CONSULTING AGREEMENT
Exhibit 10.15
This Consulting Agreement (the “Agreement”) is made this 27 day of March, 2006 (the
“Effective Date”), by and between Above Zero Media, LLC, a North Dakota limited liability company,
with an address of 0000 00xx Xxxxxx XX Xxxxx, Xxxxx Xxxxxx 00000, (Above Zero Media),
and Cardinal Ethanol, LLC, an Indiana limited liability company, with an address of 0 XXXX Xxxxxx,
Xxxxx 000, X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxx 00000, (“Client”).
RECITALS:
WHEREAS, Client intends to develop, finance and construct a 100 million gallon dry mill
ethanol plant in or near Winchester, Indiana (the “Project”); and
WHEREAS, Client wishes to engage Above Zero Media to provide certain services related to the
Project.
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein,
Client engages Above Zero Media, and Above Zero Media accepts engagement, upon the terms and
conditions hereinafter set forth.
1. Term; Termination. Above Zero Media’s engagement with Client shall commence as
of the Effective Date and shall continue, unless extended by mutual agreement of the
parties or sooner terminated as provided herein, until the actual closing (execution and
delivery of all required documents) by Client with its project lender(s) for debt
financing, including senior and subordinated debt and any other Project financing
characterized by debt obligations and repayable as debt which is required by the Project
lender(s) or which is deemed necessary or prudent in the sole discretion of Client’s board
of directors (“Financial Close”). Notwithstanding the foregoing, either party may terminate
the Agreement, at any time with or without cause, upon thirty (30) days prior written or
oral notice to the other party.
2. Services. Above Zero Media shall serve as Client’s Project consultant. Above
Zero Media’s service providers (described in section 9 of this Agreement) shall perform the
following duties incident to that service subject to Client’s approval (“Services”):
| a. | Assist negotiations of contracts with various service and product providers; | ||
| b. | Assist the planning of the Clients’ equity marketing effort, including, without limitation, preparation of written and visual equity marketing materials (including, but not limited to, a power point presentation and informational video), and training Client’s officers and directors to conduct Client’s equity marketing effort; |
| c. | Assist the education of local lenders including, without limitation, the preparation of a “banker’s book” tailored to the Project; and | ||
| d. | Assist in graphic design of the Client’s marketing materials; | ||
| e. | Assist in placement of print and electronic media; | ||
| f. | Assist in planning of the Client’s local marketing efforts; | ||
| g. | Assist in recommendation of equipment needs for presentation; and | ||
| h. | Perform such other services as Client may from time to time reasonably request and are reasonably within the scope of the services the parties anticipate will be provided. Notwithstanding the foregoing, neither Above Zero, its members, managers, officers, employees nor agents shall be asked to, nor will 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 and unless otherwise provided by this Agreement, Above Zero
Media shall determine the manner in which Services are to be performed and the specific
hours to be worked by Above Zero Media. Above Zero Media acknowledges and agrees to work
as many hours as may be reasonably necessary to fulfill Above Zero Media’s commitments
under this Agreement, in the sole discretion of Client.
3. Payment. Payment for Services shall be as follows:
| a. | Client shall pay to Above Zero Media a one-time commitment fee of Fifteen Thousand Dollars ($15,000) upon the Effective Date (the “Commitment Fee”). | ||
| b. | Client shall pay to Above Zero Media Sixty Thousand Dollars ($60,000) which shall be earned and payable upon receipt by Client from Above Zero Media of satisfactory written and visual equity marketing materials (including, but not limited to, a power point presentation and informational video) for use in its equity marketing effort (the “Payment for Materials”). | ||
| c. | Client shall pay to Above Zero Media an additional Sixty Thousand Dollars ($60,000) which shall be earned and payable thirty (30) days following the date upon which the amount required by section 3(b) above is earned and payable (the “Interim Payment”). | ||
| d. | At least one of Above Zero Media’s representatives will be physically present to provide necessary technical assistance to Client at the first |
| equity marketing meeting of Client and shall thereafter continue to be available to be present at various locations as needed and in Client’s sole discretion. In consideration, Client shall pay Three Hundred ($300) per day as additional payment for each day Above Zero Media is physically present and on location. In no event shall Client be required to pay more than Fifteen Hundred Dollars ($1,500) for any weekly period. This payment shall not be increased even if more than one Above Zero Media representative is present and on location pursuant to this section 3(d). |
| e. | Within 14 days following Financial Close, Client shall pay to Above Zero Media Fifteen Thousand ($15,000) for the completion of Services which shall be earned and payable upon and subject to Financial Close (the “Bonus”). |
4. Expenses. Upon Above Zero Media providing to Client proper documentation,
Client shall reimburse Above Zero Media for all reasonable, ordinary and necessary expenses
incurred by Above Zero Media in performance of its duties hereunder, including without
limitation, reimbursement for automobile mileage at the rate periodically set by the
Internal Revenue Service, air fare, meals and lodging. However, in no case shall the
aggregate total of any such expense reimbursements exceed One Thousand Dollars ($1,000.00)
for any one (1) week period without prior approval by Client.
