrition and health markets.
1.10 "Enzyme Improvement Platform Technology" means Gene Site Saturation
Mutagenesis(TM)SM (GSSM(TM)SM) Technology and the Tunable Gene Reassembly(TM)SM
(TGR(TM)SM) Technology, Tailored Multi-Site Combinatorial Assembly (TMSCA) and
procedures, know-how, equipment and computer software related thereto and
developed by Verenium, and the patents and patent applications covering any of
the foregoing as listed and described on Schedule 1.10.
1.11 "LC Business" means the research, development, manufacture and
commercialization (including without limitation to make or have made, use or
have used, practice or have practiced, improve or have improved, import or have
imported, export or have exported, market or have marketed, distribute or have
distributed, license, sell, offer for sale or have sold) of lignocellulosic
ethanol and other lignocellulosic biofuels and lignocellulosic bioproducts,
lignocellulosic butanol and lignocellulosic diesel biofuels, including without
limitation conversion of cell wall sugars and/or cell wall sugar compounds into
biofuels or bioproducts, (which for the avoidance of doubt excludes starch to
biofuels or bioproducts), carried on or conducted by BP and/or any of its
Affiliates.
1.12 "Party" means either Verenium or BP and they may be referred to
collectively as "Parties." A reference to a "Party" includes that Party's
successors in title and assigns or transferees permitted in accordance with the
terms of this Agreement.
1.13 "Person" means any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company,
limited liability partnership, unincorporated organization, government (or any
agency or political subdivision thereof) or other legal entity or organization.
1.14 "Receiving Party" means any Party or its Affiliate that receives or has
access to Confidential Information of the other Party or its Affiliate.
1.15 "Territory" is defined in Section 3.
1.16 "Third Party" means a Person other than the Parties to this Agreement
and their respective Affiliates.
1.17 "Verenium" means Verenium Corporation, a Delaware corporation, or any
successor or assign pursuant to Section 11.5.
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1.18 "Verenium License Agreement" means the Verenium License Agreement
between BP and Verenium, dated as of the Effective Date, as may be amended in
accordance with its terms.
1.19 "Verenium Non-Competition Agreement" means the Verenium Non-Competition
between BP and Verenium, dated as of the Effective Date, as may be amended in
accordance with its terms.
2. Non-Disclosure Restrictive Covenant.
2.1 To protect Verenium's interest in its Confidential Information that
Verenium is retaining, and to protect the goodwill and value of the Excluded
Assets and the Enzyme Business, during the term of Verenium License Agreement
and for 10 years thereafter, each Party in its capacity as a Receiving Party
(on behalf of itself and its Affiliates) 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: (a) as reasonably necessary
to carry out its responsibilities under this Agreement; (b) as otherwise
allowed under this Agreement; or (c) 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.
2.2 Exceptions. The obligations set forth in Section 2.1 shall not apply to
any portion of Confidential Information which the Receiving Party can prove by
competent evidence:
2.2.1. 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;
2.2.2. 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;
2.2.3. 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
2.2.4. was independently developed by the Receiving Party or its
Affiliates without reference to information provided by the Disclosing
Party, as evidenced by clear documentation.
2.3 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:
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2.3.1. exercising the rights and performing the obligations of the
Receiving Party under this Agreement;
2.3.2. prosecuting or defending litigation as permitted by this Agreement;
2.3.3. complying with applicable laws and regulations;
2.3.4. disclosure to FDA, DOE, USDA or EPA or any comparable or successor
government agencies worldwide;
2.3.5. 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 2 prior to any such disclosure; or
2.3.6. 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 Disclosing 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 is required to
make a disclosure of the Disclosing Party's Confidential Information pursuant
to Section 2.3.2 or 2.3.3, 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.
2.4 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.
