Exhibit 10.7
TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into as of February 19, 1999 by and
between RENTECH, INC., a Colorado corporation having an address of ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Rentech"), and TEXACO ENERGY SYSTEMS INC.,
a Delaware corporation having an office at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Texaco").
WHEREAS, Rentech has developed a synthesis gas to liquids process
incorporating ▇▇▇▇▇▇▇-Tropsch technology with a slurry reaction bed and an iron
based catalyst and has filed patent applications on said process, some of which
have issued ("Rentech Technology");
WHEREAS, Texaco and its Affiliates have substantial expertise in
petroleum chemistry and processes associated therewith, and in particular, have
developed and are developing substantial expertise in synthesis gas and
▇▇▇▇▇▇▇-Tropsch technologies;
WHEREAS, Texaco, in the interest of reducing the time and cost of a
proposed development program regarding Rentech's ▇▇▇▇▇▇▇-Tropsch technology,
wishes to utilize the services of Rentech's technical staff and to use Rentech's
research facility located in Denver, Colorado for making some of such further
developments and improvements;
WHEREAS, Rentech is willing to provide its technical support and use
its research facility for specific technical tasks designated by Texaco.
THEREFORE, for and in consideration of the premises and mutual
covenants herein contained, the parties hereto agree as follows:
1. TECHNICAL SERVICES.
1.1 Services by Rentech. Rentech agrees to provide services to
complete mutually agreed upon activities relating to Rentech Technology
("Tasks") under the terms and conditions of this Agreement.
1.2 Tasks; Project Team; Technical Lead. The parties each agree to
appoint one member from the technical personnel of their respective companies to
a joint committee called the "Project Team," which will be responsible for
planning and coordinating the Tasks according to the terms and provisions of
this Agreement; provided that Texaco shall have the authority to direct and
approve performance of all Tasks and to designate a lead party primarily
responsible for accomplishing each particular Task ("Technical Lead"). The group
responsible for performing a Task may consist of Rentech personnel only, or a
combination of Rentech and Texaco personnel. In the absence of a Texaco employee
being appointed Technical Lead for a Task, ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (under the
Independent Contractor Agreement which is Exhibit C to the License Agreement
dated October 8, 1998 between Rentech and Texaco Natural Gas, Inc., now assigned
to Texaco Energy Systems, Inc. ("License Agreement")) shall represent Texaco and
be the Technical Lead. Such services by ▇▇▇▇▇▇ shall not exceed the sixty
percent (60%), two hundred seventy (270) hour limits of Attachment 1 to Exhibit
C of the License Agreement.
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1.3 Potential Tasks. Potential Tasks are identified in Exhibit A
attached to this Agreement. Either Texaco or Rentech may propose additional
Tasks. The Project Team will consult about the desirability of undertaking such
additional Tasks or activities. Whether any Tasks (additional or as identified
in Exhibit A) are to be approved and performed under the terms of this Agreement
shall be determined by Texaco, whose approval shall be given in writing
("Approved Tasks"). Whether any Approved Tasks are to be decreased in scope or
discontinued shall be determined by Texaco, which shall give notice in writing.
Additional Tasks shall be added to Exhibit A as an amendment thereto. In
addition, the Tasks described on Exhibit D attached hereto, performed or
underway by Rentech to the date this Agreement is signed by the parties, shall
be deemed Approved Tasks.
1.4 Summary of Task. Either party that proposes that an additional
Task be performed under this Agreement shall prepare a written summary
describing the Task, the need for performing the Task, and the goal to be
accomplished by successfully completing the Task ("Additional Task Summary").
Upon Texaco's decision to undertake any Task, Texaco will give written notice of
its decision to Rentech.
2. WORK BY THE PARTIES. Each party shall complete the Tasks as efficiently
and expeditiously as practical in accordance with the Task.
2.1 Progress Reports. At least monthly, and upon completion of
each scheduled event in a Task, Rentech shall give Texaco a confidential,
written report describing in detail the progress of the Task, its future
direction, and if completed, a comprehensive report. The reports shall be
distributed to the members of the Project Team. The monthly reports shall be
accompanied by schedules showing variations from the time schedule and budget
for the original Task Plan, if any, together with revised budget projections and
time estimates. The Project Team shall amend the Task by mutual agreement, if
appropriate and necessary to keep it current with actual progress on the Task.
