Vertex Energy Operating LLC 8-K


Exhibit 10.2 



SWAPKIT PURCHASE AGREEMENT


This Swapkit Purchase
Agreement (the "Agreement") is made and entered into as of the 26th day of May, 2021, by and among Vertex
Energy Operating, LLC, a Texas limited liability company (the "Buyer") and EQUILON ENTERPRISES LLC d/b/a SHELL
OIL PRODUCTS US, a Delaware limited liability company (the "Seller"). Buyer and Seller are each a "Party" and
collectively referred to as the "Parties".


RECITALS


WHEREAS, Buyer,
Seller, Shell Oil Company, Inc., and Shell Chemical LP have executed that certain Sale and Purchase Agreement contemporaneously herewith
(the “SPA”) related to Buyer’s acquisition of the Shell Refinery located in Mobile, Alabama (the “Refinery”),
all capitalized terms not otherwise defined herein shall have the meanings set forth in the SPA; and


WHEREAS, Pursuant
to the SPA, the Parties have entered into a license for proprietary software (the “Shell Software License”);


WHEREAS, as one
IT solution the Parties agree that Buyer will purchase a functional swapkit from Seller (the “Swapkit”); and


WHEREAS, Buyer
desires to purchase, and Seller desires to sell, the Swapkit, on the terms and conditions set forth in this Agreement (the "Transaction");
and


NOW, THEREFORE,
for and in consideration of the mutual covenants and agreements contained herein, the recitals above which are hereby incorporated herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby
agree as follows:


1.               
Incorporation by Reference. The foregoing recitals and all Exhibits attached hereto and referred to herein are hereby acknowledged
and are incorporated herein by this reference as if fully set forth in this Agreement.


 


2.               
Purchase and Sale of Swapkit. On the terms and subject to the conditions set forth in this Agreement, Seller agrees to
sell, assign, convey, transfer, and deliver to Buyer, and Buyer agrees to purchase, accept, and acquire from Seller, the Swapkit.


 


3.               
Purchase Price and Payment. The purchase price for the Swapkit shall be Eight Million Seven Hundred Thousand and 00/100
dollars ($8,700,000.00) (the "Purchase Price"), which amount shall be payable to Seller in immediately available funds either
(x) at Closing and subject to the Closing Adjustment set forth in Section 2.09(i) of the SPA, or (y) in the event the SPA is terminated,
in accordance with Section 15.04 of the SPA.


 


4.               
Provision of Swapkit.


 


		4.1	Upon Closing Seller will deliver the
                                            Swapkit which will enable the Buyer to continue to operate the Refinery in substantially
                                            the same manner and to substantially the same extent as the Assets were operated by Seller
                                            immediately preceding the Closing Date.



		4.1.1	RESERVED.





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		4.1.2	Up and until the Completion Date, Seller
                                            shall have sole control and management over the development and implementation of the Swapkit.



		4.1.3	The Seller will provide high-level,
                                            monthly progress reports to the Buyer in the period between the date of this Agreement and
                                            the Closing Date.



		4.1.4	Prior to the Closing Date Buyer will
                                            deliver knowledge transfer to the Transferred Employees.



		4.1.5	Immediately following the Closing Date,
                                            Seller will hand over the control and management of the Swapkit to the Buyer. Buyer will
                                            be solely responsible for the full operation and support of the Swapkit.



		4.1.6	The Parties acknowledge that the Seller
                                            makes use of certain Seller Software, IT Systems, Third Party Software and IT Equipment and
                                            Non-Group IT Equipment in connection with the business and operations of the Refinery.



		4.1.7	The Seller or an Affiliate of the Seller
                                            shall grant to the Buyer a license to continue to use copies of certain Seller Software pursuant
                                            to the Shell Software License Agreement and the Shell Process License Agreement, attached
                                            hereto as Exhibits A and B.



		4.1.8	For the avoidance of doubt, the Buyer
                                            acknowledges that the Seller gives no warranty or representation that any license, lease
                                            or consent will be granted.



