CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the
“Agreement”), made this 2nd day of July 2009, is entered by and between
Southwest Iowa Renewable Energy, LLC (“SIRE” or the “Company”), and Xxxxx
Xxxxxxxxx, (the “Consultant”).
WHEREAS, the Company desires
to retain the services of the Consultant and the Consultant desires to perform
certain consulting and related services for the Company;
NOW, THEREFORE, in
consideration of the mutual covenants and promises contained herein, the parties
hereby agree as follows:
|
1.
|
Consulting
Services.
|
(a) Services and
Duties. The Consultant agrees to provide such consulting and
related services with respect to the Company's financial accounting as may be
requested by the Company during the term of this Agreement.
(b) Availability. The
Consultant shall be available to the Company (i) on a regular basis for
telephone consultation and (ii) on an “as-needed” basis, in person, at the
Company’s place of business and such other places as the Company shall from time
to time request, during the entire Consultation Period, as defined
below.
(c) Limitation on Consultant’s
Services and Availability. Notwithstanding the provisions of
subsections (a) and (b) of this Section 1 above, the Company acknowledges that
the Consultant may be engaged in full-time employment with a third-party
employer during the term of this Agreement and that the Consultant shall not be
obligated to (i) comply with requests by the Company for Consultant’s services
and/or (ii) comply with requests by the Company that the Consultant be available
either by telephone or in person at times or in such a manner that will
interfere with the Consultant’s ability to perform the Consultant’s duties and
responsibilities of the Consultant to the Consultant’s third party
employer. Consultant and Company agree to, in good faith, attempt to
find alternative times or attempt to make alternative arrangements so that the
services requested by the Company of the Consultant and/or the requests of the
Company that the Consultant be available either by telephone or in person be at
times and/or provided in a manner that will not interfere with the Consultant’s
ability to perform the Consultant’s duties and responsibilities of the
Consultant to the Consultant’s third party employer.
|
2.
|
Confidentiality.
|
(a) The
Company acknowledges that the Consultant has or may have other employment,
business interests or requirements which the Consultant will pursue during her
consultancy hereunder; provided, however, that the Consultant shall not, either
during the Consulting Period or thereafter, either directly or indirectly, or
for competitive or other purposes, disclose or cause to be disclosed any
information, materials, systems, procedures, processes, manuals, forms, customer
lists, employee lists, or other trade
secrets
or confidential information regarding the Company or any of the Company’s
affiliates to any individual or entity other than to individuals at the Company
who are authorized to receive trade secret or confidential
information. The Consultant shall not, either during the Consulting
Period or thereafter, either directly or indirectly, use or cause to be used
such trade secrets or confidential information in a manner that conflicts with
the best interests of the Company and its affiliates.
(b) Upon
termination of this Agreement or at any other time upon request by the Company,
the Consultant shall promptly deliver to the Company all records, files,
memoranda, notes, designs, data, reports, price lists, customer lists, drawings,
plans, computer programs, software, software documentation, sketches, laboratory
and research notebooks and other documents (and all copies or reproductions of
such materials) relating to the business of the Company and its affiliates and
all other property of the Company and its affiliates.
(c) The
Consultant acknowledges that any breach of the provisions of this paragraph 2(c)
shall result in serious and irreparable injury to the Company for which the
Company cannot be adequately compensated by monetary damages
alone. The Consultant agrees, therefore, that, in addition to any
other remedy it may have, the Company shall be entitled to enforce the specific
performance of this Agreement by the Consultant and to seek both temporary and
permanent injunctive relief (to the extent permitted by law), plus the Company’s
costs and attorneys’ fees.`
3. Term. The
term of this Agreement shall be twelve (12) months commencing on July 13, 2009
and ending July 9, 2010, unless renewed upon the agreement of both parties;
provided, after October 2, 2009, either party may terminate this Agreement at
any time, with or without cause, on thirty (30) days prior written notice to the
other party (such period, including any renewals thereof, being referred to as
the “Consultation Period”). Notwithstanding any other provision of
this Agreement, at any time during the term of this Agreement the failure of
Consultant to fully comply with any terms of this Agreement shall entitle the
Company to terminate this Agreement immediately upon written notice to
Consultant and upon termination the Company shall have no further liability
hereunder or obligation to render severance payments pursuant to the parties'
Separation Agreement and General Release of All Claims, dated July 2, 2009
..
4. Compensation.
(a) Consulting
Fees. Between July 13, 2009 and October 2, 2009, Consultant
shall provide services to the Company in exchange for the severance payments
made pursuant to the parties' Separation Agreement and General Release of All
Claims, dated July 2, 2009. Beginning October 5, 2009, the Company
shall pay the Consultant a consulting fee in the amount of $75.00 per hour for
each hour services are provided by the Consultant to the Company.