2.2 Final Task Reports. Each Task shall be completed once the
activities listed for a Task have been completed and Rentech has given a final
Task Report to the members of the Project Team.
3. FEES. Texaco shall pay Rentech its fees for services and use of its
research facility as defined in Exhibit B. All fees due Rentech for Approved
Tasks under this Agreement are recoverable and payable to Rentech for services
performed from and including February 19, 1999 regardless of when this Agreement
is signed. All invoices are payable within thirty (30) days of receipt by
Texaco.
4. OWNERSHIP OF IMPROVEMENTS. It is possible that in the course of
performing the Tasks, personnel of Rentech, or Texaco and Rentech collectively,
will conceive inventions, proprietary information or improvements relating to
the Rentech Technology ("Improvements"). All Improvements to the Rentech
Technology that are developed under this Agreement, whether by Rentech, or
jointly by Rentech and Texaco, shall be the property of Texaco, which shall have
the right to file patent applications for Improvements. Texaco agrees to
disclose to and hereby grants to Rentech a nonexclusive, royalty-free,
irrevocable, worldwide license, to make, have made, use and practice all
Improvements (excluding those which relate to Texaco Gasification Process,
Texaco Gasification Power Systems, and Texaco Gasification ▇▇▇▇▇▇▇-Tropsch) that
may be developed, including the right to grant sublicenses; provided, however,
if Texaco determines and gives notice in writing to Rentech that an Improvement
contains proprietary information of a third party which is not authorized by
that third party or which infringes an intellectual property right of a third
party, then Rentech will cease usage of such proprietary information or such
Improvement that infringes and there will be no Texaco grant of any license
(including the right to grant sublicenses) to Rentech for the portion of the
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Improvement which contains such proprietary information or which would cause the
infringement. In such event, Rentech will be entitled to discontinue its
services under this Agreement for that Task and use of its research facility for
such Task.
4.1 Patents. Decisions concerning whether and how to file
applications for patent protection of any or all such Improvements shall be the
sole responsibility of Texaco, in its sole discretion. Texaco will file and
prosecute such applications and maintain any resulting patents. Rentech will
assign its entire right, title and interest in and to any and all of such
Improvements and any applications for patents thereon, whether domestic or
foreign, to Texaco, or its designee. Rentech will, when requested by Texaco and
at the expense of Texaco, execute and deliver all papers deemed proper and
necessary by Texaco in connection with the preparation, assignment, filing and
prosecution of applications for patent covering such Improvements and will make
all rightful oaths useful to Texaco in obtaining, perfecting or enforcing such
patents. Rentech will at the expense of Texaco, assist Texaco in every lawful
way to obtain and sustain patent, copyright and trade secret protections to the
Improvements, all for the benefit of Texaco, as and when requested by Texaco.
4.2 Sublicenses by Rentech. As express conditions of any
sublicense granted by Rentech under the initial paragraph of this Section 4,
each sublicensee shall be required to agree in writing that the sublicense is
subject to confidentiality obligations substantially similar to the terms of the
Secrecy Agreement attached as Exhibit C to this Agreement and incorporated
herein. Notwithstanding any other language in this Agreement, Rentech may not
sublicense Improvements to any person unless such person agrees to the
royalty-free grantback licensing of all its improvements to ▇▇▇▇▇▇▇-Tropsch
technology licensed by Rentech to Rentech and Texaco, which may extend such
rights to its licensees.
5. RENTECH SERVICE AGREEMENT. Texaco may elect to have ▇▇▇▇▇▇ provide the
services specified in the Exhibit C Independent Contractor Agreement of the
License Agreement under this Service Agreement. Absent a contrary written
request for additional work from Texaco, such ▇▇▇▇▇▇ services shall be limited
to said Exhibit C limits of sixty percent (60%) and two hundred seventy (270)
hours per two (2) month period maximums, so as to not incur the higher hourly
charges of said Exhibit C. If Rentech elects to provide the services of ▇▇▇▇▇▇
under this Service Agreement in excess of such limits, then such excess ▇▇▇▇▇▇
services shall be charged at the rate of Exhibit B of this Service Agreement.
6. FACILITY ACCESS. Rentech will provide suitable work space at its
research facility in Denver, Colorado, without cost, for Texaco personnel when
they are assigned to work on Tasks at that location.
