AMENDED AND RESTATED
CONSULTING AGREEMENT
This Amended and Restated Consulting Agreement (the "Agreement") is
made as of this 1st day of April, 2000 by and between Beeland Management
Company, L.L.C. ("Beeland") and Cornell Investment Advisory, L.L.C., an Illinois
Limited Liability Company ("Consultant").
RECITALS
WHEREAS, Beeland and Consultant are both engaged in various aspects of the
managed futures industry;
WHEREAS, Consultant has provided and proposes to continue to provide Beeland
with certain trading-related advice including, but not limited to, providing
pricing information related to the Index (as defined below); creating and
implementing operating rules related to the composition of the Index and in
connection with trading operations in certain commodity pools operated and
proposed to be operated by Beeland;
WHEREAS, Beeland desires to accept such services in connection with the
operation of certain pools which it operates and proposes to operate in the
future;
WHEREAS, Beeland and Consultant (the "Parties") entered into a Consulting
Agreement, dated as of July 27, 1998 (the "Original Agreement");
WHEREAS, the Parties desire to effect certain amendments to the original
Agreement; and
WHEREAS, the Parties desire to set forth their entire agreement in one place;
upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
AGREEMENTS
I. INCORPORATION OF RECITALS; MAINTENANCE OF WORKPLACE
A. The above recitals are hereby incorporated as an integral part
of this Agreement and not as mere introductory material.
B. Each Party, in discharging its duties hereunder, shall not
require that the other party provide additional workspace,
telephones, business machines, computer hardware or software,
or secretarial personnel. Rather, each party shall utilize the
personnel, facilities and offices as are currently used in
connection with their regular business activities.
II. DUTIES
A. Consultant shall consult with Beeland and certain of its
Managing Members (as identified in Exhibit B of Beeland's
Operating Agreement), currently Clyde C. Harrison, Richard L.
Chambers and with James B. Rogers ("Rogers") (collectively,
the "appropriate officials" and each, an "appropriate
official") in the areas described in Sub-paragraphs B and C,
below of this Section II.
B. Consultant shall consult with Beeland and the appropriate
officials regarding the rules and various trading techniques
to be employed and used by Beeland in the areas of (1)
periodic necessary adjustments to the Rogers International
Commodity Index (the "Index"), the Rogers Raw Materials Fund,
L.P. and the Rogers International Raw Materials Fund, L.P., as
well as any additional pools which Beeland may establish the
trading of which will be premised upon the Index
(collectively, the "Rogers' Funds"); (2) contract market
selection for contracts comprising the Index which are traded
in multiple markets, (3) procedures to correlate trading in
the Rogers' Funds with the composition of the Index, and (4)
regular, periodic valuation of the Rogers' Funds and the
Index. Consultant SHALL NOT PROVIDE advice or services in the
areas of order execution or the selection of futures
commission merchants who will provide execution services for
Beeland and/or the Rogers' Funds.
C. In addition, Consultant shall generally provide such
consulting services as are mutually agreed upon by the
parties.
III. TERM
A. The term ("Term") of this Agreement shall continue until
December 31, 2010 and thereafter, for not more than ten
successive one year terms by Beeland giving notice of
extension to Consultant not less than 45 days before the end
of the then current term.
B. Notwithstanding the scheduled expiration date set forth in
Section III.A., this Agreement shall terminate:
1. immediately, upon the death, the physical or other
inability or refusal of Mr. Brian Cornell to perform
Consultant's duties under this Agreement, as
determined in Beeland's sole, but reasonably
exercised, discretion;
2. upon ninety (90) days written notice given by either
party hereto to the other party;
3. immediately, upon notice from Beeland to Consultant,
in the event that Consultant materially breaches any
of the terms of this Agreement; or
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4. immediately, upon notice from Consultant to Beeland,
in the event that Beeland materially breaches any of
the terms of this Agreement.
IV. COMPENSATION
As compensation for all of its services hereunder, Beeland
shall pay to Consultant an annual fee of eight (8) basis points
multiplied by the total of all capital accounts of all partners in the
Rogers Funds, as of the beginning of each fiscal year of Beeland during
the term of this Agreement. Payment thereof shall be made within 60
days after the close of each fiscal year of Beeland during the term of
this Agreement. Consultant shall receive a guaranteed draw against such
annual fee, in the amount of $5,000 per month, no portion of which
shall be required to be returned by Consultant if the cumulative amount
of such draw received exceeds the amount to which Consultant would be
entitled to receive as the above-described annual fee.
V. TIME REQUIREMENTS
Consultant's services hereunder are non-exclusive and
Consultant may continue to engage in various other aspects of the
futures market industry, including without limitation, the employment
of Brian Cornell, its principal, with Mesirow Financial. However,
neither Consultant nor its principal, Brian Cornell may, during the
Term hereof, enter into any association(s) with any person or firm
whose business may be directly competitive with the business of Beeland
as regards the Rogers' Funds or the Index.
