AMENDED and RESTATED PROJECT DEVELOPMENT FEE AGREEMENT
Exhibit 10.4
AMENDED and RESTATED
PROJECT DEVELOPMENT FEE AGREEMENT
PROJECT DEVELOPMENT FEE AGREEMENT
THIS AMENDED PROJECT DEVELOPMENT FEE AGREEMENT (“Agreement”) is entered into as of this
2 day of March , 2006 (“Effective Date”), by and between Xxxx X. Xxxxxxxx, an
individual (“Xxxxxxxx”), and E Energy Xxxxx, LLC (“Company”), a Nebraska limited liability
Company.
WHEREAS, the parties previously entered into a Project Development Agreement dated June 17,
2005, (the “Development Agreement”);
WHEREAS, the parties desire to amend and restate the Development Agreement to reflect certain
changes relating to the timing of payment of the development fee;
WHEREAS, Xxxxxxxx organized the Company for the purpose of developing, owning and operating a
50 million gallon dry mill ethanol plant near Adams, Nebraska (the “Project” or “Ethanol Plant”);
WHEREAS, Xxxxxxxx has provided project development services to the Company in the past and
intends 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 commenced on April 27, 2005, the Company has agreed to
pay a development fee to Xxxxxxxx in exchange for his efforts to organize the Company and assist
in development of the Ethanol Plant; and
WHEREAS, the Company’s Board of Directors (the “Board”) desires to memorialize that agreement
and set forth the manner in which the development fee shall be 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 Xxxxxxxx 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 Xxxxxxxx to
date and all services performed on behalf of and at the reasonable request of the Company through
the termination of this Agreement. Xxxxxxxx’x duties shall include, but not be limited to,
assumption of responsibility for public relations, on-site development issues, and timely
completion of the Project. Xxxxxxxx shall apprise the Board of the status of the Project and of
any material events, shall assist the Company’s Board in developing policies regarding
construction of the Project, and shall perform his duties at the direction of the Board.
Development Services shall not include effecting or attempting to effect purchases or sales of the
Company’s securities.
2. DEVELOPMENT FEE AND PAYMENT TERMS. In consideration for the Development Services to be
provided to Company, Company shall pay Xxxxxxxx a development fee equal to $250,000 (“Development
Fee”). The Development Fee shall be payable to Xxxxxxxx on the date
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upon which the Company first generates net income from operations of the Ethanol Plant. For
purposes of this section, net income from operations of the Ethanol Plant shall be calculated by
subtracting operating costs from total earnings.
3. EXPENSES. Company shall reimburse Xxxxxxxx for all reasonable, ordinary and necessary
expenses incurred by Xxxxxxxx in performance of his duties hereunder, including without
limitation, reimbursement for hotel expenses, business meals, travel expenses, educational
expenses, and automobile mileage at a rate per mile as periodically set by the Internal Revenue
Service.
4. SUPPORT SERVICES. Company will provide the following support services for the benefit
of Xxxxxxxx, as approved by Company: office space, secretarial support, telephone service, and
office supplies.
5. TERM AND TERMINATION OF AGREEMENT. The term of this Agreement shall commence as of the
Effective Date and shall terminate upon the earlier of any of the events enumerated below
(“Termination Event”).
(a) Payment in full of the Development Fee;
(b) 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;
(c) Xxxxxxxx’x voluntary resignation as a member of the Board; and
(d) Mutual written agreement of the parties.
For purposes of this Agreement, death or disability shall not terminate this Agreement.
6. INDEMNIFICATION. Company shall indemnify, defend against and advance to Xxxxxxxx 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 Xxxxxxxx is 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 Xxxxxxxx or his agents for their act or
omission that involves gross negligence, intentional misconduct or a known violation of the law.
Xxxxxxxx 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 Xxxxxxxx committing an act or omission that involves gross negligence,
intentional misconduct or a known violation of the law.
7. 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
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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 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 7 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.
8. SUCCESSORS AND ASSIGNS BOUND. This Agreement shall be binding upon the Company,
Xxxxxxxx, their respective heirs, executors, administrators, successors in interest or permitted
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.
9. RELATIONSHIP OF THE PARTIES. The parties understand that Xxxxxxxx is an independent
contractor with respect to Company, and not an employee of the Company. Company will not provide
fringe benefits, including health insurance benefits, paid vacation, or any other employee
benefits for the benefit of Xxxxxxxx. Notwithstanding the above, should the Company’s Board
establish a board of directors’ compensation policy, Xxxxxxxx, as a director of the Company, may
receive reasonable compensation for his services as a director and may be reimbursed for his
expenses in attending Board meetings. However, in no event shall Xxxxxxxx receive compensation
for services he performs as a member on any committee established by the Board.
10. AUTHORITY. Each of the signatories hereto certifies that such party has all necessary
authority to execute this Agreement.
11. 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.
12. ASSIGNMENT. 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.
13. 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.
14. 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
future performance of any such term, covenant or condition, but the obligation of such party with
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respect thereto shall continue in full force and effect.
15. CAPTIONS. The captions herein are inserted for convenience of reference only and shall
be ignored in the construction or interpretation hereof.
16. 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 Xxxxxxxx: | Xxxx X. Xxxxxxxx | |||
| 000 Xxxx Xxxxxxxx Xxxxxx | ||||
| Xxxxx, Xxxxxxxxx 00000 | ||||
| To Company: | E Energy Xxxxx, LLC | |||
| Attention: Xxxxxxx Xxxxxx | ||||
| 000 Xxxx Xxxxxx | ||||
| Xxxxx, Xxxxxxxx 00000 | ||||
| Copy to: | Brown, Winick, et al. | |||
| Attention: Xxxxxxx X. Xxxxxxxx | ||||
| 000 Xxxxx Xxxxxx, Xxx. 0000 Xxx | ||||
| Xxxxxx, Xxxx 00000 |
17. GOVERNING LAW. This Agreement shall be governed and construed in accordance with the
law 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.
18. 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.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.
| E Energy Xxxxx, LLC | ||||||||
/s/ Xxxx X. Xxxxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxxx | ||||||
| Its: | Vice-Chariman | |||||||
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