PROJECT DEVELOPMENT FEE AGREEMENT
Exhibit 10.3
THIS PROJECT DEVELOPMENT FEE AGREEMENT (“Agreement”) is entered into as of this
13th day of May , 2005 (“Effective Date”), by and between Xxxxxxx X.
Xxxxxx, an individual (“Xxxxxx”), and E Energy Xxxxx, LLC (“Company”), a Nebraska limited
liability Company.
WHEREAS, Company intends to develop, finance and construct an ethanol plant in or around
Adams, Nebraska (the “Project” or “Ethanol Plant”);
WHEREAS, Xxxxxx desires to provide his services to the Company to assist in the organization
and development of the Project; and
WHEREAS, the Company’s Board of Directors (the “Board”) has determined that it is in the best
interests of the Company for Xxxxxx to provide his services to the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and
for other good and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereby agree as follows:
1. DEVELOPMENT SERVICES. Company hereby retains Xxxxxx for the purpose of providing
organizational and developmental services with respect to the Project (“Development Services”).
Development Services shall not include effecting or attempting to effect purchases or sales of the
Company’s securities.
2. PAYMENT TERMS. In consideration for the Development Services to be provided to
Company, Company shall pay Xxxxxx compensation of One Thousand Dollars ($1,000) payable monthly.
3. TERM AND TERMINATION OF AGREEMENT. The term of this Agreement shall commence as of the
Effective Date and shall terminate upon the earlier of any of the events enumerated below
(“Termination Event”).
(a) Upon the date the Ethanol Plant first begins producing ethanol for sale;
(b) Upon the dissolution, bankruptcy or insolvency of the Company, or the inability or
failure of the Company generally to pay debts as they become due, or an assignment by the
Company for the benefit of creditors, or the commencement of any case or proceeding in
respect of the Company under any bankruptcy, insolvency or similar laws;
(c) Upon Xxxxxx’x voluntary resignation as a member of the Board; or
(d) Upon two weeks written notice of intent to terminate by either party.
4. INDEMNIFICATION. Company shall indemnify, defend against and advance to Xxxxxx all
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 Xxxxxx is made a party by reason of
performing services
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for Company or acting in any manner pursuant to this Agreement, except that
Company shall have no obligation to indemnify and defend Xxxxxx or his agents for their act or
omission that involves gross negligence, intentional misconduct or a known violation of the law.
Xxxxxx shall indemnify and defend Company and its employees, members, directors, officers and
agents against expenses actually and reasonably incurred in connection with the defense of any
Proceeding in which Company and/or its employees, members, directors, officers or agents are made
a party by reason of Xxxxxx committing an act or omission that involves gross negligence,
intentional misconduct or a known violation of the law.
5. SUCCESSORS AND ASSIGNS BOUND. This Agreement shall be binding upon the Company, Xxxxxx,
their respective heirs, executors, administrators, successors in interest or permitted assigns,
including without limitation, any partnership, corporation or other entity into which the Company
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.
6. RELATIONSHIP OF THE PARTIES. The parties understand that Xxxxxx is an independent
contractor with respect to Company, and not an employee of the Company. Company will not provide
fringe benefits, including health insurance benefits, paid vacation, or any other employee
benefits for the benefit of Xxxxxx. Notwithstanding the above, should the Company’s Board
establish a board of directors’ compensation policy, Xxxxxx, as a director of the Company, may
receive reasonable compensation for his services as a director and may be reimbursed for his
expenses in attending Board meetings, including committee meetings.
7. AUTHORITY. Each of the signatories hereto certifies that such party has all necessary
authority to execute this Agreement.
8. AMENDMENTS. This Agreement sets forth the entire understanding of the parties and
supersedes any prior agreements, oral or written, as to the subject matter hereof. This Agreement
may be amended or modified by, and only by, a written instrument executed by the parties hereto.
9. ASSIGNMENT. This Agreement shall not be assigned by any party hereto except as
permitted by its express terms or upon the written consent of the other party. Nothing in this
Agreement, express or implied, its intended to confer upon any other person any rights or remedies
under or by reason of this Agreement.
10. SEVERABILITY. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement, or affecting the validity or enforceability of any of the terms
or provisions of this Agreement in any other jurisdiction.
11. WAIVER. The failure of any party hereto to insist in any one of more instances upon
performance of any term or condition of this Agreement shall not be construed as a waiver of
future performance of any such term, covenant or condition, but the obligation of such party with
respect thereto shall continue in full force and effect.
12. CAPTIONS. The captions herein are inserted for convenience of reference only and shall
be ignored in the construction or interpretation hereof.
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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 or first class mail addressed as follows:
To Xxxxxx:
|
Xxxxxxx X. Xxxxxx | |
| 000 Xxxxxxx Xxxxxx | ||
| Xxxxx, XX 00000 | ||
To Company:
|
E Energy Xxxxx, LLC | |
| Attention: Xxxx X. Xxxxxxxx | ||
| 000 Xxxx Xxxxxx | ||
| Xxxxx, Xxxxxxxx 00000 | ||
Copy to:
|
Brown, Winick, et al. | |
| Attention: Xxxxxxx X. Xxxxxxxx | ||
| 000 Xxxxx Xxxxxx, Xxx. 0000 | ||
| Xxx Xxxxxx, Xxxx 00000 |
14. GOVERNING LAW. This Agreement shall be governed and construed in accordance with the
law of the State of Nebraska, without reference to its conflict of law rules. Each of the parties
hereto irrevocably submits to the jurisdiction of any state or federal court sitting in the State
of Nebraska in any action or proceeding brought to enforce or otherwise arising out of or relating
to this Agreement.
15. INTERPRETATION. The parties agree that each has had an opportunity to negotiate fully
the terms of this Agreement and that this Agreement shall not be interpreted in favor of or against
the party drafting the Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first above
written.
| E Energy Xxxxx, LLC | ||
/s/ Xxxxxxx X. Xxxxxx
|
By: /s/ Xxxx X. Xxxxxxxx | |
Xxxxxxx X. Xxxxxx
|
Xxxx X. Xxxxxxxx, President |
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