5. Termination of Agreement. If Client terminates Above Zero Media with Cause (as
hereafter defined), upon such termination Above Zero Media shall have no further rights
under the terms of this Agreement other than to payment for Services to which Above Zero
Media may be entitled through the date of termination as provided by this Agreement. For
purposes of this Agreement, termination for Cause shall mean termination of Above Zero
Media after failure to correct an Event of Default by Above Zero Media pursuant to section
18. If Client terminates Above Zero Media without Cause at any time before the Payment for
Materials becomes due and payable pursuant to section 3(b), Above Zero Media shall have no
further rights under the terms of this Agreement other than to payment for Services to
which Above Zero Media may be entitled through the date of termination as provided by this
Agreement. If Client terminates Above Zero Media without Cause at any time after the
Payment for Materials becomes due and payable, Client shall immediately pay the Interim
Payment and the Final Payment to Above Zero Media.
If Above Zero Media terminates the Agreement for any reason, upon such termination neither
Client nor Above Zero Media shall have any further rights or obligations under the terms of
this Agreement other than those provided by Sections 6, 10, 12 and 13 or for delivery of
payments for Services to which Above Zero Media may be entitled through the date of
termination as provided by this Agreement.
6. Confidentiality. In providing Services hereunder, Above Zero Media may have
access to documents and information relating to Client and its properties and business
operations (hereafter referred to as “Confidential Information”). All such Confidential
Information shall at all times during the term of this Agreement and for a period of two
(2) years thereafter, be treated as confidential and sensitive proprietary business
information. Above Zero Media shall not, unless compelled by legal process, except in
accordance with the express terms of this Agreement or with the prior written consent of
Client, disclose or permit the disclosure of any Confidential Information to any person or
entity whatsoever, unless such information is otherwise readily available in the public
domain. This section shall survive the termination of this Agreement.
7. Support Services. Client shall provide the following support services for the
benefit of Above Zero Media, as approved by Client: office space, secretarial support
(phone callers), and office supplies. These support services will be coordinated through
the project coordinator at Client’s office location.
8. Relationship of the Parties. The parties understand that Above Zero Media is an
independent contractor with respect to Client, and not an employee of Client. Except as
provide in section 7 above, Above Zero Media, at its sole expense, shall be responsible for
providing all equipment, materials, supplies and other items necessary or useful in
fulfilling its obligations hereunder; and shall retain the right to control and direct the
manner in which Services are to be performed. Notwithstanding the foregoing, Client agrees
that it will be responsible for providing the equipment it uses in presentations made as
part of its equity marketing effort.
9. Service Providers. Xxxxxxx Xxxxxxxx, Xxxx Xxxxxx and Xxxx Xxxxxxxx shall
provide the majority of Services under this Agreement. Notwithstanding the foregoing,
Above Zero Media may substitute its other personnel to provide Services under this
Agreement on a limited basis as needed, with Client’s prior consent. Above Zero Media’s
employees, members, or agents who perform Services for Client under this Agreement shall be
bound by the terms of this Agreement.
10. Taxes; Benefits. Above Zero Media shall be solely liable for, and shall
indemnify and hold the Client harmless from and against, all taxes on any compensation
earned as an independent contractor hereunder, including federal and state income taxes,
self-employment taxes, FICA and FUTA taxes, etc. Above Zero Media shall be solely
responsible for all insurance, including but not limited to medical, disability, workers
compensation, and unemployment insurance. Above Zero Media shall not be entitled to
participate in any benefits maintained by Client. This section shall survive the
termination of this Agreement.
11. Insurance. Above Zero Media and Client shall each obtain, maintain and keep in
full force and effect during the term of this Agreement such insurance coverages and in
such amounts as Client may reasonably require including, without limitation, the following
insurance coverages:
| a. | Commercial general liability insurance with policy limits that have a combined single limit of One Million Dollars ($1,000,000.00); and | ||
| b. | Business automobile liability insurance, covering owned, non-owned and hired vehicles with a combined single limit of One Million Dollars ($1,000,000.00). |
All insurance provided for in this section 11 shall be effective under valid and
enforceable policies issued by insurers of recognized responsibility, licensed to do
business in states where the respective parties currently conduct business. Each party
shall name the other as an additional insured with respect to each policy. Each party
shall furnish the other with proof of the payment of all premiums due on said policies of
insurance and that the policies of insurance are in full force and effect. Each policy or
certificate of insurance shall contain an agreement by the insurer that coverages shall not
cancelled for any reason without at least 30 days prior written notice to the other party.
