CONSULTING AGREEMENT
Exhibit
10.10
This
consulting agreement (the "Agreement")
is made
as of August 25, 2006, by and between Xethanol Corporation (hereinafter,
the "Company")
and
Xxxxxxxxxxx x’Xxxxxx-Xxxxxx (hereinafter,
the "Consultant").
Whereas,
Consultant has heretofore been an employee and executive officer of the Company
and, as such, has provided valuable services to the Company and become familiar
with the Company, including its operations and facilities, its employees, its
consultants and others with whom the Company has joint venture, license and
other contractual relationships (together, the “Company Business”);
and
Whereas,
because of the knowledge and familiarity of Consultant with the Company
Business, the Company wishes to retain Consultant on the terms and conditions
contained in this Agreement to provide those consulting services provided for
herein, and Consultant wishes to be so retained and to provide those
services
Now,
therefore, for and in consideration of the premises, the mutual covenants and
the payments to be made hereunder, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Company and
the
Consultant each agrees as follows:
1.
Term.
The
term of this agreement shall begin on the date hereof, shall run for one (1)
year, and shall end on that date which is the first (1st) annual anniversary
date of the date hereof, unless terminated sooner by agreement of the parties
or
due to a default by a party as provided below. This Agreement may be extended
by
written agreement of the parties for such terms and with such modifications
as
the parties may agree.
2.
Consulting
Services.
Consultant shall perform during the term hereof such consulting and/or advisory
services for the Company as may reasonably be requested by the Company from
time
to time with respect to the management, technology, relationships and operation
of the Company and its business. By way of example only, Consultant may be
requested from time to time to consult and advise the Company with respect
to:
| A. |
Its
ownership interest in and the technology that it has licensed from
H2Diesel, Inc., including the exercise of its rights under its Investment
Agreement with, among others, H2Diesel, as amended, its Sublicense
Agreement with H2Diesel, as amended, its other agreements with
H2Diesel;
|
| B. |
Its
investment in, the agreements relating to and the operation of
CoastalXethanol, LLC;
|
| C. |
Its
investment in, the agreements relating to and the operation of
NewEnglandXethanol, LLC
|
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| D. |
The
maintenance and enhancement of its business relationships with the
principals of the foregoing entities, their management and other
consultants to the Company
|
| E. |
The
best use of the skills and knowledge of the employees of the
Company.
|
Consultant
will perform his obligations under this Agreement in such a manner as to attempt
to enhance and improve the business of the Company and to xxxxxx the Company's
relationship with the past, existing and prospective customers, suppliers,
contractors, consultants and/or vendors of the Company and its business.
Consultant will provide advice to the employees of the Company with respect
to
its business and will share with the Company his knowledge regarding its
business, operations and technologies. Upon the request of the Company,
Consultant will provide the Company with contact names and information of,
and
his data base of information for, past, existing and prospective customers
of
the Company, suppliers to the Company, contractors with the Company, consultants
to the Company and/or vendors to the Company, to the extent not already known
to
or in the possession of the Company.
The
amount of time to be devoted by Consultant to providing consulting services
hereunder, the specific time when such will be provided, and the method of
how
such will be provided shall be determined in the reasonable discretion of
Consultant after consultation with the Company and as necessary to reasonably
accomplish Consultant’s obligations hereunder; provided, however, that (a) such
services shall be provided at such times as are reasonably acceptable to both
Consultant and the Company, (b) Consultant shall be responsible for receiving
instructions as to his services from any person reasonably authorized by the
Board of Directors of the Company to direct the services of Consultant, and
(provided that such instructions are consistent with this Agreement) Consultant
shall comply with such instructions and (c) Consultant shall not be required
to
dedicate more than eight (8) days in any calendar month to the rendering of
services pursuant to this Agreement. If Consultant renders services for more
than eight (8) days in any calendar month, he shall be compensated at the rate
of $2,000 for each such additional day or part thereof.
3.