7. CONFIDENTIALITY.
7.1 Obligation of Confidentiality. All information related to the
Rentech Technology is subject to the confidentiality provisions of the License
Agreement. All information related to the Texaco Gasification Process ("TGP"),
Texaco Gasification Power Systems ("TGPS"), and Texaco Gasification
▇▇▇▇▇▇▇-Tropsch ("TGFT") will be controlled by confidentiality agreements
separate and apart from this Technical Services Agreement and the License
Agreement. All information related to the Rentech Technology which is disclosed
under this Agreement and which does not fall within TGP, TGPS, TGFT and the
following Section 7.2 exceptions to confidentiality is confidential information
("Confidential Information"). For a period of fifteen (15) years from February
19, 1999, each party agrees to not disclose to third parties any Confidential
Information received from the other party (including that received during visits
to Rentech's research facility, the other party's Licensed Plants and audits and
inspections conducted under this Agreement) following the same standard of care
the receiving party uses to protect its own Confidential Information of a
similar nature except to the extent required to be disclosed by law or as
expressly permitted by this Agreement. A party shall not disclose received
Confidential Information to anyone except to its employees or those of its
affiliates that have a need to know in connection with the development,
financing, design, construction or operation of the technology or where
knowledge of such Confidential Information is necessary to effect the purposes
of this Agreement. A receiving party may disclose received Confidential
Information to a contractor, licensee, Rentech licensee, or potential licensee
if such party has executed a confidentiality agreement in substantially the form
of Exhibit C attached hereto.
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7.2 Exception to Confidentiality. A receiving party shall not have
any obligations of nondisclosure or confidentiality under Section 7.1 as to
information, as shown by competent evidence, that (i) is or becomes, through no
fault of the receiving party in the public domain; (ii) is lawfully obtained by
the receiving party or an affiliate from a source other than the disclosing
party; (iii) was already known by the receiving party or an affiliate at the
time of its receipt, (iv) is independently developed by employees or contractors
of the receiving party or an affiliate without access to the disclosed
information; or (v) is 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, formulae, 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 within the foregoing exceptions.
Additionally, any combination of features shall not be deemed to be within the
foregoing exceptions merely because the individual features are within the
foregoing exceptions.
7.3 Published Disclosure. It is agreed that the disclosure of
certain information by a disclosing party in a publication, such as in letters
patent or by otherwise placing it in the public domain, will not free the
receiving party 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 the disclosing party.
7.4 Legal Disclosures. A receiving party shall promptly inform the
disclosing party of any required disclosure falling under Section 7.2(v), and
aid (or at a minimum not oppose) a motion or similar request by the disclosing
party for an order protecting the confidentiality of such information, including
joining or agreeing to (or nonopposition to) a motion for leave to intervene by
the disclosing party.
7.5 Notice of Unauthorized Disclosures. A receiving party shall
promptly notify the disclosing party in writing of any actual or suspected
unauthorized disclosures of which it becomes aware; provided, however, it shall
not be a material breach of this Agreement for mere negligence of the receiving
party to fail to provide such written notice to the disclosing party as
required.
7.6 Press Releases and Use of Names and Terms. This Agreement does
not grant and shall not be construed as granting any license, authorization or
consent, to either party by the other party hereto, to use any name, trademark,
service ▇▇▇▇ or slogan of the other party. A press release which includes the
name of the other party must have prior written approval of the other party,
except as required by law.
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8. DISCLAIMER OF WARRANTIES, DAMAGES AND LIABILITY OF PARTIES.
8.1 Disclaimer. Except as stated in this Section 8, ANY
TECHNOLOGY, APPARATUS, DESIGN, ORAL OR WRITTEN REPORT, DATA, COMPUTER PROGRAM,
REFERENCE/USER MANUALS OR OTHER INFORMATION PROVIDED BY ANY PARTY HEREUNDER
SHALL BE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES, EXPRESSED OR
IMPLIED, including but not limited to the results or effects obtained through
use of any apparatus or information, or that it is fit for any use intended, or
can be used without infringing the patent or copyright rights of third parties.
