EMPLOYMENT AGREEMENT
EXHIBIT
10.6
THIS
EMPLOYMENT AGREEMENT (this “Agreement”)
is
made, entered into and effective as of August 3, 2006 (the “Effective
Date”),
between Ethanex Energy North America, Inc. (the “Company”),
and
Xxxxxx X. Xxxxxxx, an individual (the “Executive”).
WHEREAS,
the Company and the Executive wish to memorialize the terms and conditions
of
the Executive’s employment by the Company in the position of Executive Chairman;
NOW,
THEREFORE, in consideration of the covenants and promises contained herein,
the
Company and the Executive agree as follows:
1. Employment
Period.
The
Company offers to employ the Executive, and the Executive agrees to be employed
by Company, in accordance with the terms and subject to the conditions of this
Agreement, commencing on the Effective Date and terminating on the fourth
anniversary of the Effective Date (the “Scheduled
Termination Date”),
unless terminated in accordance with the provisions of Section 12 below, in
which case the provisions of Section 12 shall control; provided,
however,
that
unless either party provides the other party with written notice of his or
its
intention not to renew this Agreement at least 90 days prior to the expiration
of the initial term or any renewal term of this Agreement (as the case may
be),
this Agreement shall automatically renew for additional one-year periods
commencing on the day after such expiration date. The Executive affirms that
no
obligation exists between the Executive and any other entity which would prevent
or impede the Executive’s immediate and full performance of every obligation of
this Agreement.
2. Position
and Duties.
During
the term of the Executive’s employment hereunder, the Executive shall continue
to serve in, and assume duties and responsibilities consistent with, the
position of Executive Chairman, unless and until otherwise instructed by the
Company. The Executive agrees to devote to the Company such portion of his
working time, skill, energy and efforts during the term of his employment with
the Company as is reasonably required to fulfill his duties and responsibilities
hereunder, and the Executive shall limit his engagement in business activities
outside the scope of his employment with the Company to the extent such
activities would prevent the Executive from fulfilling his responsibilities
and
duties under this Agreement. It is expressly understood that the Executive
will
be devoting substantially less than all of his working time to his employment
with the Company and that the Executive’s other continuing employment
responsibilities will require significant amounts of his time and services,
which will not be available to the Company.
3. No
Conflicts.
The
Executive covenants and agrees that for so long as he is employed by the
Company, he shall inform the Company of each and every future business
opportunity presented to the Executive that arises within the scope of the
Business of the Company (as defined below) and would be feasible for the
Company, and that he will not, directly or indirectly, exploit any such
opportunity for his own account.
4. Hours
of Work.
The
nature of the Executive’s employment with the Company requires flexibility in
the days and hours that the Executive must work.
5. Location.
The
Executive will not be required to fulfill his employment obligations with the
Company at the Company’s office located in Basehor, KS, or at any other locus
where the Company now or hereafter has a business facility, and the Executive
may continue to be located in Santa Rosa, CA (or such other location as he
may
select from time to time); provided that the Executive will periodically travel
to such Company offices and other locations as is necessary to fulfill his
employment obligations hereunder.
6. Compensation.
(a) Base
Salary.
During
the term of this Agreement, the Company shall pay, and the Executive agrees
to
accept, in consideration for the Executive’s services hereunder, pro
rata
bi-weekly payments of the annual salary of $180,000, less all applicable taxes
and other appropriate deductions.
(i) Upon
successful completion of financing in such amount as is sufficient, in the
opinion of the Company’s Board of Directors (the “Board”),
to
enable the Company to finance the acquisition or construction of the Company’s
initial operating ethanol producing facility (the “Initial
Ethanol Facility”),
the
Executive’s annual base salary shall be increased to $195,000.
(ii) The
Executive’s base salary shall be increased to $255,000 at such time as the
Initial Ethanol Facility becomes operational, either through the start of
revenue producing activities of a newly constructed plant or through the
acquisition of an existing operational plant.
The
Compensation Committee (the “Compensation
Committee”)
of the
Board shall also review the Executive’s base salary annually and shall make a
recommendation to the Board as to whether such base salary should be increased
but not decreased, which decision shall be within the Board’s sole
discretion.
(b) Annual
Bonus.
During
the term of this Agreement, the Executive shall be entitled to an annual bonus
of up to 125% of his base salary, decreasing to a maximum of 100% of his base
salary (considered at the end of the period for which the bonus is being
calculated) at such time as the Initial Ethanol Facility becomes operational,
the actual amount of which bonus shall be determined according to achievement
of
performance-related financial and operating targets established annually for
the
Company and the Executive by the Compensation Committee (or by the independent
members of the Board if there exists no Compensation Committee). Such
performance targets for each fiscal year shall be adopted by the Compensation
Committee promptly after the end of the prior fiscal year, but in no event
later
than March 31st
of the
current fiscal year (except for fiscal year 2006, the performance targets for
which are annexed to this Agreement as Exhibit A. Each annual bonus shall be
paid by the Company to the Executive promptly after the first meeting of the
Board following the completion of the annual audit, which meeting shall occur
on
or about April 15th of each year.