Consideration.
The
Company shall pay to Consultant the sum of $15,000 per month during the term
hereof, which shall be paid on a monthly basis in arrears.
4.
Expenses.
The
Company shall promptly reimburse the Consultant for all appropriately
documented, reasonable business expenses incurred by the Consultant in the
performance of his duties under this Agreement.
5.
Default.
A party
shall be in default under this Agreement if that party fails to perform
hereunder and fails to cure such failure to perform within ten (10) days of
his/its receipt of written notice of such failure from the other party hereto.
Should Consultant default under this Agreement, the Company may terminate this
Agreement, in which case neither party shall have any obligations under items
2
or 3 of this Agreement with respect to time periods following termination,
except that the Company shall remain obligated to pay amounts to Consultant
due
with respect to time periods ending at or before termination, prorated on a
daily basis. Should this Agreement terminate early due to a default by
Consultant, then the final payment due with respect to the final period shall
be
prorated on a daily basis and paid within fifteen days after termination. If
this Agreement is breached and is placed in the hands of an attorney for
enforcement or other action (whether suit be brought or not) or to otherwise
protect the interests of the non-breaching party, the breaching party shall
repay on demand all costs and expenses incurred by the non-breaching party
arising therefrom, including reasonable attorney's fees.
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6.
Independent
Contractor Status.
In
performing Consultant’s obligations hereunder, Consultant is operating as an
independent contractor and shall not, for any purpose, be deemed an employee
or
agent of the Company or be eligible to receive or qualify for any benefits
offered by the Company to its employees. Consultant shall not be entitled to
receive any benefits or payments not set forth in this agreement, and the
parties hereto do not intend that any agency or partnership relationship be
created between them by this Agreement. The Company shall not withhold any
federal or state taxes or other applicable withholdings from amounts paid
hereunder to Consultant, shall not issue to Consultant a form W-2 for payments
made hereunder, and shall issue to Consultant the appropriate form 1099 for
payments made hereunder.
7.
Confidentiality
and Restrictive Covenants.
a. A.
Confidentiality.
Consultant acknowledges and agrees that all Trade Secrets (as defined herein)
are confidential to and shall be and remain the sole and exclusive property
of
Company. Consultant agrees that, during the period in which Consultant renders
services to Company pursuant to this Agreement and for a period of three (3)
years following the date Consultant ceases to be a consultant to the Company
hereunder (the “Separation Date”), he shall (a) hold all Trade Secrets in
strictest confidence; (b) not disclose, reproduce, distribute or otherwise
disseminate such Trade Secrets, and shall protect such Trade Secrets from
disclosure by others; and (c) make no use of such Trade Secrets without the
prior written consent of Company, except in connection with the Consultant’s
performing his ordinary and authorized duties as a consultant to the Company
hereunder. For the purposes of this Agreement, “Trade Secrets” shall mean all
information regarding the financial operations and/or results of the Company,
terms of employment of the Company’s employees, independent contractors and
consultants, customer, supplier and vendor lists and related information, and
any and all data and information relating to Company or the Company’s
subsidiaries or affiliates which (i) derive independent economic value, actual
or potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from their disclosure or use; and (ii) are the subject of efforts that are
reasonable under the circumstances to maintain their secrecy. “Trade Secrets”
also shall include technical or non-technical data, formulas, patterns,
compilations, programs, devices, methods, techniques, drawings, processes,
financial data, financial plans, product plans or lists of customers, suppliers,
prospective customers and/or prospective suppliers of Company, including but
not
limited to information concerning any of the processes utilized to manufacture
ethanol. Notwithstanding the foregoing, Trade Secrets shall not include data
and
information which were: (i) at the time of disclosure to Consultant or became
thereafter through no fault of Consultant a part of the public domain by
publication or otherwise; (ii) subsequently developed or ascertained by or
for
Consultant by independent means without the benefit of the Trade Secrets; or
(iii) received by Consultant without restriction from a third party who was
under no obligation of confidentiality to Company with respect thereto. All
information provided or made available by the Company to Consultant, including
but not limited to technical information concerning the Company’s manufacturing
processes or lists or other compilations or summaries of vendors, suppliers
or
customers, shall be used by Consultant exclusively for the purpose of performing
those services for which Consultant is employed hereunder by the Company, and
at
the Separation Date, Consultant shall surrender to the Company in good condition
all such records or information, and will not keep any copies, summaries,
photocopies or computer copies thereof. Upon the Separation Date, or upon the
request of Company, Consultant shall deliver to Company all property belonging
to Company, including without limitation all documents evidencing and physical
embodiments of Trade Secrets then in his custody, control or possession. The
Company will maintain such records and information in a secure location and
will
provide Consultant access to or copies thereof (subject to the confidentiality
provisions of this Section 7(a)) to the extent necessary in connection with
the
evaluation or defense of any claim made against Employee that relates to his
employment or other involvement with the Company.
