MANAGEMENT EMPLOYMENT AGREEMENT
Exhibit 10.33
This Agreement is entered into between Xxxxx Israel (“Manager”) and Alon USA GP, Inc., a
Delaware corporation (“Employer” or “Company”) who, in return for the mutual promises set forth
herein, and contingent upon Manager receiving visa status allowing him to work in the United
States, agree as follows:
1. Position/Term. (a) The term of the Manager’s employment hereunder shall commence upon his
receipt of written confirmation of a visa allowing him to work in the United States
(“Commencement Date”) provided however, that Manager will be credited with service with
Company beginning upon September 1, 2000.
(b) Throughout the term of this Agreement, Employer shall employ Manager and
Manager shall render services to Employer in the capacity and with the title of General
Manager of Economics & Commerce, or such other title as may be established by Employer
from time to time. Manager shall also serve on the Boards of Directors of American
Petrofina Pipeline Company, Fin-Tex Pipeline Company, Alon USA Pipeline, Inc. and Alon
USA Refining, Inc. Manager shall devote his full time and best effort to the
successful functioning of the business of Employer and shall faithfully and
industriously perform all duties pertaining to his position, including such additional
duties as may be assigned from time to time, to the best of Manager’s ability,
experience and talent. Manager shall be subject at all times during the term hereof to
the direction and control of Employer in respect of the work to be done.
(c) Manager’s employment hereunder shall be for an initial term beginning on the
Commencement Date and ending on December 31, 2003 (or when Manager’s visa status no
longer allows him to maintain employment in the United States, whichever is earlier).
Thereafter, if visa status permits, the term shall renew automatically each year for a
term of one year, unless either party provides the other with written notice at least
30 days prior to the expiration of the term.
2. Compensation. (a) Manager’s salary (“Base Compensation”) shall be $115,000.00 per year,
payable bi-weekly (unless the payroll practice of the Company changes to monthly or
semi-monthly) in arrears and subject to change only with the mutual written consent of
Employer and Manager. It is the intent of the Company to develop guidelines for annual merit
increases for salaries of all salaried employees/management, including Manager.
(b) Manager shall be entitled to participate in the Alon USA Annual Cash Bonus Plan
containing the terms and conditions set forth in Exhibit A attached hereto and
incorporated herein which will be subject to modification from time to time as set
forth therein. Manager’s Target Bonus Amount under such plan shall be fifty percent
(50%) of base compensation.
3. Fringe Benefits; Reimbursement of Expenses. Employer shall make available, or cause to be
made available to Manager, throughout the period of his employment hereunder, such benefits,
including any disability, hospitalization, medical
benefits, retiree health benefits, life
insurance, pension plan or other benefits or policy, as may be put into effect from time to
time by Employer generally for other Management members at the level of Management. The Company expressly
reserves the right to modify such benefits at any time, subject to the
provisions of paragraph 10(b) hereof.
Manager will be reimbursed for all reasonable out-of-pocket business, business entertainment
and travel expenses paid by the Manager, in accordance with and subject to applicable Company
expense incurrence and reimbursement policies
4. Vacation. The number of vacation days to which Manager shall be entitled each year shall be
as follows — 15 days up to 10 years, 20 days after 10 years, 25 days after 20 years and 30
days after 30 years. Unless otherwise agreed, vacation may not be carried over into a new
calendar year. Vacation time shall be taken only after providing reasonable notice to the
person to whom the Manager reports.
5. Relocation. Company shall pay for Manager’s relocation expenses pursuant to its Relocation
Policy.
6. Compliance With Employer Policies. Manager shall comply with and abide by all employment
policies and directives of Employer. Employer may, in its sole discretion, change, modify or
adopt new policies and directives affecting Manager’s employment. In the event of any
conflict between the terms of this Agreement and Employer’s employment policies and
directives, the terms of this Agreement will be controlling.
7. Restrictive Covenant. (a) In consideration of the confidential information of Employer
provided to Manager and the other benefits provided to Manager pursuant to this Agreement,
Manager agrees that during the term of Manager’s employment with Employer and for a period of
one year following any termination of Manager’s employment, if the Manager terminates
employment during the first two years of Manager’s employment, or nine months, if the Manager
terminates employment after the first two years of employment and before the completion of
five years of employment (the “Non-Compete Period”), Manager will not, without the prior
written consent of Employer, directly or indirectly, either as an individual or as an
employee, officer, director, shareholder, partner, sole proprietor, independent contractor,
consultant or in any other capacity conduct any business, or assist any person in conducting
any business, that is in competition with the business of Employer or its Affiliates (as
defined below).
