Exhibit 10.10
PROJECT DEVELOPMENT FEE AGREEMENT
THIS PROJECT DEVELOPMENT FEE AGREEMENT ("Agreement") is entered into as of
this 19th day of May, 2005 ("Effective Date"), by and between Xxxxxx X. Xxxxxx,
an individual ("Xx. Xxxxxx"), Xxxxx X. Xxxxxxxxxx, III, an individual ("Xx.
Xxxxxxxxxx"), and Advanced Bio-Energy, LLC ("Company"), a Delaware limited
liability limited company.
WHEREAS, Xx. Xxxxxx and Xx. Xxxxxxxxxx organized the Company for the
purpose of developing, owning and operating a 100 million gallon dry mill
ethanol plant near Fairmont, Nebraska (the "Project" or "Ethanol Plant");
WHEREAS, Xx. Xxxxxx and Xx. Xxxxxxxxxx have provided project development
services to the Company in the past and intend to provide such services in the
future;
WHEREAS, as disclosed in the seed capital prospectus and seed capital
subscription agreement used by the Company in its seed offering closed on April
14, 2005, the Company has agreed to pay development fees to Xx. Xxxxxx and Xx.
Xxxxxxxxxx in exchange for their efforts to organize the Company and assist in
development of the Ethanol Plant; and
WHEREAS, the Members desire to memorialize that agreement and set forth in
this Agreement, the manner in which the development fees shall be allocated and
distributed.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereby agree as follows:
1. DEVELOPMENT SERVICES. Company hereby retains Xx. Xxxxxx and Xx. Xxxxxxxxxx
for the purpose of providing organizational and developmental services with
respect to the Project ("Development Services"). Development Services shall
include all services performed on behalf of the Company by Xx. Xxxxxx and
Xx. Xxxxxxxxxx to date and all services performed on behalf of and at the
reasonable request of the Company through the termination of this Agreement.
Development Services shall not include effecting or attempting to effect
purchases or sales of the Company's securities.
2. DEVELOPMENT FEE. In consideration for the Development Services to be
provided to Company, Company shall pay Xx. Xxxxxx and Xx. Xxxxxxxxxx
(collectively) a total development fee equal to .01 percent (1%) of the total
Project cost (the "Development Fee") payable in accordance with Section 3.
3. PAYMENT TERMS. For purposes of this Agreement, the Development Fee will
initially be estimated at 125,000 membership units in the Company ("Estimated
Development Fee"). Xx. Xxxxxx shall receive 25,000 of the Estimated Development
Fee and Xx. Xxxxxxxxxx shall receive 100,000 of the Estimated Development Fee
for a total of 125,000 membership units of the Company. Said units shall be
subject to the unit restrictions set forth in Section 4 of this Agreement
("Restricted Units"). On the date on which substantial operations of the Ethanol
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Plant commence, the actual Project costs shall be calculated by the Company
("Actual Project Cost"). If the Actual Project Cost is greater than
$125,000,000, and if on that date Xx. Xxxxxxxxxx has not forfeited his
Restricted Units in accordance with Section 4 of this Agreement, then Xx.
Xxxxxxxxxx shall receive additional units (non-restricted) in the Company valued
at .01 percent (1%) of the difference between the Actual Project Cost and
$125,000,000. If the Actual Project Cost is less than $125,000,000, and if on
that date Xx. Xxxxxxxxxx has not forfeited his Restricted Units, then Xx.
Xxxxxxxxxx shall return the number of Restricted Units to the Company valued at
..01 percent (1%) of the difference between $125,000,000 and the Actual Project
Cost and all Xx. Xxxxxxxxxx'x rights in the Restricted Units returned to the
Company shall be deemed to have been forfeited. Xx. Xxxxxx shall receive no
additional units and shall not be required to forfeit units as provided in this
Section 3. Notwithstanding anything in this section to the contrary, in no event
shall Xx. Xxxxxxxxxx receive or forfeit a fractional unit of the Company. In
lieu of issuance or forfeiture of a fractional unit, the number of units shall
be rounded to the nearest unit.
