CONSULTING AGREEMENT
Exhibit
10.13
This
Consulting Agreement is made by and between Xxxxxxxxxxx x’Xxxxxx-Xxxxxx
("Consultant"), residing at 000 Xxxx 00xx
Xxxxxx,
00X, Xxx Xxxx, XX 00000 and Xethanol Corporation ("Xethanol"), a Delaware
corporation, with its principal offices located at 0000 Xxxxxx xx xxx Xxxxxxxx,
00xx
Xxxxx,
Xxx Xxxx, XX 00000.
1. Retention
as Consultant.
a. Xethanol
hereby retains Consultant and Consultant hereby accepts such engagement and
agrees to perform the services for Xethanol as hereinafter set forth. During
the
Term hereof, Consultant shall, utilizing his experience and expertise, serve
as
an advisor to the Board of Directors and the Chief Executive Officer (“CEO”) of
Xethanol.
b. During
the Term, Consultant shall devote a reasonable amount of his business time,
attention and efforts to the business of Xethanol and shall hold himself ready
to and shall provide strategic advice to the CEO in connection with the business
of Xethanol, including, without limitation, evaluating particular contracts
or
transactions, as requested by the CEO. Should Consultant so desire, Xethanol
shall provide him with adequate work space and administrative support as are
reasonably necessary for carrying out the functions of his consulting work.
c. Consultant
and Xethanol may agree that Consultant will render services to Xethanol that
are
outside the scope of this Agreement. Such services would be the subject of
separate agreements between the Consultant and Xethanol that would define the
nature and scope of such services and the compensation to be paid to Consultant
for such services.
2. Compensation.
a. Consultant
shall be compensated by Xethanol for all services to be rendered by him pursuant
to this Agreement by the payment to him of consulting fees in the amount of
$15,000 per month, which amount shall be payable monthly in
advance.
b. Xethanol
shall reimburse Consultant for his reasonable out-of-pocket expenses incurred
with respect to the performance of his consulting activities hereunder upon
Consultant's presentation of vouchers, receipts, and such other evidence of
expenses incurred as shall be reasonably required by Xethanol.
c. Xethanol
may grant Consultant such stock options and warrants at such times, in such
amounts and with such exercise prices as the Board of Directors of Xethanol
may
determine.
3. Term.
a. The
term
of this Agreement (the “Term”) shall commence on the date set forth below and
shall terminate on November 25, 2007, or on such earlier date as it may
terminate as set forth below.
b. This
agreement may be terminated prior to the end of the Term by written notice
given
by either party to the other.
c. In
the
event that this Agreement is terminated by Consultant prior to the end of the
Term, Xethanol shall pay Consultant all amounts due him under this Agreement
through the effective date of termination, including his expense reimbursement
as provided in Section 2(c) and the benefits provided for in Section
2(b).
d. In
the
event that this Agreement is terminated by Xethanol prior to the end of the
Term, Xethanol shall pay Consultant all amounts due him under this Agreement
through the effective date of termination., including his expense reimbursement
as provided in Section 2(c) and shall pay Consultant a lump-sum termination
fee
equal to the lesser of: (1) the consulting fee for the number of months
otherwise remaining in the Term and (2) six (6) months’
compensation.
4. Non-Disclosure.
Consultant will not at any time (a) use any Confidential Information for his
own
benefit or for the benefit of any person or entity other than Xethanol; (b)
disclose to any person or entity any Confidential Information; or (c) remove
from Xethanol's premises or make copies of any Confidential Information, in
any
form; except, in each case, as may be required within the scope of Consultant's
duties during the term of this Agreement, in which event Consultant will
maintain and safeguard the confidentiality of such Confidential Information
and
will secure from any third parties to whom Consultant may in his best judgment
disclose such information their written agreement expressly inuring to the
benefit of Xethanol
to
maintain and safeguard its confidentiality and not to use it for the benefit
of
any person other than Xethanol.
For
purposes of this Agreement, "Confidential Information" means any trade secrets
and all technical, research, operational, manufacturing, marketing, sales and
financial policies, plans or information of Xethanol. Confidential Information
does not include information, knowledge or data that was in Consultant’s
possession prior to the commencement of this Agreement or information, knowledge
or data which was or is in the public domain by reason other than the wrongful
acts of Consultant; provided, however, that “Confidential Information” shall
include information, knowledge and data that was in Consultant’s possession
prior to the commencement of this Agreement (other than information, knowledge
or data which was or is in the public domain other than by reason of the
wrongful acts of Consultant) that Consultant was prohibited form disclosing
or
using by reason of any fiduciary obligation of Consultant to Xethanol
or any
agreement between Consultant and Xethanol
.
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5. Relationship.
Consultant and Xethanol are and shall be independent contractors in their
relationship with each other and neither is nor shall be considered an agent,
employee, or legal representative of the other for federal or state tax purposes
or for any other purposes whatsoever. Consultant has no express or implied
authority to assume or create any obligation or responsibility on behalf of
Xethanol or to bind Xethanol in any way.
6.
General
Provisions.
a. Notices.
Any
notice required or desired to be given hereunder shall be effective if in
writing and delivered personally or by certified mail, postage prepaid and
return receipt requested, to a party hereto at the address for such party set
forth herein or to such other address as a party may specify by written notice
to the other party similarly given, and shall be effective when mailed or,
if
delivered by hand, when received.
b. Benefit.
This
Agreement and the rights and obligations contained herein shall be binding
upon
and inure to the benefit of Xethanol, its successors and assigns, and upon
Consultant, his/her legal representatives, heirs and distributees.
c. Waiver.
The
waiver by either party of a breach of any provision of this Agreement shall
not
operate as or be construed as a waiver of any subsequent breach.
d. Entire
Agreement.
This
Agreement contains the entire agreement between the parties relating to the
subject matter hereof and may not be altered or amended except by an instrument
in writing signed by both parties hereto. This Agreement supersedes in its
entirety the Consulting Agreement between Consultant and Xethanol dated August
25, 2006 (the “Prior Agreement”); provided, however, that Xethanol shall be
obligated to pay Consultant all amounts due him with respect to services
rendered to Xethanol pursuant to the Prior Agreement prior to the date
hereof.
e. Severability.
The
invalidity or unenforceability of a particular provision hereof shall not affect
the other provisions of this Agreement, and it shall be construed in all
respects as if such invalid or unenforceable provision were
omitted.
f. Applicable
Law.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of New York, without application of the choice of law provisions, and
Consultant and Xethanol hereby consent to the jurisdiction of the appropriate
courts of the State of New York with respect to any disputes relating to this
Agreement.
g.
Disputes.
In the
event that a dispute arises relating to this Agreement, the parties
agree to attempt to resolve the dispute informally, including through mediation.
In the event that the parties are unable to resolve such disputes informally,
the courts of New York shall have exclusive jurisdiction over any suits arising
from or relating to such a dispute.
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h. Headings.
The
headings contained herein are inserted for convenience only and do not
constitute a part of this Agreement.
i. Counterparts.
This
Agreement may be executed in one or more counterparts, each one of which shall
be deemed an original instrument and all of which together shall constitute
one
and the same document.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
December 1, 2006.
| CONSULTANT: | Xethanol Corporation | ||
| /s/ Xxxxxxxxxxx x’Xxxxxx-Xxxxxx | By: | /s/ Xxxxx Xxxx | |
|
Xxxxxxxxxxx x’Xxxxxx-Xxxxxx |
Name: |
Xxxxx Xxxx |
|
| Title: | President & Chief Executive Officer | ||
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