EXHIBIT 10.2
GREENWAY CONSULTING, LLC
CONFIDENTIAL
AMENDED AND RESTATED DEVELOPMENT SERVICES/CONSULTING AGREEMENT
This Amended and Restated Development Services/Consulting Agreement
(this "Agreement") is entered into the 11 day of July, 2002, by and between
Illinois River Energy, LLC, a Delaware limited liability company of Morris,
Illinois (hereinafter "Illinois River Energy"), 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, Illinois River Energy and GreenWay entered into a Development
Services Agreement, dated as of __________, 2002 (the "Original Agreement"),
pursuant to which GreenWay agreed to provide to Illinois River Energy certain
project and consulting services in connection with the facility design,
construction and initial plant operation of an ethanol production facility to be
constructed during the term of this Agreement; and
WHEREAS, Illinois River Energy and GreenWay desire to amend and restate
hereby the Original Agreement.
NOW THEREFORE, in consideration of the mutual covenants and stipulations
hereinafter set forth, the parties agree as follows:
SECTION 1 - SCOPE OF SERVICES PROVIDED. The scope of the project and consulting
services (the "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 Illinois River Energy in recruiting and
hiring a project coordinator;
(ii) Assist and advise Illinois River Energy in engaging other
firms to provide legal, accounting, risk management, and
marketing expertise;
(iii) Assist and advise Illinois River Energy in the site
evaluation and selection process;
(iv) Assist and advise Illinois River Energy in the
negotiations of various contracts including insurance,
utilities (gas, electrical, water, waste water), rail, raw
material supply, and product off-take; and
2
(v) Assist and advise Illinois River Energy in obtaining
various permits.
b. DESIGN AND CONSTRUCTION:
(i) Assist and advise Illinois River Energy in selecting a
design and engineering firm and in negotiating a contract
regarding price, schedule, and performance;
(ii) Assist and advise Illinois River Energy in reviewing and
approving preliminary and final process and detailed
design;
(iii) Assist and advise Illinois River Energy in selecting a
construction company and in negotiating a contract
regarding price, schedule, and performance.
2. PHASE II - CONSTRUCTION
a. Assist and advise Illinois River Energy in recruiting and hiring
Illinois River Energy's owners' representative/construction
supervisor;
b. Attend monthly site progress meetings between Illinois River
Energy, the design engineer and contractor;
c. Assist and advise Illinois River Energy 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 Illinois River Energy on ways to increase
plant production during the term of this Agreement; and
e. Continuously advise Illinois River Energy on ways to improve
plant efficiency during the term of this Agreement.
Subject to the limitations set forth below, it is understood that the
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 the GreenWay will be provided on a best
efforts basis with no warranties of performance.
3
Illinois River Energy and GreenWay acknowledge and agree that GreenWay
is not to provide, and is not responsible for, any services in connection with
the financing of Illinois River Energy. Accordingly, notwithstanding anything to
the contrary set forth 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 Illinois River Energy,
including, but nor limited to, any of the following conduct:
(a) Discussing with any potential investor in Illinois River Energy
the advantages or disadvantages of investments in general or of an
investment in Illinois River Energy;
(b) Providing any advice or analyses or making any recommendations to
potential investors in Illinois River Energy with respect to an
investment in Illinois River Energy;
(c) Taking part in any negotiations between Illinois River Energy and
a potential investor in Illinois River Energy or such potential
investor's representative;
(d) Assisting any potential investor in Illinois River Energy in
making a decision whether to purchase the securities of Illinois River
Energy;
(e) Delivering any offering document of Illinois River Energy to a
potential investor;
(f) Receiving or handling any potential investor's subscription
agreement or any funds used by a potential investor in Illinois River
Energy in purchasing the securities of Illinois River Energy;
(g) Maintaining any discretion with respect to Illinois River
Energy's acceptance or rejection of a potential investor's subscription
to purchase the securities of Illinois River Energy;
(h) Participating in any advertisement, endorsement or general
solicitation regarding an investment in the securities of Illinois River
Energy;
(i) Preparing materials relating to the sale or purchase of
securities of Illinois River Energy or in the distribution of these
materials to any potential investor in Illinois River Energy;
(j) Performing any independent analysis of the sale of securities by
Illinois River Energy or engaging in any due diligence activities;
(k) Engaging in any other communication with a potential investor in
Illinois River Energy regarding a possible investment in Illinois River
Energy.