Without limitation on the preceding, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE IS EXPRESSLY EXCLUDED, BY AGREEMENT OF THE
PARTIES, FROM THIS AGREEMENT AND FROM ANY APPARATUS OR INFORMATION PROVIDED
HEREUNDER, EXCEPT FOR THE PROVISIONS ON CONFIDENTIALITY OF SECTION 7, NO PARTY
WILL BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT DAMAGES OR INDIRECT
DAMAGES, SUCH AS LOSS OF PROFITS, SPECIAL OR PUNITIVE DAMAGES, RESULTING FROM
THE OTHER PARTY'S USE OR USE BY A THIRD PARTY TO WHOM SUCH OTHER PARTY DISCLOSES
ANY APPARATUS OR INFORMATION. The use by a party or its affiliate of any
apparatus or information shall be solely at its own risk, and the other party
shall not be liable for any damage resulting from inaccuracy, incorrectness,
unsoundness, and/or unreliability resulting from use by such party or its
affiliate thereof, whether or not such is caused by negligence of the other
party or affiliate.
8.2 Assumption of Risk. Should any party disclose or sublicense
apparatus or information of the other party to any other party within the bounds
of this Agreement, the party disclosing or sublicensing same shall assume all
risks arising out of the other party's use thereof and shall notify such other
party in a sublicense, or other writing if no sublicense is granted, that the
other party to this Agreement makes no warranties and disclaims all liabilities
concerning the information so disclosed or sublicensed.
8.3 Indemnification. Each party hereto indemnifies and holds the
other party hereto, its affiliates and officers, directors, employees and
representatives of each ("Indemnified Parties") harmless from and against any
and all damages, including injury or death of individuals and property damages,
which arise out of, or are directly related to the indemnifying party's practice
under or use of the other party's information, the indemnifying party's rightful
disclosure or sublicensing of apparatus or information pursuant to this
Agreement, and the use of such information by any third party or sublicensee to
whom such information is so disclosed without regard to the cause or causes or
the negligence of any party or parties. Each party agrees that its licensee or
sublicensee in all agreements which grant rights under the other party's
technology or information will disclaim the right to ▇▇▇ for or collect any and
all damages from the other party, without regard to the cause or causes of the
negligence of any party or parties. Nothing herein is intended to or shall be
construed as an admission of liability on the part of any party hereto with
respect to third parties, and each party hereto expressly disclaims any
intention that any third party shall be a third party beneficiary under this
section.
8.4 Costs and Expenses of Employees and Contractors. Each party
hereto will be responsible for paying the salaries, costs and expenses of its
own employees and contractors. Each party agrees to protect and indemnify the
other and its Indemnified Parties from all such costs and expenses.
8.5 Liabilities for Injury or Death or Damage to Property. Each
party shall indemnify, defend and hold harmless the other party ("Indemnified
Parties") from and against any and all damages and liabilities due to injury or
death of personnel (employees and contractors) of such party or damage to the
property of such party or its personnel, regardless of whether the negligence of
an Indemnified Party is a contributing factor to the damages or liability.
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8.6 Notice of Claims to Indemnifying Party. A party shall, to the
extent it becomes aware thereof, give prompt written notice to the indemnifying
party of each legal action or claim or threat thereof made against an
Indemnified Party, with respect to Sections 8.3, 8.4 and 8.5. An Indemnified
Party shall give such written notice within ten (10) days after acquiring such
knowledge but at least ten (10) days prior to the expiration of time in which a
response must be filed with a court or other judicial body, whichever is the
first to occur. It shall not be a material breach of this Agreement justifying
termination of this Agreement for mere negligence of an Indemnified Party in
failing to provide such written notice to an Indemnified Party as required
hereby, but shall support claims for damages.
8.7 Advisory Counsel. An Indemnified Party may, at its expense and
with advisory counsel of its own choosing, participate in the defense of any
legal action, claims, or threat thereof under Sections 8.3, 8.4 and 8.5.
8.8 Indirect Damage Disclaimer. Except for the unauthorized
disclosure of Confidential Information where indirect damages may be awarded,
neither party shall be liable to the other under this Agreement for any indirect
damages, including but not limited to loss of profits, consequential, special or
punitive damages.
8.9 Notification of Suit. Each party shall promptly notify the
other party in writing of any suit or action which to its knowledge directly or
indirectly relates to the use of the Improvements developed under this
Agreement.
