CONSULTING AGREEMENT
Exhibit 10.25
THIS AGREEMENT is made effective as of April 30, 2005, by and between US BioEnergy
Corporation, a South Dakota corporation (the “Company”), and Xxxxx XxxxxxXxxxxx (“Consultant”).
WHEREAS, Consultant has agreed to perform services for the Company and to that end, the
Company and Consultant have agreed upon the terms and conditions of such consultancy as embodied in
this Agreement.
NOW, THEREFORE, in consideration of the premises and the respective undertakings of the
Company and Consultant set forth below, the Company and Consultant agree as follows:
ARTICLE I
SCOPE OF WORK
SCOPE OF WORK
1.1 Engagement. Upon the terms and conditions set forth in this Agreement, the Company
hereby engages Consultant to perform the Services, as defined below, and Consultant hereby accepts
such engagement. The Services shall mean, and be limited to, the rendering of advice by Consultant
to the Company regarding technology at the Company’s proposed or future ethanol plants.
Notwithstanding the foregoing, the Company acknowledges that Consultant is an employee of ICM,
Inc., a Kansas corporation (“ICM”), who is in the business of designing and constructing ethanol
plants and the Company agrees that nothing in this Consulting Agreement shall be construed or
interpreted as requiring Consultant to disclose any information or technology of ICM or any other
person or entity.
1.2 Scope of Work. Consultant shall provide the Services to the Company from time to
time over the duration of this Agreement as reasonably required by the Company. The Company shall
use reasonable efforts to notify the Consultant as soon as practicable as to when the Company
desires the Services. The Consultant will perform the Services either at a location the Company
shall specify or at a location the Consultant shall specify, as the circumstances require. However,
the Consultant will not deny reasonable and infrequent requests to provide Services in other
locations within the United States as requested from time to time by the Company.
1.3 Services for Others. Consultant may provide services that are identical or similar
to the Services for any other person, entity or organization including, without limitation, ICM.
Nothing in this Agreement shall be construed or interpreted as prohibiting or otherwise restricting
the Consultant from engaging in the same or any similar business as the Company in any manner
whatsoever, including without limitation, as a proprietor, partner, member, investor, stockholder,
director, officer, employee, consultant, independent contractor, or otherwise.
ARTICLE 2
INDEPENDENT CONTRACTOR
INDEPENDENT CONTRACTOR
2.1 Status of Independent Contractor. Consultant is an independent contractor and not
an employee, partner, or co-venturer of, or in any other service relationship with, the Company,
and the manner in which Consultant’s services are rendered shall be within Consultant’s sole
control and discretion.
2.2 Compliance With Laws; Authority. In the discharge of his duties, Consultant shall
comply with all of applicable laws. Consultant does not have any authorization to speak for,
represent, or obligate the Company in any manner without the prior written authorization from the
Board. Consultant shall not hold himself out as having such authority to any other person.
Consultant shall not enter into any agreement or incur any obligations on the Company’s behalf, or
commit the Company in any manner without the Company’s prior written consent.
ARTICLE 3
COMPENSATION AND BENEFITS
COMPENSATION AND BENEFITS
3.1 Compensation, In consideration of the Services and in lieu of any cash or
compensation of any other kind for the Services, effective as of the date of this Agreement the
Company shall issue to Consultant the warrant (the “Warrant”) to purchase 100,000 shares of the
Company’s Class A common stock (the “USB Shares”) attached hereto as Exhibit A.
