Exhibit 10.2
EMPLOYMENT AGREEMENT
This Agreement is made to be effective as of February 21, 2006 ("Effective
Date"), by and between WESTERN PLAINS ENERGY L.L.C., a limited liability company
organized under the laws of Kansas (the "Company") and Xxxxxx X. XxXxxxx
("Employee").
RECITALS:
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WHEREAS, the Company wishes to engage Employee's services upon the terms
and conditions hereinafter set forth; and
WHEREAS, the Employee wishes to be employed by the Company upon terms and
conditions hereinafter set forth, and the parties desire to set forth the terms
upon which the Company will employ him.
NOW, THEREFORE, in consideration of the premises and mutual promises set
forth herein, the sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Employment Duties. Subject to the terms of this Agreement, the Company
hereby agrees to employ Employee as its General Manager, and in any other
capacity that the Company shall determine is necessary or appropriate in
connection with the operation of the Company, and Employee hereby agrees to
serve in such capacity. Employee's principal area of responsibility, subject to
modification by the Company, shall be to serve as the chief operating officer
and to oversee the day to day operations of the company. The Employee shall at
all times report to and take direction from, the Chief Executive Officer and the
Board of Managers and shall perform such additional duties not inconsistent with
this position as shall be designated from time to time by the Company.
2. Best Efforts. Employee agrees to use his best efforts to promote the
interests of the Company and shall, except for illness, reasonable vacation
periods and leaves of absence approved by the Company, devote his full business
time and energies in the business and affairs of the Company. Employee shall
schedule his vacations so as to not unreasonably interfere with the business of
the Company.
3. Compensation and Benefits.
3.1 Base Salary. As compensation for Employee's services rendered
hereunder, the Company shall pay to Employee a base salary at an annual rate
equal to One hundred twenty thousand Dollars ($120,000.00) (the "Base Salary").
The Base Salary shall be reviewed by the Chief Executive Officer and the Board
of Directors periodically (but no more than once a year) and may be modified to
reflect, amount other factors, Employee's performance, the cost of living and
the profitability of the Company. The Base Salary shall be payable to Employee
semi-monthly, in accordance with the Company's standard practice for management
personnel and the Company shall make all tax withholding required by applicable
law.
3.2 Incentive Compensation. The Employee may also be entitled to earn
additional incentive compensation in the discretion of the Board.
3.3 Benefits. Employee shall be entitled to participate in all benefit
programs established by the Company and generally applicable to the Company's
staff, including group health and life insurance. Employee shall also be
reimbursed for reasonable and necessary business expenses incurred in the course
of his employment with the Company pursuant to Company policies established from
time to time.
3.4 Moving Expenses. The Company shall pay the reasonable and necessary
expenses of Employee in relocating to western Kansas in an amount not to exceed
$5,000.00, upon submission of appropriate receipts.
3.5 Office, Equipment and Assistance. The Company shall provide for
Employee all facilities, equipment and services suitable to his position and
adequate for the performance of his duties.
3.6 Rent. The Company shall pay Employee's reasonable rent in western
Kansas for a period of three months from the Effective Date of this Agreement,
in an amount not to exceed $650.00 per month. This includes the rent only no
utilities.
3.7 Vacation and Time off. The Company shall provide Three weeks of paid
vacation. At the end of this contract the vacation policy will be reviewed. Time
off and sick days will be the same as what is in the Employee Handbook.
3.8 Vehicle Allowance. Executive shall be entitled to a Company-provided
vehicle for company business. The company shall be responsible for the costs of
operating the vehicle, including insurance and maintenance.
4. Term of Employment.
4.1 "At Will" Employment." Employee is an employee "at will." As such, his
employment may be terminated at any time, by either the Employee or the Company,
for no reason or any reason not prohibited by law. If either party terminates
the Agreement, Employee shall have no claim for compensation beyond the last day
actually worked except as provided in Section 4.4 below or as otherwise required
by law. No officer, director or agent of the Company has the authority to orally
modify these provisions. Any representation to the contrary regarding the
Employee's status by any person is invalid and unenforceable and therefore will
not be relied upon unless the agreement is set forth in an amendment to this
Agreement and signed by the appropriate officer.
4.2 Expiration Date. Unless sooner terminated as provided in this Section
4, this Agreement shall expire on February 21, 2007 (the "Expiration Date").
Following the Expiration Date, or unless sooner terminated as provided herein,
Employee shall have no claim against the Company for salary or benefits, except
as set forth herein.
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4.3 Death or Incapacity. This Agreement shall automatically terminate upon
the death or Total Disability of Employee, subject to subsection (b) below.