SECTION 2 - COMPENSATION. Compensation for the Services provided under this
Agreement shall be based on the following schedule:
4
1. EXPENSE RETAINER. Illinois River Energy has advanced a
non-refundable retainer of $110,000 US (the "Retainer") to the attention of the
undersigned of GreenWay Consulting, LLC. Expenses under Section 3 hereof will be
applied against the Retainer. Illinois River Energy will be obligated to pay for
expenses incurred by GreenWay under Section 3 that exceed the Retainer, however,
it is understood that payment will not be made until Illinois River Energy
completes Seed 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) Illinois River Energy is undertaking a project in its
development stage and will have limited resources to pay GreenWay for the
Services until such time as Illinois River Energy obtains financing through
third-party sources and (ii) the amount of financing that Illinois River Energy
obtains through third-party sources will be attributable, in part, to GreenWay's
efforts in assisting Illinois River Energy to successfully construct and operate
the ethanol processing facility, Illinois River Energy 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 2.25% of Total Project PROJECT FINANCING DUE IN FULL @ FINANCIAL
Capitalization (AS DEFINED BELOW) CLOSE
PHASE II 1% of Total Project PROJECT FINANCING 25% DOWN @ FINANCIAL
Capitalization CLOSE - 50% @ MECHANICAL
COMPLETION (AS DEFINED
BELOW) - 25% @ SUCCESSFUL
COMMISSIONING
(AS DEFINED BELOW)
PHASE III 0.75% of Total Project WORKING CAPITAL (AS PRORATED OVER 9 MONTHS AFTER
Capitalization DEFINED BELOW) SUCCESSFUL COMMISSIONING
In no case ▇▇▇▇ ▇▇▇▇▇▇▇▇ share or split the fees delineated above with
any other party currently assisting Illinois River Energy 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.
5
(2) MECHANICAL COMPLETION: Completion of construction such that corn
can be ground for ethanol production.
(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 Seed
Capital equity.
(6) WORKING CAPITAL: Operating revenues of the plant.
(7) SEED CAPITAL: At risk money for project development exclusive of
total project capitalization (5) above.
SECTION 3 - EXPENSES. Illinois River Energy 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 Illinois River Energy, which shall not be unreasonably withheld.
GreenWay shall submit monthly updated expense reports to Illinois River Energy
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.
Illinois River Energy 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 Illinois River Energy prior
to Financial Close but after meeting the milestones in Schedule 2 below,
followed by a Financial Close will result in Illinois River Energy 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. Selection of Design Builder and Engineer June 30, 2002 Illinois River Energy or
GreenWay may terminate
2. Preliminary Resolution of Construction Issues July 1, 2002 Illinois River Energy or
GreenWay may terminate
3. Financial Close January 2, 2003 Illinois River Energy or
GreenWay may terminate
6
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 Illinois River Energy.
SECTION 6 - CONFIDENTIALITY. Illinois River Energy 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 Illinois River Energy exclusively for Illinois River Energy's use
for its development, construction and operation of its Morris, Illinois area
ethanol production facility only. Illinois River Energy 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. GreenWay agrees that financial and other information about the ethanol
production project will be developed by Illinois River Energy and disclosed to
GreenWay. GreenWay agrees that proprietary information of Illinois River Energy
will only be used for purposes of Illinois River Energy's project and will not
be disclosed to others without first obtaining written permission from Illinois
River Energy. In the event Illinois River Energy or GreenWay violates the terms
and spirit of this license and disclosure provision, Illinois River Energy 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 Illinois River Energy.
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.
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 Illinois River Energy
at:
Illinois River Energy
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
7
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 Illinois River Energy 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 Minneapolis,
Minnesota.
(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 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.
8
(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.
(a) GreenWay shall not be liable to Illinois River Energy, its
affiliates and each of their respective partners, directors,
officers, agents, consultants, employees and controlling persons
(all such persons for purposes of this Section 13, an "Illinois
River Energy Party" or the "Illinois River Energy Parties") for
any losses, damages, expenses or liabilities (collectively,
"Losses") suffered by an Illinois River Energy Party as a result
of or relating to any act or omission of GreenWay, its affiliates
or any of their respective partners, directors, officers, agents,
consultants, employees and controlling persons (all such persons
for purposes of this Section 13, a "GreenWay Party or the
GreenWay Parties") in performing the services under this
Agreement, except to the extent and only to the extent of any
direct (as opposed to consequential or incidental) damages or
Losses suffered by an Illinois River Energy Party which are
caused proximately by (i) any acts of negligence or
misrepresentations by a GreenWay Party; (ii) GreenWay's breach of
any provision of this Agreement; (iii) any warranty, express or
implied, or representation made by a GreenWay Party to any third
party in connection with the project under development which is
not authorized by Illinois River Energy; (iv) GreenWay's failure
to meet its obligations to or perform any acts required under its
agreements with its subcontractors, representatives or agents or
any other third party; or (v) the relationship between GreenWay
and any GreenWay Party. In addition to the foregoing limitation
of liability, GreenWay's aggregate liability to the Illinois
River Energy Parties under this Agreement shall be limited to and
shall not exceed the amount of compensation earned by GreenWay
hereunder plus any expenses paid to GreenWay hereunder. The
foregoing limitations of liability shall not apply to GreenWay's
indemnification of Illinois River Energy Parties against third
party claims as provided under Section 13(c) hereof.
