Exhibit 10.2
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement") is made the 15th day of
January, 2005 (the "Effective Date"), by and between XXXX XXXXXXXX, a resident
of the state of South Dakota ("Xxxxxxxx") and XXXXXXX XXXXX, a resident of the
state of Iowa ("Downs"), (Xxxxxxxx and Xxxxx collectively referred to
hereinafter as "CONSULTANTS"), and SIOUXLAND ETHANOL, LLC, of Jackson, Nebraska,
a Nebraska limited liability company ("Client").
WHEREAS, Client intends to develop, finance and construct an ethanol plant
in or about Dakota County, Nebraska (the "Project"); and
WHEREAS, CONSULTANTS have a background in value-added agriculture and are
willing to provide services to Client based on this background.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein, Client hereby engages CONSULTANTS, and CONSULTANTS hereby
accept engagement, upon the terms and conditions hereinafter set forth.
1. Term. The CONSULTANTS' engagement with Client shall commence as of the
Effective Date and may be terminated at any time by either party upon fourteen
(14) days prior written notice of its intent to terminate this Agreement. Upon
termination, neither Client nor CONSULTANTS shall have any further rights or
obligations under the terms of this Agreement other than delivery of payments
for services to which CONSULTANTS may be entitled through the date of
termination.
2. Services. CONSULTANTS shall serve as the Client's Project Consultant and
its Service Providers shall perform the following duties incident to that
service subject to Client's approval:
a. Assist negotiations of contracts with various service and product
providers,
b. Assist the planning of the Client's equity marketing effort,
including, without limitation, preparation of written and visual equity
marketing materials (including but not limited to a power point
presentation), and training Client's officers and directors to conduct the
Client's equity marketing effort,
c. Assist the securing of debt financing for and commencement of
construction of the Project,
d. Assist the education of local lenders including, without
limitation, the preparation of a "banker's book" tailored to the Project;
and
e. Perform such other reasonably necessary duties as Client may
request for the timely and successful securing of debt financing and
commencement of construction of the Project, including without limitation,
cooperating with the Client's personnel similarly engaged. Notwithstanding
the forgoing, neither of CONSULTANTS, shall themselves be asked to, or
actually, solicit an offer to buy, or accept an offer to sell, any equity
security to be issued by Client.
Subject to Client's approval, CONSULTANTS shall determine the manner in
which the services are to be performed and the specific hours to be worked by
CONSULTANTS. Client will rely on CONSULTANTS to work as many hours as may be
reasonably necessary to fulfill CONSULTANTS's commitments under this Agreement;
provided, however, that Xxxxxxxx hereby agrees to devote his full-time efforts
to the Project and agrees to be available for the performance of his duties
hereunder on weekdays, weeknights and weekends as reasonably necessary to
fulfill his commitments under this Agreement.
3. Payment of Xxxxxxxx. Upon execution of this Agreement by both parties,
Xxxxxxxx shall receive a one-time cash payment in the amount of $25,000.
Xxxxxxxx shall receive weekly payment for services in the amount of $300 per day
up to and not exceeding $1,500 per week commencing upon the date (the
"Commencement Date") six weeks prior to the time that the Client becomes legally
authorized to sell its
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equity. In the event Client requests Xxxxxxxx to perform services described in
Paragraph 2 prior to the Commencement Date, Xxxxxxxx shall receive $300 per day
for each day prior to the Commencement Date during which Xxxxxxxx provides
services to Client consistent with this Agreement. Payments shall be made in
accordance with Client's regular payroll practices. Upon termination of this
Agreement, payments hereunder shall cease; provided, however, that Xxxxxxxx
shall be entitled to payments for periods or partial periods that occurred prior
to the date of termination for which Riechers has not been paid.
Additionally, Client will pay to Xxxxxxxx a one-time cash bonus of $35,000 and
will issue equity securities to Xxxxxxxx in the amount of $40,000, if, after the
Client has raised the amount of equity required by a prospective lender to
secure a loan adequate to finance the Client's business plan, the Client
receives a binding commitment from such prospective lender to provide such loan
or loans as a result of the efforts of Xxxxxxxx pursuant to section 2(c) of this
Agreement, and the loan transaction described in such commitment actually closes
and is funded. Notwithstanding the foregoing, the Client shall have sole
discretion in determining whether to accept a loan commitment or close a loan,
and the Client shall not become liable to pay the one-time bonus discussed in
this section if it elects to not accept a loan commitment or close a loan. The
bonus payable hereunder shall be made promptly after Client's execution and
delivery of debt financing agreements under which Client receives debt financing
sufficient to carry out its business plan.