3. Non-Competition Restrictive Covenant.
To protect Verenium's interest in the Confidential Information that Verenium is
retaining and to protect the goodwill and value of the Excluded Assets and the
Enzyme Business, BP and its Biofuels Affiliates shall not anywhere in the world
(the "Territory"), engage, directly or indirectly, individually or in
association or in combination with any other Person, as proprietor or owner,
officer, director or shareholder (other than as a passive investor in and
holder of less than five percent (5%) of the equity of any publicly traded
corporation), member or manager of any limited liability company, or as an
employee, agent, independent contractor, consultant, advisor, joint venturer,
trustee, licensee, sublicensee, licensor, sublicensor, principal, partner or
otherwise, whether or not for monetary benefit:
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(a)provide enzyme products or enzyme services acquired by BP as part of the
Purchased Assets or as assets of the Biofuels Subsidiaries pursuant to
the Asset Purchase Agreement to the specific specialty industrial
processes markets set forth and described in Schedule 3(a) to this
Agreement for a period of five (5) years from the Effective Date, which
specific specialty industrial processes markets shall not include any
biofuels or bioproducts markets in whole or in part, and for avoidance
of doubt BP shall not sell enzyme products directly for use in
conventional starch to ethanol processes;
(b)in the use, licensing, sublicensing or sale of the enzymes or the Enzyme
Improvement Platform Technology which were acquired or licensed by BP as
part of the Purchased Assets (as defined in the Asset Purchase
Agreement) or as assets of the Biofuels Subsidiaries (as defined in the
Asset Purchase Agreement) pursuant to the Asset Purchase Agreement for
application outside of the LC Business for two (2) years from the
Effective Date; provided, however, this Section 3(b) shall not operate
or be construed to restrict, prohibit or limit BP and its Affiliates
from internal research and development; and/or
(c)in the licensing, sublicensing or sale of the Enzyme Improvement
Platform Technology which was acquired by BP as part of the Purchased
Assets or as assets of the Biofuels Subsidiaries pursuant to the Asset
Purchase Agreement to the specific competitors of Verenium set forth and
described in Schedule 3(c) to this Agreement for five (5) years from the
Effective Date; provided, however, this Section 3(c) shall not operate
or be construed to restrict, prohibit or limit BP and its Affiliates
from (i) internal research and development, or (ii) collaborating,
developing, manufacturing or otherwise working with, or receiving
products or services from, any Person listed on Schedule 3(c) for
purposes of or use in BP's biofuels business (which for the avoidance of
doubt, does not include a licensing program of the Enzyme Improvement
Platform Technology which was acquired by BP as part of the Purchased
Assets or as assets of the Biofuels Subsidiaries pursuant to the Asset
Purchase Agreement to a third party).
Notwithstanding the foregoing, the restrictions and limitations set forth in
this Section 3 shall not restrict, prohibit or limit, or be construed to
restrict, prohibit or limit the LC Business or BP's Affiliates with respect to:
(x) the sale of all or substantially all of (i) the LC Business, (ii) the
Purchased Assets and/or the Biofuels Subsidiaries, or (iii) BP's or any
Affiliate's assets; (y) the sale of equity securities of BP or its parent
company by the respective parent company thereof; or (z) the sale or issuance
of equity securities by any Affiliate or direct or indirect parent company of
BP, all in any way or at any time.
4. Employee Solicitation and Hiring Restrictive Covenant.
To protect Verenium's interest in the Confidential Information that Verenium is
retaining and to protect the goodwill and value of the Excluded Assets and the
Enzyme Business, BP and its Biofuels Affiliates shall not for a period of two
(2) years from the Effective Date anywhere in the Territory, individually, or
in association or in combination with any other Person, directly or indirectly,
as proprietor or owner, or officer, director or shareholder of any corporation,
or as a
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member or manager of any limited liability company, or as an employee, agent,
independent contractor, consultant, advisor, joint venturer, trustee, licensee,
principal, partner or otherwise, whether or not for monetary benefit:
(a) solicit, encourage, induce or entice any employee or independent contractor
of Verenium or its Affiliates to terminate or modify such person's or entity's
employment, engagement or business relationship with Verenium or its
Affiliates; or (b) hire, whether as an employee or independent contractor, any
Person who is, or that at any time in the twelve (12) month period prior to the
time of such hire had been, employed or retained by Verenium or its Affiliates;
provided, however, that the foregoing provision shall not apply to (i) any
employee or independent contractor if Verenium or its Affiliates has terminated
such employee or independent contractor; or (ii) any employee or independent
contractor who approaches or contacts BP or any of its Biofuels Affiliates in
response to a general solicitation or advertisement regarding employment with
BP or any of its Biofuels Affiliates.
