EXHIBIT 10.12
GREENWAY CONSULTING, LLC
CONFIDENTIAL
PREPARED FOR:
OREGON TRAIL ETHANOL COALITION, L.L.C.
DAVENPORT, NEBRASKA
DECEMBER 30, 2002
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CONFIDENTIAL
DEVELOPMENT SERVICES/CONSULTING AGREEMENT
This Development Services/Consulting Agreement (this "Agreement") is
entered into the 30/th/ day of December, 2002, by and between Oregon Trail
Ethanol Coalition, L.L.C., a Nebraska limited liability company of ▇▇▇▇▇▇▇▇▇,
Nebraska (hereinafter "Oregon Trail Ethanol Coalition"), and GreenWay
Consulting, LLC, a Minnesota limited liability company of ▇▇▇▇▇▇, Minnesota
(hereinafter "GreenWay").
RECITALS
WHEREAS, GreenWay maintains expertise in the development, construction
and management of ethanol production facilities;
WHEREAS, Oregon Trail Ethanol Coalition requires Project Services (the
"Services") in connection with the execution and delivery of project financing,
facility design and construction, and initial plant operation for an ethanol
production facility to be constructed during the term of this Agreement; and
WHEREAS, Oregon Trail Ethanol Coalition desires to engage GreenWay to
render these specific Services.
NOW THEREFORE, in consideration of the mutual covenants and
stipulations hereinafter set forth, the parties agree as follows:
SECTION 1 - SCOPE OF SERVICES. The scope of Services to be provided by GreenWay
are set forth below and are divided into three phases: Phase I (Project
Development), Phase II (Construction) and Phase III (Initial Plant Operations).
1. PHASE I - PROJECT DEVELOPMENT
a. PROJECT COORDINATION AND DEVELOPMENT:
(i) Assist and advise Oregon Trail Ethanol Coalition in
engaging other firms to provide risk management and
marketing expertise;
(ii) Assist and advise Oregon Trail Ethanol Coalition in
the site evaluation and preparation process;
(iii) Assist and advise Oregon Trail Ethanol Coalition in
the negotiations of various contracts including
insurance, utilities (gas, electrical, water, waste
water), rail, raw material supply, and product
off-take; and
(iv) Assist and advise Oregon Trail Ethanol Coalition in
obtaining various permits.
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b. DESIGN AND CONSTRUCTION:
(i) Assist and advise Oregon Trail Ethanol Coalition in
negotiating a contract regarding price, schedule, and
performance with its design and engineering firm;
(ii) Assist and advise Oregon Trail Ethanol Coalition in
reviewing and approving preliminary and final process
and detailed design;
(iii) Assist and advise Oregon Trail Ethanol Coalition in
negotiating a contract regarding price, schedule, and
performance with its construction company.
2. PHASE II - CONSTRUCTION
a. Assist and advise Oregon Trail Ethanol Coalition in recruiting
and hiring Oregon Trail Ethanol Coalition's owners'
representative/construction supervisor;
b. Attend monthly site progress meetings between Oregon Trail
Ethanol Coalition, the design engineer and contractor;
c. Assist and advise Oregon Trail Ethanol Coalition in
recruiting and hiring all plant employees;
d. Assist and advise in providing initial employee training;
and
e. Assist and advise in providing plant start-up assistance
and coordinating the activities of the design engineer and
contractor through and including the monitoring of the
performance tests to assist in determining the performance
criteria have been met.
3. PHASE III - INITIAL PLANT OPERATIONS
a. Assist and advise in providing on-site support staff for a
period of up to three (3) months after successful start-up and
commissioning;
b. Assist and advise in providing technical support on an
as-needed basis for a period of an additional six (6) months;
c. Assist and advise in providing ongoing employee training
during the term of this Agreement;
d. Continuously advise Oregon Trail Ethanol Coalition on ways to
increase plant production during the term of this Agreement;
and
e. Continuously advise Oregon Trail Ethanol Coalition on ways to
improve plant efficiency during the term of this Agreement.
Subject to the limitations set forth below, it is understood that
GreenWay will not limit its assistance to the Services specifically enumerated
above, but will extend its services and assistance as reasonably required to
provide for the successful implementation of the project plan. It is also
understood that all Services provided by GreenWay will be provided on a best
efforts basis with no warranties of performance. Notwithstanding the foregoing,
GreenWay represents and warrants that its Services will be performed by
qualified and trained personnel and in a professional and good and workmanlike
manner.