8.10 Liability Limit. Regardless of any terms of this Agreement,
neither party's liability to the other (except for fees due and owing to Rentech
for services and use of its research facility), shall exceed Five Million
Dollars ($5,000,000).
9. REPRESENTATIONS, WARRANTIES AND COVENANTS.
9.1 Representations, Warranties and Covenants of Texaco. Texaco
hereby represents, warrants and covenants to Rentech as follows:
(a) Right, Power and Authority. Texaco has full right, power and
authority to enter into this Agreement, and there is no impediment that would
inhibit its ability to perform the terms and conditions imposed upon it by this
Agreement.
(b) Binding Obligation. This Agreement has been duly authorized by
all necessary corporate and stockholder action and constitutes a valid and
binding obligation of Texaco, enforceable in accordance with its terms.
(c) Corporate Good Standing. Texaco is a corporation duly
organized and validly existing and in good standing under the laws of the place
of its organization and is duly qualified and authorized to do business wherever
the nature of its activities or properties requires such qualification or
authorization.
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(d) No Government Approval Needed. No registration with or
approval of any government agency or commission is necessary for the execution,
delivery or performance by Texaco of any of the terms of this Agreement, or for
the validity and enforceability hereof or with respect to the obligations of
Texaco hereunder, except such registrations and approvals as have been
previously made or obtained, or will be obtained.
(e) No Provisions Contravened. There are no provisions in the
memorandum or articles of association or articles of incorporation, as the case
may be, or bylaws or operating agreement, if any, of Texaco, and no provision in
any existing mortgage, indenture contract or agreement binding upon Texaco that
would be contravened by the execution, delivery or performance by Texaco of this
Agreement.
(f) No Consent of Third Parties Needed. No consent of any lender,
trustee or holder of any indebtedness of Texaco or any other third party is or
shall be required as a condition to the validity of this Agreement, except such
consents as have been previously obtained, certified copies of which have been
delivered to Rentech.
(g) No Proceedings Pending. No actions or proceedings are pending
or insofar as Texaco knows or ought to know threatened against Texaco, or any or
its officers or directors in their capacities as officers and directors of
Texaco, before any court, administrative agency or other tribunal that might
have a material adverse effect on its business or condition, financial or
otherwise, or its operation.
(h) Not Contravene Any Law. Neither the execution nor the delivery of
this Agreement by Texaco nor the fulfillment of or compliance with its terms and
provisions by Texaco will contravene any provision of law including, without
limitation, any statute, rule, regulation, judgment, decree, order, franchise or
permit applicable to Texaco.
9.2 Representations, Warranties and Covenants of Rentech. Rentech
hereby represents, warrants and covenants to Texaco as:
(a) Right, Power and Authority. Rentech has full right, power and
authority to enter into this Agreement, and there is no impediment that would
inhibit its ability to perform the terms and conditions imposed upon it by this
Agreement.
(b) Binding Obligation. This Agreement has been duly authorized by
all necessary corporate and stockholder action and constitutes a valid and
binding obligation of Rentech, enforceable in accordance with its terms.
(c) Corporate Good Standing. Rentech is a corporation duly
organized and validly existing and in good standing under the laws of the state
of Colorado, United States of America, and is duly qualified and authorized to
do business wherever the nature of its activities or properties requires such
qualification or authorization.
(d) No Government Approval Needed. No registration with or
approval of any government agency or commission is necessary for the execution,
delivery or performance by Rentech of any of the terms of this Agreement, or for
the validity and enforceability hereof or with respect to the obligations of
Rentech hereunder, except such registrations and approvals as have been
previously made or obtained or will be obtained.
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(e) No Provisions Contravened. There are no provisions in the
memorandum or articles of association or articles of incorporation as the case
may be, or bylaws or operating agreement, if any, of Rentech, and no provisions
in any existing mortgage, indenture, contract or agreement binding on Rentech
that would be contravened by the execution, delivery or performance by Rentech
of this Agreement.
(f) No Consent of Third Parties Needed. No consent of any lender,
trustee or holder of any indebtedness of Rentech or any other third party is or
shall be required as a condition to the validity of this Agreement, except such
consents as have been previously obtained, certified copies of which have been
delivered to Texaco.