5. Exceptions For Post-Closing Date Acquisitions.
Notwithstanding anything else contained in this Agreement, the provisions of
Section 3 shall not apply to any activities of any Person acquired (pursuant to
a stock or asset acquisition, merger or other form of transaction) by BP or its
Affiliates where 10% or less of the revenues of the acquired Person is from
activities that would violate Section 3 of this Agreement if engaged in by BP
or its Affiliates during the six-month period preceding the date of such
acquisition and as measured during each six-month period thereafter during the
term of the restrictive covenant in Section 3 of this Agreement.
6. Representations and Warranties.
6.1 Representations and Warranties of Verenium. Verenium represents and
warrants to BP as of the Effective Date: (a) Verenium (i) is a corporation duly
organized, validly existing and in good standing under the laws of its
incorporating jurisdiction, and (ii) has all requisite corporate power and
authority to enter into this Agreement; and (b) this Agreement is a valid and
binding obligation of Verenium enforceable in accordance with its terms, and
does not conflict with any agreement, instrument or understanding, oral or
written, to which it is a party or by which it may be bound, nor violate in any
material respect any law or regulation of any court, governmental body or
administrative or other agency having jurisdiction over it.
6.2 BP's Representations and Warranties. BP represents and warrants to
Verenium as of the Effective Date: (a) BP (i) is a limited liability company
duly organized, validly existing and in good standing under the laws of its
jurisdiction of formation, and (ii) has all requisite power and authority to
enter into this Agreement; and (b) this Agreement is a valid and binding
obligation of BP enforceable in accordance with its terms, and does not
conflict with any agreement, instrument or understanding, oral or written, to
which it is a party or by which it may be bound, nor violate in any material
respect any law or regulation of any court, governmental body or administrative
or other agency having jurisdiction over it.
7. Equitable Relief and Cumulative Remedies.
BP acknowledges and agrees that Verenium's remedies at law for breach of any of
the provisions of this Agreement would be inadequate and, in recognition of
this fact, BP agrees that, in the
7
event of such breach, in addition to any remedies at law it may have, Verenium,
without posting any bond, shall be entitled to obtain equitable relief in the
form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy that may be available. BP
further acknowledges that should BP or its Biofuels Affiliates violate any of
the provisions of this Agreement, it will be difficult to determine the amount
of damages resulting to Verenium and that in addition to any other remedies it
may have, Verenium shall be entitled to temporary and permanent injunctive
relief without the necessity of proving damages. The remedies of the Parties
are cumulative and not exclusive, and except as otherwise expressly provided in
this Agreement to the contrary, each Party shall have all rights and remedies
available under this Agreement, at law or in equity.
8. Acknowledgement.
Each of Verenium and BP acknowledge and agree that the covenants and agreements
contained in this Agreement have been negotiated in good faith by the Parties,
are reasonable and are not more restrictive or broader than necessary to
protect the interests of the Parties thereto, and would not achieve their
intended purpose if they were on different terms or for periods of time shorter
than the periods of time provided herein or applied in more restrictive
geographical areas than are provided herein. Each Party further acknowledges
that the other Party would not enter into the Asset Purchase Agreement and the
transactions contemplated thereby in the absence of the covenants and
agreements contained in this Agreement.