 


5.               
The Closing.


		5.1	Upon the terms and subject to the conditions
                                            of this Agreement and the SPA, the Closing of the purchase and sale of the Swapkit shall
                                            occur simultaneously with the closing of the purchase of the Assets under the SPA (the “Closing
                                            Date”), at such time and place as may be agreed upon by the Parties.



		5.2	At Closing, Seller shall deliver to
                                            Buyer a bill of sale executed by Seller, substantially in the form attached hereto as Exhibit
                                            A (the "Bill of Sale") and Buyer shall deliver the Purchase Price, as Purchase
                                            Price is defined in this Agreement.



		5.3	Seller’s Conditions to Close.
                                            Seller’s obligation to close the Transaction contemplated hereby at the Closing Date
                                            shall be subject to the simultaneous closing of the purchase of the Assets under the SPA.



		5.4	Buyer’s Conditions to Close.
                                            Buyer’s obligation to close the Transaction contemplated hereby at the Closing shall
                                            be subject to (a) the simultaneous closing of the purchase of the Assets under the SPA, and
                                            (b) the Swapkit shall be functioning such that when working in concert with the Shell Software
                                            License Agreement and the Shell Processing Agreement, Buyer has possession of, and the right
                                            to use, all IT that is required to operate the Refinery and also in the ordinary course.



 


		6.	Representations and Warranties.
                                            Seller represents and warrants to Buyer that it has title to and ownership of the Swapkit
                                            conveyed to Buyer under this Agreement and has all the rights necessary to convey the Swapkit. However,
Seller does not make and is not to be taken as making any statement, representation or warranty as to the fitness for purpose of the
Swapkit nor the adequacy, accuracy or completeness of any information made available in connection with this Agreement. Furthermore,
to the fullest extent permitted by law, Seller (a) hereby excludes any representation or warranty with regard to the functionality or
fitness for purpose of the Swapkit, and (b) excludes all liability with regard to the functionality or fitness for purpose of the Swapkit.
Any use of the Swapkit is at the sole risk of the Buyer.





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7.                  
Additional Buyer Covenants.


 


The Buyer undertakes with the Seller, for the
benefit of the Seller and the other members of the Shell Group, that no member of the Buyer’s Group will have any rights in the
Seller Software, the Third Party Software, IT Systems, IT Equipment or the Non-Group IT Equipment whatsoever and the Buyer shall covenant
that:


7.1              
No member of the Buyer’s Group uses any Seller Software (including, for the avoidance of doubt, Shell Group infrastructure desktop
operational software as provided by other members of the Shell Group to the Buyer, which will not be licensed or otherwise transferred
to the Buyer for use on or after the Closing Date), IT Systems, IT Equipment, Third Party Software or Non-Group IT Equipment on or after
the Closing Date; and


 


7.2              
within thirty (30) Business Days of the Closing Date any non-licensed Seller Software or Third Party Software remaining on the IT Systems
of the Buyer will be permanently removed or deleted from such equipment and systems and any copies of that software are destroyed and
Buyer shall confirm such deletion in writing to Seller or, at the Seller’s request, returned to the Seller or another member of
the Shell Group notified by the Seller to the Buyer; and


 


7.3              
Section 7.1 does not apply to any IT Systems to the extent that the Buyer is permitted to use that software under the Shell Software
License Agreement or any other agreement or to Third Party Software or Non-Group IT Equipment to the extent that (a) the Buyer is permitted
to use that software or equipment under a consent, license or lease obtained by Buyer including without limitation as set forth in Exhibit
B and Exhibit C; and/or (b) the use of any such Third Party Software or Non-Group IT Equipment is otherwise granted by the owner of the
intellectual property rights in that Third Party Software IT Systems or by the owner of that IT Equipment or that Non-Group IT Equipment.