VI. STATUS AND REGULATORY QUALIFICATIONS
A. Notwithstanding Consultant's status as an independent
contractor, Consultant recognizes and agrees that the
offerings of the Rogers' Funds, are subject to certain laws
and regulations and, therefore, Consultant agrees to perform
its obligations hereunder in accordance with the laws,
policies, standards, rules and regulations (including, without
limitation, all of the foregoing as they relate to securities
and futures) of (i) the federal and all applicable state
governments, (ii) the Securities and Exchange Commission (the
"SEC") and the Commodity Futures Trading Commission, (iii) all
applicable SROs (as that term is defined in the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) and
contract markets (as that term is described in the Commodity
Exchange Act of 1974, as amended) (each, a "SRO"), and (iv)
each and every other industry, governmental or
quasi-governmental agency, body or tribunal having
jurisdiction over Consultant, Beeland or either of their
respective businesses.
B. Consultant shall not be deemed an employee of Beeland for any
purpose, including, without limitation:
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1. entitlement to any pension, bonus, profit sharing,
health or other benefits which Beeland shall make
available to some or all of its employees or members;
2. applicability of the Federal Insurance Contribution
Act, the Federal Unemployment Contributions Act,
federal and state income tax withholding and similar
laws which apply to the relationship between employer
and employee; or
3. any actual or apparent authority to bind Beeland in
any matter.
VII. CONFIDENTIALITY
A. During the term of this Agreement, Consultant shall not
disclose to any person or use or exploit any of the
proprietary or confidential information of Beeland or the
Rogers' Funds.
B. As used in this Agreement, "confidential information" and
"proprietary information" shall mean any information in
written, documented or other tangible form provided by Beeland
and any information in verbal form of a confidential,
proprietary or secret nature or any information so designated
by Beeland. Such written and verbal information may include,
but not be limited to:
1. Beeland or the Rogers' Funds customer lists, lists of
limited partners, trade secrets, processes, formulae,
data, know-how, improvements, inventions, techniques,
marketing plans, strategies and information
concerning customers or vendors of Beeland,
investment and trading portfolios, records, business
plans or policies, specially designed computer
software or other information owned or licensed to
Beeland or in any way related to the Rogers' Funds or
the Index;
2. the research and development or investigations of
Beeland, the Rogers' Funds, or the Index; and
3. the business and operations, present and future, of
Beeland, the Rogers' Funds and the Index.
C. Upon termination of this Agreement, or sooner upon Beeland's
request, Consultant shall immediately return the original and
any copies of the confidential information which it is
holding, written or otherwise, to Beeland.
D. Consultant agrees to keep and make available for inspection by
Beeland appropriate records of all activities, if any, in
which Consultant engages on behalf of Beeland.
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VIII. REPRESENTATIONS AND WARRANTIES
A. Consultant represents and warrants to Beeland as follows:
1. Consultant will conduct its activities in accordance
with all applicable laws and regulations.
2. Consultant will acquire and maintain, throughout the
term of this Agreement, all appropriate licenses,
registrations, regulatory qualifications and
approvals necessary to conduct the activities called
for by this Agreement.
3. Execution of this Agreement and carrying out the
business contemplated hereunder shall not conflict
with any employment agreements, contracts,
undertakings or other obligations applicable to or
binding on Consultant; and no applicable contract
restrictions or undertakings interfere with
Consultant's ability or authority to perform its
duties and activities as provided for by this
Agreement.
4. Brian Cornell is a principal of Consultant at the
time that this Agreement is made and is active in the
business activities of Consultant. Consultant
represents and warrants that Brian Cornell shall
remain a principal of Consultant throughout the term
of this Agreement and shall be the representative of
Consultant responsible for providing advice and
services to Beeland and the Rogers' Funds throughout
the Term of this Agreement. Violation of this
sub-section would represent a material violation of
this Agreement.
B. Beeland represents and warrants to Consultant as follows:
1. Beeland will conduct its activities in accordance
with all applicable laws and regulations.
2. Beeland will acquire and maintain, throughout the
term of this Agreement, all applicable licenses,
registrations, regulatory qualifications and
approvals necessary to conduct the activities called
for by this Agreement.
3. Execution of this Agreement and carrying out the
business contemplated hereunder shall not conflict
with the operating agreements, articles, by-laws,
contracts, undertakings or other obligations
applicable to Beeland, and no applicable contract
restrictions or undertakings interfere with Beeland's
ability or authority to perform its duties and
activities as provided for by this Agreement.
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IX. INDEMNIFICATION
A. Consultant shall indemnify, protect, defend and hold harmless
Beeland, its members, officers, directors, agents, employees
and independent contractors from each and every claim, loss,
liability, damage, cost or expense (including, without
limitation, attorneys' fees and expenses) and any amounts paid
in settlement, resulting from or relating to Consultant's
actions or omissions concerning any business activities
undertaken by Consultant.