(b) In addition to any other covenants or agreements to which Manager may be
subject, during the Non-Compete Period, Manager will not, directly or indirectly,
either as an individual or as an employee, officer, director, shareholder, partner,
sole proprietor, independent contractor, consultant or in any other capacity whatsoever
approach or solicit any customer or vendor of Employer for the purpose of causing,
directly or indirectly, any such customer or vendor to cease doing business with
Employer or its Affiliates.
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For the purposes of this Agreement, the “business of Employer or its Affiliates” means the
business of refining petroleum distillates and the wholesale distribution of such products in the
Territory. The term “Affiliates” means all subsidiaries of Employer and each person or entity that
controls, is controlled by, or is under common control with Employer. The “Territory” means the
states of Texas, New Mexico, Arizona, Arkansas, Louisiana and Oklahoma. It is understood and
agreed that the scope of each of the covenants contained in this Section 6 is reasonable as to
time, area, and persons and is necessary to protect the legitimate business interest of Employer.
It is further agreed that such covenants will be regarded as divisible and will be operative as to
time, area and persons to the extent that they may be so operative. The terms of this Section 6
shall not apply to the ownership by Manager of less than 5% of a class of equity securities of an
entity, which securities are publicly traded on the New York Stock Exchange, the American Stock
Exchange, or the National Market System of the National Association of Securities Dealers Automated
Quotation System. The provisions of this Section 6 will survive any termination or expiration of
this Agreement.
8. Confidentiality. (a) Manager recognizes that during the course of employment, Manager will
be exposed to information or ideas of a confidential or proprietary nature which pertain to
Employer’s business, financial, legal, marketing, administrative, personnel, technical or
other functions or which constitute trade secrets (including, but not limited to,
specifications, designs, plans, drawings, software, data, prototypes, the identity of sources
and markets, marketing information and strategies; business and financial plans and
strategies, methods of doing business; data processing and management information and
technical systems, programs and practices; customers and users and their needs, sales history;
and financial strength), and such information of third parties which has been provided to
Employer in confidence (“Confidential Information”). All such information is deemed
“confidential” or “proprietary” whether or not it is so marked, provided that it is maintained
as confidential by the Company. Information will not be considered to be Confidential
Information to the extent that it is generally available to the public. Nothing in this
Section 7 will prohibit the use or disclosure by Manager of knowledge that is in general use
in the industry or general business knowledge.
(b) Manager shall hold Confidential Information in confidence, use it only in
connection with the performance of duties on behalf of Employer, and restrict its
disclosure to those directors, employees or independent contractors of Employer having
a need to know.
(c) Manager shall not disclose, copy or use Confidential Information for the
benefit of anyone other than Employer without Employer’s prior written consent.
(d) Manager shall, upon Employer’s request or Manager’s termination of employment,
return to Employer any and all written documents containing Confidential Information in
Manager’s possession, custody or control.
9. Non-Interference with Employment Relationships. During Manager’s employment with Employer,
and for a period of one (1) year thereafter, Manager shall not, without Employer’s prior
written consent, directly or indirectly: (a) induce or attempt to
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induce any employee to
leave the Employer’s employ; or (b) interfere with or disrupt the Employer’s relationship with
any of its employees or independent contractors.
10. Copyright, Inventions, Patents. Employer shall have all right, title and interest to all
features (including, but not limited to, graphic designs, copyrights, trademarks and patents)
created during the course of or resulting from Manager’s employment with Employer. Manager
hereby assigns to Employer all copyright ownership and rights to any work developed by Manager
and reduced to practice for or on behalf of Employer or which relate to Employer’s business
during the course of the employment relationship. At Employer’s expense, Manager shall do all
other things including, but not limited to, the giving of evidence in suits and proceedings,
and the furnishing and/or assigning of all documentation and other materials relative to
Employer’s intellectual property rights, necessary or appropriate for Employer to obtain,
maintain, and assert its rights in such work.