9. Separate Covenants.
The covenants contained in this Agreement shall be construed as a series of
separate covenants, one for each of the counties in each of the states of the
United States of America, and one for each geographic subdivision of each
country and each province or state within each such country.
10.Severability.
The Parties agree that construction of this Agreement shall be in favor of its
reasonable nature, legality and enforceability, and that any construction
causing unenforceability shall yield to a construction permitting
enforceability. It is agreed that the restrictive covenants and provisions of
this Agreement are severable, and that if any single covenant or provision or
multiple covenants or provisions should be found unenforceable, the entire
Agreement and remaining covenants and provisions shall not fail but shall be
construed as enforceable without any severed covenant or provision in
accordance with the tenor of this Agreement. The Parties specifically agree
that no covenant or provision of this Agreement shall be invalidated because of
overbreadth insofar as the Parties acknowledge the scope of the covenants and
provisions contained herein to be reasonable and necessary for the protection
of each of Verenium and BP. However, should a court or any other trier of fact
or law determine not to enforce any covenant or provision of this Agreement as
written due to overbreadth or otherwise, then the Parties agree that said
covenant or provision shall be enforced to the extent reasonable, with the
court or such trier to make any necessary revisions to said covenant or
provision to permit its enforceability and that any such limitation on the
enforceability of any such covenant or provision shall not effect the
enforceability of any other covenant or provision of this Agreement.
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11.General Provisions.
11.1 Governing Law. This Agreement will be governed and construed in
accordance with the laws of the State of New York, United States of America, to
the exclusion of both its principles and rules on conflicts of laws and the
provisions of the United Nations Convention on Contracts for the International
Sale of Goods.
11.2 Submission to Jurisdiction. Each Party hereby: (a) agrees to the
personal jurisdiction of any federal or state court located in New York, New
York with respect to any claim or cause of action arising under or relating to
this Agreement; (b) waives any objection based on forum non conveniens and
waives any objection to venue of any such suit, action or proceeding;
(c) waives personal service of any and process upon it; and (d) consents that
any services of process be made by registered or certified mail (postage
prepaid, return receipt requested) directed to it at its address stated in
Section 11.9 and service so made will be complete when received. Nothing in
this Section 11.2 will affect the rights of the Parties to serve legal process
in any other manner permitted by law.
11.3 Waiver of Trial by Jury. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN CONNECTION
WITH ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
OTHER RESTRICTIVE COVENANTS CONTEMPLATED HEREBY.
11.4 Independent Contractors. The Parties shall perform their obligations
under this Agreement as independent contractors, and nothing in this Agreement
is intended or will be deemed to constitute a partnership, agency or
employer-employee relationship among the Parties. None of the Parties will have
any right, power or authority to assume, create, or incur any expense,
liability, or obligation, express or implied, on behalf of any other Party.
11.5 Assignment. Neither this Agreement nor any rights or obligations
hereunder may be assigned or otherwise transferred directly or indirectly
(including without limitation by merger including by or through merger of a
subsidiary, sale of stock, sale of assets, transfer by operation of law or
change in control or otherwise), by any Party without the prior written consent
of BP (in the case of any assignment or transfer by Verenium), or Verenium (in
the case of any assignment or transfer by BP), which consent shall not be
unreasonably withheld. This Agreement shall be binding upon successors and
permitted assigns of the Parties.
11.6 Entire Agreement; Amendment; Waiver. This Agreement, together with all
exhibits attached hereto which are hereby incorporated by reference, the Asset
Purchase Agreement, the BP License Agreement, the Verenium License Agreement,
the Verenium Non-Competition Agreement and the other agreements by or among the
Parties expressly referred to herein or in the Asset Purchase Agreement, the
terms and conditions of which are herby incorporated by reference, constitutes
and contains the entire understanding and agreement of the Parties respecting
the subject matter hereof and cancels and supersedes any and all prior and
contemporaneous negotiations, correspondence, understandings, and agreements
between the Parties, whether oral or written, regarding the subject matter
hereof. No waiver, modification, or amendment of any provision of this
Agreement will be valid or effective unless
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made in writing and signed by a duly authorized officer of each of the Parties.