Oregon Trail Ethanol Coalition and GreenWay acknowledge and agree that
GreenWay is not to provide, and is not responsible for, any services in
connection with the financing of Oregon Trail Ethanol Coalition. Accordingly,
notwithstanding anything to the contrary set forth
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in this Agreement, GreenWay hereby agrees that in no event shall it or any third
party (whether a representative, consultant, advisor or otherwise) acting on its
behalf engage in any conduct which constitutes the effecting of a transaction in
the securities of Oregon Trail Ethanol Coalition, including, but not limited to,
any of the following conduct:
(a) Discussing with any potential investor in Oregon Trail Ethanol
Coalition the advantages or disadvantages of investments in general or
of an investment in Oregon Trail Ethanol Coalition;
(b) Providing any advice or analyses or making any recommendations to
potential investors in Oregon Trail Ethanol Coalition with respect to
an investment in Oregon Trail Ethanol Coalition;
(c) Taking part in any negotiations between Oregon Trail Ethanol
Coalition and a potential investor in Oregon Trail Ethanol Coalition or
such potential investor's representative;
(d) Assisting any potential investor in Oregon Trail Ethanol Coalition
in making a decision whether to purchase the securities of Oregon Trail
Ethanol Coalition;
(e) Delivering any offering document of Oregon Trail Ethanol Coalition
to a potential investor;
(f) Receiving or handling any potential investor's subscription
agreement or any funds used by a potential investor in Oregon Trail
Ethanol Coalition in purchasing the securities of Oregon Trail Ethanol
Coalition;
(g) Maintaining any discretion with respect to Oregon Trail Ethanol
Coalition's acceptance or rejection of a potential investor's
subscription to purchase the securities of Oregon Trail Ethanol
Coalition;
(h) Participating in any advertisement, endorsement or general
solicitation regarding an investment in the securities of Oregon Trail
Ethanol Coalition;
(i) Preparing materials relating to the sale or purchase of securities
of Oregon Trail Ethanol Coalition or in the distribution of these
materials to any potential investor in Oregon Trail Ethanol Coalition;
(j) Performing any independent analysis of the sale of securities by
Oregon Trail Ethanol Coalition or engaging in any due diligence
activities;
(k) Engaging in any other communication with a potential investor in
Oregon Trail Ethanol Coalition regarding a possible investment in
Oregon Trail Ethanol Coalition.
SECTION 2 - COMPENSATION. Compensation for the Services provided under this
Agreement shall be based on the following schedule:
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1. EXPENSE RETAINER. Oregon Trail Ethanol Coalition shall advance a
non-refundable retainer of $100,000 US (the "Retainer") to the attention of the
undersigned of GreenWay Consulting, LLC. Expenses under Section 3 hereof will be
applied against the Retainer. Oregon Trail Ethanol Coalition will be obligated
to pay for expenses incurred by GreenWay under Section 3 that exceed the
Retainer, however, it is understood that payment in excess of the Retainer is
not owed and will not be made until Oregon Trail Ethanol Coalition completes
Equity Capital (as defined below) funding. After the Retainer is received,
GreenWay shall not receive any additional compensation, other than monthly
expenses that exceed the Retainer as provided under Section 3, until Financial
Close (as defined below). The unused portion of the Retainer, if any, at
Financial Close will be offset against the fees due for Phase I scheduled below.
Because (i) Oregon Trail Ethanol Coalition is undertaking a project in
its development stage and will have limited resources to pay GreenWay for the
Services until such time as Oregon Trail Ethanol Coalition obtains financing
through third-party sources and (ii) the amount of financing that Oregon Trail
Ethanol Coalition obtains through third-party sources will be attributable, in
part, to GreenWay's efforts in assisting Oregon Trail Ethanol Coalition to
successfully construct and operate the ethanol processing facility, Oregon Trail
Ethanol Coalition shall pay GreenWay a fee for the Services in accordance with
Schedule 1 set forth below.