5. Payment of Downs. Upon execution of this Agreement by both parties,
Downs shall receive a one-time cash payment in the amount of $5,000. Downs shall
receive weekly payment for services in the amount of $150 per day up to and not
exceeding $750 per week commencing upon the date (the "Commencement Date") two
weeks prior to the time that the Client becomes legally authorized to sell its
equity. In the event Client requests Downs to perform services described in
Paragraph 2 prior to the Commencement Date, Downs shall receive $150 per day for
each day prior to the Commencement Date during which Downs provides services to
Client consistent with this Agreement. Payments shall be made in accordance with
Client's regular payroll practices. Upon termination of this Agreement, payments
hereunder shall cease; provided, however, that Downs shall be entitled to
payments for periods or partial periods that occurred prior to the date of
termination for which Downs has not been paid.
Additionally, Client will pay to Downs a one-time cash bonus of $5,000 and will
issue equity securities to Downs in the amount of $20,000, if, after the Client
has raised the amount of equity required by a prospective lender to secure a
loan adequate to finance the Client's business plan, the Client receives a
binding commitment from such prospective lender to provide such loan or loans as
a result of the efforts of Downs pursuant to section 2(c) of this Agreement, and
the loan transaction described in such commitment actually closes and is funded.
Notwithstanding the foregoing, the Client shall have sole discretion in
determining whether to accept a loan commitment or close a loan, and the Client
shall not become liable to pay the one-time bonus discussed in this section if
it elects to not accept a loan commitment or close a loan. The bonus payable
hereunder shall be made promptly after Client's execution and delivery of debt
financing agreements under which Client receives debt financing sufficient to
carry out its business plan.
6. Expenses. Client shall reimburse CONSULTANTS for all reasonable,
ordinary and necessary expenses incurred by CONSULTANTS in performance of their
duties hereunder, including without limitation, reimbursement for hotel expenses
and automobile mileage at a rate of 30 cents per mile or such other rate to
which the parties hereto may later agree. However, in no case shall any such
expense reimbursements exceed $750 in any single week.
7. Support Services. Client will provide the following support services for
the benefit of CONSULTANTS as approved by Client: office space, secretarial
support, and office supplies.
8. Successors and Assigns Bound. This Agreement shall be binding upon the
Client and CONSULTANTS, their respective heirs, executors, administrators,
successors in interest or assigns, including without limitation, any
partnership, corporation or other entity into which the Client 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 CONSULTANTS of this Agreement or of any
interest herein, or of any money due to or to become due by reason of the terms
hereof
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without the prior written consent of Client shall be void.
9. Relationship of the Parties. The parties understand that CONSULTANTS are
independent contractors with respect to Client, and not employees of Client.
Client will not provide fringe benefits, including health insurance benefits,
paid vacation, or any other employee benefits for the benefit of CONSULTANTS.
10. Injuries. CONSULTANTS acknowledge CONSULTANTS' obligation to obtain
appropriate insurance coverage for the benefit of CONSULTANTS. CONSULTANTS waive
any rights to recover from Client for any injuries that CONSULTANTS, or their
representatives or agents, may sustain while performing services under this
Agreement resulting from the negligence of CONSULTANTS, or their representatives
or agents.
11. Return of Records. Upon termination of this Agreement, CONSULTANTS
shall immediately deliver all records, notes, data, memoranda, models, and
equipment of any nature that are in CONSULTANTS' possession or under
CONSULTANTS' control and that are Client's property or relate to Client's
business.
12. Waiver. The waiver by the Client of its rights under this Agreement or
the failure of the Client promptly to enforce any provision hereof shall not be
construed as a waiver of any subsequent breach of the same or any other
covenant, term or provision.
13. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties hereto with regard to the subject matter hereof, and there
are no agreements, understanding specific restrictions, warranties or
representations relating to said subject matter between the parties other than
those set forth herein or herein provided for. No amendment or modification of
this Agreement shall be valid or binding unless in writing and signed by the
party against whom such amendment or modification is to be enforced.
14. 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 CONSULTANTS: Attention: Xxxx Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxx Xxxxxx
To Client: Siouxland Ethanol, LLC
Attention: Xxx Xxxxx
000 Xxxx Xxx Xxxxxx
Xxxxxxx, XX 00000
15. Governing Law. This Agreement is entered into pursuant to and shall be
governed by and in accordance with the laws of the State of Nebraska.
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16. Service Providers. Xxxx Xxxxxxxx shall provide the majority of
CONSULTANTS' services under this Agreement, with the assistance of Xxxxxxx
Xxxxx. Notwithstanding the foregoing, in the event that Client, in its own sole
discretion, schedules frequent or simultaneous capital raising meetings, or
otherwise desires an aggressive capital raising schedule, both Xxxx Xxxxxxxx and
Xxxxxxx Xxxxx shall then be available and simultaneously provide CONSULTANTS'
services.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
Effective Date.
SIOUXLAND ETHANOL, LLC ("CLIENT")
BY: /s/ Xxx Lunch
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XXX XXXXX, PRESIDENT
CONSULTANTS
/s/ Xxxx Xxxxxxxx
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XXXX XXXXXXXX, INDIVIDUALLY
/s/ Xxxxxxx Xxxxx
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XXXXXXX XXXXX, INDIVIDUALLY
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