AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT for BRYON MCGREGOR
EXHIBIT 10.1
AMENDED
AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
for
XXXXX
XXXXXXXX
This
Amended and Restated Executive Employment Agreement (“Agreement”) by and between
Xxxxx XxXxxxxx (“Executive”) and Pacific Ethanol, Inc. (the “Company”)
(collectively, the “Parties”) is effective as of the last date signed by the
Parties.
Whereas,
the Company desires to employ Executive to provide personal services to the
Company, and wishes to provide Executive with certain compensation and benefits
in return for his services;
Whereas,
Executive wishes to be employed by the Company and to provide personal services
to the Company in return for certain compensation and benefits;
Whereas,
the Parties entered into an Executive Employment Agreement on or about December
22, 2008, setting forth certain terms of Executive’s employment with the Company
(the “Original Employment Agreement”) and now seek to supersede and replace the
Original Employment Agreement with this Agreement;
Whereas, once this Agreement
is effective, the parties agree that the Original Employment Agreement shall
have no further force or effect;
Now,
Therefore, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. Employment
by the Company.
1.1 Position. Subject
to terms and conditions set forth herein, the Company agrees to employ Executive
in the position of Chief Financial Officer, and Executive hereby accepts such
employment. During the term of Executive’s employment with the
Company, Executive will devote Executive’s best efforts and substantially all of
Executive’s business time and attention to the business of the Company, except
for vacation periods as set forth herein and reasonable periods of illness or
other incapacities permitted by the Company’s general employment
policies.
1.2 Duties and
Location. Executive shall serve in an executive capacity and
shall perform such duties as are customarily associated with Executive’s then
current title, consistent with the bylaws of the Company and as required by the
Company’s Board of Directors (the “Board”) and Chief Executive
Officer. Executive shall report to the Company’s Chief Executive
Officer. Executive’s primary office location shall be a location
mutually acceptable to both the Executive and the Company. The
Company reserves the right to reasonably require Executive to perform
Executive’s duties at places other than Executive’s primary office location from
time to time as agreed to by Executive, and to require reasonable business
travel.
1.3 Policies and
Procedures. The employment relationship between the parties
shall be governed by the general employment policies and practices of the
Company, except that when the terms of this Agreement differ from or are in
conflict with the Company’s general employment policies or practices, this
Agreement shall control.
2. Compensation.
2.1 Salary. For
services to be rendered hereunder, Executive shall receive an annual salary at
the rate of $240,000.00, paid bi-weekly in the amount of $9,230.77 (the “Base
Salary”), subject to standard payroll deductions and withholdings and payable in
accordance with the Company’s regular payroll schedule. Executive’s
Base Salary shall be reviewed annually and may be increased as approved by the
Board in its sole discretion.
2.2 Annual
Bonus. Executive will be eligible for an annual discretionary
bonus of up to fifty percent (50%) of his Base Salary (the “Annual
Bonus”). Whether any Annual Bonus will be awarded, and the amount of
the Annual Bonus awarded to Executive, shall be determined by the Board in its
sole discretion based upon its consideration of both the Company’s performance
and Executive’s performance. Since the Annual Bonus is intended both
to reward past Company and Executive performance and to provide an incentive for
Executive to remain with the Company, Executive must remain an active employee
through the date that any such bonus is awarded to him in order to earn any such
bonus. Executive will not earn any Annual Bonus (including a prorated
bonus) if Executive’s employment terminates for any reason before the Annual
Bonus is awarded to him. Any Annual Bonus awarded by the Board shall
be paid within the first quarter after the end of the calendar
year.
2.3 Standard Company
Benefits. Executive shall be entitled to participate in all
employee benefit programs for which Executive is eligible under the terms and
conditions of the benefit plans which may be in effect from time to time and
provided by the Company to its employees generally; provided, however, that
Executive shall not be entitled to accrued vacation pay.
2.4 Restricted Stock;
Options. The Executive shall be eligible for grants of
restricted stock and/or stock options from time to time as shall be determined
by the Compensation Committee of the Board in its sole discretion, and shall be
subject to such vesting, exercisability, and other provisions as the Board may
determine in its discretion, after reviewing the performance of both Executive
and the Company. Both the Restricted Stock and any stock options
shall be governed in all respects by the terms of the applicable restricted
stock purchase agreement, stock option agreement, grant notice and plan
documents.
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3. Confidential
Information Obligations.
3.1 Confidential Information
Agreement. As a condition of employment, Executive agrees to
execute and abide by the Employee Confidential Information and
Inventions Agreement attached hereto as Exhibit A.
3.2 Third Party Agreements and
Information. Executive represents and warrants that
Executive’s employment by the Company will not conflict with any prior
employment or consulting agreement or other agreement with any third party, and
that Executive will perform Executive’s duties to the Company without violating
any such agreement. Executive represents and warrants that Executive
does not possess confidential information arising out of prior employment,
consulting, or other third party relationships, which would be used in
connection with Executive’s employment by the Company, except as expressly
authorized by that third party. During Executive’s employment by the
Company, Executive will use in the performance of Executive’s duties only
information which is generally known and used by persons with training and
experience comparable to Executive’s own, common knowledge in the industry,
otherwise legally in the public domain, or obtained or developed by the Company
or by Executive in the course of Executive’s work for the Company.
4. Outside
Activities During Employment.