12. Indemnification. Client shall indemnify and defend Above Zero Media and its
employees, members, managers, officers, and agents against 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 Above Zero Media and/or its employees, members, managers,
officers or agents are made a party by reason of performing services for Client or acting
in any manner pursuant to this Agreement, except that Client shall have no obligation to
indemnify and defend Above Zero Media and/or its employees, members or agents for its
and/or their act or omission that involve negligence, intentional misconduct or a violation
of the law. Above Zero Media shall indemnify and defend Client and its employees, members,
directors, officers and agents against expenses actually and reasonably incurred in
connection with the defense of any Proceeding in which Client and/or its employees,
managers, members, directors, officers or agents are made a party by reason of Above Zero
Media and/or its employees’, members’, managers’, officers’ or agents’ commission of an
act or omission that involves negligence, intentional misconduct or a violation of the law.
This section shall survive the termination of this Agreement.
13. Copyright License. Above Zero Media will author written and visual equity
marketing materials, Power Point presentations, advertisements, a “banker’s book”, training
materials and other literary works and audio visual works (the “Proprietary Information”)
in fulfillment of its duties hereunder. Above Zero Media hereby grants Client a
non-exclusive right and license to use the Proprietary Information for its and its
affilliates’ business and operations only.
Client shall not have or acquire any
proprietary or other right whatsoever in the Proprietary Information, except as provided
herein, all of which rights belong exclusively to Above Zero Media. Client shall not sell,
assign, gift, sublicense or otherwise transfer to any third party (other than an affiliate
of Client) any rights in the Proprietary Information without the prior written consent of
Above Zero Media, with the granting of said consent to be in Above Zero Media’s sole
discretion. This section shall survive the termination of this Agreement.
14. Successors and Assigns. This Agreement shall be binding upon Client and Above
Zero Media, their respective heirs, executors, administrators, successors in interest or
assigns, including without limitation any partnership, corporation or other entity into
which 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, Above Zero Media shall not assign the Agreement without
prior written consent of Client.
15. Waiver. The waiver by either party of its rights under this Agreement or the
failure of a party to promptly 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.
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,
or such substitute street addresses as the parties may provide in writing:
| To Above Zero Media: | Above Zero Media, LLC | |||
| Attn: Xxxx Xxxxxxxx | ||||
| 0000 00xx Xxx. XX | ||||
| Xxxxx, XX 00000 | ||||
| To Client: | Cardinal Ethanol, LLC | |||
| 0 XXXX Xxxxxx, Xxxxx 000 | ||||
| X.X. Xxx 000 | ||||
| Xxxxxxxxxx, XX 00000 |
17. Applicable Law. This Agreement and all obligations created hereunder or
required to be created hereby shall be governed by and construed and enforced in accordance
with the laws of the State of Indiana, and the parties hereby consent that the District
Court situated in Xxxxxxxx County, Indiana, shall be the exclusive jurisdiction and venue
of any disputes relating to this Agreement.
18. Defaults. 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
(“Event of
Default”), 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
seven (7) 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 18 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 such other costs incurred therewith.
19. Severability. In the event that any term, condition, or provision of this
Agreement is held to be invalid by any court of competent jurisdiction, such holding or
holdings shall not invalidate or make unenforceable any other term, condition or provision
of this Agreement. The remaining terms, conditions and provisions shall be fully
severable, and shall be construed and enforced as if such invalid term, condition or
provision had never been inserted in this Agreement initially.
20. Entire Agreement. This Agreement constitutes the entire Agreement between the
parties hereto with regard to the subject matter hereof, and there are no agreements,
understandings, 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.
21. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be considered an original document, but all of which shall be considered one
and the same agreement and shall become binding when one or more counterparts have been
signed by each of the parties.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the Effective Date.
| ABOVE ZERO MEDIA, | CARDINAL ETHANOL, | |||||||||
| LLC | LLC | |||||||||
| By | /s/ Xxxxxxx Xxxxxxxx | By | /s/ Xxxx Xxxxxxxxxxxx | |||||||
| Xxxxxxx Xxxxxxxx | Its | Treasurer | ||||||||
| Its | ||||||||||
| And | ||||||||||
| By | /s/ Xxxx Xxxxxx | |||||||||
| Xxxx Xxxxxx | ||||||||||
| Its | ||||||||||
| And | ||||||||||
| By | /s/ Xxxx Xxxxxxxx | |||||||||
| Xxxx Xxxxxxxx | ||||||||||
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