Exhibit 10.10
LICENSING AGREEMENT
FOR ETHANOL PRODUCTION PROCESS
THIS LICENSING AGREEMENT is made and entered into this _____ day of
________________, 2001 by and between Broin and Associates, Inc., a South
Dakota corporation located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇, (hereinafter referred to as "Licensor") and Great Plains Ethanol,
L.L.C., located at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, (hereinafter
referred to as "Licensee").
WHEREAS, the Licensor is in the business of designing and building dry
mill ethanol plants; and
WHEREAS, Licensor and Licensee have entered into a Construction
Contract dated as of even date herewith ("Construction Contract") to
construct the dry mill ethanol plant near Chancellor, South Dakota
("Facility").
WHEREAS, Licensee has chosen Licensor as Design/Builder to construct
the Facility because that Licensor has expertise in the design and
construction of ethanol plants; and
WHEREAS, the Licensor possesses certain proprietary technology,
design information and operational information (hereinafter referred to as
the "Technology", as set forth in Exhibit A); and
WHEREAS, the Licensee wishes to license a plant design and its
associated proprietary design and operational information from the Licensor;
and
WHEREAS, the parties hereto are entering into a Confidentiality and
Non-disclosure agreement which is attached hereto as Exhibit B.
NOW, THEREFORE, in consideration of the foregoing mutual covenants
and agreements set forth herein, the parties agree as follows:
AGREEMENT
1.0 THE TECHNOLOGY
The "Licensor's Technology" refers to all proprietary rights,
including patents, copyrights, trade secrets, formulas, research data,
processes, know-how and specifications related to the Licensor's design and
construction of the Facility identified in Exhibit A.
2.0 THE GRANT
2.1 LICENSE
Licensor grants to Licensee a nonexclusive license to utilize
Licensor's Technology to make, use and sell Ethanol and related co-products
produced using the Licensor's Technology only at the facility located near
▇▇▇▇▇▇ County, South Dakota.
2.2 RESTRICTIONS
The Licensee agrees that it will use the items listed in Exhibit A
only in relation to the operation and maintenance of the Facility.
3.0 COMPENSATION
For and in consideration of the Licensee's execution of the
Construction Contract and for the payment of $100,000, which is included in
the Design/Build Contract Price Licensor executed this License Agreement with
Licensee.
4.0 TERM OF AGREEMENT
4.1 TERM
This Agreement shall commence on the date that the Facility operates
for seven days as provided in the Process Guarantee attached to the
Construction Contract and continue for so long as the plant shall exist to
use the Licensor's Technology.
4.2 BREACH
Any party shall be in default under this Agreement if said party
otherwise fails to perform any of its obligations under this Agreement. In
the event a party is in default under this Agreement, the non-defaulting
party shall have such rights and remedies as may be available at law or in
equity, including the right of specific performance and injunctive relief.
5.0 LIMITATION OF LIABILITY
In no event shall Licensor be liable to Licensee (or any other
party) for loss of profits or indirect, incidental, special, consequential,
or other similar damages arising out of any breach of this Agreement or
obligations under this Agreement.
6.0 INDEPENDENT CONTRACTOR
For the purpose of this Agreement and all services to be provided
hereunder, both parties shall be, and shall be deemed to be, independent
contractors and not agents or employees of the other. Neither party shall
have authority to make any statements, representations or commitments of any
kind, or to take any action, that will be binding on the other party.
7.0 SEVERABILITY
If any one or more of the provisions of this Agreement shall be held
to be invalid, illegal or unenforceable, such provision shall be enforced to
the maximum extent possible consistent with applicable law and the remaining
provisions of this Agreement shall remain in full force and effect.
8.0 ASSIGNABILITY
This Agreement shall be assignable by either party upon mutual
written consent of the parties hereto. It is understood and agreed by
Licensee that the Licensing Agreement will need to be Assigned to a new owner
prior to the operation of the Facility by a new owner. Neither party shall
unreasonably withhold consent to said transfer.
9.0 ENTIRE AGREEMENT
This instrument contains the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes any prior or
contemporaneous agreement.
10.0 MODIFICATIONS IN WRITING
No change, modification, extension, termination or waiver of this
Agreement, or any of the provisions herein contained, shall be valid unless made
in writing and signed by a duly authorized representative of each party.
11.0 GOVERNING LAW
The validity and interpretation of this Agreement and the legal
relations of the parties to it shall be governed by the laws of the State of
South Dakota, excepting that body of law related to conflict of laws.