(g) No Proceedings Pending. There are no actions or proceedings
pending or insofar as Rentech knows or ought to know threatened against Rentech,
or any of its officers or directors in their capacities as officers or directors
of Rentech, before any court, administrative agency or other tribunal that might
have a material adverse effect on its business or condition, financial or
otherwise, or its operation.
(h) Not Contravene Any Law. Neither the execution nor the delivery
of this Agreement by Rentech nor the fulfillment of or compliance with the terms
and provisions by Rentech will contravene any provision of law including,
without limitation, any statute, rule, regulation, judgment, decree, order,
franchise or permit applicable to Rentech.
10. TERM AND TERMINATION.
10.1 Term. The term of this Agreement shall commence as of February
19, 1999 and shall extend until the later date of (a) the completion of the
Tasks approved by Texaco, or (b) a party determines that there are no additional
Tasks to be performed, provided, however, Texaco may terminate a specific Task
or this Agreement by giving Rentech at least forty-five (45) days prior written
notice of such a termination. If Texaco elects to terminate a specific Task or
this Agreement by giving such written notice of termination, it shall pay all
financial obligations due to Rentech through the date of such a termination.
10.2 Termination for Breach. Either party shall have the right to
terminate this Agreement as a result of the other party's material breach. The
party claiming breach of the Agreement shall give the other party written notice
of the breach, specifying the nature thereof, and the other party shall have
thirty (30) days after such notice to cure such breach. Upon the failure of the
party in material breach to cure the breach within the thirty (30) day period or
to commence a cure and diligently proceed thereafter to complete the cure, the
other party shall have the right to terminate this Agreement as of the date set
forth in the written termination notice. The right of a party to terminate this
Agreement for material breach shall be in addition to and not in lieu of any
other right or remedy that the terminating party may have under this Agreement.
10.3 No Damage. Neither party shall be liable for damages of any
kind as a result of properly exercising its respective right to terminate this
Agreement, and termination according to the terms of this Agreement shall not
affect any other right or remedy of either party.
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11. MISCELLANEOUS.
11.1 Assignment. Except for assignment to an affiliate, which
accepts all obligations and rights of the assignor as if it was an original
signatory to this Agreement, which may be done without consent, neither this
Agreement nor any of the rights and obligations of a party hereunder may be
assigned by any party without the prior written consent of the other party,
which will not be unreasonably withheld. It is reasonable for a party to
withhold consent for the reason that the proposed assignee is a competitor in
the licensing of ▇▇▇▇▇▇▇-Tropsch technology.
11.2 Arbitration and Injunctive Relief.
(a) Procedure for Arbitration; Judgment. Except as specified in
paragraph 11.2(b), any dispute, controversy or claim arising out of or relating
to this Agreement (including all Exhibits and Attachments), including its
interpretation or performance, that the parties are unable to resolve shall be
submitted to binding arbitration before a single arbitrator, in the sole
discretion of any party, by giving the other party written notice. The
arbitration shall be in accordance with the commercial rules of the American
Arbitration Association, which shall administer the arbitration and act as
appointing authority. The arbitration, including the rendering of the award,
shall take place in the city of Denver, Colorado, United States of America,
which shall be the exclusive forum for resolving such dispute, controversy or
claim. For the purpose of the arbitration, the provisions of this Agreement and
all rights and obligations hereunder shall be governed or construed in
accordance with the laws of the state of Colorado, United States of America,
without regard to the conflicts of law doctrine observed in Colorado. The
arbitration award shall be in writing and specify the factual and legal basis
for the award, and shall be accompanied by a reasoned opinion. The decision of
the arbitrator shall be final and binding upon the parties hereto, and the
expense of the arbitration (including without limitation the award of attorneys'
fees to the prevailing party) shall be paid as the arbitrator determines. Each
party hereby submits itself to the jurisdiction of the courts of the place
arbitration is held for the entry of judgment thereunder. Notwithstanding this
provision, judgment upon the award of the arbitration may be entered in any
court where the arbitration takes place or any court having jurisdiction
thereof, and application may be made to any court for a judicial acceptance of
the award and order of enforcement. If the parties cannot agree on an arbitrator
within thirty (30) days of receipt of notice of arbitration, then either party
may elect to have the arbitrator appointed by the chief executive officer of the
American Arbitration Association; provided, however, that the arbitrator shall
be a licensed member of the U.S. patent bar who is skilled in licensing
agreements.