11. Termination of Employment. (a) Employer may terminate Manager’s employment hereunder at any
time for Cause. For purposes hereof, Cause shall mean:
(i) conviction of a felony or a misdemeanor where imprisonment is imposed for more than 30
days; (ii) commission of any act of theft, fraud, dishonesty, or falsification of any
employment or Employer records; (iii) improper disclosure of Confidential Information; (iv)
any intentional action by the Manager having a material detrimental effect on the Company’s
reputation or business; (v) any material breach of this Agreement, which breach is not cured
within ten (10) business days following receipt by Manager of written notice of such breach;
(vi) unlawful appropriation of a corporate opportunity; (vii) intentional misconduct in
connection with the performance of any of Manager’s duties, including, without limitation,
misappropriation of funds or property of the Company, securing or attempting to secure to
the detriment of the Company any profit in connection with any transaction entered into on
behalf of the Company, any material misrepresentation to the Company, or any knowing
violation of law or regulations to which the Company is subject; or (viii) loss of
immigration status allowing Manager to work in the United States. Upon termination of
Manager’s employment with the Company for Cause, the Company shall be under no further
obligation to Manager, except to pay all earned but unpaid Base Compensation and all accrued
benefits and vacation to the date of termination (and to the extent required by law).
(b) Employer may terminate Manager’s employment hereunder without Cause, or Manager
may terminate his employment hereunder for Good Reason, upon not less than thirty (30)
days prior written notice. In the event of any such termination, Manager shall be
entitled to receive his Base Compensation through the termination date and any annual
bonus entitlement, prorated for the number of months of employment for the fiscal year
in question, all accrued benefits and vacation to the date of termination (and to the
extent required by law), plus, during the first two years of Manager’s employment
hereunder, an additional amount of severance payment equal to one year’s Base
Compensation as in effect immediately before any notice of termination, and, after the
first two years of Manager’s employment hereunder, an additional amount of severance
payment equal to nine months’ Base Compensation as in effect immediately before any
notice of termination. “Good Reason” means (i) without the Manager’s prior written
consent, the Employer reduces Manager’s Base Compensation or the percentage of
Manager’s Base Compensation established as Manager’s maximum target bonus percentage
for purposes of Employer’s
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annual cash bonus plan, or fails to continue in effect a
defined benefit pension plan; (ii) any material breach of this Agreement, which breach
is not cured within ten (10) business days following receipt by Employer of written
notice of such breach;
(iii) Employer requires Manager to be based at an office or location that is more
than thirty-five (35) miles from the location at which Manager was based as of the
Commencement Date, other than in connection with reasonable travel requirements of
Employer’s business; (iv) the delivery by Employer of notice pursuant to Section
1(c) of this Agreement that it does not wish this Agreement to automatically renew
for any subsequent year; or (v) Manager’s removal from the Boards of Directors set
forth in Section 1(b).
(c) Manager may terminate the employment relationship hereunder with not less than
thirty (30) days prior written notice. Upon any such termination of Manager’s
employment, other than for Good Reason, the Company shall be under no further
obligation to Manager, except to pay all earned but unpaid Base Compensation and all
accrued benefits and vacation to the date of termination (and to the extent required by
law).
(d) The provisions of Sections 6, 7, 8 and 9 of this Agreement will continue in
effect notwithstanding any termination of Manager’s employment.
12. Mediation and Arbitration. (a) Employer and Manager hereby state their mutual desire for any
dispute concerning a legally cognizable claim arising out of this Agreement or in connection
with the employment of Manager by Employer, including, but not limited to, claims of breach of
contract, fraud, unlawful termination, discrimination, harassment, workers’ compensation
retaliation, defamation, tortious infliction of emotional distress, unfair competition, and
conversion (“Legal Dispute”), to be resolved amicably, if possible, and without the need for
litigation.
(b) Based on this mutual desire, in the event a Legal Dispute arises, the parties
shall utilize the following protocol:
(i) The parties shall first submit the Legal Dispute to mediation
under the auspices of the American Arbitration Association (“AAA”) and pursuant
to the mediation rules and procedures promulgated by the AAA.
(ii) In the event mediation is unsuccessful in fully resolving the
Legal Dispute, binding arbitration shall be the method of final resolution of
the Legal Dispute. The parties expressly waive their rights to bring action
against one another in a court of law, except as expressly provided in
subsection (d). The parties hereto acknowledge that failure to comply with
this provision shall entitle the non-breaching party not only to damages, but
also to injunctive relief to enjoin the actions of the breaching party. Any
Legal Dispute submitted to Arbitration shall be under the auspices of the AAA
and pursuant to the “National Rules for the Resolution of Employment Disputes,”
or any similar identified rules promulgated at such time the Legal Dispute is
submitted for resolution. All mediation and arbitration hearings shall take
place in Dallas, Texas.