4.1 Non-Company
Business. Except with the prior written consent of the Chief
Executive Officer, Executive will not during the term of Executive’s employment
with the Company undertake or engage in any other employment, occupation or
business enterprise, other than ones in which Executive is a passive
investor. Executive may engage in civic and not-for-profit activities
so long as such activities do not materially interfere with the performance
of Executive’s duties hereunder.
4.2 No Adverse
Interests. Executive agrees not to acquire, assume or participate
in, directly or indirectly, any position, investment or interest known by him to
be adverse or antagonistic to the Company, its business or prospects, financial
or otherwise, except as a passive investor in mutual or exchange traded
funds.
5. Termination
Of Employment.
5.1 At-Will
Relationship. Executive’s employment relationship is
at-will. Either Executive or the Company may terminate the employment
relationship at any time, with or without Cause or advance notice.
5.2 Termination without Cause;
Resignation for Good Reason. If, at any time, the Company
terminates Executive’s employment without Cause (as defined herein), or
Executive resigns with Good Reason (as defined herein), and Executive executes
and delivers the Separation Date Release of all claims set forth as Exhibit B
hereto and allows such release to become effective, then the Company will
provide Executive with the following severance benefits:
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(a) Cash Severance. The
Company shall pay Executive severance in the form of continuation of Executive’s
Base Salary in effect on Executive’s last day of employment for a period of
twelve (12) months after Executive’s termination, subject to standard payroll
deductions and withholdings and payable on the Company’s regular payroll
schedule; provided,
however, that in the event the Company terminates Executive’s employment
without Cause, or Executive resigns with Good Reason, within three (3) months
before or otherwise in anticipation of, or within twelve (12) months after, a
Change in Control (as defined below), then the Company shall pay Executive
severance in the form of continuation of Executive’s Base Salary in effect on
Executive’s last day of employment for a period of eighteen (18) months after
Executive’s termination, subject to standard payroll deductions and withholdings
and payable on the Company’s regular payroll schedule. Each payment
made pursuant to this Section 5.2(a) is intended to be a separate payment (as
defined in Treasury Regulations Section 1.409A-2(b)(2)) from any other payments
made pursuant to this Section 5.2(a) for purposes of the “short term deferral
rule” under Treasury Regulations Section 1.409A-1(b)(4).
(b) Continued Health Insurance
Coverage. To the extent provided by the federal COBRA law or,
if applicable, state insurance laws, and by the Company’s then-current group
health insurance policies, Executive may be eligible to continue Executive’s
then-current group health insurance benefits after termination of
Employment. If eligible and if Executive timely elects continued
health insurance coverage, then the Company shall pay the Company’s portion of
any premiums necessary to provide coverage for a period of twelve (12) months
after the termination date; provided, however, that no
such premium payments shall be made following the effective date of Executive’s
coverage by a medical, dental or vision insurance plan of a subsequent
employer. Executive shall notify the Company immediately if he
becomes covered by a medical, dental or vision insurance plan of a subsequent
employer. Notwithstanding the foregoing, in the event the Company
terminates Executive’s employment without Cause, or Executive resigns with Good
Reason, within three (3) months before or otherwise in anticipation of, or
within twelve (12) months after, a Change in Control (as defined below), then
(if eligible and coverage elected) the Company shall pay the Company’s portion
of any premiums necessary to provide coverage for a period of eighteen (18)
months after the termination date; provided, however, that no
such premium payments shall be made following the effective date of Executive’s
coverage by a medical, dental or vision insurance plan of a subsequent employer
and Executive agrees to immediately notify the Company of any such
coverage.
(c) Accelerated
Vesting. If Executive has been employed by the Company for one
full year or longer, then the Company will accelerate the vesting of any equity
awards granted to Executive prior to Executive’s employment termination such
that twenty-five percent (25%) of all shares or options subject to such awards
which are unvested as of the employment termination date shall be accelerated
and deemed fully vested as of Executive’s last day of employment; provided, however, that in the
event, and without the requirement that Executive be employed for one full year
or longer, the Company terminates Executive’s employment without Cause, or
Executive resigns with Good Reason, within three (3) months before or otherwise
in anticipation of, or within twelve (12) months after, a Change in Control (as
defined below), then the Company will accelerate the vesting of any equity
awards granted to Executive prior to Executive’s employment termination such
that one hundred percent (100%) of all shares or options subject to such awards
which are unvested as of the employment termination date shall be accelerated
and deemed fully vested as of Executive’s last day of employment.
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5.3 Termination for Cause; Resignation
Without Good Reason. If the Company terminates Executive’s
employment with the Company for Cause, or Executive resigns without Good Reason,
then Executive will not be entitled to any further compensation from the Company
(other than accrued salary, and accrued and unused vacation, through Executive’s
last day of employment), including severance pay, pay in lieu of notice or any
other such compensation.
5.4 Termination Due to Death or
Disability.
(a) Death. This
Agreement shall terminate immediately upon Executive’s death and Executive’s
estate shall not be entitled to any further compensation from the Company (other
than accrued salary, and accrued and unused vacation, through Executive’s last
day of employment), including severance pay, pay in lieu of notice or any other
such compensation.
