PROJECT DEVELOPMENT AND CONSULTING AGREEMENT
THIS
PROJECT DEVELOPMENT AND CONSULTING AGREEMENT ("Agreement")
is entered into as of this 1st day of September 2007 ("Effective Date"), by
and
between
Xxxx X. Xxxx, an individual ("Long"), and East Coast Ethanol, LLC (the
"Company"), a Delaware limited liability company.
WHEREAS,
the
Company desires to engage Long for the purpose of providing project development
and consulting services to the Company relating to the Company's development,
construction
and ownership of four (4) 100 million gallon per year dry mill ethanol plants
to
be located in
the
southeastern United States (the "Project" or "Ethanol Plants"); and
WHEREAS,
Long
desires to provide such services to the Company in exchange for
compensation;
WHEREAS,
the
Company's Board of Directors (the "Board") desires to memorialize the agreement
between the Company and Long for the purpose of setting forth the manner in
which Long shall render services to the Company and the manner in which the
Company shall pay compensation to Long for such services.
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
and CONSULTING SERVICES. Company
hereby retains Long for the
purpose of providing developmental and consulting services with respect to
the
Project throughout
the construction and initial start-up period ("Development and Consulting
Services"). Development
and Consulting Services shall include all services performed on behalf of and
at
the reasonable
request of the Company from the Effective Date of this Agreement through its
termination.
Long's duties shall include, but not be limited to, responsibility for public
relations relating
to the Company's communications concerning the Company's activities in South
Carolina, apprising
the Board of the status of the Project and in particular of the status of the
South Carolina facility and of any material events and assisting the Company's
Board in developing policies regarding development and construction of the
Project and coordinating any and all development activities
relating to the Company's development of the South Carolina ethanol plant.
Development and
Consulting Services shall not include effecting or attempting to effect
purchases or sales of the Company's
securities.
2. COMPENSATION
FOR DEVELOPMENT and CONSULTING SERVICES. In
consideration solely for the Development and Consulting Services to be provided
to Company. Company
shall pay Long a development and consulting fee equal to $120,000 ("Development
and Consulting Fee"). The Development and Consulting Fee shall be paid in twelve
(12) equal monthly installments
commencing with the month of the Effective Date and continuing through the
month
in which
this Agreement is terminated or until the total amount of the Development and
Consulting Fee
has
been paid in full, whichever occurs earlier.
3. EXPENSES.
Company
shall reimburse Long for all reasonable, ordinary and necessary expenses
incurred by Long in performance of his duties hereunder, including without
limitation, reimbursement
for hotel expenses, business meals, travel expenses, educational expenses,
and
automobile mileage at a rate per mile as periodically set by the Internal
Revenue Service. Notwithstanding the above, Company shall reimburse Long for
any
expenses in excess of $5,000 only
if
such expenses were pre-approved in writing by the Company's Board of Directors
or by the Executive
Committee of the Board of Directors.
4. SUPPORT
SERVICES. Company
will provide the following support services for the benefit of Long, as approved
by Company: office space, secretarial support, telephone service, and
office supplies.
5.
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) |
Payment
in full of the Development and Consulting
Fee;
|
| (b) |
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) |
Long's
voluntary resignation as a member of the Board or his removal
from the
Board;
|
| (d) |
Mutual
written agreement of the parties;
|
| (e) |
Completion
of one calendar year from the Effective Date;
or
|
| (f) |
Long's
death or disability such that he is unable to perform the Development
and
Consulting
Services hereunder as determined in good faith by the Company's
Board
of
Directors.
|
6.
INDEMNIFICATION.
The
Company shall indemnify, defend against and advance to Long
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 Long is made a party by reason
of
performing
services for Company or acting in any manner pursuant to this Agreement, except
that Company shall have no obligation to indemnify and defend Long or his agents
for their act or omission that involves gross negligence, intentional misconduct
or a known violation of the law. Long
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 Long committing an act or omission that involves gross
negligence, intentional misconduct or a known violation of the law.
7. DEFAULT.
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, 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 thirty (30) 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 7 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 related
costs and such other
costs incurred therewith.
8. VENTURES/CORPORATE
OPPORTUNITY.
If
during the term of this Agreement, Long
is
engaged in or associated with the planning or implementing of any project,
program or venture involving the Company and a third party or parties, all
rights in such project, program or venture shall belong to the Company. Except
as approved in writing by the Board of Directors, Long shall not be entitled
to
any interest in any such project, program, or venture or to any commission,
finder's fee or other compensation in connection therewith, other than the
compensation
to be paid to Long by the Company as provided herein. Long shall xxxx no
interest,
direct or indirect, in any customer or supplier that conducts business with
the
Company, unless
such interest has been disclosed in writing to and approved by the Board of
Directors before such
customer or supplier seeks to do business with the Company.
9. SUCCESSORS
AND ASSIGNS BOUND.
This
Agreement shall be binding upon the Company,
Long. 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.
10. RELATIONSHIP
OF THE PARTIES. The
parties understand that Long 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 Long. Notwithstanding the above, should the Company's Board
establish
a board of directors' compensation policy, Long, 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.
11. AUTHORITY.
Each
of
the signatories hereto certifies that such party has all necessary authority
to execute this Agreement.
12. 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.
13. 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.
14. 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.
15. 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.
16. CAPTIONS.
The
captions herein are inserted for convenience of reference only and shall be
ignored
in the construction or interpretation hereof.
17. 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 Long: | Xxxx
X. Xxxx
0000
Xxxxxxxx Xxxx
X.X.
Xxx 0000
Xxxxxxxx,
Xxxxx Xxxxxxxx 00000
|
| To Company: | East
Coast Ethanol, LLC
c/o
Brown Xxxxxx PLC
Attention:
Xxxxxxx X. Xxxxxxxx
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxx, Xxxx 00000
|
18. GOVERNING
LAW. This
Agreement shall be governed and construed in accordance with the law
of
the State of Georgia 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 Georgia in any
action or proceeding brought to enforce or otherwise arising out of or relating
to this Agreement.
19. 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.
| /s/ Xxxx X. Xxxx | By: /s/ Xxxxx X. Xxxxxx | ||
|
Xxxx X. Xxxx, Individually |
Xx. Xxxxx Xxxxxx, Chairman |