-2-
7. Expenses.
During
the term of this Agreement, the Executive shall be entitled to payment or
reimbursement of any reasonable expenses paid or incurred by him in connection
with and related to the performance of his duties and responsibilities hereunder
for the Company (including, without limitation, transportation, food and lodging
expenses related to the Executive’s travels as set forth in Section 5). All
requests by the Executive for payment of
reimbursement of such expenses shall be supported by appropriate invoices,
vouchers, receipts or such other supporting documentation in such form and
containing such information as the Company may from time to time require,
evidencing that the Executive, in fact, incurred or paid said expenses.
8. Vacation.
During
the term of this Agreement, the Executive shall be entitled to accrue, on a
pro
rata basis,
20
vacation days, per year. The Executive shall be entitled to carry over any
accrued, unused vacation days from year to year without limitation.
9. Lock-Up
Agreement.
Upon
the closing of the Merger (as defined in Section 17(f) hereof), the Executive
shall enter into a Lock-Up Agreement with the Company in the form attached
hereto as Exhibit B.
10. Stock
Options.
The
Company hereby agrees that the Executive
shall be granted a non-qualified stock option on the terms and conditions
hereinafter stated:
(a) Grant
of Options.
Upon
the closing of the Merger and the concurrent assignment of this agreement to
the
PubCo, as described in Section 17(f) hereof, the Company will grant
the
Executive an option to purchase an aggregate of 250,000 shares of the
Company’s common voting stock (the “Option”)
under
the Company’s 2006 Stock Option Plan (the “Stock
Option Plan”).
Such
grant shall be evidenced by an Option Agreement as contemplated by the Stock
Option Plan. In subsequent years the Executive shall be eligible for such grants
of Options and other permissible awards (collectively with Options, “Awards”)
under the Stock Option Plan as the Compensation Committee or the Board shall
determine.
(b) Option
Price; Term.
The
per
share
exercise price of the Option shall be $1.00, which represents the fair market
value per share of Company common voting stock on the closing date of the
Merger. The term of the Option shall be ten years from the date of
grant.
(c) Vesting
and Exercise.
One
third (33.3%) of the Option shall be vested and exercisable on the first
anniversary of the grant of the Option, an additional one third (33.3%) of
the
Option shall be vested and become exercisable on the second anniversary of
the
grant of the Option and the remaining one third (33.4%) of the Options shall
be
vested and become exercisable on third anniversary of the grant of the Option.
(d) Termination
of Service; Accelerated Vesting.
(i) If
the
Executive’s employment is terminated for Cause, as such term is defined below,
all Awards, whether or not vested, shall immediately expire effective the date
of termination of employment.
-3-
(ii) If
the
Executive’s employment is terminated voluntarily by the Executive without Good
Reason, as such term is defined below, all unvested Awards shall immediately
expire effective the date of termination of employment. Vested Awards, to the
extent unexercised, shall expire one month after the termination of
employment.
(iii) If
the
Executive’s employment terminates on account of death or Disability, as defined
below, all unvested Awards shall immediately expire effective the date of
termination of employment. Vested Awards, to the extent unexercised, shall
expire one year after the termination of employment.
(iv) If
the
Executive’s employment is terminated (A) in connection with a Change of Control,
as defined below, (B) by the Company without Cause or (C) by the Executive
for
Good Reason, all unvested Awards shall immediately vest and become exercisable
effective the date of termination of employment, and, to the extent unexercised,
shall expire one year after any such event.
(e) Payment.
The
full consideration for any shares purchased by the Executive upon exercise
of
the Option shall be paid in cash.
11. Other
Benefits.
(a) During
the term of this Agreement, the Executive shall be eligible to participate
in
incentive, savings, retirement (401(k)), and welfare benefit plans, including,
without limitation, health, medical,
dental,
vision,
life (including accidental death and dismemberment)
and
disability insurance plans (collectively, “Benefit
Plans”),
in
substantially the same manner, including but not limited to responsibility
for
the cost thereof, and at
substantially the same levels, as the Company makes
such
opportunities available to all of the Company’s managerial
or salaried executive
employees.
(b) The
Executive’s spouse and dependent minor children will be covered under the
Benefit Plans providing health, medical, dental, and vision benefits, in
substantially the same manner, including but not limited to responsibility
for
the cost thereof, and at substantially the same levels, as the Company makes
such opportunities available to the spouses and dependent minor children to
all
of the Company’s managerial or salaried executive employees.