(b) Disability. If
Executive is prevented from performing his duties as described in Section 1.1 of
this Agreement by reason of any physical or mental incapacity that results in
Executive’s satisfaction of all requirements necessary to receive benefits under
the Company’s long-term disability plan due to a total disability, then, to the
extent permitted by law, the Company may terminate the employment of Executive
and this Agreement at or after such time.”
(i) Cash Severance. The
Company shall pay Executive severance in the form of continuation of Executive’s
Base Salary in effect on Executive’s last day of employment for a period of
twelve (12) months after Executive’s termination, subject to standard payroll
deductions and withholdings and payable on the Company’s regular payroll
schedule.
(ii) Continued Health Insurance
Coverage. To the extent provided by the federal COBRA law or,
if applicable, state insurance laws, and by the Company’s then-current group
health insurance policies, Executive may be eligible to continue Executive’s
then-current group health insurance benefits after termination of
Employment. If eligible and if Executive timely elects continued
health insurance coverage, then the Company shall pay the Company’s portion of
any premiums necessary to provide coverage for a period of twelve (12) months
after the termination date; provided, however, that no
such premium payments shall be made following the effective date of Executive’s
coverage by a medical, dental or vision insurance plan of a subsequent
employer. Executive shall notify the Company immediately if he
becomes covered by a medical, dental or vision insurance plan of a subsequent
employer.
(iii) Accelerated
Vesting. If Executive has been employed by the Company for one
full year or longer, then the Company will accelerate the vesting of any equity
awards granted to Executive prior to Executive’s employment termination such
that twenty-five percent (25%) of all shares or options subject to such awards
which are unvested as of the employment termination date shall be accelerated
and deemed fully vested as of Executive’s last day of employment.
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5.5 Deferred
Compensation. Notwithstanding anything to the contrary set
forth herein, any payments and benefits provided under this Agreement (the
“Severance Benefits”) that constitute “deferred compensation” within the meaning
of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)
and the regulations and other guidance thereunder and any state law of similar
effect (collectively “Section 409A”) shall not commence in connection with
Executive’s termination of employment unless and until Executive has also
incurred a “separation from service” (as such term is defined in Treasury
Regulation Section 1.409A-1(h) (“Separation From Service”), unless the Company
reasonably determines that such amounts may be provided to Executive without
causing Executive to incur the additional 20% tax under Section
409A.
It is
intended that each installment of the Severance Benefits payments provided for
in this Agreement is a separate “payment” for purposes of Treasury Regulation
Section 1.409A-2(b)(2)(i). For the avoidance of doubt, it is intended
that payments of the Severance Benefits set forth in this Agreement satisfy, to
the greatest extent possible, the exemptions from the application of Section
409A provided under Treasury Regulation Sections 1.409A-1(b)(4), 1.409A-1(b)(5)
and 1.409A-1(b)(9).
If
Executive is a “specified employee” within the meaning of 409A(a)(2)(B)(i) of
the Code, any Severance Benefit payments that are triggered by a separation from
service shall be accelerated to the minimum extent necessary so that (a) the
lesser of (y) the total cash severance payment amount, or (z) six (6) months of
such installment payments are paid no later than March 15 of the calendar year
following such termination, and (b) all amounts paid pursuant to the foregoing
clause (a) will constitute separate payments for purposes of Section
1.409A-2(b)(2) of the Treasury Regulations and thus will be payable pursuant to
the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the
Treasury Regulations. It is intended that if Executive is a
“specified employee” within the meaning of Section 409A(a)(2)(B)(i) of the Code
at the time of such separation from service the foregoing provision shall result
in compliance with the requirements of Section 409A(a)(2)(B)(i) of the Code
since payments to Executive will either be payable pursuant to the “short-term
deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations
or will not be paid until at least 6 months after separation from
service.
Notwithstanding
any other payment schedule set forth in this Agreement, none of the Severance
Benefits will be paid or otherwise delivered prior to the effective date of the
Separation Date Release of all claims set forth as Exhibit B
hereto. On the first regular payroll pay day following the effective
date of the Separation Date Release of all claims, the Company will pay
Executive the Severance Benefits Executive would otherwise have received under
the Agreement on or prior to such date but for the delay in payment related to
the effectiveness of the release of claims, with the balance of the Severance
Benefits being paid as originally scheduled. All amounts payable
under the Agreement will be subject to standard payroll taxes and
deductions.”
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5.6 Limitation on
Payments. In the event that the payments or other benefits
provided for in this Agreement or otherwise payable to Executive (i) constitute
“parachute payments” within the meaning of Section 280G of the Code, and (ii)
would be subject to the excise tax imposed by Section 4999 of the Code (the
“Excise Tax”), then Executive’s benefits under this Agreement shall be either
(a) delivered in full, or (b) delivered to such lesser extent which would result
in no portion of such benefits being subject to the Excise Tax, whichever of the
foregoing amounts, taking into account the applicable federal, state and local
income taxes and the Excise Tax, results in the receipt by Executive on an
after-tax basis, of the greatest amount of benefits, notwithstanding that all or
some portion of such benefits may be taxable under Section 4999 of the
Code. If a reduction in payments or benefits constituting “parachute
payments” is necessary pursuant to the foregoing provision, reduction shall
occur in the following order: reduction of cash payments; cancellation of
accelerated vesting of stock awards; reduction of employee
benefits. If acceleration of vesting of stock award compensation is
to be reduced, such acceleration of vesting shall be cancelled in the reverse
order of the date of grant of the Executive’s stock awards.”
