Exhibit 10.1
MEMORANDUM OF UNDERSTANDING
FOR A
NON-EXCLUSIVE LICENSE MARKETING AGREEMENT
FOR THE
CONVERSION OF HYDROCARBONS TO XXXXXXX-TROPSCH LIQUIDS
FACILITIES
WORLD-WIDE
This Agreement expands and extends the initial agreement and is made
effective as of the 20th day of January 2003, by and between Xxxxxx
Engineering U.K. Limited (hereinafter referred to as "Company"), a
corporation organized and existing under the laws of the United
Kingdom, and Rentech, Inc. (hereinafter referred to as "Enterprise"),
a corporation organized and existing under the laws of the State of
Colorado. For the purposes of this Agreement, Company and Enterprise
are individually referred to as "Party" and collectively as the
"Parties".
WITNESSETH:
WHEREAS, Company currently has an advanced position through many
experiences and stored know-how in the engineering and construction of
synthesis gas processing projects related to the oil and gas industry,
and solids gasification projects related to petroleum coke and coal
industries,
WHEREAS, Enterprise has developed a synthesis gas-to-liquids process
incorporating Xxxxxxx-Tropsch technology (hereinafter referred to as
"F-T") with a slurry reaction bed and an iron-based catalyst known as
the Rentech gas-to-liquids technology (hereinafter referred to as
"Rentech GTL Technology"). The Rentech GTL Technology is useful for
converting synthesis gas, a mixture of carbon monoxide and hydrogen,
made from carbon-bearing materials into various liquid hydrocarbons
such as synthetic diesel fuel, naphtha, wax and other liquid
hydrocarbon products; and
WHEREAS, Enterprise and Company desire to set out more fully their
agreements and the principles under which their mutual objectives are
intended to be achieved.
NOW, THEREFORE, in consideration of the mutual premises and covenants
herein contained, the Parties do hereby agree as follows:
1. OBJECTIVES. The Parties agree to cooperate on a plan to provide
license and engineering services for any solids gasification
facilities or any natural gas facilities, including methanol and
ammonia facility retrofits, to gas to liquid facilities worldwide
(except as provided in paragraph 5) utilizing the Rentech GTL
Technology for the projects and customers. Company and/or its
affiliates shall provide design, procurement, construction, project
technical development and estimating services as may be required for
a specific project. Company will integrate the Rentech GTL Technology
into the overall project process, if the overall project process
extends beyond the Rentech GTL Technology. Enterprise will provide the
Rentech GTL Technology under its patents including the Rentech F-T
unit design and specifications.
2. PATENT INDEMNITY. The Enterprise shall defend, indemnify and
hold the Company harmless from and against any claims, which may arise
for actual or alleged infringement of patents, copyrights, or other
intellectual property rights with respect to the Rentech GTL
Technology.
3. MARKETING. The Parties will jointly market their combined
capabilities to potential customers; however, neither Party shall have
the authority nor shall it represent itself as having the authority to
bind or otherwise commit the other Party to any obligation or
commitment with a third party. The Parties shall continue to refine
the details of their respective scopes of work as well as delineate
the requirements, nature and details of any necessary agreements to be
executed between the Parties for the performance of a specific project
including but not limited to licensing agreements, consortium
agreements and/or construction contracts or subcontracts.
4. BUSINESS RELATIONSHIP. Notwithstanding any other provisions of
this Agreement, nothing contained herein is intended or shall be
deemed or construed as creating a partnership, joint venture or any
other legal entity between the Parties nor any ongoing or continuing
relationship or commitment between them except as specifically
provided herein.
5. EXCLUSIVITY. When the Company receives an enquiry from a
customer to employ the Rentech GTL Technology, it shall notify the
Enterprise. The Parties shall then jointly consider each such
opportunity. On a case by case basis the Parties shall agree which
projects involving the Rentech GTL Technology to jointly pursue,
except that the Company shall have no involvement in projects where:
(i) the customer has selected another specific engineering firm (ii)
the customer is another engineering firm representing the customer,
(iii) the customer is Texaco Energy Systems, Inc., its licensee, an
affiliate of Texaco Energy Systems, Inc. or its affiliate's licensee;
(iv) or the Rentech GTL Technology would be used in India. The
Parties shall cause such agreed projects to be added by name and
description to Exhibit "A," attached hereto and by this reference made
a part hereof. During the term of this Agreement, the Parties shall
have an exclusive relationship with each other as to the qualified
customers identified on Exhibit "A," and neither Enterprise nor
Company will in any way pursue or perform any aspect of a project
listed on Exhibit "A" except as provided under the terms and
conditions of this Agreement, either directly or indirectly, by way of
a partnership, consortium, joint venture, or subcontract, except (i)
with the express written consent of the other Party which shall not be
unreasonably withheld, and/or (ii) the customer for a specific project
determines that one of the Parties is unacceptable.
6. RENTECH GTL TECHNOLOGY LICENSE. The Enterprise will negotiate
in good faith with potential customers identified on Exhibit "A" as to
the terms of a license agreement for use of the Rentech GTL Technology
for each specific project listed in Exhibit "A." If mutually
acceptable terms are agreed upon between the Enterprise and the
project owner, customer, the Enterprise will provide a Rentech GTL
Technology license for the project. The Company will share in the
Royalty under the negotiated license on a split of 80% to Enterprise
and 20% to Company to recognize the marketing costs associated with
this agreement. The Company in recognition of the marketing efforts
of the Enterprise will share 2% of 100% of any fees received by the
Company for consulting and engineering services for those projects
brought to the Company by the Enterprise.