12.0. CAPTIONS
The captions are provided for convenience and are not to be used in
construing this Agreement.
13.0 CONSTRUCTION
The parties agree that they have participated equally in the formation of
this Agreement and that the language herein should not be presumptively
construed against either of them.
14.0 CONFIDENTIALITY
The parties acknowledge that Licensor will likely be providing
confidential information to Licensee during the term of this Agreement. In
contemplation thereof, the parties have signed
Exhibit B--Confidentiality and Non-disclosure Agreement - which is hereby
incorporated by reference into this agreement.
15.0 DEFENSE OF THE TECHNOLOGY
The Licensor, in granting the Licensee a license to said Licensor's
Technology as noted in this Agreement, will defend the Licensee in matters
pertaining to infringement of Licensor's Technology including patents,
trademarks, copyrights, trade secrets, or any other proprietary rights owned
or controlled by third parties by reason of Licensee's manufacture, use, or
sale of Ethanol or ethanol co-generated products through Licensor's
Technology. Licensee shall inform Licensor immediately upon receipt of notice
of any suit, actions, claim or claims relating to patents, trademarks,
copyrights, trade secrets, or other proprietary rights having any bearing on
said Licensor's Technology. Should it so elect, Licensee, may, at its own
expense, assume the control of and join the Licensor in the defense of any
such suit, actions, claim, or claims. In the event that Licensor's Technology
is found to infringe in any of the aforementioned instances, Licensor will
pay any costs to change the Technology or to bring the Licensee into
compliance with the holders of any proprietary rights.
16.0 NOTICES
All notices hereunder shall be effective if sent by first class
mail, postage prepaid, and shall be deemed given and received one business
day after deposit with the post office. Supplemental to the delivery methods
described above, the parties may also fax and E-mail said notices. Notice
sent by recognized express courier, certified or registered mail shall be
considered the official and binding notice. Notice shall be to:
If to Licensor: By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: C.E.O.
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-Mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
If to Licensee: By: ▇▇▇▇▇▇ ▇▇▇▇▇
Its: Chairman
Address: ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT
ON THE DATE AND YEAR FIRST ABOVE WRITTEN.
LICENSOR: LICENSEE:
BROIN AND ASSOCIATES, INC. GREAT PLAINS ETHANOL, L.L.C.
By: ________________________________ By: ________________________________
Its President, ▇▇▇▇▇▇ ▇▇▇▇▇ Its Chairman, ▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT A
THE FOLLOWING ITEMS SHALL CONSTITUTE THE LICENSOR'S TECHNOLOGY THAT
LICENSOR IS TRANSFERRING TO LICENSEE UNDER THIS AGREEMENT:
1. ANY AND ALL PROCESS DIAGRAMS (A-1)
2. ANY AND ALL PROCESS INFORMATION (A-2)
3. ANY AND ALL MATERIAL AND ENERGY BALANCES (A-3)
4. ANY AND ALL BLUEPRINTS (A-4)
5. ANY AND ALL ISOMETRIC BLUEPRINTS (A-5)
6. ANY AND ALL TRAINING MANUALS (A-6)
7. ANY AND ALL OPERATIONS MANUALS (A-7)
8. ANY AND ALL OPERATIONS VIDEO TAPES (A-8)
9. ALL OTHER ITEMS AS MAY BE DISCLOSED FROM TIME TO TIME
BY LICENSOR TO LICENSEE. SUCH ADDITIONAL MATERIALS
WHICH SHOULD ALSO BE CONSIDERED TECHNOLOGY SHALL BE
DETERMINED SOLELY BY LICENSOR..
EXHIBIT B
CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT
This CONFIDENTIALITY AND NONDISCLOSURE AGREEMENT (this "AGREEMENT")
is made and entered into as of this _____ day of , ___________, 2001 by and
between Broin and Associates, Inc., a South Dakota corporation, having a
business address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ("DISCLOSER"): and Great Plains Ethanol, L.L.C., having a business
address at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("RECIPIENT"), with
reference to the following:
RECITALS
The following provisions form the basis for, and are hereby made a
part of, this Agreement:
A. The parties to this Agreement are entering into discussions or
negotiations for the purpose of Financing, Design, Engineering, Construction,
Training and Startup and Operation of an ethanol production plant to be
located in Chancellor, South Dakota.
B. During discussions, negotiations, design, engineering,
construction oversight, DCS system configuration and installation, employee
training, plant startup, and on-going consulting, Discloser may disclose to
Recipient certain information Discloser deems confidential and proprietary.