5.7 No
Mitigation. Executive shall not be required to mitigate
damages or the amount of any payment provided for under this Agreement by
seeking other employment or otherwise, nor shall the amount of any payment
provided for under this Agreement be reduced by any compensation earned by
Executive as the result of employment by another employer after the date of
termination, or otherwise, except for health insurance benefits as set forth
herein.
5.8 Definitions.
(a) For
purposes of this Agreement, “Cause” shall mean any one or
more of the following:
(i) Executive’s
indictment or conviction of any felony or of any crime involving
dishonesty;
(ii) Executive’s
participation in any fraud or other act of willful misconduct against the
Company (including any material breach of Company policy that causes or
reasonably could cause harm to the Company);
(iii) Executive’s
refusal to comply with any lawful directive of the Company;
(iv) Executive’s
material breach of Executive’s fiduciary, statutory, contractual, or common law
duties to the Company (including any material breach of this Agreement or the
Confidential Information and Inventions Agreement); or
(v) Conduct
by Executive which in the good faith and reasonable determination of the Board
demonstrates gross unfitness to serve.
Provided, however, that in the
event that any of the foregoing events is reasonably capable of being cured, the
Company shall, within twenty (20) days after the discovery of such event,
provide written notice to the Executive describing the nature of such event and
Executive shall thereafter have ten (10) business days to cure such
event.
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(b) For
purposes of this Agreement, Executive shall have “Good Reason” for Executive’s
resignation if: (w) any of the following occurs without Executive’s consent; (x)
Executive notifies the Company in writing, within twenty (20) days after
the occurrence of one of the following events that Executive intends to
terminate his employment no earlier than thirty (30) days after providing such
notice; (y) the Company does not cure such condition within thirty (30)
days following its receipt of such notice or states unequivocally in writing
that it does not intend to attempt to cure such condition, and (z) the Executive
resigns from employment within thirty (30) days following the end of the period
within which the Company was entitled to remedy the condition constituting Good
Reason but failed to do so:
(i) the
assignment to Executive of any duties or responsibilities which result in the
material diminution of Executive’s authority, duties or responsibility; provided, however, that the
acquisition of the Company and subsequent conversion of the Company to a
division or unit of the acquiring corporation will not by itself result in a
material diminution of Executive’s authority, duties or
responsibility;
(ii) a
material reduction by the Company in Executive’s annual base salary, except to
the extent the base salaries of all other executive officers of the Company are
accordingly reduced;
(iii) a
relocation of Executive’s place of work, or the Company’s principal executive
offices if Executive’s principal office is at such offices, to a location that
increases Executive’s daily one-way commute by more than thirty-five (35) miles;
or
(iv) any
material breach by the Company of any material provision of this Agreement,
including but not limited to Section 7.7.
(c) For
purposes of this Agreement, “Change in Control” shall be
deemed to have occurred if, in a single transaction or series of related
transactions: (i) any person (as such term is used in Section 13(d) and 14(d) of
the Securities Exchange Act of 1934 (“Exchange Act”)), or persons acting as a
group, other than a trustee or fiduciary holding securities under an employment
benefit program, is or becomes a “beneficial owner” (as defined in Rule 13-3
under the Exchange Act), directly or indirectly of securities of the Company
representing a majority (e.g., 50% plus one share) of
the combined voting power of the Company, (ii) there is a merger, consolidation
or other business combination transaction of the Company with or into another
corporation, entity or person, other than a transaction in which the holders of
at least a majority of the shares of voting capital stock of the Company
outstanding immediately prior to such transaction continue to hold (either by
such shares remaining outstanding or by their being converted into shares of
voting capital stock of the surviving entity) a majority of the total voting
power represented by the shares of voting capital stock of the Company (or the
surviving entity) outstanding immediately after such transaction, or (iii) all
or substantially all of the Company’s assets are sold.
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6. Arbitration.
To ensure
the timely and economical resolution of disputes that may arise in connection
with Executive’s employment with the Company, Executive and the Company agree
that any and all disputes, claims, or causes of action arising from or relating
to the enforcement, breach, performance, negotiation, execution, or
interpretation of this Agreement, Executive’s employment, or the termination of
Executive’s employment, shall be resolved to the fullest extent permitted by law
by final, binding and confidential arbitration, by a single arbitrator, in
Sacramento, California, conducted by JAMS under the then applicable JAMS rules.
By agreeing to this arbitration
procedure, both Executive and the Company waive the right to resolve any such
dispute through a trial by jury or judge or administrative
proceeding. The arbitrator shall: (a) have the
authority to compel adequate discovery for the resolution of the dispute and to
award such relief as would otherwise be permitted by law; and (b) issue a
written arbitration decision, to include the arbitrator’s essential findings and
conclusions and a statement of the award. The arbitrator shall be
authorized to award any or all remedies that Executive or the Company would be
entitled to seek in a court of law. The Company shall pay all JAMS’
arbitration fees in excess of the amount of court fees that would be required if
the dispute were decided in a court of law. Nothing in this Agreement
is intended to prevent either Executive or the Company from obtaining injunctive
relief in court to prevent irreparable harm pending the conclusion of any such
arbitration.
7. General
Provisions.