(c) The
Company shall purchase and maintain traditional directors and officers liability
insurance coverage in the amount of at least $5,000,000 covering the Company’s
officers and directors, including the Executive, as soon as practicable after
the closing date of the Merger, but in no event later than 30 days following
the
Effective Date, provided such coverage is available on commercially reasonable
terms.
(d)
Until
such time as Executive becomes covered by Company medical coverage, the Company
shall pay the cost of COBRA coverage provided by Executive’s prior employer, to
the same extent as such coverage was paid for by such prior
employer.
-4-
12. Termination
of Employment.
(a) Death.
In the
event that during the term of this Agreement the Executive dies, this Agreement
and the Executive’s employment with the Company shall automatically terminate
and the Company shall have no further obligations or liability to the Executive
or his heirs, administrators or executors with respect to compensation and
benefits accruing thereafter, except for the obligation to pay the Executor’s
heirs, administrators or executors any earned but unpaid base salary, unpaid
pro
rata
annual
bonus and unused vacation days accrued through the date of death; provided,
that
nothing contained in this paragraph shall be deemed to excuse any breach by
the
Company of any provision of this Agreement. The Company shall deduct, from
all
payments made hereunder, all applicable taxes, including income tax, FICA and
FUTA, and other appropriate deductions.
(b) “Disability.”
In
the
event that, during the term of this Agreement the Executive shall be prevented
from performing his duties and responsibilities hereunder to the full extent
required by the Company by reason of Disability (as defined below) this
Agreement and the Executive’s employment with the Company shall automatically
terminate and the Company shall have no further obligations or liability to
the
Executive or his heirs, administrators or executors with respect to compensation
and benefits accruing thereafter, except for the obligation to pay the Executive
or his heirs, administrators or executors any earned but unpaid base salary,
unpaid pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last date of
Employment with the Company; provided,
that
nothing contained in this paragraph shall be deemed to excuse any breach by
the
Company of any provision of this Agreement including any failure to maintain
the
long-term disability insurance coverage required pursuant to Section 10(b)(iv).
The Company shall deduct, from all payments made hereunder, all applicable
taxes, including income tax, FICA and FUTA, and other appropriate deductions
through
the last date of the Executive’s employment with the Company. For purposes of
this Agreement, “Disability”
shall
mean a physical or mental disability that prevents the performance by the
Executive, with or without reasonable accommodation, of his duties and
responsibilities hereunder for a period of not less than an aggregate of three
months during any twelve consecutive months.
(c) “Cause.”
(i) At
any
time during the term of this Agreement, the Company may terminate this Agreement
and the Executive’s employment hereunder for “Cause.” For purposes of this
Agreement, “Cause”
shall
be defined as the occurrence of: (A)
gross
neglect, malfeasance or gross insubordination in performing the Executive’s
duties under this Agreement; (B) the Executive’s conviction for a felony,
excluding convictions associated with traffic violations; (C) an egregious
act
of dishonesty (including without limitation theft or embezzlement) or a
malicious action by the Executive toward the Company’s customers or employees;
(D) a willful and material violation of any provision of Sections 13 and 14
hereof; (E) intentional reckless conduct that is materially detrimental to
the
business or reputation of the Company; or (F) material failure, other than
by
reason of Disability, to carry out reasonably assigned duties or instructions
consistent with the title of Executive Chairman (provided that material failure
to carry out reasonably assigned duties shall be deemed to constitute Cause
only
after a finding by the Board of Directors, or a duly constituted committee
thereof, of material failure on the part of
-5-
the
Executive and the failure to remedy such performance to the Board’s or the
committee’s satisfaction within 30 days after delivery of written notice to the
Executive of such finding).
(ii) Upon
termination of this Agreement for Cause, the Company shall have no further
obligations or liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits thereafter, except for
the
obligation to pay the Executive any earned but unpaid base salary, unpaid
pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last day of
employment with the Company. The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
(d) Change
of Control.
For
purposes of this Agreement, “Change
of Control”
means
the occurrence of, or the Company’s Board votes to approve: (A) any
consolidation or merger of the Company pursuant to which the stockholders
of the Company immediately before the transaction do not retain immediately
after the transaction, in substantially the same proportions as their ownership
of shares of the Company’s
voting
stock immediately before the transaction, direct or indirect beneficial
ownership of more than 50% of the total combined voting power of the outstanding
voting securities of the surviving business entity;
(B) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, of the assets of the Company
other than any sale, lease, exchange or other transfer to any company where
the
Company owns, directly or indirectly, 100% of the outstanding voting securities
of such company after any such transfer; (C)
the
direct or indirect sale or exchange in a single or series of related
transactions by the stockholders of the Company of more than 50% of the voting
stock of the Company.