3.2 Representations as to Warrant. Consultant is acquiring the Warrant and the USB
Shares for the purpose of investment and not with a view to or for sale in connection with any
distribution thereof. Consultant (a) is able to bear the loss of his entire investment in the
Warrant and the USB Shares without any material adverse effect on his financial condition, and (b)
has such knowledge and experience in financial and business matters that he is capable of
evaluating the merits and risks of the investment to be made by him in the Warrant and the USB
Shares pursuant to this Agreement. Consultant will notify the Company in writing before selling or
otherwise disposing of the Warrant or the USB Shares, describing briefly the nature of any such
sale or other disposition, and no such sale or other disposition shall be made unless and until (a)
the Company has received an opinion of counsel reasonably satisfactory to the Company that such
proposed disposition or transfer may be lawfully made without the registration of the Warrant or
the USB Shares pursuant to the Securities Act of 1933, as amended and applicable state securities
laws or (b) an effective registration of the Warrant or the USB Shares under the Securities Act of
1933, as amended and applicable state securities laws. The Company shall require that the Warrant
and certificate representing the USB Shares be stamped or imprinted with an appropriate legend
reflecting the foregoing restrictions.
3.3 Expenses. The Company agrees to reimburse Consultant directly for all actual
reasonable and necessary expenditures that are directly related to the Services rendered to the
Company by Consultant under this Agreement. These expenditures include, but are not limited
to, expenses related to travel (i.e. airfare, hotel, meals, parking, taxis etc.), telephone calls,
postal expenditures equipment purchases and system component purchases; provided, however, that any
expenditure which exceeds one hundred dollars ($100) must be authorized by an officer of the
Company in writing prior to the expenditure.
3.4 Insurance; Benefits. The Company will not obtain any workers’ compensation
insurance for Consultant. Consultant shall comply with the workers’ compensation law concerning
Consultant. Consultant shall not be entitled to participate in or receive benefits under any group
benefit plan maintained or sponsored by the Company. Consultant shall be responsible for all
payroll and other taxes arising from compensation and other amounts paid to him under this
Agreement.
ARTICLE 4
TERM AND CANCELLATION
TERM AND CANCELLATION
4.1 Term. This Agreement shall be effective as of the date set forth above and shall
continue in full force and effect until April 30, 2008 (the “Term”), unless terminated as provided
in this Article 4 or unless extended by the parties by mutual agreement. The provisions of Articles
5 through 10, inclusive, of this Agreement shall survive any termination of this Agreement and
remain in full force and effect thereafter.
4.2 Certain Definitions.
(a) “Cause” shall mean any one or more of the following: (i) willful failure or refusal of
Consultant to render the Services to the Company in accordance with his obligations under Section
1.2; (ii) the commission by Consultant of an act of fraud or embezzlement against the Company;
(iii) the willful engaging by Consultant in conduct that is injurious to the Company (it being
understood that mere negligence in performance of duties is not Cause under this Agreement); (iv)
Consultant has been convicted or has pleaded nolo contendere to criminal misconduct (except for
parking violations, minor traffic violations and other xxxxx or insignificant misdemeanors); (v)
any material breach by Consultant of this Agreement.
(b) “Good Reason” shall mean: (i) a material breach of this Agreement by the Company or (ii)
assigning to Consultant duties that are materially inconsistent with his position, responsibilities
and status.
(c) “Disability” shall exist if Consultant is substantially incapable of performing his
duties due to physical or mental illness, bodily injury or disease for a period of more than thirty
(30) consecutive days.
4.3 Termination Upon Certain Events. This Agreement shall terminate immediately upon
the death or Disability of Consultant, upon written notice by the Company of termination for Cause,
upon written notice by Consultant of termination for Good Reason or upon mutual agreement of
Consultant and the Company. Further, either party may terminate this Agreement
upon fifteen (15) days’ written notice.
4.4 Return of Property. On termination of this Agreement, (i) Consultant shall deliver
promptly to the Company all records, manuals, books, blank forms, documents, letters, memoranda,
notes, notebooks, reports, data, tables, calculations or copies thereof, which are the property of
the Company or which relate in any way to the Services, the business, products, practices or
techniques of the Company, and all other property and Confidential Information of the Company,
including, but not limited to, all documents which in whole or in part contain any trade secrets or
confidential information of the Company or relating to the Services, which in any of these cases
are in his possession or under his control; provided, however, Consultant may delete or redact from
such documents any trade secret or confidential information that does not belong to the Company;
and (ii) the Company shall return to Consultant all property and information, if any, in the
possession of the Company or any of its employees, representatives or agents not furnished to the
Company in connection with the Services performed under this Agreement on the request of
Consultant.