7.1 Notices. Any
notices provided hereunder must be in writing and shall be deemed effective upon
the earlier of personal delivery (including personal delivery by fax) or the
next day after sending by overnight carrier, to the Company at its primary
office location and to Executive at his address as listed on the Company
payroll.
7.2 Severability. Whenever
possible, each provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Agreement will be reformed, construed and enforced in such jurisdiction
to the extent possible in keeping with the intent of the parties.
7.3 Waiver. Any waiver
of any breach of any provisions of this Agreement must be in writing to be
effective, and it shall not thereby be deemed to have waived any preceding or
succeeding breach of the same or any other provision of this
Agreement.
7.4 Complete
Agreement. This Agreement, including Exhibit A, constitutes
the entire agreement between Executive and the Company and it is the complete,
final, and exclusive embodiment of their agreement with regard to this subject
matter. This Agreement supersedes and replaces the Original
Employment Agreement in its entirety and the Original Employment Agreement shall
have no further force or effect. It is entered into without reliance
on any promise or representation other than those expressly contained herein,
and it cannot be modified or amended except in a writing signed by the Executive
and a duly authorized officer of the Company.
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7.5 Counterparts. This
Agreement may be executed in separate counterparts, any one of which need not
contain signatures of more than one party, but all of which taken together will
constitute one and the same Agreement.
7.6 Headings. The
headings of the sections hereof are inserted for convenience only and shall not
be deemed to constitute a part hereof nor to affect the meaning
thereof.
7.7 Successors and
Assigns. This Agreement is intended to bind and inure to the
benefit of and be enforceable by Executive and the Company, and their respective
successors, assigns, heirs, executors and administrators, except that Executive
may not assign any of his duties hereunder and he may not assign any of his
rights hereunder without the written consent of the Company, which shall not be
withheld unreasonably. The Company shall obtain the assumption of
this Agreement by any successor or assign of the Company.
7.8 Choice of Law. All
questions concerning the construction, validity and interpretation of this
Agreement will be governed by the law of the State of California.
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In Witness
Whereof, the parties have executed this Agreement.
| Pacific Ethanol, Inc. | |
| By: /s/ XXXX X. XXXXXXX | |
| Xxxx X. Xxxxxxx | |
| President and Chief Executive Officer | |
| Date: November 25, 2009 |
Understood
and Agreed:
Executive
By: /s/ XXXXX
XXXXXXXX
Xxxxx
XxXxxxxx
Date:
November 25,
2009
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Exhibit
A
EMPLOYEE
CONFIDENTIAL INFORMATION AND INVENTIONS ASSIGNMENT AGREEMENT
In
consideration of my employment or continued employment by Pacific Ethanol, Inc.
(“Company”), and the
compensation paid to me now and during my employment with the Company, I agree
to the terms of this Agreement as follows:
1. Confidential Information
Protections.
1.1 Nondisclosure; Recognition of
Company’s Rights. At all times during and after my employment,
I will hold in confidence and will not disclose, use, lecture upon, or publish
any of Company’s Confidential Information (defined below), except as may be
required in connection with my work for Company, or as expressly authorized by
the Chief Executive Officer (the “CEO”) of Company. I
will obtain the CEO’s written approval before publishing or submitting for
publication any material (written, oral, or otherwise) that relates to my work
at Company and/or incorporates any Confidential Information. I hereby
assign to Company any rights I may have or acquire in any and all Confidential
Information and recognize that all Confidential Information shall be the sole
and exclusive property of Company and its assigns.
1.2 Confidential
Information. The term “Confidential Information”
shall mean any and all confidential knowledge, data or information related to
Company’s business or its actual or demonstrably anticipated research or
development, including without limitation (a) trade secrets, inventions, ideas,
processes, computer source and object code, data, formulae, programs, other
works of authorship, know-how, improvements, discoveries, developments, designs,
and techniques; (b) information regarding products, services, plans for research
and development, marketing and business plans, budgets, financial statements,
contracts, prices, suppliers, and customers; (c) information regarding the
skills and compensation of Company’s employees, contractors, and any other
service providers of Company; and (d) the existence of any business discussions,
negotiations, or agreements between Company and any third party.
1.3 Third Party
Information. I understand that Company has received and in the
future will receive from third parties confidential or proprietary information
(“Third Party
Information”) subject to a duty on Company’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. During and after the term of my employment, I will hold
Third Party Information in strict confidence and will not disclose to anyone
(other than Company personnel who need to know such information in connection
with their work for Company) or use, Third Party Information, except in
connection with my work for Company or unless expressly authorized by an officer
of Company in writing.
1.4 No Improper Use of Information of
Prior Employers and Others. I represent that my employment by
Company does not and will not breach any agreement with any former employer,
including any noncompete agreement or any agreement to keep in confidence or
refrain from using information acquired by me prior to my employment by
Company. I further represent that I have not entered into, and will
not enter into, any agreement, either written or oral, in conflict with my
obligations under this Agreement. During my employment by Company, I
will not improperly make use of, or disclose, any information or trade secrets
of any former employer or other third party, nor will I bring onto the premises
of Company or use any unpublished documents or any property belonging to any
former employer or other third party, in violation of any lawful agreements with
that former employer or third party. I will use in the performance of
my duties only information that is generally known and used by persons with
training and experience comparable to my own, is common knowledge in the
industry or otherwise legally in the public domain, or is otherwise provided or
developed by Company.
