CONSULTING AGREEMENT
Exhibit 10.1
THIS CONSULTING AGREEMENT (the “agreement”) is made effective as of the 29th day of
November, 2005, (the “Effective Date”) by and between The Biodiesel Group, LLC, an Iowa limited
liability company (“consultant”)and Western Dubuque Biodiesel, LLC, an Iowa limited liability
company (“client”).
WHEREAS, client intends to develop, finance and construct a biodiesel plant in or near Farley,
Iowa (“the project”); and
WHEREAS, consultant has a background in project planning, planning and assisting seed money
and equity funding drives and contracting for the construction, management and operation of
biodiesel plants and is willing to provide those services to client based on its background and
experience; and
WHEREAS, client desires to contract for those services.
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein client
hereby engages consultant and consultant hereby accepts such engagement upon the terms and
conditions hereinafter set forth.
1. Term. Consultant’s engagement with client shall commence as of the effective date and
continue until 30 days after the plant is in operation. However, this agreement may be terminated
at any time by either party upon thirty (30) days prior written notice of the party’s intent to
terminate this agreement. Upon termination, neither client nor consultant shall have any further
rights or obligations under the terms of this agreement other than delivery of payments for
services to which consultant may be entitled at the date of termination. Should consultant fail to
perform its duties as required herein, fail to devote adequate time to its duties with client or
exceed its authority as a representative of client, in client’s sole discretion, client may
immediately terminate this agreement for cause by providing a written notice by certified mail or
personal service to Xxxxxx X. Xxxx, 000 X. 0xx Xx., X.X. Xxx 000, Xxxx Xxxx, XX
00000-0000. Such termination for cause shall take effect immediately upon receipt of such notice.
In the event this contract is terminated by client, whether with or without cause, consultant will
receive the 500 membership units in client previously issued to its members.
2. Services. Consultant shall serve as the client’s project consultant and will perform
the following duties incident to the project, subject to client’s approval:
| a. | Arrange for the completion of a feasibility study by a qualified service provider. | ||
| b. | Assist in the formation of a limited liability company and drafting an appropriate operating agreement. |
| c. | Assist in the completion of a business plan. | ||
| d. | Provide five members to serve on the board of directors until the first annual meeting of members in association with those directors appointed by client. (With the opportunity to make an additional equity investment at whatever opportunity is granted to active board members). | ||
| e. | Arrange for necessary legal, accounting and advertising services and monitor the quality of and charges for those services until financial close. | ||
| f. | Assist in the preparation of a confidential private placement memorandum for seed capital investors. | ||
| g. | Invest $100,000 of seed capital into the project on a 2 units for 1 basis. Consultant will also secure a minimum of $500,000 of additional seed money on a 2 units for 1 basis, and assist in the client’s own seed capital drive, which shall also be offered on a 2 units for 1 basis. | ||
| h. | Assist in choice of and negotiation for securing plant site. | ||
| i. | Assist legal counsel in completing and securing approval of the client’s prospectus for its equity drive. | ||
| j. | Assist in preparation of the power point presentation for use in the client’s equity drive. | ||
| k. | Assist in the equity drive in conjunction with the board of directors to raise such additional equity capital as is required by the lender. Consultant shall assist in presenting the power point presentation and in answering questions from prospective investors. | ||
| l. | Assist in the education of area lenders including, without limitation, the preparation of a “banker’s book” tailored to the project. | ||
| m. | Assist legal counsel and the board of directors in negotiating the service and construction contracts with Renewable Energy Group, LLC or other engineering or construction companies and the management, operation and seed stock procurement contracts with West Central Cooperative or other suitable management company. | ||
| n. | Contact and negotiate with prospective lead lenders to secure the necessary borrowed funds to complete the project. | ||
| o | Assist client in hiring a qualified project manager. | ||
| p. | Perform such other reasonably necessary duties as client may require 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. |
Subject to client’s approval, consultant shall determine the manner in which the services are
to be performed and the specific hours to be worked by consultant’s members or employees. Client
will rely on consultant’s members to commit as many hours as may be reasonably necessary to fulfill
consultant’s commitments under this agreement.
3. Employees, Members, Agents. Consultant’s employees, members or agents, if any, who
perform services for client under this agreement shall also be bound by the terms of this
agreement.
4. Compensation for Services. Consultant shall receive payment for services in the
amount of $120,000 payable at the rate of $ 20,000 per month for a period of six (6) months,
payable monthly, with an automatic deduction to be made from client’s checking account and an
automatic deposit to be made in consultant’s checking account on the 1st day of each month
following the month in which consultant has provided services during the term of this agreement,
beginning January 1, 2006. Further, consultant will receive 500 restricted ownership units in the
company upon the adoption of client’s operating agreement, which will be issued in units of 100
shares to the individual members of consultant as directed by those individual members.