(b) Judicial Action for Specific Performance or Injunction.
Notwithstanding anything contained in the preceding section to the contrary,
each party shall have the right to institute judicial proceedings against the
other party or anyone acting by, through or under such other party in order to
enforce the instituting party's rights for injunctive relief.
11.3 Governing Law; Jurisdiction; Venue.
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The provisions of this Agreement and all rights and obligations
hereunder shall be governed and construed in accordance with the substantive and
procedural laws of the state of Colorado, United States of America, without
regard to the conflicts of law doctrine observed in Colorado. The parties
irrevocably submit to the jurisdiction of the courts of the state of Colorado
and of the United States of America for the District of Colorado for these
purposes; provided, however, that nothing herein shall preclude either party, if
it deems fit, from instituting proceedings for injunctive relief against any
other party or anyone acting by, through or under such other party in any
country or place which may have jurisdiction for the purpose of protecting and
enforcing the instituting party's rights either under this Agreement or pursuant
to any other agreements, documents, instruments or rights. If the notice address
of paragraph 11.8 is not a valid Colorado address, the parties designate and
appoint the Secretary of State of Colorado as their agent for the service of
process in Colorado and agree to consider any legal process or any demand or
notice made or served on said agent as being made on it; provided, however, that
the serving party shall within twenty-four (24) hours of such service send to
the other party a copy of the documents so served, and such copies shall be sent
by air courier to the other party's address (as set out in paragraph 11.8 and a
second known address if the noticing party knows the address has changed). In
the alternative, service of process may be made by postage prepaid, certified or
recorded delivery air mail letter transmitted by either party to the other party
at the address for notices in paragraph 11.8 and a second known address if the
noticing party knows the address has changed. The foregoing, however, shall not
limit the right of either party to serve process in any other manner permitted
by law or to bring any proceeding to protect and enforce through injunctive
relief its rights either hereunder or pursuant to any other agreements,
documents, instruments or rights or to obtain execution or judicial recognition
of judgment of arbitration in any court of competent jurisdiction. Each party
hereby irrevocably waives any objection that it may now or hereafter have to the
laying of venue of any suit, action or proceeding relating to this Agreement in
the state of Colorado and further irrevocably waives any claim that the state of
Colorado is not a convenient forum for any such suit, action or proceeding or to
object to venue to the extent of any proceeding brought in accordance with this
section. Each party stipulates that the state and federal courts located in the
City and County of Denver, Colorado shall have in personam jurisdiction and
venue over such party for the purpose of obtaining execution of judicial
recognition of judgment of arbitration arising out of or related to this
Agreement.
11.4 No Other Relationship. Nothing herein contained shall be
deemed to create an agency, joint venture, partnership, franchise or similar
relation between the parties hereto. Each party shall conduct all business in
such party's own name as an independent contractor. Neither party shall be
liable for the representations, acts, or omissions of the other party contrary
to the terms of this Agreement. Neither party has the right or power to act for
or on behalf of the other or to bind the other in any respect whatsoever, other
than as expressly provided for herein.
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11.5 Force Majeure.
(a) No Liability for Certain Delays or Defaults. Neither Rentech
nor Texaco shall be liable in damages, or have the right to terminate this
Agreement, for any delay or default in performing any obligation hereunder if
that failure or delay is due to any cause beyond the reasonable control and
without default or negligence of that party and it is making efforts in good
faith to comply with the terms of this Agreement; provided, however, in order to
excuse its delay or default hereunder, a party shall promptly notify the other
party of the occurrence or the cause specifying the nature and particulars
thereof and the expected duration thereof, and provided, further, that such
party shall promptly give notice to the other party specifying the date of
termination thereof. All obligations of both parties shall return to being in
full force and effect upon the termination of such occurrence or cause
(including, without limitations any payment that became due and payable
hereunder prior to the termination of such occurrence or cause). However, in the
event that the duration of such occurrence or cause extends beyond one year, the
non-excused party shall then have the right, by giving sixty (60) days prior
written notice to the other party, to terminate this Agreement unless the other
party shall substantially cure such occurrence or cause within said sixty (60)
days.