A-1
2. Inventions.
2.1 Inventions and Intellectual Property
Rights. As used in this Agreement, the term “Invention” means any ideas,
concepts, information, materials, processes, data, programs, know-how,
improvements, discoveries, developments, designs, artwork, formulae, other
copyrightable works, and techniques and all Intellectual Property Rights in any
of the items listed above. The term “Intellectual Property Rights”
means all trade secrets, copyrights, trademarks, mask work rights, patents and
other intellectual property rights recognized by the laws of any jurisdiction or
country.
2.2 Prior Inventions. I
have disclosed on Exhibit
A a
complete list of all Inventions that (a) I have, or I have caused to be, alone
or jointly with others, conceived, developed, or reduced to practice prior to
the commencement of my employment by Company; (b) in which I have an ownership
interest or which I have a license to use; (c) and that I wish to have excluded
from the scope of this Agreement (collectively referred to as “Prior
Inventions”). If no Prior Inventions are listed in Exhibit A, I warrant that
there are no Prior Inventions. I agree that I will not incorporate,
or permit to be incorporated, Prior Inventions in any Company Inventions
(defined below) without Company’s prior written consent. If, in the course of my
employment with Company, I incorporate a Prior Invention into a Company process,
machine or other work, I hereby grant Company a non-exclusive, perpetual,
fully-paid and royalty-free, irrevocable and worldwide license, with rights to
sublicense through multiple levels of sublicensees, to reproduce, make
derivative works of, distribute, publicly perform, and publicly display in any
form or medium, whether now known or later developed, make, have made, use,
sell, import, offer for sale, and exercise any and all present or future rights
in, such Prior Invention.
2.3 Assignment of Company
Inventions. Inventions assigned to the Company or to a third
party as directed by the Company pursuant to the section titled “Government or
Third Party” are referred to in this Agreement as “Company
Inventions.” Subject to the section titled “Government or
Third Party” and except for Inventions that I can prove qualify fully under the
provisions of California Labor Code section 2870 and I have set forth in Exhibit A, I hereby assign and
agree to assign in the future (when any such Inventions or Intellectual Property
Rights are first reduced to practice or first fixed in a tangible medium, as
applicable) to Company all my right, title, and interest in and to any and all
Inventions (and all Intellectual Property Rights with respect thereto) made,
conceived, reduced to practice, or learned by me, either alone or with others,
during the period of my employment by Company.
2.4 Obligation to Keep Company
Informed. During the period of my employment and for one (1)
year after my employment ends, I will promptly and fully disclose to Company in
writing (a) all Inventions authored, conceived, or reduced to practice by me,
either alone or with others, including any that might be covered under
California Labor Code section 2870, and (b) all patent applications filed by me
or in which I am named as an inventor or co-inventor.
2.5 Government or Third
Party. I agree that, as directed by the Company, I will assign
to a third party, including without limitation the United States, all my right,
title, and interest in and to any particular Company Invention.
A-2
2.6 Enforcement of Intellectual Property
Rights and Assistance. During and after the period of my
employment, I will assist Company in every proper way to obtain and enforce
United States and foreign Intellectual Property Rights relating to Company
Inventions in all countries. If the Company is unable to secure my
signature on any document needed in connection with such purposes, I hereby
irrevocably designate and appoint Company and its duly authorized officers and
agents as my agent and attorney in fact, which appointment is coupled with an
interest, to act on my behalf to execute and file any such documents and to do
all other lawfully permitted acts to further such purposes with the same legal
force and effect as if executed by me.
2.7 Incorporation of Software
Code. I agree that I will not incorporate into any Company
software or otherwise deliver to Company any software code licensed under the
GNU General Public License or Lesser General Public License or any other license
that, by its terms, requires or conditions the use or distribution of such code
on the disclosure, licensing, or distribution of any source code owned or
licensed by Company.
3. Records. I
agree to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that is required by the Company) of all
Inventions made by me during the period of my employment by the Company, which
records shall be available to, and remain the sole property of, the Company at
all times.
4. Additional
Activities. I agree that (a)
during the term of my employment by Company, I will not, without Company’s
express written consent, engage in any employment or business activity that is
competitive with, or would otherwise conflict with my employment by, Company,
and (b) for the period of my employment by Company and for one (l) year
thereafter, I will not, either directly or indirectly, solicit or attempt to
solicit any employee, independent contractor, or consultant of Company to
terminate his, her or its relationship with Company in order to become an
employee, consultant, or independent contractor to or for any other person or
entity.
5. Return Of
Company Property. Upon termination of my employment or upon Company’s
request at any other time, I will deliver to Company all of Company’s property,
equipment, and documents, together with all copies thereof, and any other
material containing or disclosing any Inventions, Third Party Information or
Confidential Information and certify in writing that I have fully complied with
the foregoing obligation. I agree that I will not copy, delete, or
alter any information contained upon my Company computer or Company equipment
before I return it to Company. In addition, if I have used any
personal computer, server, or e-mail system to receive, store, review, prepare
or transmit any Company information, including but not limited to, Confidential
Information, I agree to provide the Company with a computer-useable copy of all
such Confidential Information and then permanently delete and expunge such
Confidential Information from those systems; and I agree to provide the Company
access to my system as reasonably requested to verify that the necessary copying
and/or deletion is completed. I further agree that any property
situated on Company’s premises and owned by Company is subject to inspection by
Company’s personnel at any time with or without notice. Prior to the
termination of my employment or promptly after termination of my employment, I
will cooperate with Company in attending an exit interview and certify in
writing that I have complied with the requirements of this section.