AGREEMENT
NOW THEREFORE, in consideration of the promises and mutual covenants
set forth herein, the parties agree as follows:
1.0 DEFINITION OF CONFIDENTIAL INFORMATION.
"CONFIDENTIAL INFORMATION" shall mean any and all information
disclosed by Discloser to Recipient relating to its business or technology
that Discloser designates as being confidential or which, under the
circumstances surrounding disclosure, should be treated as confidential,
regardless of whether Discloser provides such information to Recipient in
tangible form or it is retained in the intangible memory of Recipient.
Confidential Information includes, for example and without limitation,
Discloser's confidential business or technical information, such as financial
information or data, marketing techniques and material, business plans and
strategies, business operation and systems, pricing policies, information
concerning employees, customers, and/or vendors, trade secrets, discoveries,
inventions, improvements, research, development, know-how, designs, products,
compositions, prototypes, biological or physical materials and manufacturing
processes.
2.0 DISCLOSURE AND USE RESTRICTIONS
2.1 PERMITTED USE AND DISCLOSURE.
(i) Recipient may only disseminate Confidential Information to those
employees of Recipient who have:
(a) a demonstrable need to know;
(b) been informed of Recipient's obligations hereunder;
and
(c) are bound by an obligation of confidentiality to
Recipient at least as broad in scope as Recipient's
obligations hereunder.
(ii) Recipient may disseminate necessary portions of the
Confidential Information to consultants, engineers or associates of Recipient
for the sole purpose of making major modifications to or expanding the
facility, but only after said consultants, engineers or associates have
executed a Confidentiality and Nondisclosure Agreement with Discloser and
Recipient has received a copy of this signed Agreement. A breach of such
agreement shall be considered a material breach hereunder.
2.2 RESTRICTIONS.
Except as expressly provided in Section 2.1, Recipient shall not:
(i) Publish, disseminate or otherwise disclose or make available
Confidential Information received hereunder to any person, firm or
corporation without prior written consent of Discloser; or
(ii) Use Confidential Information for any purpose including, without
limitation, selling, leasing, renting, licensing, marketing or otherwise
distributing any Confidential Information or products, services, or processes
embodying or derived from same. Recipient agrees to use the same degree of
care that it uses to protect its confidential information of similar
importance, to prevent any unauthorized disclosure of Confidential
Information, but in no event less than a reasonable degree of care.
(iii) Modify or disseminate the Confidential Information or any part
thereof without the express written consent of the Discloser.
2.3 NO REVERSE ENGINEERING.
Recipient shall not alter, modify, break-down, disassemble, or
reverse engineer materials or compositions containing or constituting
Confidential Information without the express prior written consent of
Discloser.
2.4 DISCUSSIONS.
Recipient shall not publicize or disclose beyond those persons to
whom Confidential Information may be disclosed hereunder the existence and
the terms of this Agreement or the discussions that give rise to this
Agreement and all such information shall be deemed Confidential Information
for all purposes herein.
2.5 NOTIFICATION OF UNAUTHORIZED USE OR DISCLOSURE.
Recipient shall notify Discloser in writing immediately upon discovery of any
unauthorized use or disclosure of Confidential Information by Recipient or
its employees, consultants or associates, and will reasonably cooperate with
Discloser to regain possession of the Confidential Information and prevent
its further unauthorized use.
3.0 NO EXPORT.
Recipient shall not export, directly or indirectly, including but not limited
to export on the Internet or other network service, any Confidential
Information or technical data acquired by Recipient from Discloser under this
Agreement or any products utilizing any such data to any country for which
the U.S. Government or any agency thereof at the time of export requires an
export license or other Government approval without first obtaining such
license or approval.
4.0 EXCEPTIONS.
Recipient shall have no obligation under this Agreement to maintain
in confidence any information which it can demonstrate:
(i) is in the public domain at the time of disclosure;
(ii) is in the possession of Recipient free of any obligation of
confidence prior to the time of disclosure;
(iii) though originally, Confidential Information, subsequently
becomes part of the public knowledge through no fault of Recipient, as of the
date of its becoming part of the public knowledge;
(iv) though originally, Confidential Information, subsequently is
rightfully received by Recipient without obligations of confidence from a
third party who is free to disclose the information, as of the date of such
third-party disclosure; or
(v) is independently developed by Recipient without the use of any
Confidential Information, as of the date of such independent development.
