AMERICAN ETHANOL, LLC EXECUTIVE CHAIRMAN AGREEMENT
AMERICAN
ETHANOL, LLC
THIS
EXECUTIVE CHAIRMAN AGREEMENT (this “Agreement”) is made and entered into as of
January 30, 2006 by and between American Ethanol, LLC, a California limited
liability company (the “Company”), and ▇▇▇▇ ▇. ▇▇▇▇▇▇ (the
“Advisor”).
WHEREAS,
the Company is a development-stage company in the business of developing,
constructing and operating fuel-grade ethanol plants (the
“Business”);
WHEREAS,
the Advisor has been providing advisory services to the Company in connection
with the Company’s Business;
NOW
THEREFORE, in consideration of the mutual promises contained herein, the parties
agree as follows:
1. Services
and Compensation.
(a) Advisor
has provided the following services to the Company: (i) advisory work related
to
founding and initial development of the Company; and (ii) advisory work related
to acquisitions, including Wahoo Ethanol, LLC; ▇▇▇▇▇▇ Ethanol, LLC; and Illinois
Valley Ethanol, LLC.
(b) As
consideration for Advisor’s future services, the Company agrees to pay the
amount of $5,000 per payroll period to Advisor for the term of this agreement,
due and payable on the fifteenth and the last day of each month for the
preceding two-week calendar period.
(c) Advisor
shall be reimbursed by the Company within fifteen days after submission of
receipts by Advisor for business-related expenses, including travel, phone,
office, equipment, and and third party costs and expenses.
2. Indemnification.
The
company agrees to indemnify and hold harmless the Advisor, to the extent lawful,
from and against any losses, claims, damages, expenses and liabilities or
actions in respect thereof (“Losses”), as they may be incurred (including
reasonable legal fees and costs as incurred in connection with investigating,
preparing, defending, paying, settling or compromising any Losses, whether
or
not in connection with any pending or threatened litigation in which the Advisor
is a named party) to which the Advisor may become subject, including any
settlement effected with the Advisor’s consent and which are related to or arise
out of any act, omission, disclosure (written or oral), transaction or event
arising out of, contemplated by, or related to this agreement.
The
Company will not be responsible under the foregoing provisions with respect
to
any Losses to the Advisor to the extent that a court of competent jurisdiction
shall have determined by a final judgment that such Losses resulted from actions
taken or omitted to be taken by such Advisor intentionally or due to his
negligence, bad faith or willful misconduct. The Advisor shall not settle,
compromise or otherwise dispose of any action for which indemnification is
claimed hereunder without the written consent of the Company.
3. Term
And Termination.
This
agreement shall be for three years from the date first set forth above. Either
the Advisor or the Company may terminate this agreement at any time for any
reason or no reason, with or without cause, by the giving of written notice
to
the other party. Upon such termination, all rights and duties of the parties
toward each other under this agreement shall cease. In the event of early
termination by the Company, the Advisor shall receive a payment equal to six
months of monthly fees as set forth in Section 1(b) herein.
4. Assignment.
Neither
this Agreement nor any right hereunder nor may interest herein be assigned
or
transferred by either party without the express written consent of the other
party.
5. Independent
Contractor.
It is
the express intention of the parties that Advisor is an independent contractor.
Nothing in this Agreement shall in any way be construed to constitute Advisor
as
an agent, employee or representative of the Company, but Advisor shall perform
the Services hereunder as an independent contractor. Advisor agrees to furnish
tools and materials necessary to accomplish this contract. Advisor acknowledges
and agrees that Advisor is obligated to report as income all compensation
received by Advisor pursuant to this Agreement, and Advisor agrees to and
acknowledges the obligation to pay all self-employment and other taxes thereon.
6. Benefits.
Advisor
acknowledges and agrees and it is the intent of the parties hereto that Advisor
receive no Company-sponsored benefits from the Company either as an Advisor
or
employee. If Advisor is reclassified by a state or federal agency or court
as an
employee, Advisor will become a reclassified employee and will receive no
benefits except those mandated by state or federal law, even if by the terms
of
the Company’s benefit plans in effect at the time of such reclassification
Advisor would otherwise be eligible for such benefits.
7. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California without regard to conflict of law principles.
8. Entire
Agreement.
This
instrument contains the entire agreement of the parties and supersedes any
prior
agreements between them, whether written or oral, with respect to the subject
matter hereof.
9. Attorney’s
Fees.
In any
court action at law or equity which is brought by one of the parties to enforce
or interpret the provisions of this Agreement, the prevailing party will be
entitled to reasonable attorney’s fees, in addition to any other relief to which
that party may be entitled.
10. Severability.
In the
event that any term or provision hereof becomes or is declared by a court of
competent jurisdiction to be illegal, unenforceable or void, all other terms
and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such
determination that any term or other provision is illegal, unenforceable or
void, the parties hereto shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as possible in
an
acceptable manner in order that the transactions contemplated hereby are
consummated as contemplated to the greatest extent possible.
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11. Arbitration.
Any
dispute or controversy arising out of or relating to any interpretation,
construction, performance or breach of this Agreement shall be settled by
arbitration to be held in Santa ▇▇▇▇▇ County, California, in accordance with
the
rules then in effect of the American Arbitration Association. The arbitrator
may
grant injunctions or other equitable relief in such dispute or controversy.
The
decision of the arbitrator shall be final, conclusive and binding on the parties
to the arbitration. Judgment may be entered on the arbitrator’s decision in any
court having jurisdiction; provided, however, that the arbitrator shall not
have
the power to alter or amend this Agreement.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first above written.
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ADVISOR
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AMERICAN ETHANOL, LLC | |||
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/s/
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/s/ ▇▇▇ ▇▇▇▇▇▇ | |||
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▇▇▇ ▇▇▇▇▇▇, CEO | |||
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Address:
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Address:
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