4. UNIT RESTRICTIONS. The Restricted Units paid to Xx. Xxxxxx and
Xx. Xxxxxxxxxx pursuant to this Agreement are subject to the following
restrictions:
(a) Upon the dissolution, bankruptcy or insolvency of the Company, or the
inability or failure of the Company generally to pay debts as they become
due, or an assignment by the Company for the benefit of creditors, or the
commencement of any case or proceeding in respect of the Company under any
bankruptcy, insolvency or similar laws, Xx. Xxxxxx and Xx. Xxxxxxxxxx shall
return the Restricted Units to the Company without payment of consideration
by the Company and the Restricted Units shall be deemed to have been
forfeited by Xx. Xxxxxx and Xx. Xxxxxxxxxx. Notwithstanding anything in
this Agreement to the contrary, in no event shall Restricted Units be
returned to the Company to the extent that this restriction shall have
lapsed in accordance with Section 6.
(b) Upon the voluntary resignation as a member of the Company's board of
directors by Xx. Xxxxxx and/or Xx. Xxxxxxxxxx, Xx. Xxxxxx and/or
Xx. Xxxxxxxxxx shall return the Restricted Units to the Company without
payment of consideration by the Company and such Restricted Units shall be
deemed to have been forfeited by Xx. Xxxxxx and/or Xx. Xxxxxxxxxx.
Notwithstanding the foregoing, if only one individual (i.e., either
Xx. Xxxxxx or Xx. Xxxxxxxxxx) resigns, then only the Restricted Units held
by that resigning individual must be returned to the Company and the
non-resigning individual has no obligation to return his Restricted Units.
Notwithstanding anything in this Agreement to the contrary, in no event
shall Restricted Units be returned to the Company to the extent that this
restriction shall have lapsed in accordance with Section 6.
(c) The Restricted Units may not be sold, transferred, assigned, pledged,
encumbered or otherwise alienated or hypothecated, unless, until and then
only to the extent that said restrictions shall have lapsed in accordance
with Section 6 of this Agreement.
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5. LEGEND ON MEMBERSHIP CERTIFICATE. Certificates evidencing such Restricted
Units shall be issued in the sole and respective names of Xx. Xxxxxx and Xx.
Xxxxxxxxxx (but shall be held by the Company until the restrictions have lapsed
in accordance herewith) and shall bear a legend which, in part, shall provide
that:
The membership units of Advanced BioEnergy, LLC, evidenced by this
certificate are subject to the terms and restrictions of the Project
Development Fee Agreement between Advanced BioEnergy, LLC, Xxxxx X.
Xxxxxxxxxx, III, and Xxxxxx X. Xxxxxx dated on or about May 19, 2005
("Agreement"); such units are subject to forfeiture or cancellation under
the terms of said Agreement; and such units shall not be sold, transferred,
assigned, pledged, encumbered or otherwise alienated or hypothecated except
pursuant to the provisions of said Agreement, a copy of which is available
from Advanced BioEnergy, LLC upon request.
6. LAPSE OF RESTRICTIONS. The restrictions in Section 4 of this Agreement
shall lapse as follows:
(a) Restrictions in Section 4(a) shall lapse with respect to the
Restricted Units issued pursuant to this Agreement and held in the name of
Xx. Xxxxxx or Xx. Xxxxxxxxxx on the date upon which the Ethanol Plant
begins producing ethanol for sale. Upon lapse of this restriction, such
units shall no longer be subject to forfeiture to the Company pursuant to
Section 4(a).
(b) Restrictions in Section 4(b) shall lapse as follows:
(i) With respect to one-third of the total Restricted Units issued
pursuant to this Agreement and held in the name of Xx. Xxxxxx and with
respect to one-third of the total Restricted Units issued pursuant to this
Agreement and held in the name of Xx. Xxxxxxxxxx, the date upon which the
Company first files a Form SB-2 with the Securities and Exchange
Commission. Upon lapse of this restriction in accordance with this section,
such units shall no longer be subject to forfeiture to the Company pursuant
to Section 4(b).