 


7.4              
Except to the extent otherwise provided for under this Agreement or exhibits to the SPA, on or before the Completion Date the Buyer shall
be removed from the IT Systems of the Shell Group and neither the Seller nor any other member of the Shell Group shall have any liability
whatsoever after the Closing Date in relation to the provision to, or supply to, the Buyer of: any information technology related hardware,
software, components, data, databases and/or services; or any access to the IT Systems of the Shell Group.




7.5              
Within six (6) months from the Closing Date, and except for the IP addresses required for the site to continue to run from and after
the Effective Time, Buyer shall use commercially reasonable efforts to remove all Shell IP-addresses and all references to Shell, Seller
and other Affiliates of Seller, from the IT Systems and names and identifiers
of, the information technology networks of the Buyer; and




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7.6              
until the Shell IP-addresses have been removed from and all references to Shell, Seller and other Affiliates of Seller have been removed
from all IT System names and identifiers of, the information technology networks of the Buyer, the Shell IP-addresses shall only be used
internally and shall not be used for communication with other parties via the internet without the use of a device or application that
dynamically changes the Shell IP address into an IP address authorized for use on the internet and owned by a member of the Buyer’
Group.


 


7.7              
Within sixty (60) Business Days following Closing, Buyer shall provide written confirmation that it has complied with the provisions
of Section 7.1, 7.3 and 7.4 and shall, if so requested by the Buyer, provide (at no cost to the Buyer) confirmation of an independent
auditor of the Buyer’s compliance with this Section 7.


 


7.8              
The Buyer shall, at its sole cost and expense, indemnify, defend and hold harmless the Seller and each other member of the Shell Group
from and against any actions, claims, proceedings, liabilities, obligations, losses, fines, penalties, damages, costs, expenses and payments
incurred or suffered by the Seller or such other member of the Shell Group as a result of, or relating to, the failure of the Buyer to
comply with its obligations under this Section 7.


 


7.9              
The Buyer acknowledges that, to the extent that the Buyer receives infrastructure or other IT related services prior to the Closing Date
pursuant to an agreement between a member of the Shell Group and the relevant service provider, the Buyer shall not be entitled to receive
such services after Closing under such agreement. Otherwise, Buyer shall be solely responsible (at its own cost) for ensuring that the
Buyer has access to such infrastructure and other IT related services as they require after Closing (including by concluding such new
agreements with relevant service providers as may be necessary).


 


8                    
Liability and Indemnification.


 


8.1           
General. Neither Party excludes or limits its liability for fraud arising from its negligence or for any liability, to the extent
such liability cannot be excluded or limited as a matter of applicable law. This Clause does not affect the indemnities given in this
Agreement.


 


8.2           
 Liability Exclusion. To the extent permitted by applicable law, each Party excludes any liability to the other for loss of business,
loss of anticipated or actual profit, loss of goodwill or reputation, loss caused by business interruption or any indirect, special or
consequential cost, expense, loss or damage, arising out of or in connection with this Agreement or the Swapkit, whether arising in contract,
tort or otherwise and even if such loss or business interruption was reasonably foreseeable, except where such loss or business interruption
arises out of or in connection with a misuse of the Swapkit or as expressly provided otherwise in this Agreement. Further, the Seller
excludes any liability to the Buyer in connection with any actual or alleged infringement of third party intellectual property or other
rights.


 


8.3           
Indemnification by Buyer. The Buyer shall, at its sole cost and expense, indemnify, defend and hold harmless the Seller and each
other member of the Shell Group from and against any actions, claims, proceedings, liabilities, obligations, losses, fines, penalties,
damages, costs, expenses and payments incurred or suffered by the Seller or such other member of the Shell Group as a result of, or relating
to, the




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failure of the Buyer to comply with its obligations
under this Agreement. In particular, but without limitation to the foregoing, the Buyer shall pay directly to any third party, or reimburse
any member of the Shell Group in respect of, any costs, fees or expenses payable in connection with the possession or use, or access,
on or following the Closing Date, of Third Party Software, IT Systems, IT Equipment or Non-Group IT Equipment by the Buyer (including
any monies payable from a member of the Shell Group or the Buyer’s Group to the owner of the intellectual property rights in the
Third Party Software ,IT Systems, IT Equipment or of the Non-Group IT Equipment, whether in relation to the transfer of existing licenses,
subscription services or leases, pursuant to existing or new licenses or leases or otherwise).