SCHEDULE 1 - COMPENSATION FOR SERVICES
------------------------------------------------------------------------------------------------------
SERVICE FEE SOURCE OF FUNDS PAYMENT TERMS
------------------------------------------------------------------------------------------------------
PHASE I 1.92% of Total Project PROJECT FINANCING (AS DUE IN FULL @ FINANCIAL CLOSE
Capitalization DEFINED BELOW)
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PHASE II 1% of Total Project PROJECT FINANCING 25% DOWN @ FINANCIAL CLOSE -
Capitalization 50% @ MECHANICAL COMPLETION
(AS DEFINED BELOW) - 25% @
SUCCESSFUL COMMISSIONING (AS
DEFINED BELOW)
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PHASE III 0.75% of Total Project WORKING CAPITAL (AS PRORATED OVER 9 MONTHS AFTER
Capitalization DEFINED BELOW) SUCCESSFUL COMMISSIONING
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In no case ▇▇▇▇ ▇▇▇▇▇▇▇▇ share or split the fees delineated above with
any other party currently assisting Oregon Trail Ethanol Coalition in other
endeavors. However, GreenWay may, at its sole discretion, choose to engage other
companies (other than as identified in Section 1) to perform the Services and
may choose to share a portion of its fees for the Services under this Agreement
provided by those other companies.
The following definitions apply to this section:
(1) Financial Close: Closing of senior debt financing for the
project.
(2) Mechanical Completion: Completion of construction such that corn
can be ground for ethanol production.
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(3) Successful Commissioning: Production of ethanol meeting design
specifications on a daily basis of nameplate production, and all
production meets the guarantees provided by engineers and
contractors.
(4) Project Financing: Total debt and equity financing of the
project.
(5) Total Project Capitalization: The total source of funds
including, but not limited to, grants, subordinated debt, senior
debts, the equity portion of Working Capital, and revolving line
of credit all as established as of Financial Close, provided,
however, "Total Project Capitalization" does not include any
Prior Capital.
(6) Working Capital: Operating revenues of the plant.
(7) Prior Capital: Proceeds raised as a result of any private equity
offering before the date of the signing of this Agreement, up to
$4,000,000 of Lurgi/PSI subordinated debt and any and all grants
awarded to or received by Oregon Trail Ethanol Coalition as of
the date of the signing of this agreement.
SECTION 3 - EXPENSES. Oregon Trail Ethanol Coalition will be responsible for all
of GreenWay's out-of-pocket expenses, including travel, lodging, meals,
communication, cost of CPA prepared and approved GAAP financial information, and
reports prepared in fulfilling its duties for the Services outlined in Section
1. If expenses exceeding $5,000 per month are required, GreenWay shall seek
pre-approval by Oregon Trail Ethanol Coalition, which shall not be unreasonably
withheld. GreenWay shall submit monthly updated expense reports to Oregon Trail
Ethanol Coalition for reimbursement.
SECTION 4 - TERM OF AGREEMENT; TERMINATION. The term of this Agreement shall
begin on the date of execution set forth above and shall have an expiration date
nine (9) months after Successful Commissioning (as defined above) of the plant.
Oregon Trail Ethanol Coalition and GreenWay as the non-defaulting party each
shall retain the right to terminate this Agreement if either party fails to
perform ("defaults") under the terms of this contract and attachments, including
but not limited to meeting major milestones in development by their completion
dates in Schedule 2 below. All expenses under Section 3 shall be paid through
termination of this Agreement. Termination of this Agreement by Oregon Trail
Ethanol Coalition prior to Financial Close but after meeting Milestone 1 in
Schedule 2 below, followed by a Financial Close will result in Oregon Trail
Ethanol Coalition paying GreenWay a termination fee equal to the Phase I fee
shown in Schedule 1 above. To terminate this Agreement, the non-defaulting party
must notify the defaulting party in writing describing the cause of default and
pay any uncontested amounts that are due through the date of the notice.
SCHEDULE 2 - MILESTONES AND COMPLETION DATES
MILESTONE COMPLETION DATE FAILURE
--------- --------------- -------
1. Raising the Minimum Subscription Amount Under May 1, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Ethanol
Under the Registration Statement Coalition or GreenWay may
terminate
2. Financial Close June 30, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Ethanol
Coalition or GreenWay may
terminate
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SECTION 5 - INDEPENDENT CONTRACTOR. GreenWay is an independent contractor and
nothing in this Agreement shall constitute or designate GreenWay or any of its
employees or agents as employees or agents of Oregon Trail Ethanol Coalition.