(b) Cause Beyond the Reasonable Control. For the purposes of this
section, a "cause beyond the reasonable control" of a party shall mean any act
of any government or other authority or statutory undertaking, labor walkout or
work stoppage that compels termination of work; fire; explosion; accident; power
failure; failure of electric power supply; flood; catastrophic hardware or
software failure; riot or war (declared or undeclared) that renders a party
unable to proceed with performance or continue, despite all reasonable
commercial efforts to proceed or continue to perform.
11.6 Rights, Powers, Remedies Cumulative; Waiver; Time. Except for
binding arbitration and limitation of rights for legal action in paragraph 11.2,
each and every power and remedy in this Agreement specifically given to a party
shall be cumulative and shall be in addition to every other right, power and
remedy herein or now or hereafter existing at law, in equity, or by statute, and
each and every right, power and remedy whether specifically provided in this
Agreement or otherwise existing may be exercised from time to time and as often
and in such order as may be deemed expedient by a party. Failure by either party
to enforce any provision of this Agreement shall not be construed as a waiver of
that provision. The acceptance by a party of any payment shall not be deemed a
waiver of any right to take advantage of any future ground for termination or of
any past ground for termination not completely cured thereby, unless expressly
waived in writing.
11.7 Table of Contents and Headings. Any table of contents
accompanying this Agreement and any section headings contained herein are for
ease of reference only, do not constitute a part of this Agreement, and shall
not be employed in interpreting this Agreement.
11.8 Notices. Any notice, payment, request, demand or other
communication hereunder shall be in writing and shall be deemed to have been
duly given (i) when delivered personally, upon personal delivery to the party to
be notified; or (ii) one business day after sending by facsimile transmission
with confirmation that the facsimile message was transmitted to the party to be
notified, or (iii) three (3) business days after sending by registered or
certified mail, postage paid, to the party to be notified; or (iv) three (3)
business days after sending by ordinary mail, postage paid, to the party to be
notified, at the address set forth below:
Rentech, Inc. Texaco Energy Systems, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ 1111 ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
11
Either Rentech or Texaco may change its address, facsimile number or
representative to be notified by written notice to the other party given in
accordance with this section.
11.9 Integration. Except for the License Agreement and
confidentiality agreements relating to TGP, TGPS and TGFT, this Agreement, which
includes Exhibits and Attachments, represents the entire agreement of the
parties with respect to the subject matter herein contained and supersedes and
cancels all prior correspondence, conversations, negotiations, understandings
and agreements with respect to those subjects. This Agreement may not be
modified orally, but only by a writing signed by both parties.
11.10 Construction. This Agreement has been prepared, examined,
negotiated and revised by each party and their respective attorneys, and no
implication shall be drawn and no provision shall be construed against any party
to this Agreement by virtue of the purported identity of the drafter of this
Agreement, or any portion thereof.
11.11 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, illegality or unenforceability shall 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, illegal or unenforceable 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, illegality or unenforceability 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.
11.12 Further Assurances. Each party shall execute and deliver all
such further documents and instruments and take all such further actions as may
be reasonably required or appropriate to carry out the intent and purposes of
this Agreement.
11.13 Counterparts. This Agreement may be executed in several
counterparts, and all counterparts 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 same original or the same
counterpart.
11.14 Audit. Rentech agrees, upon ten (10) days written notice of
Texaco, to permit Texaco up to once a calendar year to have access during
customary business hours to the books and records of Rentech pertaining to (i)
activities under this Agreement and (ii) fees and invoices being charged under
this Agreement, including overhead rates and administrative fees. The right to
examine may be exercised at any time during the term of this Agreement and for a
period of two (2) years after its expiration or termination. Prompt adjustments
in ▇▇▇▇▇▇▇▇ and Exhibit B fees shall be made to compensate for any errors or
omissions disclosed by such an examination. Texaco agrees to be subject to the
confidentiality and nonuse obligations and exceptions of Section 7 of this
Agreement for any information disclosed to it by such an examination for a
period of five (5) years from the date of disclosure.
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IN WITNESS WHEREOF, the parties have executed duplicate originals of
this Agreement by their duly authorized officers as of the date first mentioned
above.
RENTECH, INC. ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
By: ___________________________ ___________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇▇▇▇, Secretary
Date: 10 June, 1999
TEXACO ENERGY SYSTEMS INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
By: _______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President Approved
Date: June 14, 1999 HJD