B. Beeland shall indemnify, protect, defend and hold harmless
Consultant from each and every claim, loss, liability, damage,
cost or expense (including, without limitation, attorneys'
fees and expenses) and any amounts paid in settlement,
resulting from or relating to Beeland's actions or omissions
concerning any business activities undertaken by Beeland,
except for those arising under Section IX. A. above.
X. WAIVER & MODIFICATION
No waiver, alteration or modification of any of the provisions
of this Agreement shall be valid unless in writing and signed by both
parties hereto. In connection with any waiver, alteration or
modification, either Clyde C. Harrison or Richard C. Chambers, Managing
Members of Beeland, are designated to act on behalf of Beeland, and
Brian Cornell is the sole individual authorized to act on behalf of
Consultant.
XI. NOTICES
All notices, requests, demands and other communications shall
be in writing and be deemed given when delivered personally (or when
personal delivery is refused), delivered by overnight courier or three
(3) days after deposited in the United States mail, registered or
certified, return receipt requested, to the other party hereto at such
parties address as set forth below. Either party may specify a
different address than that specified below by giving writing notice to
the other party by one of the methods described above.
If to Beeland: If to Consultant:
Mr. Richard L. Chambers Mr. Brian Cornell
Beeland Management Company, L.L.C. Cornell Investment Advisory, L.L.C.
1000 Hart Road, Suite 260 2828 Roslyn Lane
Barrington, Illinois 60010 Buffalo Grove, Illinois 60089
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with a copy to:
Robert P. Bramnik, Esq.
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Chicago, Illinois 60606
XII. BINDING NATURE / ASSIGNMENT
A. This Agreement shall inure to the benefit of and shall be
binding upon the executors, administrators, successors and
assigns of Consultant and Beeland.
B. This Agreement and the rights and obligations of Consultant
hereunder are individual to Consultant and may not be assigned
by Consultant except with the written consent of Beeland.
Beeland may assign this Agreement and its rights and
obligations hereunder without the consent of Consultant, but
only to an individual or entity which assumes or succeeds to
substantially all of the business activities of Beeland. Brian
Cornell shall continue to be associated in a material way with
Consultant, and shall conduct Consultant's business
operations, throughout the Term of this Agreement.
XIII. GOVERNING LAW AND ARBITRATION
A. This Agreement and the rights and obligations of the Parties
hereunder shall be governed by and construed in accordance
with the laws of the State of Illinois.
B. In the event of any dispute between the Parties to this
Agreement arising out of this Agreement, Consultant's
retention by Beeland or the rights and obligations of the
Parties upon termination or expiration of this Agreement, both
Parties agree to submit such dispute to the arbitration
facilities of the National Futures Association for resolution,
the results of which shall be final, binding and conclusive on
the parties.
XIV. MISCELLANEOUS
A. Titles or headings in this Agreement are for convenience only
and shall have no substantive effect.
B. The waiver by a party of a breach or violation of any
provision of this Agreement shall not operate as, or be
construed to be, a waiver of any subsequent breach of the same
or any other provision hereof. Delay in the enforcement of or
the insistence on the performance of any right which
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arises upon the breach or violation of this Agreement shall
not operate as a waiver of such or any subsequent breach or
violation.
C. Nothing contained in this Agreement shall effect, modify or
invalidate the status of Brian Cornell ("Cornell") as a Member
of Beeland or any right or obligation arising under Beeland's
Operating Agreement or under applicable law. The compensation
provided for herein shall not reduce any financial interest
which Cornell shall have as a Member of Beeland. No provision
of this Agreement shall be deemed to amend, modify or nullify
any of the provisions of that certain "Subscription Agreement"
between Beeland and Cornell, dated September 16, 1997.
D. In the event any provision of this Agreement is held to be
invalid, illegal or unenforceable, such invalidity, illegality
or unenforceability shall, in no event, affect, prejudice or
disturb the validity of the remainder of this Agreement, which
shall remain in full force and effect, enforceable in
accordance with its terms.
E. Whenever the context of this Agreement requires, the gender of
all terms herein shall include the masculine, feminine and
neuter, and the reference to the singular of a term shall also
include the plural thereof.
IN WITNESS HEREOF, the parties have set their hands to this Agreement
as of the date first above written.
BEELAND MANAGEMENT COMPANY, L.L.C. CORNELL INVESTMENT ADVISORY, L.L.C.
By: /s/ Richard L. Chambers By: /s/ Brian Cornell
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Print Name: Its:
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One of its Managing Members
I consent and agree to the provisions of the above and foregoing Agreement as
such provisions relate to me individually:
/s/ Brian Cornell
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Brian Cornell, Individually
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