SECTION 6 - CONFIDENTIALITY. Oregon Trail Ethanol Coalition agrees all services
being provided in this Agreement are the work product of GreenWay and
proprietary property of GreenWay. GreenWay agrees to license the use of the
proprietary property to Oregon Trail Ethanol Coalition exclusively for Oregon
Trail Ethanol Coalition's use for its development, construction and operation of
its Davenport, Nebraska area ethanol production facility only. Oregon Trail
Ethanol Coalition agrees it shall not disclose any proprietary property
(information or work product) to third parties, including the media, without the
third party executing a nondisclosure agreement attached as Exhibit A and first
obtaining written permission from GreenWay except that GreenWay's prior written
permission shall not be required is such disclosure is required by applicable
law, including, without limitation, state and federal securities laws and
regulations. GreenWay agrees that financial and other information about the
ethanol production project will be developed by Oregon Trail Ethanol Coalition
and disclosed to GreenWay. GreenWay agrees that proprietary information of
Oregon Trail Ethanol Coalition will only be used for purposes of Oregon Trail
Ethanol Coalition's project and will not be disclosed to others without first
obtaining written permission from Oregon Trail Ethanol Coalition. In the event
Oregon Trail Ethanol Coalition or GreenWay violates the terms and spirit of this
license and disclosure provision, Oregon Trail Ethanol Coalition and GreenWay
agree they will be subject to an injunction and such other relief as allowed by
law, including any damages caused to the other party and reimbursement to the
other party for any attorney fees and costs incurred by the other party in
enforcing this provision.
SECTION 7 - ENTIRE AGREEMENT/AMENDMENTS. This Agreement constitutes the entire
Agreement between the parties hereto and sets forth the rights, duties, and
obligations of each to the other as of this date. Any prior agreements,
promises, negotiations, or representations not expressly set forth in this
Agreement are of no force and effect. This Agreement may not be modified except
in writing executed by both GreenWay and Oregon Trail Ethanol Coalition.
SECTION 8 - LEGAL ADVICE. Each Party agrees that it has relied on its own legal
counsel or has had legal counsel available to them. The Parties agree they have
not relied on any legal representations from the other party.
SECTION 9 - BINDING EFFECT. This Agreement will be binding upon and inure to the
benefit of the parties hereunder, and their respective representatives,
distributees, successors and assigns. Except for assignment by GreenWay to
Diversified Energy Co., LLC or Agri-Source Consulting, LLC, any assignment,
delegation or attempted assignment or delegation of the rights or
responsibilities established under this Agreement shall be null and void without
the prior written duly executed consent by the party charged.
SECTION 10. NOTICES. Any written notice or communications required or permitted
by this Agreement, or by law, to be served on, given to, or delivered to either
party hereto by the other party, shall be in writing, and shall be deemed duly
served, given, or delivered when personally delivered to the party to whom it is
addressed, or in lieu of such personal services, when deposited in the United
States' mail, first-class postage prepaid, addressed to Oregon Trail Ethanol
Coalition at:
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Oregon Trail Ethanol Coalition, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ Law Firm, LLP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
or to GreenWay at:
GreenWay Consulting, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SECTION 11 - CONTROLLING LAW. This Agreement and the rights of the Parties
hereunder, will be governed by, interpreted and enforced in accordance with the
laws of the State of Minnesota.
SECTION 12 - DISPUTE/ARBITRATION. If any dispute arises out of or in connection
with this Agreement, the obligations arising under it or the interpretation of
its terms, the matter shall be referred to arbitration pursuant to the
Commercial Rules of the American Arbitration Association and according to the
following terms:
(a) Either Oregon Trail Ethanol Coalition or GreenWay may initiate
arbitration by giving written notice requesting arbitration to
the other.
(b) The parties shall select a single arbitrator by mutual
agreement, but if they fail to select an arbitrator within ten
(10) calendar days of the receipt of notice of arbitration, then
each party shall within seven (7) business days thereafter,
appoint their respective arbitrator and the two (2) arbitrators
thus chosen shall together, within seven (7) business days of
their appointment, select a third arbitrator and that three
member panel shall arbitrate the dispute. In the event that the
two arbitrators shall fail within seven (7) business days of
their appointment to select a third arbitrator, then upon
written request of either party, the third arbitrator shall be
appointed by the American Arbitration Association. If a party
shall fail to appoint an arbitrator as required the arbitrator
appointed by the other party shall be the sole arbitrator. The
arbitration shall be conducted in Omaha, Nebraska.