5. Expenses. Client shall reimburse consultant’s members for all reasonable, ordinary
and necessary expenses incurred by such members in performance of their duties hereunder, including
without limitation, reimbursement for automobile mileage at the maximum deduction rate allowed by
the Internal Revenue Service for business miles or such other rate to which the parties hereto may
later agree, cost of supplies, phone expenses, postage and any other expenses incurred in the
furtherance of clients’s project.
6. Support Services. Client will provide the following support services for the benefit
of consultant as approved by client: office space, secretarial support and office supplies.
7. Successors and Assigns Bound. This agreement shall be binding upon the client and
consultant, their respective members, 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 (either directly, and directly or by operation of law), or to
which it may assign its rights under this agreement. Notwithstanding the foregoing, any assignment
by consultant of this agreement or of any interest herein, or of any money due to or to become due
by reason of the terms hereof without the prior written consent of the client shall be void.
8. Relationship of the Parties. The parties understand that consultant is an independent
contractor with respect to client, and neither consultant nor its members are employees of client.
Client will not provide fringe benefits, including health insurance benefits, paid vacation or any
other employee benefits for the benefit of consultant, its members or employees.
9. Injuries. Consultant acknowledges its obligation to obtain appropriate insurance
coverage for its own benefit and for the benefit of the its members, employees and agents.
Consultant waives any right to recover from client for any injuries that its members or employees
may sustain while performing services under this agreement.
10. Return of Records. Upon termination of this agreement, consultant shall deliver all
records, notes, data, memoranda, models and equipment of any nature that are in consultant’s
possession or control and that are client’s property or relate to client’s business.
11. Waiver. The waiver by client or consultant of its rights under this agreement or the
failure of the client or consultant 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.
12. 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. This agreement
terminates and replaces any prior agreement between the client and consultant. 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.
13. 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 mail, return receipt requested, addressed as follows:
To consultant:
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The Biodiesel Group, LLC: x/x Xxxxxx X. Xxxx XX Xxx 000 Xxxx Xxxx, XX 00000-0000 |
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To client:
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Western Dubuque Biodiesel, LLC XX Xxx 00 Xxxxxx, XX 00000 |
14. Governing Law. This agreement is entered into pursuant to and shall be governed by
in accordance with the laws of the State of Iowa.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the effective date.
| THE BIODIESEL GROUP, LLC | WESTERN DUBUQUE BIODIESEL, LLC | |||||
By:
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/s/ Xxxxxxx X. Xxxxx | By: | /s/ Xxxxxxx X. Xxxxxxxxx | |||
| Xxxxxxx X. Xxxxx, Manager | Xxxxxxx X. Xxxxxxxxx, Chairman | |||||
By:
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/s/ Xxxxxx X. Xxxx | By: | /s/ Xxxxx Xxxxxxx | |||
| Xxxxxx X. Xxxx, Secretary | Xxxxx Xxxxxxx, Secretary | |||||
STATE OF IOWA, DUBUQUE COUNTY: ss
On this 29th day of November, 2005, before me, a Notary Public in and for the State
of Iowa personally appeared Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxx, to me personally known, who being
by me duly sworn did say that those persons respectively are manager and secretary of The Biodiesel
Group, LLC, and that said instrument was signed on behalf of The Biodiesel Group, LLC by authority
of its managers and the said Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxx acknowledged the execution of
said instrument to be the voluntary act and deed of The Biodiesel Group, LLC by them voluntarily
executed.
XXXXXX X. XXXXX
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Iowa Notortial Seal
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/s/ Xxxxxx X. Xxxxx |
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Commission Number: 199715
My Commission Expires: 12/17/07 |
NOTARY PUBLIC |
STATE OF IOWA, DUBUQUE COUNTY: ss
On this 29th day of November, 2005, before me, a Notary Public in and for the State of Iowa
personally appeared Xxxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxx, to me personally known, who being by me duly sworn did say that those persons respectively are
chairman and secretary of Western Dubuque Biodiesel, LLC, and that said instrument was signed on
behalf of Western Dubuque Biodiesel, LLC by authority of its directors and the said Xxxxxxx X.
Xxxxxxxxx and Xxxxx Xxxxxxx acknowledged the execution of said instrument to be the voluntary act
and deed of Western Dubuque Biodiesel, LLC by them voluntarily executed.
XXXXXX X. XXXXX
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Iowa Notortial Seal
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/s/ Xxxxxx X. Xxxxx |
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Commission Number: 199715
My Commission Expires: 12/17/07 |
NOTARY PUBLIC |