(a) In the event of termination because of death, Employee shall have no
further claim against the Company for compensation or benefits beyond the last
day actually worked, except that his surviving spouse and any other dependents
shall be entitled to benefits to the extent required by law.
(b) Employee shall not be entitled to any compensation or benefits beyond
the last day actually worked in the event of his Total Disability. For purposes
of this Section 4.3, Total Disability shall be determined by Employee's
attending physician but shall be based on the Employee's inability to perform
the material responsibilities of his job with the Company, not any occupation.
In the event that the Company shall disagree with the determination of the
physician selected by Employee, it shall so notify him in writing not less than
10 days following receipt of the determination. Employee and Company shall than
endeavor to mutually agree on another physician to examine Employee and make the
determination, and the determination of the second physician shall be binding on
the parties. In the event the parties are unable to agree on a second physician,
then the parties may apply to an arbitrator to make the selection of the
physician. Notwithstanding a determination of Total Disability as described
above, in the event that Employee is able to return to the material
responsibilities of his job within six months of the date of determination of
Total Disability, as determined by the same physician who made the original
determination, Employee shall be entitled to return to the Company as an
employee under the same terms and conditions as set forth herein.
4.4 Payment Upon Termination.
(a) If this Agreement is terminated by the Company for Cause, Employee
shall not be entitled to severance pay of any kind but shall be entitled to all
reasonable reimbursable business expenses incurred by Employee and the Base
Salary earned by Employee prior to the date of termination, and all obligations
of the Company under Paragraph 3 hereof, including the right to any incentive
compensation, shall terminate upon the termination date designated by the
Company, except in the extent otherwise required by law. For the purpose of this
Section, "Cause" shall include the following:
(i) Breach of fiduciary duty or criminal conduct by the Employee
having the effect of materially adversely affecting the Company and/or its
reputation;
(ii) Willful failure by the Employee to substantially perform his
duties hereunder;
(iii) Engagement by the Employee in the use of narcotics or
alcohol to the extent that the performance of his duties is materially
impaired.
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(iv) Material breach of the terms of this Agreement by the Employee or
failure to substantially comply with proper instructions of the Company's
Chief Executive Officer or Board of Directors;
(v) Willful misconduct by the Employee which is materially injurious
to the Company; or
(vi) Any act of omission on the part of the Employee not described
above, but which constitutes material and willful misfeasance, willful
malfeasance, or gross negligence in the performance of his duties to the
Company.
The determination of any event or events and circumstances constituting
"Cause" shall be made by the Board of Directors, which decision shall be final
and binding on the parties.
(b) In the event that Employee is terminated without Cause prior to the
Expiration Date, the Company shall pay Employee Base Salary at the rate
prevailing for Employee immediately prior to such termination for the period of
to and including 90 days as severance pay, payable in accordance with Company's
normal payroll. Employee shall also be entitled to receive benefits to which he
was entitled immediately preceding the date of termination until the Expiration
Date.
5. Confidentiality.
5.1 Confidential Information. The Employee and the Company recognize that
due to the nature of his engagement hereunder, and the relationship of the
Employee to the Company, the Employee will have access to and will acquire, and
may assist in developing, confidential and proprietary information relating to
the business and operations of the Company and its affiliates, including,
without limiting the generality of the foregoing, information with respect to
their present and prospective products, systems, customers, agents, processes,
sales and marketing methods. The Employee acknowledges that such information has
been and will continue to be of central importance to the business of the
Company and its affiliates and that disclosure of it to, or its use by, others
could cause substantial loss to the Company.
5.3 Trade Secrets. The Employee will keep confidential any trade secrets or
confidential or proprietary information of the Company and its affiliates which
are now known to him or which hereafter may become known to him as a result of
his employment or association with the Company and shall not at any time
directly or indirectly disclose any such information to any person, firm or
corporation, or use the same in any way other than in connection with the
business of the Company or its affiliates during and at all times after the
expiration of the term of employment. For purposes of this Agreement, "trade
secrets or confidential or proprietary information" means information unique to
the Company or any of its affiliates that has a significant business purpose and
is not known or generally available from sources outside the Company or any of
its affiliates or typical of industry practice. Trade secrets or confidential or
proprietary information may include information with respect to the Company's
personnel records, present and prospective products, systems, customers, agents,
processes, sales and marketing methods.
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5.4 Patents. The Employee will assign permanently to the Company exclusive
rights in any patents awarded to him on the basis of ideas developed by the
Employee for the Company during or prior to the Term of Employment and its
affiliates and ideas developed by the Employee within one year following the
termination of his employment from the Company which are related to such
employment and/or the business of the Company.