6. Notification
Of New Employer. If I leave the
employ of Company, I consent to the notification of my new employer of my rights
and obligations under this Agreement, by Company providing a copy of this
Agreement or otherwise.
A-3
7. General
Provisions.
7.1 Governing Law and
Venue. This Agreement and any action related thereto will be
governed and interpreted by and under the laws of the State of California,
without giving effect to any conflicts of laws principles that require the
application of the law of a different state. I expressly
consent to personal jurisdiction and venue in the state and federal courts for
the county in which Company’s principal place of business is located for any
lawsuit filed there against me by Company arising from or related to this
Agreement.
7.2 Severability. If
any provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of this Agreement will remain enforceable
and the invalid or unenforceable provision will be deemed modified so that it is
valid and enforceable to the maximum extent permitted by law.
7.3 Survival. This
Agreement shall survive the termination of my employment and the assignment of
this Agreement by Company to any successor or other assignee and be binding upon
my heirs and legal representatives.
7.4 Employment. I agree
and understand that nothing in this Agreement shall give me any right to
continued employment by Company, and it will not interfere in any way with my
right or Company’s right to terminate my employment at any time, with or without
cause and with or without advance notice.
7.5 Notices. Each party
must deliver all notices or other communications required or permitted under
this Agreement in writing to the other party at the address listed on the
signature page, by courier, by certified or registered mail (postage prepaid and
return receipt requested), or by a nationally-recognized express mail
service. Notice will be effective upon receipt or refusal of
delivery. If delivered by certified or registered mail, notice will
be considered to have been given five (5) business days after it was mailed, as
evidenced by the postmark. If delivered by courier or express mail
service, notice will be considered to have been given on the delivery date
reflected by the courier or express mail service receipt. Each party may change
its address for receipt of notice by giving notice of the change to the other
party.
7.6 Injunctive Relief. I
acknowledge that, because my services are personal and unique and because I will
have access to the Confidential Information of Company, any breach of this
Agreement by me would cause irreparable injury to Company for which monetary
damages would not be an adequate remedy and, therefore, will entitle Company to
injunctive relief (including specific performance). The rights and
remedies provided to each party in this Agreement are cumulative and in addition
to any other rights and remedies available to such party at law or in
equity.
7.7 Waiver. Any waiver or failure
to enforce any provision of this Agreement on one occasion will not be deemed a
waiver of that provision or any other provision on any other
occasion.
7.8 Export. I agree not
to export, directly or indirectly, any U.S. technical data acquired from Company
or any products utilizing such data, to countries outside the United States,
because such export could be in violation of the United States export laws or
regulations.
A-4
7.9 Entire
Agreement. If no other agreement governs nondisclosure and
assignment of inventions during any period in which I was previously employed or
am in the future employed by Company as an independent contractor, the
obligations pursuant to sections of this Agreement titled “Confidential
Information Protections” and “Inventions” shall apply. This Agreement
is the final, complete and exclusive agreement of the parties with respect to
the subject matter hereof and supersedes and merges all prior communications
between us with respect to such matters. No modification of or
amendment to this Agreement, or any waiver of any rights under this Agreement,
will be effective unless in writing and signed by me and the CEO of
Company. Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this
Agreement.
This
Agreement shall be effective as of the first day of my employment with
Company.
| EMPLOYEE: |
COMPANY:
|
|
|
I have read, understand,
and Accept this agreement and have been given the opportunity to Review it
with independent legal counsel.
|
Accepted and agreed: | |
| ___________________________________________________ | ___________________________________________________ | |
| (Signature) | (Signature) | |
| By: _______________________________________________ | By: _______________________________________________ | |
| Title: ______________________________________________ | Title: ______________________________________________ | |
| Date: ______________________________________________ | Date: ______________________________________________ | |
|
Address:
___________________________________________
|
Address:
___________________________________________
|
A-5
EXHIBIT
A
INVENTIONS
1. Prior Inventions
Disclosure. The following is a complete list of all Prior
Inventions (as provided in Section 2.2 of the attached Employee Confidential
Information and Inventions Assignment Agreement, defined herein as the
“Agreement”):
o None
o See immediately
below:
____________________________________________________________________________________________________________
____________________________________________________________________________________________________________
2. Limited
Exclusion Notification.
This is to
notify you in accordance with Section 2872 of the California Labor Code
that the foregoing Agreement between you and Company does not require you to
assign or offer to assign to Company any Invention that you develop entirely on
your own time without using Company’s equipment, supplies, facilities or trade
secret information, except for those Inventions that either:
a. Relate
at the time of conception or reduction to practice to Company’s business, or
actual or demonstrably anticipated research or development; or
b. Result
from any work performed by you for Company.
To the
extent a provision in the foregoing Agreement purports to require you to assign
an Invention otherwise excluded from the preceding paragraph, the provision is
against the public policy of this state and is unenforceable.
This
limited exclusion does not apply to any patent or Invention covered by a
contract between Company and the United States or any of its agencies requiring
full title to such patent or Invention to be in the United States.
A-6
Exhibit
B
Separation
Date Release
(To
be signed on or within 21 days after the employment termination
date.)