Recipient shall be entitled to disclose Confidential Information in response
to a Court Order or as otherwise required by law; PROVIDED, HOWEVER; that
Recipient notifies Discloser prior to such disclosure, and in no case more
than ten (10) days after receiving such order to give Discloser time to
contest such order.
5.0 OWNERSHIP OF CONFIDENTIAL INFORMATION
5.1 OWNERSHIP OF MATERIALS.
Subject to the Construction Agreement and the License Agreement, all
materials furnished to Recipient by Discloser, including without limitation,
documents, drawings, apparatus, sketches, designs, biological or physical
materials, Confidential Information and Licensor's Technology as defined in
the License Agreement, and media upon which Confidential Information is
stored or recorded shall remain the property of Discloser, subject to the
terms and conditions of the License Agreement and Construction Agreement,
Recipient will return all such material, and all Copies thereof, to Discloser
within a reasonable time following Discloser's written request; PROVIDED,
HOWEVER; that Recipient may retain a single copy of the assignment data and
any other materials for archival purposes. This Agreement does not give
Recipient a license, implied or express, or other rights to the Confidential
Information.
5.2 OWNERSHIP OF DERIVATIVE WORKS.
Except as provided in the License Agreement and the Construction
Contract, any and all Derivatives of Confidential Information shall be the
property of Discloser. For purpose of this Agreement, "DERIVATIVES" shall
mean:
(i) for copyrightable or copyrighted material, any translation,
abridgement, revision, or other form in which an existing work may be recast,
transformed or adapted;
(ii) for patentable or patented material any improvement thereon; and
(iii) for other material whether or not protected by trade secret,
any new material derived from such existing trade secret material, including
new material which may be protectable by copyright, patent and/or trade
secret.
6.0 TERMINATION.
6.1 TERMINATION PRIOR TO CONCLUSION OF AGREEMENT.
Upon written notice from one party to the other, this Agreement and the
parties' rights and obligations with respect hereto may be terminated solely
as to yet undisclosed Confidential Information; PROVIDED, HOWEVER; that this
Agreement and the parties' rights and obligations hereunder shall survive and
remain in full force and effect with respect to all information, Confidential
Information or otherwise, disclosed prior to the receipt of such written
notice.
7.0 MISCELLANEOUS
7.1 ENTIRE AGREEMENT.
This Agreement constitutes the entire Agreement between the parties
hereto regarding the Confidential Information disclosed thereunder and
supersedes all oral or written agreements,
either entered prior to or contemporaneously with this Agreement, concerning
the Confidential Information. This Agreement may not be modified except by
written agreement dated subsequent to the date of this Agreement and signed
by both parties.
7.2 ASSIGNMENT.
Recipient shall not assign or transfer any rights or obligations
under this Agreement without the prior written consent of Discloser. Subject
to the limitations set forth in this Agreement, this Agreement will inure to
the benefit of and be binding upon the parties, their successors and assigns.
7.3 PRESUMPTIONS.
In construing the terms of this Agreement, no presumption shall
operate in either party's favor as a result of its counsel's role in drafting
the terms or provisions hereof.
7.4 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of South Dakota, excluding that body of law relating to
choice of law.
7.5 SEVERABILITY; WAIVER.
If any provision of this Agreement shall be held by a Court of
Competent Jurisdiction to be unenforceable, the remaining provisions shall
remain in full force and effect. A waiver by either of the parties hereto of
any of the covenants to be performed by the other party or any breach thereof
shall not be construed to be a waiver of any succeeding breach thereof or of
any covenant hereof contained.
7.6 HOLD HARMLESS.
The Recipient shall indemnify and save harmless the Discloser, its
officers, directors, consultants, employees, agents and assigns from and
against any liability, loss or damage arising out of Recipient's violation of
any of the Terms and Conditions of this Agreement.
7.7 REMEDIES.
In the event the Recipient breaches or threatens to breach any of
the covenants expressed herein, the damage to the Discloser will be great and
irreparable and difficult to quantify; therefore, the Discloser may apply to
a Court of Competent Jurisdiction for injunctive or other equitable relief to
restrain such breach or threat of breach, without the necessity of filing any
bond, and without disentitling the Discloser from any other relief in either
law or equity.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
DISCLOSER: RECIPIENT:
BROIN AND ASSOCIATES, INC. GREAT PLAINS ETHANOL, L.L.C.
By: ________________________________ By: ______________________________
Its President, ▇▇▇▇▇▇ ▇▇▇▇▇ Its Chairman, ▇▇▇▇▇▇ ▇▇▇▇▇