A waiver by a Party of any of the terms and conditions of this Agreement in any
instance will not be deemed or construed to be a waiver of such term or
condition for the future, or of any subsequent breach hereof.
11.7 Further Assurances. Each Party agrees that, subsequent to the execution
and delivery of this Agreement and without any additional consideration, it
will execute and deliver any further legal instruments and perform any acts
which are or may become reasonably necessary to effectuate the purposes of this
Agreement.
11.8 No Third Party Beneficiaries. This Agreement is neither expressly or
impliedly made for the benefit of any Third Party.
11.9 Notices. Any notice to be given under this Agreement shall be in
writing and shall be considered to be given and received in all respects when
hand delivered, upon written confirmation of delivery after being sent by
prepaid express or courier delivery service, upon confirmation of receipt when
sent by facsimile transmission or three days after deposited in the United
States mail, certified mail, postage prepaid, return receipt requested, in each
case addressed as follows, or to such other address as shall be designated by
notice duly given:
If to Verenium: If to BP:
Verenium Corporation BP Biofuels North America LLC
00 Xxxxxxxxx Xxxxxxx Attention: Director of Business Development
Xxxxxxxxx, XX 00000 000 Xxxx Xxxxxxxxxxx Xxxx
Attention: Chief Legal Officer and Chief Xxxxxxxxxx, XX 00000
Financial Officer Fax: (000) 000-0000
Fax: (000) 000-0000
11.10 Interpretation.
(a) Captions, Headings and Recitals. The captions and headings of clauses
contained in this Agreement preceding the text of the articles, sections,
subsections and paragraphs hereof are inserted solely for convenience and
ease of reference only and shall not constitute any part of this Agreement,
or have any effect on its interpretation or construction. The recitals
appearing at the beginning of this Agreement are incorporated into this
terms and conditions in full by this reference thereto.
(b) Singular and Plural. All references in this Agreement to the singular
shall include the plural where applicable, and all references to gender
shall include both genders.
(c) Articles, Sections and Subsections. Unless otherwise specified,
references in this Agreement to any article shall include all sections,
subsections, and paragraphs in such article; references in this Agreement to
any section shall include all subsections and paragraphs in such sections;
and references in this Agreement to any subsection shall include all
paragraphs in such subsection.
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(d) Ambiguities. Ambiguities and uncertainties in this Agreement, if any,
shall not be interpreted against any Party, irrespective of which Party may
be deemed to have caused the ambiguity or uncertainty to exist.
(e) English Language. This Agreement has been prepared in the English
language and the English language shall control its interpretation. In
addition, all notices required or permitted to be given hereunder, and all
written, electronic, oral or other communications between the Parties
regarding this Agreement shall be in the English language.
11.11 Counterparts. This Agreement may be executed simultaneously in
counterparts, including by transmission of facsimile or PDF copies of signature
pages to the Parties or their representative legal counsel, any one of which
need not contain the signature of more than one Party but both such
counterparts taken together will constitute one and the same agreement.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their respective duly authorized officers, effective as of the
Effective Date.
Verenium Corporation BP Biofuels North America LLC
By: By:
---------------------------------- ---------------------------------
Name: Xxxxxx X. Xxxx
Title: President and Chief Name: Xxxxx X. Xxxxxxxxxx
Executive Officer Title: President
[Signature Page - BP Non-Competition Agreement]
Schedule 1.10
Enzyme Improvement Platform Technology
[To Be Provided]
[Signature Page - BP Non-Competition Agreement]
Schedule 3(a)
Specialty Industrial Processes Markets
Chemical Processes
Agricultural Processes
Petroleum Processes
Human Health and Nutrition
Animal Health and Nutrition
Waste Treatment Processes
Carbon Sequestration Processes
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Schedule 3(c)
Competitors of the Enzyme Business
[...***...]