(b) Illinois River Energy shall not be liable to any GreenWay Party
for any Losses suffered by any GreenWay Party as a result of or
relating to any act or omission of an Illinois River Energy Party
in connection with this Agreement or the project under
development, except to the extent and only to the extent of any
direct (as opposed to consequential or incidental) damages or
Losses suffered by any GreenWay Party which are caused
proximately by (i) any acts of negligence or misrepresentations
by an Illinois River Energy Party; (ii) Illinois River Energy's
breach of any provision of this Agreement; (iii) any warranty,
express or implied, or representation made by an Illinois River
Energy Party to any third party in connection with the project
under development which is not authorized by GreenWay; (iv)
Illinois River Energy's failure to meet its obligations to or
perform any acts required under its agreements with its
subcontractors,
9
representatives or agents or any other third party; or (v) the
relationship between Illinois River Energy and any Illinois River
Energy Party. In addition to the foregoing limitation of
liability, Illinois River Energy's aggregate liability to the
GreenWay Parties under this Agreement shall be limited to and
shall not exceed the amount of compensation earned by GreenWay
hereunder plus any expenses paid to GreenWay hereunder. This
limitation of liability shall not apply to Illinois River
Energy's indemnification of GreenWay Parties against third party
claims as provided under Section 13(d) hereof.
(c) GreenWay shall indemnify and hold harmless any Illinois River
Energy Party from and against any and all claims, demands, suits,
actions or proceedings, including any inquiry or investigation
("Claims") brought by third parties based primarily on or arising
proximately from (i) any acts of negligence or misrepresentations
by a GreenWay Party; (ii) GreenWay's breach of any provision of
this Agreement; (iii) any warranty, express or implied, or
representation made by a GreenWay Party to any third party in
connection with the project under development which is not
authorized by Illinois River Energy; (iv) GreenWay's failure to
meet its obligations to or perform any acts required under its
agreements with its subcontractors, representatives or agents or
any other third party; or (v) the relationship between GreenWay
and any GreenWay Party. This indemnity and hold harmless shall
include indemnity against all Losses, including reasonable
attorneys fees, incurred by the Illinois River Energy Party in
connection with such Claim and the defense thereof, but shall
exclude any consequential damages suffered by the Illinois River
Energy Party as a result of any such Claim brought by a third
party. Provided, further, that the indemnity afforded under this
Section 13(c) shall not apply to any Claim or Losses actually
paid pursuant to any insurance policy covering the Illinois River
Energy Party.
(d) Illinois River Energy shall indemnify and hold harmless any
GreenWay Party from and against any and all claims, demands,
suits, actions or proceedings, including any inquiry or
investigation ("Claims") brought by third parties arising from or
in connection with any act, omission, transaction or event
contemplated by this Agreement. This indemnity and hold harmless
shall include indemnity against all Losses, including reasonable
attorneys fees, incurred by the GreenWay Party in connection with
such Claim and the defense thereof, but shall exclude any
consequential damages suffered by the GreenWay Party as a result
of any such Claim brought by a third party. Provided, further,
that the indemnity afforded under this Section 13(d) shall not
apply to any Claim or Losses based primarily on or arising
proximately from (i) any acts of negligence or misrepresentations
by a GreenWay Party; (ii) GreenWay's breach of any provision of
this Agreement; (iii) any warranty, express or implied, or
representation made by a GreenWay Party to any third party in
connection with the project under development which is not
authorized by Illinois River Energy; (iv) GreenWay's failure to
meet its obligations to or perform any acts required under its
agreements with its subcontractors, representatives or agents or
any other third party; (v) the relationship between GreenWay and
any GreenWay
10
Party; or (vi) actually paid pursuant to any insurance policy
covering the GreenWay Party.
(e) The obligations of GreenWay and Illinois River Energy under this
Section 13 shall survive any termination of this Agreement. In
the event of any fundamental change involving the corporate
structure of either party, the obligations of the re-structuring
party under this 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 the
non-restructuring party hereto reasonably satisfactory to such
non-restructuring party.
(f) In no event shall any GreenWay Party other than GreenWay be
liable or responsible to an Illinois River Energy Party for the
debts, obligations or liabilities of GreenWay to such party under
this Agreement. In no event shall any Illinois River Energy Party
other than Illinois River Energy be liable or responsible to a
GreenWay Party for the debts, obligations or liabilities of
Illinois River Energy to such party under this Agreement.
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.
ILLINOIS RIVER ENERGY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------- ---------------------------
Its: President Its: Secretary
------------------------------- --------------------------
GREENWAY CONSULTING, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Its: Chief Manager
-------------------------------
11
EXHIBIT A
NON-DISCLOSURE AGREEMENT
PROPRIETARY INFORMATION OF
GREENWAY CONSULTING, LLC AND ILLINOIS RIVER ENERGY
THIS NON-DISCLOSURE AGREEMENT ("Agreement") is made as of __________,
200___ between Illinois River Energy, a Delaware 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 Illinois River Energy (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
12
a source other than the Disclosing Party (or any of their respective
Affiliates or their 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.
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
13
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 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 Receiving Party:
___________________________________
___________________________________
___________________________________
___________________________________
If to Disclosing Party:
Illinois River Energy
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: GreenWay Consulting, LLC
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
14
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
Illinois River Energy
---------------------------------
By: By:
----------------------------- ---------------------------------
Its: Its:
----------------------------- --------------------------------
cc: GreenWay Consulting, LLC
15