 


8.4           
Indemnification by Seller. The Seller shall, at its sole cost and expense, indemnify, defend and hold harmless the Buyer and each
other member of the Buyer Group from and against any actions, claims, proceedings, liabilities, obligations, losses, fines, penalties,
damages, costs, expenses and payments incurred or suffered by the Buyer or such other member of the Buyer Group as a result of, or relating
to, the failure of the Seller to comply with its obligations under this Agreement. Notwithstanding the foregoing, Seller’s total
liability to Buyer including any indemnification obligation set forth in this section 8.4 shall never, in aggregate, exceed the Purchase
Price.


 


8.5           
Indemnification Exclusion. The requirements for the Seller to release, indemnify, defend and hold harmless the Buyer do not apply
to:


		8.5.1	liabilities, claims, losses, damages,
                                            costs (including legal fees) and expenses that did not arise in connection with the Agreement
                                            or that are unrelated to the Swapkit; or



		8.5.2	liabilities, claims, losses, damages,
                                            costs (including legal fees) and expenses caused by the gross negligence or wilful misconduct
                                            of an indemnified Party; or



		8.5.3	fines, punitive or exemplary damages,
                                            or penalties payable to any governmental or non-governmental third party by an indemnified
                                            party; or



		8.5.4	liabilities, claims, losses, damages,
                                            costs (including legal fees) and expenses arising from non-permitted use or disclosure of
                                            Swapkit or breach of intellectual property rights.



 


9                    
Miscellaneous.


 


9.1.            
Amendment; Waiver. No provision of this Agreement may be amended, waived, or otherwise modified without the prior written consent
of all of the applicable Parties hereto. No action taken pursuant to this Agreement, including any investigation by or on behalf of any
party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representation, warranty, covenant,
or agreement herein contained. The waiver by any party hereto of a breach of any provision or condition contained in this Agreement shall
not operate or be construed as a waiver of any subsequent breach or of any other conditions hereof.


 


9.2.            
Section Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not affect
the meaning or interpretation of this Agreement.


 


9.3.            
Assignability. This Agreement shall not be assignable by any party hereto without the prior written consent of the other Parties,
which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, Buyer will assign this agreement
at Closing to its wholly owned subsidiary, Vertex Refining Alabama LLC, a Delaware limited liability company (“VRA”), whereafter
VRA will assume and agree to perform all of Buyer’s covenants and agreements set forth herein, provided, however, that notwithstanding
such assignment Buyer shall remain primarily liable for its covenants and agreements hereunder.






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9.4.            
Binding Effect; Benefit. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any other person any rights,
remedies, obligations, or liabilities, except that Section 8 is intended to benefit the indemnified parties referenced therein.


 


9.5.            
Severability. Any provision of this Agreement which is held by a court or arbitrator of competent jurisdiction to be prohibited
or unenforceable shall be ineffective to the extent of such prohibition or unenforceability, without invalidating or rendering unenforceable
the remaining provisions of this Agreement.


 


9.6.            
PDF; Counterparts. This Agreement may be executed by facsimile and in counterparts, each of which shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument. Signatures exchanged by facsimile or other electronic means
(including .pdf by email) shall be deemed original signatures for all purposes.


 


9.7.            
Governing Law. This Agreement shall be governed by, construed, interpreted, and enforced in accordance with the laws of the State
of Texas.


 


 


9.8.            
Notices. All notices, requests, demands, consents, and other communications which are required or may be given under this Agreement
(collectively, the "Notices") shall be in writing and shall be given in accordance with Section 17.01 of the SPA.