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B.
Noncompetition.
During
the term of this agreement and for a period of six (6) months following the
Separation Date, Consultant, except as a consultant of the Company and for
the
Company’s benefit or as an employee or contractor of a subsidiary or affiliate
of the Company, shall not, on his own behalf or on behalf of any other person,
whether as a shareholder, partner, joint venturer or employee, engage in the
production of ethanol or any biofuel or in the construction of a facility to
produce such products within 100 miles of any of the following: (a) a facility
owned or under construction by the Company for the production of such products,
(b) any real property owned or leased by the Company that can be used for the
construction of such a facility or (c) to the knowledge of Consultant, any
location with respect to which the Company has taken concrete action toward
the
development of such a facility.
C.
Nonsolicitation.
During
the term of this agreement and for a period of six (6) months year following
the
Separation Date, Consultant, except as a consultant to the Company and for
the
Company’s benefit or as an employee or contractor of a subsidiary or affiliate
of the Company, (a) shall not, individually or in association with any person
or
entity, solicit, divert, or take away, or attempt to solicit, divert or take
away, the business of any of the customers, prospective customers, suppliers
or
prospective suppliers of the Company, for the purposes of (in the case of
customers and prospective customers) selling any product or service similar
to
that which provided or offered by the Company or (in the case of suppliers)
purchasing from any such supplier or prospective supplier any raw material
used
to make any goods or services similar to that made by the Company, if such
products would be manufactured and sold in any geographic are in which those
fuels would be sold in competition with the products produced or proposed to
be
produced by the Company or its affiliates, nor shall he assist any other person
to do so.
D.
Nonpiracy
of Employees.
For the
three-year period immediately following the Separation Date, Consultant shall
not, individually or in association with any person or entity, attempt in any
manner to encourage any employee or consultant of or to the Company or any
subsidiary or affiliate of the Company to leave the services of such
entity.
E.
Enforcement
of Restrictive Covenants.
The
Company may disclose the prohibitions contained in this Section 76 to any person
or entity who, at any time, employs, contracts with or considers employing
or
contracting with the Consultant. Consultant agrees that the remedy at law for
any breach by Consultant under any of the covenants set forth in any of this
Item 6, inclusive, will not be adequate, and that Company shall be entitled
to
immediate injunctive relief with respect to any such breach; provided, further,
that the Company’s remedies for such a breach are cumulative and the Company may
bring an action at law and/or in equity for any damages which it might sustain
from such a breach and shall be entitled to recover from Consultant reasonable
attorney's fees and costs and expenses of litigation generally, whether on
appeal or otherwise, actually incurred by the Company as a result of such
breach.
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8.
Severability/Construction.
Whenever possible, each provision of this Agreement, or subpart thereof, shall
be interpreted so as to be valid and effective under applicable law, but if
any
provision, or subpart thereof, of this Agreement shall be prohibited or invalid
under applicable law, that provision, or subpart thereof, shall be ineffective
only to the extent of the prohibition or invalidity, without invalidating the
remainder of that provision or the remaining provisions of this Agreement.