(c) Within fifteen (15) business days of the appointment of the
arbitrator or panel, as the case may be, each party shall state
in writing its position concerning the dispute, supported by the
reasons therefore, and deliver its position to the arbitrator(s)
and the other party. If either party fails to submit its
position in a
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timely manner, the position submitted by the other party shall
be deemed correct, and the arbitration shall be deemed
concluded. The parties shall then have ten (10) calendar days to
respond to the position of the other party and deliver that
response to the arbitrator(s). The arbitrator(s) shall, within
thirty (30) calendar days thereafter, meet to consider the
documents presented in order to make a determination by majority
on the issues in dispute. Within fifteen (15) business days of
the end of their meeting the arbitrator(s) shall present their
award. The arbitrator(s) may award a party the right to
terminate this Agreement if termination is a remedy specified
herein for the claim which is the subject of the arbitration.
(d) Each party in such arbitration shall bear one-half each of the
expenses of the arbitrator(s), including their fees and costs,
but each party shall bear their own expenses, including
attorney's fees.
SECTION 13 - LIMITATION OF LIABILITY; INDEMNIFICATION. As more fully described
in Exhibit B hereto, Oregon Trail Ethanol Coalition will indemnify and hold
GreenWay harmless from and against all claims, liabilities, losses, damages and
expenses incurred, including fees and disbursements of counsel, related to or
arising out of this Agreement. Exhibit B is hereby incorporated into this
Agreement by reference and made a part hereof.
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IN WITNESS HEREOF, the parties have executed this Agreement on the date
first above written. By the signature of its representative(s) below, each party
affirms that it has taken all necessary action to authorize said
representative(s) to execute this Agreement.
EACH PARTY AGREES IT HAS READ AND UNDERSTANDS ALL THE TERMS OF THIS AGREEMENT.
OREGON TRAIL ETHANOL COALITION, L.L.C.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Its: Chairman
------------------------------------
GREENWAY CONSULTING, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Its: Chief Manager
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EXHIBIT A
NON-DISCLOSURE AGREEMENT
PROPRIETARY INFORMATION OF
GREENWAY CONSULTING, LLC AND OREGON TRAIL ETHANOL COALITION
THIS NON-DISCLOSURE AGREEMENT ("Agreement") is made as of __________,
2002 between Oregon Trail Ethanol Coalition, L.L.C., a Nebraska limited
liability company ("Disclosing Party"), and _______________________, a
_________________________ ("Receiving Party").
PREAMBLE
The Disclosing Party and the Receiving Party are currently
involved in discussions concerning the development of an ethanol processing
facility by Oregon Trail Ethanol Coalition (the "Transaction"). As a result of
such discussions, the Receiving Party may have access to certain confidential
information of the Disclosing Party and GreenWay Consulting, LLC ("GreenWay").
The Disclosing Party has entered into a nondisclosure agreement with GreenWay
prohibiting disclosure of GreenWay confidential information, subject to the
Receiving Party executing this Non-Disclosure Agreement. The Parties desire to
enter into this Agreement in order to allow disclosure to the Receiving Party
and prohibit disclosure of such information to any other party. Therefore, in
consideration of the Receiving Party being given access to certain confidential
information of the Disclosing Party and in exchange for the mutual covenant and
promises contained herein, with the intent to be legally bound, the Parties
agree as follows:
AGREEMENT
1. Confidential Information.
(a) As used in this Agreement, the "Confidential Information" of
the Disclosing Party shall mean all information concerning or related
to the business, operations, financial condition or prospects of the
Disclosing Party or any of their respective Affiliates, regardless of
the form in which such information appears and whether or not such
information has been reduced to a tangible form, and shall specifically
include (1) all information regarding the officers, directors,
employees, equity holders, customers, suppliers, distributors,
insurers, reinsurers, brokers, independent contractors, sales
representatives and licensees of the Disclosing Party and their
respective Affiliates, in each case whether present or prospective, (2)
all inventions, discoveries, trade secrets, processes, techniques,
methods, formulae, ideas and know-how of the Disclosing Party and their
respective Affiliates, (3) all financial statements, audit reports,
budgets and business plans or forecasts of the Disclosing Party and
their respective Affiliates and (4) all information concerning or
related to the Transaction; provided, that the Confidential Information
of the Disclosing Party shall not include (x) information which is or
becomes generally known to the public through no act or omission of the
Receiving Party and (y) information which has been or hereafter is
lawfully obtained by the Receiving Party from a source other than the
Disclosing Party (or any of their respective Affiliates or their
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respective officers, directors, employees, equity holders or agents) so
long as, in the case of information obtained from a third party, such
third party was or is not, directly or indirectly, subject to an
obligation of confidentiality owed to the Disclosing Party or any of
their Affiliates at the time such Confidential Information was or is
disclosed to the Receiving Party. As used in this Paragraph, an
"Affiliate" of a Disclosing Party shall mean an entity which controls,
is controlled by or is under common control of a Disclosing Party, and
the term "control" shall mean, with respect to any entity, the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such entity, whether
through ownership of voting securities, by contract or otherwise.