 


9.9.            
Further Assurances. Each of the Parties to this Agreement shall cooperate with the other and execute and deliver to the other
party to this Agreement such other instruments and documents and take such other actions as may be reasonably requested from time to
time by the other party to this Agreement as necessary to carry out or evidence the purposes of this Agreement.


 


9.10.         
Costs and Expenses. Each of the Parties shall be solely responsible for its own costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby.


 


9.11.         
Entire Agreement. This Agreement, including exhibits hereto, constitutes the entire, integrated agreement of the Parties with
respect to the subject matter hereof, and supersedes any and all prior understandings, correspondence, negotiations, and agreements of
the Parties with respect to the subject matter hereof.


 


[Signature Page(s) to Follow.]


 




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IN WITNESS WHEREOF, the Parties have executed this Swapkit Purchase
Agreement as of the date first set forth above.


 


 


 


	 	 
	SELLER:

     

     

     

     

     

     

     

    BUYER:
	EQUILON ENTERPRISES LLC d/b/a SHELL OIL PRODUCTS US

     

    By: /s/ Patrick F. Southwick

    Name: Patrick F. Southwick

    Title: Vice President, Equilon

     

     

     

    VERTEX REFINING OPERATING, LLC

    a Texas limited liability company

     

     

     

    By: /s/ Benjamin P. Cowart

    Name: Benjamin P. Cowart

    Title: CEO





Signature Page to Swapkit Purchase Agreement




     


     


    










 


Emmy SPA definitions:


		•	“Closing”
                                            means the Closing of the sale and purchase of the Assets under this Agreement;



		•	“Closing
                                            Date” has the meaning given to it in Clause 5.1;



		•	Seller
                                            Software” means the software and online services identified in Exhibit A in relation
                                            to which a member of the Shell Group owns all intellectual property rights; 



		•	“IT
                                            Systems” means all IT Equipment, software, networks, services, databases, IT infrastructure
                                            components or tools and any Intellectual Property that is an integral part of such IT Equipment
                                            and software, including Seller Software and Third Party Software used by the Seller. A full
                                            and complete list of all IT Systems is identified in Exhibit B. 



		•	“Third
                                            Party Software” means the software and online services, other than Seller Software,
                                            which is used by the Seller at the date of this Agreement, and is identified at Exhibit C.
                                            



		•	“Non-Group
                                            IT Equipment” means IT Equipment which is not owned by the Seller, and is identified
                                            at Exhibit D; 



		•	“IT
                                            Equipment” means equipment used by the Seller in connection with information technology
                                            (IT) services as at the date of this Agreement, including (but not limited to) personal computers
                                            and peripherals, printers, scanners, mobile computing devices, mobile telephones, desk phones
                                            and PBX systems, servers, storage, racks, voice and data network devices; 



		•	“Shell
                                            Software Licence Agreement” means an agreement in the form set out in Exhibit A;“Shell
                                            IP-address” means any internet protocol address assigned to (a) Shell prior to
                                            the Closing Date; or (b) any member of the Shell Group; 



		•	“Shell
                                            Group” means, the Seller, the Ultimate Parent Company of the Seller and the Ultimate
                                            Parent Company’s Affiliates from time to time; 



		•	“Shell
                                            Process Licence Agreement” means an agreement in the form set out in Exhibit B;






		•	“Buyer’s
                                            Group” means the Buyer and any Affiliates of the Buyer;



		•	“Software”
                                            means computer software including computer programs, applications and databases in any form,
                                            including source code and object code, operating systems and specifications, firmware, data,
                                            databases, database management code, utilities, graphical user interfaces, menus, images,
                                            icons, forms, methods of processing, software engines, platforms, data formats, internet
                                            web sites, web content and links, all versions, updates, corrections, enhancements and modifications
                                            thereof, and all related documentation, developer notes, comments and annotations.