5.5 Injunctive Relief. It is agreed that Employee's services are unique,
and that any breach or threatened breach by Employee of any provisions of this
Paragraph 5 may not be remedied solely by damages. Accordingly, in the event of
a breach or threatened breach by Employee of any of the provisions of this
Paragraph 5, the Company shall be entitled to injunctive relief without a
showing of actual damages, restraining Employee and any business, firm,
partnership, individual, corporation, or entity participating in such breach or
attempted breach, from engaging in any activity which would constitute a breach
of this Paragraph 5. Nothing herein, however, shall be construed as prohibiting
the Company from pursuing any other remedies available at law or in equity for
such breach or threatened breach, including the recovery of damages.
5.6 The provisions of this Paragraph 5 shall survive the termination of
this Agreement and the termination of Employee's employment for any reason.
6. Miscellaneous.
6.1 Assignability. Employee may not assign his rights and obligations under
this Agreement without the prior written consent of the Company, which consent
may be withheld for any reason or for no reason.
6.2 Severability. In the event that any of the provisions of this Agreement
shall be held to be invalid or unenforceable, the remaining provisions shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable parts had not been included therein. Without limiting the
generality of the foregoing, in the event that any provision of Paragraph 6
relating to time period and/or areas of restriction shall be declared by a court
of competent jurisdiction to exceed the maximum time period or areas(s) such
court deems enforceable, said time period and/or areas of restriction shall be
deemed to become, and thereafter be, the maximum time period and/or area for
which such are enforceable.
6.3 Entire Agreement. This Agreement constitutes the entire agreement
between the parties relating to the subject matter hereof and supersedes all
prior agreements or understandings among the parties hereto with respect to the
subject matter hereof.
6.4 Amendments. This Agreement shall not be amended or modified except by a
writing signed by both parties hereto.
6.5 Waiver. The failure of either party at any time to require performance
of the other party of any provision of this Agreement shall in no way affect the
right of such party thereafter to enforce the same provision, nor shall the
waiver by either party of any breach of any provision hereof be taken or held to
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be a waiver of any other or subsequent breach, or as a waiver of the provision
itself. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Kansas without regard to the conflict of laws of such
State. The benefits of this Agreement may not be assigned nor any duties under
this Agreement be delegated by Employee without the prior written consent of the
Company, except as contemplated in this Agreement. This Agreement and all of its
rights, privileges, and obligations will be binding upon the parties and all
successors and agreed to assigns thereof.
6.6 Binding Agreement. This Agreement shall be effective as of the date
hereof and shall be binding upon and inure to the benefit of the Employer, his
heirs, personal and legal representatives, guardians and permitted assigns. The
rights and obligations of the Company under this Agreement shall inure to the
benefit of and shall be binding upon any successor or assignee of the Company.
6.7 Headings. The headings or titles in this Agreement are for the purpose
of reference only and shall not in any way affect the interpretation or
construction of this Agreement.
6.8 No Conflict. The Employee represents and warrants that he is not
subject to any agreement, order, judgment or decree of any kind that would
prevent him from entering into this Agreement or performing fully his
obligations hereunder.
6.9 Survival. The rights and obligations of the parties shall survive the
termination of Employee to the extent that any performance is required under
this Agreement.
6.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same document.
6.11 Notices. Any notice to be given hereunder by either party to the other
may be effected in writing by personal delivery, or by mail, certified with
postage prepaid, or by overnight delivery service. Notices sent by mail or by an
overnight delivery service shall be addressed to the parties at the addresses
appearing following their signatures below, or upon the employment records of
the Company but either party may change its or his address by written notice in
accordance with this paragraph.
6.12 Opportunity to Consult Counsel. The Parties hereto represent and agree
that, prior to executing this Agreement, each has had the opportunity to consult
with independent counsel concerning the terms of this Agreement.
6.13 Attorney Fees. In the event of any dispute, arbitration, litigation
between the Parties or proceeding before any court of competent jurisdiction,
the prevailing party shall be entitled to reasonable attorney fee, costs and
expenses.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be duly executed by their respective authorized officers as of the day and year
first above written.
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IN WITNESS WHEREOF, the parties hereto have properly and duly executed this
Agreement as of the date first written above.
EMPLOYEE
By: /s/ Xxxxxx X. XxXxxxx
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Xxxxxx X. XxXxxxx
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Print Name
WESTERN PLAINS ENERGY, LLC
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, President
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Print Name
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Address
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