7. DURATION. This Agreement shall be effective until the earlier
of (i) thirty six (36) months from the date hereof, or (ii) upon six
(6) months written notice from Company or Enterprise. After
termination of this Agreement, either Party shall be free from any
obligation or liability to the other Party except for the obligations
referred to in Article 2, Article 6 and Article 9 and obligations set
forth in specific project agreements prior to termination, all of
which survive the term of this Agreement.
8. ASSIGNMENT. Neither Party shall transfer or assign any of its
rights, liabilities, or obligations under this Agreement without the
express written consent of the other Party, other than to one of its
subsidiary or affiliated companies; provided, however, that the
assigning Party shall not be relieved of any of its obligations under
Articles 5 and 9 hereof.
9. EXPENSES. Except as may be otherwise agreed to in writing each
Party shall be responsible for and bear its own costs and expenses
incurred in connection with the performance of its obligations under
this Agreement.
10. CONFIDENTIALITY. The Parties shall hold in confidence, and
shall use only for the purposes of this Agreement, any and all
Proprietary Information until five (5) years after completion or
earlier termination of this Agreement pursuant to its terms. For the
purposes of this clause, the term "Proprietary Information" shall mean
all information, which the Parties, directly or indirectly, acquire
each from the other, excluding information falling into any of the
following categories:
(a) Information which, at the time of disclosure hereunder, is
in the public domain;
(b) Information which, after disclosure hereunder, enters the
public domain other than by breach of this Agreement;
(c) Information, other than that obtained from third Parties,
which, prior to disclosure hereunder, was already in the
recipient's possession, either without limitation on disclosure
to others or subsequently becoming free of such limitation;
(d) Information obtained by the recipient from a third party
having an independent right to disclose this information; and
(e) Information, which is made available through discovery by
independent research without use of or access to the information
acquired from the other Party.
Disclosures which are specific (e.g. as to operating conditions and the
like) shall not be deemed to be within the forgoing exceptions merely
because they are embraced by general disclosures available to the
general public or in Receiving Party's possession. Additionally, any
combination of features shall not be deemed to be with in the forgoing
exceptions merely because the individual features are available to the
general public or in the Receiving Party's possession unless the
combination itself and its principle of operation are available to the
general public or in Receiving Party's possession. Each Party's
obligation to the other Party with respect to Proprietary Information
shall be deemed to be fully performed if that Party observes, with
respect thereto, the same safeguards and precautions which that Party
observes with respect to that Party's own Proprietary Information of
the same or similar kind.
11. CONSEQUENTIAL DAMAGES. Except as provided under Article 2, in
no event shall either Party be liable to the other, whether arising
under contract, tort (including negligence), strict liability, or
otherwise, for loss of anticipated profits or revenue, loss of use of
capital, downtime of facilities, loss of business reputation or
opportunities, cost of money, or for any special, indirect,
incidental, consequential or exemplary loss or damage of any nature
arising at any time from any cause whatsoever, even if such loss or
damage is caused by the negligence, in whole or in part, strict
liability or other legal fault of the Party released hereunder.
12. APPLICABLE LAW AND ARBITRATION. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
COLORADO, (WITHOUT REGARD TO CONFLICTS OF LAW). ALL SUITS, ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATED TO THIS AGREEMENT ("RELATED
PROCEEDINGS") SHALL BE BROUGHT IN A COURT OF COMPETENT JURISDICTION
LOCATED IN DENVER COUNTY, COLORADO, EACH OF WHICH COURTS SHALL BE AN
APPROPRIATE FORUM FOR ALL SUCH RELATED PROCEEDINGS. EACH PARTY HEREBY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
JURISDICTION OF ANY SUCH COURT OVER, OR THE LAYING OF VENUE IN ANY
SUCH COURT OF, ANY SUCH RELATED PROCEEDINGS.
13. COMPLIANCE. Each Party agrees to comply strictly with all
applicable laws, regulations and orders of the United States and all
foreign jurisdictions. Each Party hereby acknowledges and agrees that
certain laws of the United States, including the Foreign Corrupt
Practices Act, 15 U.S.C. Sections 78dd-1 et seq., prohibit any person
subject to the jurisdiction of the United States from making any
payment of money or anything of value, directly or indirectly, to any
foreign government official, foreign political party, or candidate for
foreign political office for the purpose of obtaining or retraining
business. Each Party hereby represents and warrants that, in the
performance of its obligations hereunder, it has not made, and will
not make, any such proscribed payment. Each Party shall indemnify and
hold the other Party and its affiliates, officers, directors, agents
and employees harmless against any and all claims, losses and
liabilities attributable to any breach of this provision.
14. MISCELLANEOUS. This Agreement contains every obligation and
understanding between the Parties relating to the subject matter
hereof and merges all prior discussions, negotiations and agreements,
if any, between them, and neither of the Parties shall be bound by any
conditions, definitions, understandings, warranties or representations
relating to the subject matter hereof other than as expressly provided
for or referred to in this Agreement. This Agreement can be amended
only by written instrument properly executed by the Parties; any
purported amendment not in writing and properly executed shall be
null, void and of no effect.
Without intending to exclude other provisions of this Agreement that by
their nature may so survive, the provisions of Article 8 shall survive
any completion or earlier termination of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date here in above first stated
RENTECH, INC. Xxxxxx Engineering U.K. Limited
BY: /s/ Xxxxxx X. Xxxxxxxx, BY: /s/ Xxxx XxXxxxxxxx
_________________________ ________________________
President Vice President
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