2. Nondisclosure of Confidential Information. Except as otherwise
permitted by Section 3, the Receiving Party agrees that it will not,
without the prior written consent of the Disclosing Party, disclose or
use for its own benefit, or that of any third party, any Confidential
Information.
3. Permitted Disclosures. Notwithstanding Section 2, Receiving Party
shall be permitted to:
(a) disclose Confidential Information to its officers, employees
and counsel, but only to the extent reasonably necessary in order for
such party to prepare, conduct and execute and deliver definitive
documents for the Transaction; provided that Receiving Party shall take
all such action as shall be necessary or desirable in order to ensure
that each of such persons maintains the confidentiality of any
Confidential Information that is so disclosed; and
(b) disclose Confidential Information to the extent, but only to
the extent, required by law; provided, that prior to making any
disclosure pursuant to this subsection, the Receiving Party shall
notify the Disclosing Party of the same, and the Disclosing Party shall
have the right to participate with the Receiving Party in determining
the amount and type of Confidential Information of the Disclosing
Party, if any, which must be disclosed in order to comply with
applicable law, including, without limitation, state and federal
securities laws and regulations.
4. Return of Confidential Information. If activity in respect of the
Transaction shall cease without the Transaction being consummated,
then, promptly after the written request of the Disclosing Party, the
Receiving Party shall return to the Disclosing Party all Confidential
Information which is in tangible form and which is then in its
possession (or in the possession of any of its officers, directors or
employees).
5. Term. This Agreement shall continue indefinitely.
6. Equitable Relief. The Receiving Party acknowledges and agrees that the
Disclosing Party and GreenWay would be irreparably damaged in the event
that any of the provisions of this Agreement are not performed by the
Receiving Party in accordance with their specific terms or are
otherwise breached. Accordingly, it is agreed that the Disclosing Party
or GreenWay shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement by the Receiving Party and shall
have the right to specifically enforce this Agreement and the terms and
provisions hereof against the Receiving Party in addition to
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any other remedy to which the Disclosing Party or GreenWay may be
entitled in law or equity.
7. Governing Law. This Agreement shall be a contract under the State of
Minnesota and for all purposes shall be governed by and construed and
enforced in accordance with the laws of Minnesota, excluding any choice
of law provisions.
8. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of each of the Parties and their respective successors
and permitted assigns.
9. No Assignment or Delegation. Any assignment, delegation or attempted
assignment or delegation of the rights or responsibilities established
under this Agreement shall be null and void without the prior written
duly executed consent by the party charged.
10. Severability of Provisions. If any provision of this Agreement shall be
held invalid in a court of law, the remaining provisions shall be
construed as if the invalid provision were not included in this
Agreement.
11. Amendment of Agreement. This Agreement may only be amended or modified
through a written duly executed instrument by the Parties hereto. Any
attempted oral amendment or modification is ineffective and therefore
null and void.
12. No Implied Waiver of Provisions. Either Parties' failure to insist in
any one or more instances upon strict performance by the other party of
any of the terms of this Agreement shall not be construed as a waiver
of any continuing or subsequent failure to perform or a delay in
performance of any term hereof.
13. Notices. Any notice required by this Agreement or given in connection
with this Agreement, shall be in writing, hand delivered or sent via
registered or certified mail, and shall be given to the appropriate
party:
If to Disclosing Party: Oregon Trail Ethanol Coalition, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, President
With a copy to: ▇▇▇▇▇ ▇▇▇▇ Law Firm, LLC
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
GreenWay Consulting, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Receiving Party:
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14. Entire Agreement. This Agreement constitutes and contains the complete
and final integrated agreement between the Parties regarding the
subject matter herein. All prior negotiations, discussions and
representations are merged into this Agreement. Each Party acknowledges
that, except as expressly set forth herein, no representations of any
kind or character have been made to it by any other party, or by any
party's agents, representatives or attorneys, to induce the execution
of this Agreement.