(e) “Good
Reason.”
(i) At
any
time during the term of this Agreement, subject to the conditions set forth
in
Section 12(e)(ii) below, the Executive may terminate this Agreement and the
Executive’s employment with the Company for “Good Reason.” For purposes of this
Agreement, “Good
Reason”
shall
mean the occurrence of any of the following events: (A) the
assignment, without the Executive’s consent, to the Executive of duties that are
significantly different from, and that result in a substantial diminution of,
the duties that he assumed on the Effective Date; (B) the
assignment, without the Executive’s consent, to the Executive of a title that is
different from and subordinate to the title specified in Section 2 above,
provided, however, that the retention of another executive as Executive Chairman
shall, in and of itself, entitle the Executive to claim a termination for Good
reason hereunder; (C) any termination of the Executive’s employment by the
Company, other than a termination for Cause, within
12
months after a Change of Control;
(D) the
assignment, without the Executive’s consent, to the Executive of duties that are
significantly different from, and that result in a substantial diminution of,
the duties that he assumed on the Effective Date within 12 months after a Change
of Control; or (E) material
breach by the Company of this Agreement.
(ii) The
Executive shall not be entitled to terminate his employment with the Company
and
this Agreement for Good Reason unless and until he shall have delivered written
notice to the Company of his intention to terminate this Agreement and his
employment with the
-6-
Company
for Good Reason, which notice specifies in reasonable detail the circumstances
claimed to provide the basis for such termination for Good Reason, and the
Company shall not have eliminated the circumstances constituting Good Reason
within 30 days of its receipt from the Executive of such written notice.
(iii) In
the
event that the Executive terminates this Agreement and his employment with
the
Company for Good Reason, the Company shall pay or provide to the Executive
(or,
following his death, to the Executive’s heirs, administrators or executors):
(A)
any
earned but unpaid base salary, unpaid pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last day of
employment with the Company; (B) the
Executive’s full base salary through the Scheduled Termination Date (as the same
may have been extended through any extensions of this Agreement); (C)
the
value
of vacation days that the Executive would have accrued through the Scheduled
Termination Date; (D) continued
coverage, at the Company’s expense, under all Benefits Plans in which the
Executive was a participant immediately prior to his last date of employment
with the Company, or, in the event that any such Benefit Plans do not permit
coverage of the Executive following his last date of employment with the
Company, under benefit plans that provide no less coverage than such Benefit
Plans, through the Scheduled Termination Date; and
(E)
severance in an amount equal to one year’s base salary, as in effect immediately
prior to the Executive’s termination hereunder. All payments due hereunder shall
be made within 45 days after the date of termination of the Executive’s
employment.
The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate
deductions.
(iv) The
Executive shall have no duty to mitigate his damages, except that continued
benefits required to be provided under Section 11(e)(iii)(D) shall be canceled
or reduced to the extent of any comparable benefit coverage offered to the
Executive during the period prior to the Scheduled Termination Date by a
subsequent employer or other person or entity for which the Executive performs
services, including but not limited to consulting services.
(f) Without
“Cause.”
(i) By
The
Executive.
At any
time during the term of this Agreement, the Executive shall be entitled to
terminate this Agreement and the Executive’s employment with the Company without
Cause by providing prior written notice of at least 90 days to the Company.
Upon
termination by the Executive of this Agreement and the Executive’s employment
with the Company without Cause, the Company shall have no further obligations
or
liability to the Executive or his heirs, administrators or executors with
respect to compensation and benefits thereafter, except for the obligation
to
pay the Executive any earned but unpaid base salary, and unused vacation days
accrued through the Executive’s last day of employment with the Company. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate
deductions.
(ii) By
The
Company.
At any
time during the term of this Agreement, the Company shall be entitled to
terminate this Agreement and the Executive’s employment with the Company without
Cause by providing prior written notice of at least 90 days to the Executive.
Upon termination by the Company of this Agreement and the Executive’s employment
with the
-7-
Company
without Cause, the Company shall pay or provide to the Executive (or, following
his death, to the Executive’s heirs, administrators or executors): (A) any
earned but unpaid base salary, unpaid pro
rata
annual
bonus and unused vacation days accrued through the Executive’s last day of
employment with the Company; (B) the Executive’s full base salary through the
Scheduled Termination Date (as the same may have been extended through any
extensions of this Agreement); (C) the value of vacation days that the Executive
would have accrued through the Scheduled Termination Date; (D) continued
coverage, at the Company’s expense, under all Benefits Plans in which the
Executive was a participant immediately prior to his last date of employment
with the Company, or, in the event that any such Benefit Plans do not permit
coverage of the Executive following his last date of employment with the
Company, under benefit plans that provide no less coverage than such Benefit
Plans, through the Scheduled Termination Date; and (E) severance in an amount
equal to one year’s base salary, as in effect immediately prior to the
Executive’s termination hereunder. All payments due hereunder shall be made
within 45 days after the date of termination of the Executive’s employment. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate deductions.