(b) Expenses. The
Company shall reimburse the Consultant for out of pocket expenses reasonably
incurred on behalf of the Company in providing the services under
-2-
this
Agreement, including travel expenses to the extent authorized by the
Company, subject to customary documentation.
(c) Payment/Reimbursement. Payment
of consulting fees beginning October 5, 2009, and reimbursement for expenses for
the previous month for the entire term of this agreement shall be made by the
Company to the Consultant on the last business day of the following
month. On or before the fifteenth (15th) of each month for services
provided after October 2, 2009 and for expenses incurred during the Consultation
Period, the Consultant must provide to the Company an itemized statement, in a
form satisfactory to the Company, of services provided and expenses incurred
(including receipts for all expenses) during the previous month as a condition
precedent to any payment under this Agreement.
(d) Benefits. The
Consultant shall not be entitled to any benefits, coverages or privileges,
including, without limitation, social security, unemployment, medical or pension
payments, made available to employees of the Company, except as provided under
the Separation Agreement and General Release of All Claims between the Company
and the Consultant.
(e) Tax
Information. Notwithstanding any other provision hereof, the
Company shall not be obligated to pay to the Consultant any amounts hereunder
until the Consultant shall provide to the Company any necessary information
required and requested by the Company to comply with any applicable tax or other
laws.
5. Cooperation. The
Consultant shall use her best efforts in the performance of her obligations
under this Agreement. The Company shall provide such access to its
information and property as may be reasonably required in order to permit the
Consultant to perform her obligations hereunder. The Consultant shall
cooperate with the Company’s personnel, shall not interfere with the conduct of
the Company’s business and shall observe all policies, rules and regulations of
the Company and applicable law.
6. Independent
Contractor Status. The Consultant and the Company understand
and intend that the Consultant shall perform all services under this Agreement
as an independent contractor and not as an employee of the
Company. The manner of and means by which the Consultant executes and
performs her obligations hereunder are to be determined by the Consultant in her
reasonable discretion. The Consultant is not authorized to assume or
create any obligation or responsibility, express or implied, on behalf of, or in
the name of, the Company or to bind the Company in any manner, unless, in each
instance, the Consultant shall receive the prior written approval of the Company
to so assume, obligate or bind the Company.
7. Taxes. No
income tax or payroll tax of any kind shall be withheld or paid by the Company
on behalf of the Consultant for any payment made under this Agreement after
October 5, 2009. The Consultant agrees to be responsible for all
taxes and similar payments arising out of any of her activities contemplated by
this Agreement, including without limitation, federal, state, and local income
tax, social security tax (FICA), self employment taxes, unemployment insurance
taxes and all other taxes, fees and withholding.
-3-
8. Entire
Agreement. This Agreement and the Separation Agreement and
General Release of All Claims, executed contemporaneously with this Agreement,
contain the entire agreement between the parties with respect to the matters
contemplated thereby.
9. Amendment. This
Agreement may be amended or modified only by a written instrument executed by
both the Company and the Consultant.
10. Governing
Law. This Agreement and all disputes arising hereunder shall
be subject to, governed by and construed in accordance with the laws of the
State of Iowa.
11. Waiver. No
delay or omission by the Company in exercising any right under this Agreement
shall operate as a waiver of that or any other right. A waiver or
consent given by the Company on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any other
occasion.
12. Severability. In
the event that any provision of this Agreement shall be invalid, illegal or
otherwise unenforceable, the validity, legality and enforceability of the
remaining provisions shall in no way be affected or impaired
thereby.
13. Miscellaneous.
(a) This
Agreement shall be binding upon, and inure to the benefit of, both parties and
their respective successors and assigns, including, without limitation, any
corporation to which the Company may assign its rights hereunder, or into which
the Company may be merged or which may succeed to its assets or business;
provided, however, that the obligations of the Consultant are personal and shall
not be assigned by the Consultant.
(b) The
captions of the sections of this Agreement are for convenience of reference only
and in no way define, limit or affect the scope or substance of any section of
this Agreement.
(c) This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
agreement.
[Signature
Page Follows]
-4-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year set forth above.
THE COMPANY:
Southwest Iowa Renewable Energy, LLC | |||
|
By:
|
/s/ Xxxxx X. Xxx | |
Title: Interim President and CEO | |||
THE CONSULTANT:
|
By:
|
/s/ Xxxxx Xxxxxxxxx | |
Xxxxx Xxxxxxxxx | |||
-5-