(c) Notice of submission of any Legal Dispute to mediation shall be provided no
later than three hundred sixty-five (365) calendar days following the date the
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submitting party became aware
of the conduct constituting the alleged claims. Failure
to do so shall result in the irrevocable waiver of the claim made in the Legal Dispute.
(d) Notwithstanding that mediation and arbitration are established as the exclusive
procedures for resolution of any Legal Dispute, (i) either party may apply to an
appropriate judicial or administrative forum for injunctive relief and (ii) claims by
Employer arising in connection with paragraphs 6, 7, 8 or 9 may be brought in any court
of competent jurisdiction.
(e) Each party acknowledges that a remedy at law for any breach or attempted breach
of paragraphs 6, 7, 8 or 9 of this Agreement will be inadequate, agrees that Employer
will be entitled to specific performance and injunctive and other equitable relief in
case of any breach or attempted breach, and agrees not to use as a defense that any
party has an adequate remedy at law. This Agreement shall be enforceable in a court of
equity, or other tribunal with jurisdiction, by a decree of specific performance, and
appropriate injunctive relief may be applied for and granted in connection herewith.
Such remedy shall not be exclusive and shall be in addition to any other remedies now
or hereafter existing at law or in equity, by statute or otherwise. Except as provided
in subsection (c) no delay or omission in exercising any right or remedy set forth in
this Agreement shall operate as a waiver thereof or of any other right or remedy and no
single or partial exercise thereof shall preclude any other or further exercise thereof
or the exercise of any other right or remedy.
13. Assignment. This Agreement shall not be assignable by either party except that upon any sale
or transfer of all or substantially all of its business by Employer, Employer may assign this
Agreement to its successor; any failure to make such an assignment will be considered to
constitute the termination of Manager’s employment without cause effective upon the closing of
the referenced transaction.
14. No Inducement, Agreement Voluntary. Manager represents that (a) he has not been pressured,
misled, or induced to enter into this Agreement based upon any representation by Employer or
its agents not contained herein, (b) he has entered into this Agreement voluntarily, after
having the opportunity to consult with representatives of his own choosing and that (c) his
agreement is freely given.
15. Interpretation. Any paragraph, phrase or other provision of this Agreement that is
determined by a court, arbitrator or arbitration panel of competent jurisdiction to be
unreasonable or in conflict with any applicable statute or rule, shall be deemed, if possible,
to be modified or altered so that it is not unreasonable or in conflict or, if that is not
possible, then it shall be deemed omitted from this Agreement. The invalidity of any portion
of this Agreement shall not affect the validity of the remaining portions.
16. Prior Agreements Superseded; Amendments. This Agreement revokes and supersedes all prior
agreements, written and oral, and represents the entire agreement between the parties in
relation to the employment of the Manager by the Company after the Commencement Date and shall
not be subject to modification or amendment by any oral representation, or any written
statement by either party, except for a dated writing signed by the Manager and the Employer.
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17. Notices. All notices, demands and requests of any kind to be delivered in connection with
this Agreement shall be in writing and shall be deemed to have been duly given if personally
delivered or if sent by nationally-recognized overnight courier or by registered or certified
mail, return receipt requested and postage prepaid, addressed as follows:
| (a) | if to the Company, to: Alon USA GP, Inc. 0000 Xxxxxx Xxxxx Xxxxx, XX 00000 Telecopy number: (000) 000-0000 |
| (b) | if to Manager, to the address of Manager set forth on the signature page hereto; |
or to such other address as the party to whom notice is to be given may have furnished to the other
in writing in accordance with the provisions of this Section 16. Any such notice or communication
shall be deemed to have been received: (i) in the case of personal delivery, on the date of such
delivery; (ii) in the case of nationally-recognized overnight courier, on the next business day
after the date sent; and (iii) if by registered or certified mail, on the third business day
following the date postmarked.
18. Applicable Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas without giving effect to principles of conflicts of law.
MANAGER:
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EMPLOYER: |
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XXXXX XXXXXX
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XXXX
USA GP, INC. |
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/s/ Xxxxx Israel
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By: /s/ Xxxx Xxxxxx
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| Name: Xxxx Xxxxxx
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| Title: CEO | ||||
Address for notices: |
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0000 Xxxxxxxxx Xxx #000
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Xxxxxx, XX 00000
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