13. Confidential
Information.
(a) The
Executive expressly acknowledges that, in the performance of his duties and
responsibilities with the Company, he has been exposed since prior to the
Effective Date, and will be exposed, to the trade secrets, business and/or
financial secrets and confidential and proprietary information of the Company,
its affiliates and/or its clients, business partners or customers (“Confidential
Information”).
The
term “Confidential Information” includes information or material that has actual
or potential commercial value to the Company, its affiliates and/or its clients,
business partners or customers and is not generally known to and is not readily
ascertainable by proper means to persons outside the Company, its affiliates
and/or its clients or customers.
(b) Except
as
authorized in writing by the Board, during the performance of the Executive’s
duties and responsibilities for the Company and until such time as any such
Confidential Information becomes generally known to and readily ascertainable
by
proper means to persons outside the Company, its affiliates and/or its clients,
business partners or customers, the Executive agrees to keep strictly
confidential and not use for his personal benefit or the benefit to any other
person or entity (other than the Company) the Confidential Information.
“Confidential Information” includes the following, whether or not expressed in a
document or medium, regardless of the form in which it is communicated, and
whether or not marked “trade secret” or “confidential” or any similar legend:
(i) lists
of
and/or information concerning customers, prospective customers, suppliers,
employees, consultants, co-venturers and/or joint venture candidates of the
Company, its affiliates or its clients or customers; (ii) information
submitted by customers, prospective customers, suppliers, employees, consultants
and/or co-venturers of the Company, its affiliates and/or its clients or
customers; (iii) non-public
information proprietary to the Company, its affiliates and/or its clients or
customers, including, without limitation, cost information, profits, sales
information, prices, accounting, unpublished financial information, business
plans or proposals, expansion plans (for current and proposed facilities),
markets and marketing methods, advertising and marketing strategies,
administrative
-8-
procedures
and manuals, the terms and conditions of the Company’s contracts and trademarks
and patents under consideration, distribution channels, franchises, investors,
sponsors and advertisers; (iv) proprietary
technical information concerning products and services of the Company, its
affiliates and/or its clients, business partners or customers, including,
without limitation, product data and specifications, diagrams, flow charts,
know
how, processes, designs, formulae, inventions and product development; (v)
lists
of
and/or information concerning applicants, candidates or other prospects for
employment, independent contractor or consultant positions at or with any actual
or prospective customer or client of Company and/or its affiliates,
any and
all confidential processes, inventions or methods of conducting business of
the
Company, its affiliates and/or its clients, business partners or customers;
(vi)
acquisition or merger targets; (vii) business plans or strategies, data,
records, financial information or other trade secrets concerning the actual
or
contemplated business, strategic alliances, policies or operations of the
Company or its affiliates; or (viii) any
and
all versions of proprietary computer software (including source and object
code), hardware, firmware, code, discs, tapes, data listings and documentation
of the Company;
or (ix
any other confidential information disclosed to the Executive by, or which
the
Executive obligated under a duty of confidence from, the Company, its
affiliates, and/or its clients, business partners or customers.
(c) The
Executive affirms that he does not possess and will not rely upon the protected
trade secrets or confidential or proprietary information of his prior
employer(s) in providing services to the Company.
(d) In
the
event that the Executive’s employment with the Company terminates for any
reason, the Executive shall deliver forthwith to the Company any and all
originals and copies of Confidential Information.
14. Non-Competition
And Non-Solicitation.
(a) The
Executive agrees and acknowledges that the Confidential Information that the
Executive has already received and will receive is valuable to the
Company and
that
its protection and maintenance constitutes a legitimate business interest of
the
Company, to be protected by the non-competition restrictions set forth herein.
The Executive agrees and acknowledges that the non-competition restrictions
set
forth herein are reasonable and necessary and do not impose undue hardship
or
burdens on the Executive. The Executive also acknowledges that the products
and
services developed or provided by the Company, its
affiliates and/or its clients or customers
are or
are intended to be sold, provided, licensed and/or distributed to customers
and
clients in and throughout the Mid-West (the “Geographic
Boundary”)
(to
the extent the Company comes to own or operate any material asset in other
areas
of the United States during the term of the Executive’s employment, the
definition of Geographic Boundary shall be automatically expanded to cover
such
other areas), and that the Geographic Boundary, scope of prohibited competition,
and time duration set forth in the non-competition restrictions set forth below
are reasonable and necessary to maintain the value of the Confidential
Information of, and to protect the goodwill and other legitimate business
interests of, the Company, its
affiliates and/or its clients or customers.