ARTICLE 5
CONFIDENTIAL INFORMATION
CONFIDENTIAL INFORMATION
5.1 Non-Disclosure. In performing services under this Agreement, Consultant may be
exposed to and may be required to use certain “Confidential Information” (as hereinafter defined)
of the Company. Consultant agrees that he will not use directly or indirectly, such Confidential
Information for the benefit of any person, entity or organization other than the Company, or
disclose such Confidential Information without the written authorization of an officer of the
Company, either during or after the term of this Agreement, for a period of 5 years after the date
of termination of this Consulting Agreement.
5.2 Definition. “Confidential Information” means information not generally known
whether presently existing or developed in the future, including trade secrets, about the Company’s
methods, processes, technology, intellectual property, products, Inventions, vendor names, customer
lists, management systems and sales and marketing plans. All information disclosed to Consultant
during the term of this Agreement that Consultant has a reasonable basis to believe is Confidential
Information or which is treated by the Company as Confidential Information shall be presumed to be
Confidential Information.
5.4 Exceptions. The burden of establishing that any information possessed by
Consultant is not Confidential Information shall be that of Consultant. The Confidential
Information of the Company shall not include any information that:
(a) became generally known or available to the public other than as a result of a disclosure
by Consultant or anyone to whom Consultant transmitted the information;
(b) was available to Consultant on a non-confidential basis prior to the Company’s disclosure
to Consultant or the date of this Consulting Agreement;
(c) became available to Consultant on a non-confidential basis from a source other than one
who is bound to the Company by a nondisclosure or confidentiality agreement or other obligation of
secrecy with respect to such information; or
(d) was developed by Consultant or any person, entity or organization other than the Company
including, without limitation, ICM.
5.5 Additional Requirements. Confidential Information furnished by the Company to
Consultant under this Agreement shall be used by Consultant solely for the purpose and furtherance
of the Services and shall be treated by Consultant with at least the same degree of care as he
accords his own confidential and proprietary information.
ARTICLE 8
RIGHT TO INJUNCTIVE RELIEF
RIGHT TO INJUNCTIVE RELIEF
8.1 The Company and Consultant both acknowledge that a breach of any of the terms of Articles
5 of this Agreement could render irreparable harm to the Company, and that a remedy at law for
breach of the Agreement may be inadequate, and that the Company shall therefore be entitled to any
and all equitable relief, including, but not limited to, injunctive relief, and to any other remedy
that may be available under any applicable law or agreement between the parties. The Company and
Consultant both acknowledge that the constraints within the Articles of this Agreement are
reasonably necessary to protect the legitimate interests of the Company, are reasonable in scope
and duration and are not unduly restrictive.
ARTICLE 9
INDEMNIFICATION
INDEMNIFICATION
9.1 To the extent permitted by law, the Company shall indemnify and hold harmless Consultant
from any and all actions, suits, proceedings, claims, causes of action, liabilities, penalties,
demands, assessments, judgments, costs and expenses and reasonable attorneys’ fees, including all
indirect, special, incidental or consequential losses or damages or expenses arising from the
breach of this Agreement by the Company or the failure of Company to perform its duties pursuant to
this Agreement, except that the Company shall in no case be liable for any loss arising from the
breach of this Agreement by Consultant, the failure of Consultant to perform his duties pursuant to
this Agreement or the willful misconduct or gross negligence of Consultant.