(ii) With respect to one-third of the total Restricted Units issued
pursuant to this Agreement and held in the name of Xx. Xxxxxx and with
respect to one-third of the total Restricted Units issued pursuant to this
Agreement and held in the name of Xx. Xxxxxxxxxx, the date upon which the
Company executes definitive documents for debt financing needed to complete
the Project. Upon lapse of this restriction in accordance with this
section, such units shall no longer be subject to forfeiture to the Company
pursuant to Section 4(b).
(iii) With respect to the remaining Restricted Units issued pursuant
to this Agreement and held in the name of Xx. Xxxxxx or Xx. Xxxxxxxxxx, the
date upon which the Ethanol Plant begins producing ethanol for sale. Upon
lapse of this restriction in accordance with this section, such units shall
no longer be subject to forfeiture to the Company pursuant to Section 4(b).
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(iv) Notwithstanding anything in this Agreement to the contrary,
restrictions in Section 4(b) with respect to Restricted Units issued
pursuant to this Agreement shall lapse in the event of the Recipient's
respective death or disability and shall no longer be subject to forfeiture
to the Company pursuant to Section 4(b).
(c) The Company may at any time in its sole discretion, accelerate or
waive all or any portion of restrictions remaining with respect to any of
the Restricted Units issued pursuant to this Agreement. The Company may
exercise this right with respect to either Xx. Xxxxxx or Xx. Xxxxxxxxxx.
Xx. Xxxxxx and Xx. Xxxxxxxxxx shall abstain from any vote by the directors
to accelerate or waive restrictions in accordance with this section.
7. RIGHTS AS A MEMBER. Upon issuance of the certificates evidencing the
Restricted Units and subject to the restrictions contained in Section 4 hereof,
Xx. Xxxxxx and Xx. Xxxxxxxxxx shall have all the rights as a member of the
Company with respect to the membership interest represented by said Restricted
Units, including the right to vote the units and receive all distributions paid
or made with respect thereto.
8. TERM AND TERMINATION OF AGREEMENT. The term of this Agreement shall
commence as of the Effective Date and shall terminate upon the sooner of payment
in full of the Development Fee, lapse of the restrictions as provided in
accordance with Section 6 or return to the Company of the Restricted Units in
accordance with this Agreement. For purposes of this Agreement, death or
disability shall not terminate this Agreement.
9. INDEMNIFICATION. Company shall indemnify, defend against and advance to
Xx. Xxxxxx and/or Xx. Xxxxxxxxxx all expenses actually and reasonably incurred
in connection with the defense of any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative (a "Proceeding"), in which Xx. Xxxxxx and/or Xx. Xxxxxxxxxx are
made a party by reason of performing services for Company or acting in any
manner pursuant to this Agreement, except that Company shall have no obligation
to indemnify and defend Xx. Xxxxxx and/or Xx. Xxxxxxxxxx or their agents for
their act or omission that involve gross negligence, willful misconduct or a
known violation of the law. Xx. Xxxxxx and/or Xx. Xxxxxxxxxx shall indemnify and
defend Company and its employees, members, directors, officers and agents
against expenses actually and reasonably incurred in connection with the defense
of any Proceeding in which Company and/or its employees, members, directors,
officers or agents are made a party by reason of Xx. Xxxxxx and/or Xx.
Xxxxxxxxxx committing an act or omission that involves gross negligence, willful
misconduct or a known violation of the law.
10. DEFAULT. In the event of the failure of either of the parties to comply
with any of the terms and provisions of this Agreement, or in the event either
party has violated any of the warranties and representations made herein by that
party, then such party shall be deemed to be in default hereunder and the other
party shall be given written notice of such noncompliance and shall give the
defaulting party thirty (30) days from the date of such notice within which to
correct such noncompliance. If such default has not been corrected, or an
arrangement satisfactory to the complaining party has not been made by the end
of the notice period, then the complaining party may take whatever action is
necessary, and exercise all remedies available in
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order to protect the complaining party's rights under the terms and conditions
of this Agreement. The parties agree that the remedies set forth in this Section
10 shall not be exclusive, but they shall be cumulative with all other rights
and remedies available, at law or in equity, to the parties. In the event of any
dispute between the parties resulting from this Agreement or any provisions
hereunder, the prevailing party in any such dispute shall be entitled to recover
reasonable attorneys' fees and related costs and such other costs incurred
therewith.