(b) The
Executive hereby agrees and covenants that he shall not, without the prior
written consent of the Company, directly or indirectly, in any capacity
whatsoever, including,
-9-
without
limitation, as an employee, employer, consultant, principal, partner,
shareholder, officer, director or any other individual or representative
capacity (other than a holder of less than one percent (5%) of the outstanding
voting shares of any publicly held company), or whether on the Executive’s own
behalf or on behalf of any other person or entity or otherwise howsoever, during
the Executive’s employment with the Company and for a period equal to the
greater of (i) one year (two years, if termination of this Agreement or of
Executive’s employment is pursuant to Section 12(f)(i) hereof) following the
termination of this Agreement or of the Executive’s employment with the Company
or (ii) the period during which the Executive continues to receive his base
salary pursuant to Sections 12(e) or 12(f)(ii) of this Agreement following
the
termination of this Agreement and of the Executive’s employment, in the
Geographic Boundary:
(i) Engage,
own, manage, operate, control, be employed by, consult for, participate in,
or
be connected in any manner with the ownership, management, operation or control
of any business in competition with the Business of the Company. The
“Business
of the Company”
is
defined as the development and production of ethanol within the Geographic
Boundary. It is expressly agreed, however, that Industrial Technology Power
(the
company with which the Executive will continue to be associated following the
Effective Date), and any successor thereto, will not be considered a “business
in competition with the Business of the Company” so long as it does not engage
in the development and production of ethanol.
(ii) Recruit,
solicit or hire, or attempt to recruit, solicit or hire, any employee, or
independent contractor of the Company to leave the employment (or independent
contractor relationship) thereof, whether or not any such employee or
independent contractor is party to an employment agreement.
(iii) Attempt
in any manner to solicit or accept from any customer of the Company, with whom
the Executive had significant contact during the term of the Agreement, business
of the kind or competitive with the business done by the Company with such
customer or to persuade or attempt to persuade any such customer to cease to
do
business or to reduce the amount of business which such customer has customarily
done or is reasonably expected to do with the Company, or if any such customer
elects to move its business to a person other than the Company, provide any
services (of the kind or competitive with the Business of the Company) for
such
customer, or have any discussions regarding any such service with such customer,
on behalf of such other person.
(iv) Interfere
with any relationship, contractual or otherwise, between the Company and any
other party, including; without limitation, any supplier, co-venturer or joint
venturer of the Company to discontinue or reduce its business with the Company
or otherwise interfere in any way with the Business of the Company.
15. Dispute
Resolution.
The
Executive and the Company agree that any dispute or claim, whether based on
contract, tort, discrimination, retaliation, or otherwise, relating to, arising
from, or connected in any manner with this Agreement or with the Executive’s
employment with Company shall be resolved exclusively through final and binding
arbitration under the auspices of the American Arbitration Association
(“AAA”).
The
arbitration shall be held in Basehor, Kansas. The arbitration shall proceed
in
accordance with the National Rules for
-10-
the
Resolution of Employment Disputes of the AAA in effect at the time the claim
or
dispute arose, unless other rules are agreed upon by the parties. The
arbitration shall be conducted by one arbitrator who is a member of the AAA,
unless the parties mutually agree otherwise. The arbitrators shall have
jurisdiction to determine any claim, including the arbitrability of any claim,
submitted to them. The arbitrators may grant any relief authorized by law for
any properly established claim. The interpretation and enforceability of this
paragraph of this Agreement shall be governed and construed in accordance with
the United States Federal Arbitration Act, 9. U.S.C. § 1, et
seq.
More
specifically, the parties agree to submit to binding arbitration any claims
for
unpaid wages or benefits, or for alleged discrimination, harassment, or
retaliation, arising under Title VII of the Civil Rights Act of 1964, the Equal
Pay Act, the National Labor Relations Act, the Age Discrimination in Employment
Act, the Americans With Disabilities Act, the Employee Retirement Income
Security Act, the Civil Rights Act of 1991, the Family and Medical Leave Act,
the Fair Labor Standards Act, Sections 1981 through 1988 of Title 42 of the
United States Code, COBRA, the New York State Human Rights Law, the New York
City Human Rights Law, and any other federal, state, or local law, regulation,
or ordinance, and any common law claims, claims for breach of contract, or
claims for declaratory relief. The Executive acknowledges that the purpose
and
effect of this paragraph is solely to elect private arbitration in lieu of
any
judicial proceeding he might otherwise have available to him in the event of
an
employment-related dispute between him and the Company. Therefore, the Executive
hereby waives his right to have any such employment-related dispute heard by
a
court or jury, as the case may be, and agrees that his exclusive procedure
to
redress any employment-related claims will be arbitration.