15. Headings. Headings used in this Agreement are provided for convenience
only and shall not be used to construe meaning or intent.
16. Authority to Enter Agreement. The individuals signing this Agreement
represent and guarantee each of them has the authority to bind their
respective corporate entity or other principal.
17. Copies of Agreement. A facsimile copy of this executed Agreement shall
be deemed valid as if it were the original.
Executed as of the date first set forth above.
RECEIVING PARTY DISCLOSING PARTY
------------------------------------ Oregon Trail Ethanol Coalition, L.L.C.
By: By:
-------------------------------- --------------------------------
Its: Its:
------------------------------- -------------------------------
cc: GreenWay Consulting, LLC
14
GREENWAY CONSULTING, LLC
CONFIDENTIAL
EXHIBIT B
In consideration of the agreement of GreenWay Consulting to act on behalf of
Oregon Trail Ethanol Coalition pursuant to the attached Agreement, Oregon Trail
Ethanol Coalition agrees to indemnify and hold harmless GreenWay Consulting, its
affiliates (within the meaning of the Securities Act of 1933), and each of their
respective partners, directors, officers, agents, consultants, employees and
controlling persons (within the meaning of the Securities Act of 1933) (GreenWay
Consulting and each such other person or entity are hereinafter referred to as
an "Indemnified Person"), from and against any losses, damages, expenses and
liabilities (collectively "Liabilities") or actions, investigations, inquiries,
arbitrations, claims or other proceedings in respect thereof, including
enforcement of this agreement (collectively "Actions") (Liabilities and Actions
are herein collectively referred to as "Losses"), as they may be incurred
(including all reasonable legal fees and other expenses incurred in connection
with investigating, preparing, defending, paying, settling or compromising any
Losses, whether or not in connection with any pending or threatened Action, and
notwithstanding the absence of a final determination as set forth below as to
Oregon Trail Ethanol Coalition's obligation to reimburse an Indemnified Person
for such Losses and the possibility that such payments might later be held to
have been improper) to which any of them may become subject and which are
related to or arise out of any act, omission, transaction or event contemplated
by the attached Agreement. Oregon Trail Ethanol Coalition will not, however, be
responsible under the foregoing provisions with respect to any Losses to the
extent that it shall have been finally determined by arbitration in accordance
with the terms of the attached Agreement that such Losses resulted primarily
from actions taken or omitted to be taken by an Indemnified Person due to its
gross negligence or willful misconduct. To the extent that any prior payment has
been made by Oregon Trail Ethanol Coalition to such Indemnified Person is so
determined to have been improper by reason of such Indemnified Person's gross
negligence or willful misconduct, such Indemnified Person shall promptly pay
such amount to Oregon Trail Ethanol Coalition, together with interest, at the
prime rate announced from time to time by U.S. Bank, ▇.▇.
▇▇▇▇▇▇▇▇ Consulting shall indemnify and hold harmless Oregon Trail Ethanol
Coalition from and against any and all Losses based primarily on or arising
proximately from any acts of gross negligence, willful misconduct, fraud or
misrepresentations by GreenWay Consulting. GreenWay Consulting shall follow the
same procedure for indemnification of Oregon Trail Ethanol Coalition as set
forth in this Exhibit B as if Oregon Trail Ethanol Coalition was the
"Indemnified Person".
If the indemnity referred to in this Exhibit B should be, for any reason
whatsoever, unenforceable, unavailable or otherwise insufficient to hold each
Indemnified Person harmless, Oregon Trail Ethanol Coalition shall pay to or on
behalf of each Indemnified Person contributions for Losses so that each
Indemnified Person ultimately bears only a portion of such Losses as is
appropriate (i) to reflect the relative benefits received by each
GREENWAY CONSULTING, LLC
CONFIDENTIAL
such Indemnified Person, respectively, on the one hand and Oregon Trail Ethanol
Coalition on the other hand in connection with the transaction or (ii) if the
allocation on that basis is not permitted by applicable law, to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of each such Indemnified Person, respectively, and Oregon Trail Ethanol
Coalition as well as any other relevant equitable considerations; provided,
however, that in no event shall the aggregate contribution of all Indemnified
Persons to all Losses in connection with any transaction exceed the amount of
the fee actually received by GreenWay Consulting pursuant to the attached
Agreement. The respective relative benefits received by GreenWay Consulting and
Oregon Trail Ethanol Coalition in connection with any transaction shall be
deemed to be in the same proportion as the aggregate fee paid to GreenWay
Consulting in connection with the transaction bears to the total consideration
of the transaction. The relative fault of each Indemnified Person and Oregon
Trail Ethanol Coalition shall be determined by reference to, among other things,
whether the actions or omissions to act were by such Indemnified Person or
Oregon Trail Ethanol Coalition and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such action or
omission to act.