11. SUCCESSORS AND ASSIGNS BOUND. This Agreement shall be binding upon the
Company, Xx. Xxxxxx and Xx. Xxxxxxxxxx, their respective heirs, executors,
administrators, successors in interest or assigns, including without limitation,
any partnership, corporation or other entity into which the Company may be
merged or by which it may be acquired (whether directly, indirectly or by
operation of law), or to which it may assign its rights under this Agreement.
Notwithstanding the foregoing, any assignment by Xx. Xxxxxx or Xx. Xxxxxxxxxx of
this Agreement or of any interest herein, or of any money due to or to become
due by reason of the terms hereof without the prior written consent of Company
shall be void.
12. RELATIONSHIP OF THE PARTIES. The parties understand that Xx. Xxxxxx and
Xx. Xxxxxxxxxx are independent contractors with respect to Company, and
employees of Company. Company will not provide fringe benefits, including health
insurance benefits, paid vacation, or any other employee benefits for the
benefit of Xx. Xxxxxx or Xx. Xxxxxxxxxx. The parties also understand that
Xx. Xxxxxx and Xx. Xxxxxxxxxx are not partners for purposes of this Agreement
and should not be construed to be acting jointly herein, but each in his own
right.
13. AUTHORITY. Each of the signatories hereto certifies that such party has all
necessary authority to execute this Agreement.
14. AMENDMENTS. This Agreement sets forth the entire understanding of the
parties and supersedes any prior agreements, oral or written, as to the subject
matter hereof. This Agreement may be amended or modified by, and only by, a
written instrument executed by the parties hereto.
15. BINDING EFFECT. This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their respective successors, permitted assigns and
personal representatives. This Agreement shall not be assigned by any party
hereto except as permitted by its express terms or upon the written consent of
the other party. Nothing in this Agreement, express or implied, its intended to
confer upon any other person any rights or remedies under or by reason of this
Agreement.
16. SEVERABILITY. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement, or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
17. WAIVER. The failure of any party hereto to insist in any one of more
instances upon performance of any term or condition of this Agreement shall not
be construed as a waiver of
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future performance of any such term, covenant or condition, but the obligation
of such party with respect thereto shall continue in full force and effect.
18. CAPTIONS. The captions herein are inserted for convenience of reference
only and shall be ignored in the construction or interpretation hereof.
19. NOTICES. Any notice required to be given hereunder shall be in writing and
shall be deemed to be sufficiently served by either party on the other party if
such notice is delivered personally or is sent by certified or first class mail
addressed as follows:
To Xx. Xxxxxx: Xxxxxx X. Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxx, XX 00000
To Xx. Xxxxxxxxxx: Xxxxx X. Xxxxxxxxxx, III
0000 Xxx Xxxxx Xxxx
Xxxxx, XX 00000
To Company: Advanced BioEnergy, LLC
Attention: Xxxxxx X. Xxxxxxx
000 0xx Xxxxxx
Xxxxxxxx, XX 00000
Copy to: Brown, Winick, et al.
Attention: Xxxx Xxxxxxx
000 Xxxxx Xxxxxx, Xxx. 0000
Xxx Xxxxxx, Xxxx 00000
20. GOVERNING LAW. This Agreement shall be governed and construed in accordance
with the laws of the State of Nebraska without reference to its conflict of law
rules. Each of the parties hereto irrevocably submits to the jurisdiction of any
state or federal court sitting in the State of Nebraska in any action or
proceeding brought to enforce or otherwise arising out of or relating to this
Agreement.
21. INTERPRETATION. The parties agree that each has had an opportunity to
negotiate fully the terms of this Agreement and that this Agreement shall not be
interpreted in favor of or against the party drafting the Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in duplicate by their duly authorized representatives on the date first above
written.
Advanced Bio-Energy, LLC
By:
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Xxxxx X. Xxxxxxxxxx, III
Its:
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Xxxxxx X. Xxxxxx
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