9.2 To the extent permitted by law, Consultant shall indemnify and hold harmless the Company,
its affiliates, directors, officers, employees, servants, agents, and each of them, from any and
all actions, suits, proceedings, claims, causes of action, liabilities, penalties, demands,
assessments, judgments, costs and expenses and reasonable attorneys’ fees, including all indirect,
special, incidental or consequential losses or damages or expenses arising from the breach of this
Agreement by the Consultant or the failure of the Consultant to perform his duties pursuant to this
Agreement, except that the Consultant shall in no case be liable for any loss arising from the
breach of this Agreement by Company, the failure of Company to perform its duties pursuant to this
Agreement or the willful misconduct or gross negligence of the Company. Notwithstanding any other
provision of this Agreement, the aggregate liability of Consultant to the Company under this
Agreement shall not exceed the total compensation payable to Consultant under this Agreement and
Consultant shall have the option, in lieu of paying such liability in cash or other immediately
available funds, to assign his right, title and interest in the Warrant or USB Shares acquired
under section 3.1 above to Company.
ARTICLE 10
GENERAL PROVISIONS
GENERAL PROVISIONS
10.1 Survival. Consultant’s and the Company’s respective rights and obligations under
this Agreement are unconditional and shall survive and continue after any expiration or termination
of the Agreement, and shall bind the parties and their respective legal representatives, heirs,
successors and assigns.
10.2 Severability. In the event any provision of this Agreement is held unenforceable
by a court of competent jurisdiction, such provision shall be severed and shall not affect the
validity or enforceability of the remaining provisions.
10.3 Governing Law., This Agreement shall be governed by and construed in accordance
with the internal laws (and not the laws of conflicts) of the State of South Dakota.
10.4 Entire Understanding. This Agreement and the Warrant constitute the complete
agreement of the parties, setting forth the entire understanding and agreement of the parties as to
the subject matter contained therein and supersedes all prior discussions and understandings in
respect to the subject of this Agreement and the Warrant, whether written or oral.
10.5 Amendment. No modification, amendment, termination or attempted waiver of this
Agreement, or any provision thereof, shall be valid unless in writing signed by the party against
whom the same is sought to be enforced.
10.6 Waiver. The waiver by the Company of a breach of any provision of this Agreement
by Consultant shall not operate or be construed as a waiver of any other or subsequent breach by
Consultant.
10.7 Assignment. This Agreement may not be assigned by either party without the prior
written consent of the other party. The benefits and obligations of this Agreement shall be binding
upon and inure to the parties hereto, their successors and assigns.
10.8 Trade Secrets. The rights of the Company under this Agreement are in addition to
any rights of the Company with respect to the protection of trade secrets and confidential
information arising out of the common or statutory law of the State of South Dakota, or the law of
any state or country where Consultant may from time to time be employed or found.
10.9 Notices. Any notice required or permitted to be given under this Agreement shall
be sufficient if in writing and if sent by facsimile or by certified/registered mail with return
receipt requested to the addresses set forth below. Notices shall be deemed given only upon receipt
(proof of receipt shall include the return receipt and the facsimile transmission confirmation):
If to the Company:
Xxxx Xxxxx
US BioEnergy Corporation
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxx
Facsimile: 000-000-0000
US BioEnergy Corporation
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy to:
Xxxxxxx Xxxxxx
Xxxxxxxxx & Xxxxxx P.L.L.P
4200 IDS Center 00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile: 612-371-3207
Xxxxxxxxx & Xxxxxx P.L.L.P
4200 IDS Center 00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Facsimile: 612-371-3207
If to Consultant:
Xxxxx XxxxxxXxxxxx
000 X. Xxxxx Xx.
XX Xxx 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
000 X. Xxxxx Xx.
XX Xxx 000
Xxxxxxx, XX 00000
Facsimile: 000-000-0000
IN WITNESS WHEREOF, this Agreement has been executed by the Company and Consultant as of the
date set forth in the first paragraph.
| US BIOENERGY CORPORATION | ||||||
| By: | /s/ XXXXXX XXXXX
|
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| Its: | ||||||
| /s/ XXXXX XXXXXXXXXXXX
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