This
Agreement is the product of joint drafting and shall not be interpreted against
any party as the drafter of this Agreement. This Agreement shall be construed
in
accordance with and governed by the laws of the State of New York, without
reference to the conflicts or choice of law principles thereof. Any legal action
or proceeding with respect to this Agreement may be brought in any federal
or
state court having New York, New York, as or within its jurisdiction or
district. By execution of this Agreement, Seller hereby submits to the
jurisdiction and venue of said courts, hereby expressly waiving any defense
of
personal jurisdiction or improper venue. Nothing herein shall affect the right
of any party to serve process in any manner permitted or required by law. The
paragraph headings or captions appearing in this Agreement are for convenience
only, are not part of this Agreement and are not to be considered in
interpreting this Agreement.
9.
Notices.
All
notices and other communications required or permitted to be given hereunder
or
by reason of this Agreement shall be in writing and shall be deemed to have
been
properly given when delivered in person or by a nationally recognized overnight
courier to the person to whom such notice is directed; or three (3) days after
deposited in the U.S. Mail, Certified Mail, Return Receipt Requested, postage
prepaid, to the parties addressed as follows: (a) if to Buyer: 0000 Xxxxxx
xx
xxx Xxxxxxxx, 00xx
Xxxxx,
Xxx Xxxx, XX 00000; and (b) if to Consultant: 000 X. 00xx
Xxxxxx,
00X, Xxx Xxxx, XX 00000.
10.
Binding
Effect/Assignment/Waivers.
This
Agreement shall inure to the benefit of and be binding upon the heirs, estates,
legal and personal representatives, successors and permitted assigns of the
respective parties hereto. Consultant may not assign or delegate his rights,
duties or obligations hereunder. Upon prior written notice to Consultant, the
Company may assign or delegate its rights, duties or obligations hereunder
in
connection with any merger, sale or similar transaction. No waiver or release
of
any obligation or right of any party hereto shall be valid or enforceable unless
made in writing and duly executed by all parties hereto. A party owing money
under this Agreement (the “Owing Party”) to another party under this Agreement
(the “Due Party”) may set off amounts owed by the Owing Party to the Due Party
under this Agreement against amounts owed by the Due Party to the Owing Party,
whether under this Agreement or otherwise. The terms of this Agreement shall
survive the termination of this Agreement.
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11.
Entire
Agreement/Modification.
This
Agreement, along with all items incorporated herein, constitutes the entire
and
complete agreement between the parties hereto and supersedes any prior oral
or
written agreement between the parties with respect to the obligations and
covenants contemplated hereunder. It is expressly agreed that there are no
verbal understandings or agreements which in any way change the terms,
covenants, and conditions herein set forth, and that no modification of this
Agreement and no waiver of any of its terms and conditions shall be effective
unless made in writing and duly executed by all parties hereto.
12.
Counterparts.
This
Agreement may be executed in any number of identical counterparts, and each
counterpart hereof shall be deemed to be an original instrument, but all
counterparts hereof taken together shall constitute but a single instrument.
This Agreement may be executed and delivered by facsimile transmission, and
a
facsimile copy of an executed counterpart shall be deemed and considered for
all
purposes as an original executed counterpart, in which case the parties then
shall immediately circulate original documents for execution by all parties.
In
witness whereof, the undersigned each have caused this Agreement to be executed
under seal individually or by their duly authorized officers as of the date
first set forth above.
| Xethanol Corporation | Consultant | |||
| By: | /s/ Xxxxx Xxxxxxxxx | /s/ Xxxxxxxxxxx x’Xxxxxx-Xxxxxx | ||
| Name: |
Xxxxx Xxxxxxxxx |
Xxxxxxxxxxx x’Xxxxxx-Xxxxxx |
||
| Title: | Acting Chief Executive Officer | |||
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