In
exchange for the severance benefits to be provided to me by Pacific Ethanol,
Inc. (the “Company”) pursuant to the terms of my Amended and Restated Executive
Employment Agreement (the “Agreement”), I hereby provide the following General
Release of Claims (the “Release”). I understand that, on the last
date of my employment with the Company, the Company will pay me any accrued
salary to which I am entitled by law, regardless of whether I sign this Release,
but I am not entitled to any severance benefits unless I sign and return this
Release to the Company and I allow it to become effective.
I hereby
generally and completely release the Company and its directors, officers,
employees, shareholders, partners, agents, attorneys, predecessors, successors,
parent and subsidiary entities, insurers, affiliates, and assigns (collectively
the “Released Parties”) of and from any and all claims, liabilities and
obligations, both known and unknown, arising out of or in any way related to
events, acts, conduct, or omissions occurring at any time prior to or at the
time that I sign this Release.
This
general release includes, but is not limited to: (1) all claims arising out of
or in any way related to my employment with the Company or the termination of
that employment; (2) all claims related to my compensation or benefits from the
Company, including salary, bonuses, commissions, vacation pay, expense
reimbursements, severance pay, fringe benefits, stock, stock options, or any
other ownership or equity interests in the Company; (3) all claims for
breach of contract, wrongful termination, and breach of the implied covenant of
good faith and fair dealing (including claims based on or arising under the
Agreement); (4) all tort claims, including claims for fraud, defamation,
emotional distress, and discharge in violation of public policy; and (5) all
federal, state, and local statutory claims, including claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990, the federal Age Discrimination in Employment Act (as
amended) (“ADEA”), the federal Family and Medical Leave Act, the California
Labor Code (as amended), the California Family Rights Act, and the California
Fair Employment and Housing Act (as amended).
I
understand that notwithstanding the foregoing, the following are not included in
the Released Claims (the “Excluded Claims”): (i) any rights or claims for
indemnification I may have pursuant to any written indemnification agreement to
which I am a party, the charter, bylaws, or operating agreements of any of the
Released Parties, or under applicable law; or (ii) any rights which are not
waivable as a matter of law. In addition, I understand that nothing
in this release prevents me from filing, cooperating with, or participating in
any proceeding before the Equal Employment Opportunity Commission, the
Department of Labor, or the California Department of Fair Employment and
Housing, except that I acknowledge and agree that I shall not recover any
monetary benefits in connection with any such claim, charge or proceeding with
regard to any claim released herein. I hereby represent and warrant
that, other than the Excluded Claims, I am not aware of any claims I have or
might have against any of the Released Parties that are not included in the
Released Claims.
B-1
I
acknowledge that I am knowingly and voluntarily waiving and releasing any rights
I may have under the ADEA, and that the consideration given for the waiver and
release in the preceding paragraph is in addition to anything of value to which
I am already entitled. I further acknowledge that I have been advised
by this writing that: (1) my waiver and release do not apply to any
rights or claims that may arise after the date I sign this Release; (2) I should
consult with an attorney prior to signing this Release (although I may choose
voluntarily not to do so); (3) I have twenty-one (21) days to consider this
Release (although I may choose voluntarily to sign it earlier); (4) I have seven
(7) days following the date I sign this Release to revoke it by providing
written notice of revocation to the Company’s Chief Executive Officer; and
(5) this Release will not be effective until the date upon which the
revocation period has expired, which will be the eighth calendar day after the
date I sign it provided that I do not revoke it (the “Effective
Date”).
I
UNDERSTAND THAT THIS AGREEMENT INCLUDES A RELEASE OF ALL KNOWN AND UNKNOWN
CLAIMS. I acknowledge that I have read and understand Section 1542 of
the California Civil Code which reads as follows: “A general release does not extend to
claims which the creditor does not know or suspect to exist in his or her favor
at the time of executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.” I hereby
expressly waive and relinquish all rights and benefits under that section and
any law or legal principle of similar effect in any jurisdiction with respect to
my release of claims herein, including but not limited to the release of unknown
and unsuspected claims.
I hereby
represent that I have been paid all compensation owed and for all hours worked,
I have received all the leave and leave benefits and protections for which I am
eligible, pursuant to the Family and Medical Leave Act, the California Family
Rights Act, or otherwise, and I have not suffered any on-the-job injury for
which I have not already filed a workers’ compensation claim.
I further
agree: (1) not to disparage the Company, its parent, or its or their officers,
directors, employees, shareholders, affiliates and agents, in any manner likely
to be harmful to its or their business, business reputation, or
personal reputation (although I may respond accurately and fully to any
question, inquiry or request for information as required by legal process); (2)
not to voluntarily (except in response to legal compulsion) assist any third
party in bringing or pursuing any proposed or pending litigation, arbitration,
administrative claim or other formal proceeding against the Company, its parent
or subsidiary entities, affiliates, officers, directors, employees or agents;
and (3) to reasonably cooperate with the Company, by voluntarily (without legal
compulsion) providing accurate and complete information, in connection with the
Company’s actual or contemplated defense, prosecution, or investigation of any
claims or demands by or against third parties, or other matters, arising from
events, acts, or failures to act that occurred during the period of my
employment by the Company.
| By: /s/ Xxxxx XxXxxxxx | |
|
Xxxxx
XxXxxxxx
|
Date
|
B-2