16. Notice.
For
purposes of this Agreement, notices and all other communications provided for
in
this Agreement or contemplated hereby shall be in writing and shall be deemed
to
have been duly given when personally delivered, delivered by a nationally
recognized overnight delivery service or when mailed United States Certified
or
registered mail, return receipt requested, postage prepaid, and addressed as
follows:
If
to the
Company:
Ethanex
Energy North America, Inc.
c/o
McGuireWoods LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxx, Esq.
Facsimile:
(000) 000-0000
If
to the
Executive:
Xxxxxx
X.
Xxxxxxx
0000
Xxxxxxxxx Xxx, Xxxxx 000
Xxxxx
Xxxx, XX 00000
Facsimile:
(000) 000-0000
-11-
Any
party
may change the address to which communications hereunder are to be delivered
by
giving the other party notice in the manner herein set forth.
17. Miscellaneous.
(a) All
issues and disputes concerning, relating to or arising out of this Agreement
and
from the Executive’s employment by the Company, including, without limitation,
the construction and interpretation of this Agreement, shall be governed by
and
construed in accordance with the internal laws of the State of New York, without
giving effect to that State’s principles of conflicts of law.
(b) The
Executive and the Company agree that any provision of this Agreement deemed
unenforceable or invalid may be reformed to permit enforcement of the
objectionable provision to the fullest permissible extent. Any provision of
this
Agreement deemed unenforceable after modification shall be deemed stricken
from
this Agreement, with the remainder of the Agreement being given its full force
and effect.
(c) The
Company shall be entitled to equitable relief, including injunctive relief
and
specific performance as against the Executive, for the Executive’s threatened or
actual breach of Sections 13 or 14 of this Agreement, as money damages for
a
breach thereof would be incapable of precise estimation, uncertain, and an
insufficient remedy for an actual or threatened breach of Sections 13 or 14
of
this Agreement. The Executive and the Company agree that any pursuit of
equitable relief in respect of Sections 13 or 14 of this Agreement shall have
no
effect whatsoever regarding the continued viability and enforceability of
Section 15 of this Agreement.
(d) Any
waiver or inaction by the Company for any breach of this Agreement shall not
be
deemed a waiver of any subsequent breach of this Agreement.
(e) The
Executive and the Company independently have made all inquiries regarding the
qualifications and business affairs of the other which either party deems
necessary. The Executive affirms that he fully understands this Agreement’s
meaning and legally binding effect. Each party has participated fully and
equally in the negotiation and drafting of this Agreement. Each party assumes
the risk of any misrepresentation or mistaken understanding or belief relied
upon by him or it in entering into this Agreement.
(f) The
Executive’s obligations under this Agreement are personal in nature and may not
be assigned by the Executive to any other person or entity. This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns. The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and agree to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform it if no such
succession had taken place. Failure of the Company to obtain such assumption
and
agreement prior to the effective date of any such succession shall be a breach
of this Agreement and shall entitle the Executive to compensation from the
Company. For purposes of implementing the foregoing, the Date of Termination
as
-12-
defined
in Section 4(d)(iii) shall be considered the date this Agreement was breached
and shall entitle Executive to compensation from the Company. Upon the closing
of the contemplated reverse merger (the “Merger”)
of the
Company with a wholly-owned subsidiary of a public company to be identified
at a
later date (the “PubCo”),
this
Agreement shall be assigned to and assumed by the PubCo concurrently with the
closing of the Merger. As used in this Agreement, "Company" shall mean both
the
Company as defined above and any such successor that assumes and agrees to
perform this Agreement, by operation of law or otherwise.
(g) This
instrument constitutes the entire Agreement between the parties regarding its
subject matter. When signed by all parties, this Agreement supersedes and
nullifies all prior or contemporaneous conversations, negotiations, or
agreements, oral and written, regarding the subject matter of this Agreement.
In
any future construction of this Agreement, this Agreement should be given its
plain meaning. This Agreement may be amended only by a writing signed by the
Company and the Executive.
(h) This
Agreement may be executed in counterparts, a counterpart transmitted via
facsimile, and all executed counterparts, when taken together, shall constitute
sufficient proof of the parties’ entry into this Agreement. The parties agree to
execute any further or future documents which may be necessary to allow the
full
performance of this Agreement. This Agreement contains headings for ease of
reference. The headings have no independent meaning.
(i) THE
EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS
AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
PARTIES.
