Joint Venture Agreement, dated March 3, 2021, between Clean Energy Renewable Fuels, LLC and Total Biogas Holdings USA, LLC
[*]: THE IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED
JOINT VENTURE AGREEMENT
THIS JOINT VENTURE AGREEMENT (the “Agreement”) made as of this March 3, 2021 (the “Execution Date”),
Clean Energy Renewable Fuels, LLC, a Delaware limited liability company (collectively with its affiliates, “Clean”), and Total Biogas Holdings USA, LLC, a Delaware limited liability company (collectively with its affiliates, “Total”) (each a “Party”, and together the “Parties”).
The Parties have entered a memorandum of understanding dated December 21, 2020 setting forth their intention to establish a joint venture that will engage in RNG production investment, in RNG projects with third party project developers in the North American markets, and/or investing in, building and operating anaerobic digestion plants or other low carbon intensity RNG production facilities.
This Agreement will establish the terms of a transactional joint venture (the “Joint Venture” or “JV”) pursuant to which the parties will invest in equal proportion in and monitor Potential Projects and JV Projects (both as defined below).
Clean will provide the following services as relevant to the Joint Venture:
Total will provide the following services as relevant to the Joint Venture:
Clean and Total shall provide the administrative or other services at cost plus [*] to the Joint Venture. Each Party shall reimburse the other for one-half of the cost of such administrative services following receipt of an invoice in reasonable detail and supporting documentation for any out-of-pocket expenses paid to third parties.
Neither Party shall disclose to any third party, and shall disclose on a need-to-know basis to such Party’s directors, officers, employees and consultants solely to the extent such disclosure is reasonably necessary in connection with such Party’s performance under this Agreement, any terms or conditions of this Agreement or any financial and other information disclosed pursuant or related to this Agreement, and neither Party shall use any such information for any purpose other than performing its obligations or exercising or enforcing its rights under this Agreement, in each case without the prior consent of the other Party. These confidentiality obligations shall not apply (a) to the extent that a Party is required to disclose information by applicable law, rule or regulation, regulation of a governmental agency or tax authority, order of a court of competent jurisdiction, or rules of a stock exchange or automated quotation system; provided, however, that such Party shall (i) provide written notice thereof to the other Party, consult with the other Party with respect to such disclosure and provide the other Party sufficient opportunity to object to any such disclosure or to request confidential treatment thereof and (ii) shall furnish only that portion of the information which is legally required; and (b) to any disclosure in any action or proceeding between the Parties to enforce rights under this Agreement; provided, however, that the Parties shall request that the court or tribunal enter a protective order covering such information. Notwithstanding the foregoing, the Parties hereby acknowledge that each Party is subject to certain securities laws, compliance with which may require the disclosure of Confidential Information. The Parties hereby agree that either Party may disclose Confidential Information in connection with its ongoing reporting requirements under applicable securities laws and pursuant to any other acts it may take in connection with its obligation to comply with such securities laws without the need for review or input by the other Party. Additionally, these confidentiality obligations shall not apply to any information that a Party can establish by written documentation (a) to have been publicly known prior to disclosure of such information by the disclosing Party to the receiving Party; (b) to have become publicly known, without fault on the part of the receiving Party, subsequent to disclosure of such information by the disclosing Party to the receiving Party; (c) to have been received by the receiving Party at any time from a source, other than the disclosing
Party, rightfully having possession of and the right to disclose such information; (d) to have been otherwise known by the receiving Party prior to disclosure of such information by the disclosing Party to the receiving Party; or (e) to have been independently developed by employees or agents of the receiving Party without access to or use of such information disclosed by the disclosing Party to the receiving Party.
This Agreement shall be effective from the Execution Date until terminated upon the earliest to occur of any one of the following events: (a) the date fixed for termination by a separate written instrument executed by each of the Parties; (b) by either Party, if the other Party materially breaches any term or condition of this Agreement, subject to a 30 day cure period; (c) by either Party, if the other Party applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee, administrator, liquidator or the like of the Party or of all or a substantial portion of the Party’s assets, admits in writing its inability, or being generally unable or deemed unable under any applicable law, to pay its debts as such debts become due, convening a meeting of creditors for the purpose of consummating an out-of-court arrangement, or entering into a composition, extension, or similar arrangement, with creditors in respect of all or a substantial portion of the Party‘s debts, makes a general assignment for the benefit of creditors, places itself or allows itself to be placed, voluntarily or involuntarily, under the protection of the law of any jurisdiction relating to bankruptcy, insolvency, reorganization, winding-up or composition or adjustment of debts or, if a proceeding or case shall be commenced against a Party in any court of competent jurisdiction, seeking the liquidation, reorganization, dissolution, winding-up or composition or readjustment of debts of such Party, the appointment of a trustee, receiver, custodian, administrator, liquidator or the like of such Party or of all or a substantial portion of such Party’s assets, or similar relief with respect to such Party under any law relating to bankruptcy, insolvency, reorganization, winding upper composition or adjustment of debts, and such proceeding or case shall continue on dismissed for a period of sixty (60) days, or an order, judgment or decree approving or ordering any of the foregoing shall be entered and continue on stayed and in effect for a period of sixty (60) days, or an order for relief or other legal instrument of similar effect against such Party shall be entered in an involuntary case under such law and shall continue for a period of sixty (60) days; or (d) [*] (the “Term”) [*]. Upon expiration of the Term, Sections 2 and 5 of this Agreement shall survive and the Oversight Committee shall continue to monitor pre-existing JV Projects pursuant to the terms of Section 1(c).
If Clean and Total mutually determine that it would be in their respective best interests for each Party to contribute more than $50 million to the JV, Clean and Total will work together in good faith to develop reasonable funding strategies that will provide Clean the necessary capital to increase its contribution to the JV. If the Parties are not successful in developing the foregoing reasonable funding strategies, then Clean’s Board of Directors may accelerate expiration of the Term to a date after each of Total and Clean have invested $50 million equity in JV Projects ($100 million in aggregate).
If to Clean:
c/o Clean Energy
4675 MacArthur Court, Suite 800
Newport Beach, CA 92660
Attn: SVP, Co-Head Renewable Fuels & Chief Legal Officer
with a copy to (which shall not constitute notice) to:
Morrison & Foerster LLP
12531 High Bluff Drive, Suite 100
San Diego, CA 92130-2040
Attn: Steven Rowles
If to Total:
c/o Total Biogas Holdings USA, LLC
1201 Louisiana Street, Suite 1400
77002 Houston TX, USA
c/o Total S.E. - Gas Renewables & Power - Biogas
Tour CBX 1 Passerelle des Reflets
92400 Courbevoie, Paris La Défense, France
Attn: Vice-President Biogas
with a copy (which shall not constitute notice) to:
Latham & Watkins LLP
650 Town Center Drive, 20th Floor
Costa Mesa, CA ###-###-####
Attn: Cary Hyden
or to any other addresses designated in writing by the receiving Party to the other Parties in accordance with the provisions of this Agreement.
[Remainder of Page Intentionally Blank]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective duly authorized officers as of the Execution Date.
Total Biogas Holdings USA, LLC
By: /s/ Jean-Charles Papeians
Clean Energy Renewable Fuels, LLC
By: /s/ Andrew J. Littlefair
Name:Andrew J. Littlefair