Oregon Trail Ethanol Coalition also agrees that no Indemnified Person shall have
any liability to Oregon Trail Ethanol Coalition or its affiliates, directors,
officers, employees, agents or shareholders, directly or indirectly, related to
or arising out of the attached Agreement, except Losses incurred by Oregon Trail
Ethanol Coalition which it shall have been finally determined by arbitration in
accordance with the terms of the attached Agreement to have resulted primarily
from actions taken or omitted to be taken by such Indemnified Person due to its
gross negligence or willful misconduct. In no event, regardless of the legal
theory advanced, shall any Indemnified Person be liable for any consequential,
indirect, incidental or special damages of any nature. Oregon Trail Ethanol
Coalition agrees that without GreenWay Consulting's prior written consent it
shall not settle any pending or threatened claim, action, suit or proceeding
related to the attached Agreement unless the settlement also includes an express
unconditional release of all Indemnified Persons from all liability and
obligations arising therefrom, or Oregon Trail Ethanol Coalition reaffirms its
obligations to indemnify for or contribute to Losses incurred by any unreleased
Indemnified Person as herein provided.
Promptly after its receipt of notice of the commencement of any action, any
Indemnified Person will, if a claim in respect thereof is to be made against
Oregon Trail Ethanol Coalition hereunder, notify in writing Oregon Trail Ethanol
Coalition of the commencement thereof; but omission so to notify Oregon Trail
Ethanol Coalition will not relieve Oregon Trail Ethanol Coalition from any
liability hereunder which it may have to any Indemnified Person. If Oregon Trail
Ethanol Coalition so elects, Oregon Trail Ethanol Coalition may assume the
defense of such Action in a timely manner, including the employment of counsel
(reasonably satisfactory to GreenWay Consulting) and payment of expenses,
provided Oregon Trail Ethanol Coalition acknowledges in writing its
unconditional obligation pursuant to this agreement to indemnify GreenWay
GREENWAY CONSULTING, LLC
CONFIDENTIAL
Consulting in respect of such Action and provides to GreenWay Consulting
evidence reasonably satisfactory to GreenWay Consulting that Oregon Trail
Ethanol Coalition will have the financial resources to conduct such defense
actively and diligently and permits GreenWay Consulting and counsel retained by
GreenWay Consulting at its expense to participate in such defense.
Notwithstanding the foregoing, in the event GreenWay Consulting determines in
its sole discretion that it is advisable for the Indemnified Persons to be
represented by separate counsel, then GreenWay Consulting may employ on behalf
of the Indemnified Persons a single separate counsel to represent or defend such
Indemnified Persons in such action, claim, proceeding or investigation and
Oregon Trail Ethanol Coalition will pay the fees and disbursements of such
separate counsel as incurred.
In the event of any fundamental change involving the corporate structure of
Oregon Trail Ethanol Coalition, such as by merger, plan of exchange or sale of
all or substantially all of its assets, any executory obligations of Oregon
Trail Ethanol Coalition in the attached Agreement shall, if not assumed by
operation of law, be assumed by contract by the acquiring entity or arrangements
made to protect the interests of GreenWay Consulting reasonably satisfactory to
GreenWay Consulting.
If multiple claims are brought against GreenWay Consulting in any Action with
respect to at least one of which indemnification is permitted under applicable
law and provided for under this agreement, Oregon Trail Ethanol Coalition agrees
that any judgment, arbitration award or other monetary award shall be
conclusively deemed to be based on claims as to which indemnification is
permitted and provided for.
The obligations of Oregon Trail Ethanol Coalition referred to above shall be in
addition to any rights that any Indemnified Person may otherwise have.