[Signature
Page Follows]
-13-
IN
WITNESS WHEREOF, the Company and the Executive have executed this Employment
Agreement as of the day and year first above written.
|
Xxxxxx
X. Xxxxxxx
|
Ethanex
Energy North America, Inc.
|
|
/s/
Xxxxxx X. Xxxxxxx
|
By:
Xxxxx
X. Xxxxxxxxx
|
|
Name:
Xxxxx X. Xxxxxxxxx
|
|
|
Title:
President & CEO
|
-14-
Exhibit
A
Annual
Performance Targets
|
1.
|
The
execution of a definitive agreement to site a plant adjacent to an
existing dry corn milling fractionation
plant.
|
|
2.
|
The
execution of a definitive agreement with an EPC to design/build ethanol
plants.
|
|
3.
|
The
execution of an option to purchase the first operating ethanol
plant.
|
|
4.
|
Completion
of project financing sufficient to construct the Company’s first producing
ethanol plant.
|
|
5.
|
Subject
to applicable regulatory, governmental, or third party consents that
may
preclude it, the execution of a definitive agreement to construct
the facility with the NYSE listed utility.
|
-15-
Exhibit
B
July
__,
2006
Xxxxxxxx
Capital Group
000
Xxxxxxx Xxxxxx,
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xx. Xxxx X. Xxxxxxxx
Xx.
Xxxxxxxx:
Reference
is made to that certain Term Sheet (the “Term Sheet”), dated June __, 2006,
relating to a proposed business combination between Public Company, a __________
corporation (the “Company”) and Xxxxxxxxx Power, Inc., a Delaware corporation
(“Xxxxxxxxx”) and a related private placement financing (the “Transactions”). In
connection with the Transactions, the Company and Xxxxxxxxx also entered into
that certain Merger Agreement (the “Merger Agreement”), dated as of June __,
2006, pursuant to which Xxxxxxxxx stockholders received common stock, par value
$0.0001 per share, of the Company (the “Common Stock”) in consideration for
shares of Xxxxxxxxx held by them at the effective time of the merger. In
consideration of the Company and Xxxxxxxxx entering into the Transaction, and
for Xxxxxxxx Capital Group to facilitate the Transactions and for other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agrees as follows:
1. The
undersigned hereby covenants and agrees, except as provided herein, not to
(1)
offer, sell, contract to sell or otherwise dispose of and (2) transfer title
to
(a “Prohibited Sale”) any of the shares (the “Acquired Shares”) of Common Stock
acquired by the undersigned pursuant to or in connection with the Merger
Agreement, during the period commencing on the “Closing Date” (as that term is
defined in the Term Sheet) and ending on the 24-month anniversary of the Closing
Date (the “Lockup Period”), without the prior written consent of the Company and
Xxxxxxxx Capital Group (which consent shall not be unreasonably withheld).
Notwithstanding the foregoing, the undersigned shall be permitted from time
to
time during the Lockup Period, without the prior written consent of the Company
or Xxxxxxxx Capital Group, as applicable, (i) to acquire shares of Common Stock
pursuant to the undersigned’s participation in the Company’s stock option plan,
or (ii) to transfer all or any part of the Acquired Shares to any family member,
for estate planning purposes or to an affiliate thereof (as such term is defined
in Rule 405 under the Securities Exchange Act of 1934, as amended), provided
that such transferee agrees with the Company and Xxxxxxxx Capital Group to
be
bound hereby, and in any transaction in which holders of the Common Stock of
the
Company participate or have the opportunity to participate pro rata, including,
without limitation, a merger, consolidation or binding share exchange involving
the Company, a disposition of the Common Stock in connection with the exercise
of any rights, warrants or other securities distributed to the Company’s
stockholders, or a tender or exchange offer for the Common Stock, and no
transaction contemplated by the foregoing clauses (i) or (ii) shall be deemed
a
Prohibited Sale for purposes of this Letter Agreement.
-16-
2. This
Letter Agreement shall be governed by and construed in accordance with the
laws
of the State of New York, without regard to its conflict of laws
principles.
3. This
Letter Agreement will become a binding agreement among the undersigned as of
the
Closing Date. This Letter Agreement (and the agreements reflected herein) may
be
terminated by the mutual agreement of the Company, Xxxxxxxx Capital Group and
the undersigned, and if not sooner terminated, will terminate upon the
expiration date of the Lockup Period. This Letter Agreement may be duly executed
by facsimile and in any number of counterparts, each of which shall be deemed
an
original, and all of which together shall be deemed to constitute one and the
same instrument. Signature pages from separate identical counterparts may be
combined with the same effect as if the parties signing such signature page
had
signed the same counterpart. This Letter Agreement may be modified or waived
only by a separate writing signed by each of the parties hereto expressly so
modifying or waiving such agreement.
Very
truly yours,
Signature:__________________
Print
Name:________________
Address:
______________________________________
Number
of
shares of Common Stock owned: __________
Certificate
Numbers: _____________________________
-17-
