PROJECT DEVELOPMENT AND CONSULTING AGREEMENT
THIS
PROJECT DEVELOPMENT AND CONSULTING AGREEMENT ("Agreement")
is entered into as of this lst day of September 2007 ("Effective Date"), by
and
between Xx. Xxxxx Xxxxxx, an individual ("Xxxxxx"), and East Coast Ethanol,
LLC
(the "Company"), a Delaware limited liability company.
WHEREAS,
the
Company desires to engage Xxxxxx for the purpose of providing project
development and consulting services to the Company relating to the Company's
development, construction and ownership of four (4) 100 million gallon per
year
dry mill ethanol plants to be located in the southeastern United States (the
"Project" or "Ethanol Plants"); and
WHEREAS,
Xxxxxx
desires to provide such services to the Company in exchange for
compensation;
WHEREAS,
the
Company's Board of Directors (the "Board") desires to memorialize the agreement
between the Company and Xxxxxx for the purpose of setting forth the manner
in
which Xxxxxx shall render services to the Company and the manner in which the
Company shall pay compensation to Xxxxxx for such services.
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
and CONSULTING XXXXXXXX.Xxxxxxx
hereby retains Xxxxxx for the purpose of providing developmental and consulting
services with respect to the Project throughout the construction and initial
start-up period ("Development and Consulting Services"). Development and
Consulting Services shall include all services performed on behalf of and at
the
reasonable request of the Company from the Effective Date of this Agreement
through its termination. Xxxxxx'x duties shall include, but not be limited
to,
responsibility for public relations relating to the Company's communications
concerning the Project, apprising the Board of the status of the Project and
of
any material events and assisting the Company's Board in developing policies
regarding development and construction of the Project and coordinating any
and
all development activities relating to the Ethanol Plants. Development and
Consulting Services shall not include effecting or attempting to effect
purchases or sales of the Company's securities.
2. COMPENSATION
FOR DEVELOPMENT and CONSULTING XXXXXXXX.Xx
consideration solely for the Development and Consulting Services to be provided
to Company, Company shall pay Xxxxxx a development and consulting fee equal
to
$150,000 ("Development and Consulting Fee"). The Development and Consulting
Fee
shall be paid in twelve (12) equal monthly installments commencing with the
month of the Effective Date and continuing through the month in which this
Agreement is terminated or until the total amount of the Development and
Consulting Fee has been paid in full, whichever occurs earlier.
3.
XXXXXXXX.Xxxxxxx
shall reimburse Xxxxxx for all reasonable, ordinary and necessary expenses
incurred by Xxxxxx 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. Notwithstanding the above, Company shall
reimburse Xxxxxx for any expenses in excess of $5,000 only if such expenses
were
pre-approved in writing by the Company's Board of Directors or by the Executive
Committee of the Board of Directors.
4. SUPPORT
XXXXXXXX.Xxxxxxx
will provide the following support services for the benefit of Xxxxxx, 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 and Consulting
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)
|
Xxxxxx'x
voluntary resignation as a member of the Board or his removal from
the
Board;
|
| (d) |
Mutual
written agreement of the parties;
|
| (e) |
Completion
of one calendar year from the Effective Date;
or
|
|
(f)
|
Xxxxxx'x
death or disability such that he is unable to perform the Development
and
Consulting Services hereunder as determined in good faith by the
Company's
Board of Directors.
|
6. INDEMNIFICATION.The
Company shall indemnify, defend against and advance to Xxxxxx 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 Xxxxxx 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 Xxxxxx or his agents for their act or
omission that involves gross negligence, intentional misconduct or a known
violation of the law. Xxxxxx 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 Xxxxxx committing an act or omission that involves gross
negligence, intentional misconduct or a known violation of the law.
2
7. XXXXXXX.Xx
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 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. VENTURES/CORPORATE
OPPORTUNITY.If
during
the term of this Agreement, Xxxxxx is engaged in or associated with the planning
or implementing of any project, program or venture involving the Company and
a
third party or parties, all rights in such project, program or venture shall
belong to the Company. Except as approved in writing by the Board of Directors,
Xxxxxx shall not be entitled to any interest in any such project, program,
or
venture or to any commission, finder's fee or other compensation in connection
therewith, other than the compensation to be paid to Xxxxxx by the Company
as
provided herein. Xxxxxx shall xxxx no interest, direct or indirect, in any
customer or supplier that conducts business with the Company, unless such
interest has been disclosed in writing to and approved by the Board of Directors
before such customer or supplier seeks to do business with the
Company.
9. SUCCESSORS
AND ASSIGNS BOUND.This
Agreement shall be binding upon the Company, Xxxxxx, 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.
10. RELATIONSHIP
OF THE PARTIES.The
parties understand that Xxxxxx 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 Xxxxxx. Notwithstanding the above, should
the Company's Board establish a board of directors' compensation policy, Xxxxxx,
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.
11. AUTHORITY.Each
of
the signatories hereto certifies that such party has all necessary authority
to
execute this Agreement.
12. 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.
3
13. 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.
14. 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.
15. 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 respect thereto shall continue in full force and
effect.
16. CAPTIONS.The
captions herein are inserted for convenience of reference only and shall be
ignored in the construction or interpretation hereof.
17. 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
Xxxxxx:
|
Xxxxx
Xxxxxx
|
|
X.X.
Xxx 000
|
|
|
000
Xx-Xxxx Xxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
To
Company:
|
|
|
c/o
BrownWinick PLC
|
|
|
Attention:
Xxxxxxx X. Xxxxxxxx
|
|
|
000
Xxxxx Xxxxxx, Xxxxx 0000
|
|
|
Xxx
Xxxxxx, Xxxx 00000
|
18. GOVERNING
LAW.This
Agreement shall be governed and construed in accordance with the law of the
State of Georgia 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 Georgia in any action or proceeding brought to
enforce or otherwise arising out of or relating to this Agreement.
19. 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.
4
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above written.
|
/s/
Xxxxx X. Xxxxxx
|
By:
|
/s/
Xxxxx Xxxxxxx
|
|
|
Xx.
Xxxxx Xxxxxx, Individually
|
Xxxxx
Xxxxxxx, Vice Chairman
|
||
5
