AMENDED EMPLOYMENT AGREEMENT
This Amended Employment Agreement ("Amendment") is made and entered into as
of June 30, 1998 by and between High Plains Corporation, a Kansas Corporation
("Company") and Xxxxxxx X. Friend ("Employee").
WHEREAS, the parties hereto are the same parties to that certain Employment
Agreement dated April 1, 1995, and both parties wish to amend and modify the
terms of that Employment Agreement as set forth herein.
NOW, THEREFORE, in consideration of the terms, covenants and conditions set
forth herein, the parties agree as follows:
1. Except as otherwise specifically set forth herein, both Company and
Employee each hereby waive all rights and benefits under the Employment
Agreement dated April 1, 1995, as well as under any other employment
agreements between the parties, whether written, oral, or otherwise, and each
specifically releases the other from any other obligations thereunder. Each
party further waives and releases any claims which he might currently have
against the other arising out of the employment, or the modification of that
employment arrangement by this amendment. Employee hereby resigns as
President of Company effective June 30, 1998.
2. Employee will continue to be employed by Company on a non-exclusive basis
commencing July 1, 1998 and continuing through June 30, 2000. During this
period he will be free to obtain other employment, and his only employment
obligations with Company shall be generally to promote the best interests of
Company, and specifically to advise and cooperate with the Company on an as
needed basis at mutually agreeable times, defined to at least include
meetings with Company representatives not more than twice monthly and not
more than two hours in duration. Additionally, for a period of ten years
from the date hereof, Employee will cooperate with Company in any litigation
involving Company, and in which he is either subpoenaed, or requested by
Company to testify.
During the period of this continued employment, Employee shall not become an
employee of (or independent contractor for) any other ethanol manufacturer
within the continental United States. However, Company acknowledges that
Employee may engage in the business of buying and selling ethanol for others
on a brokerage basis during this period, provided that Company shall have a
first right of refusal to supply ethanol to Employee for Employee's needs,
and provided further that Company will also have a first right of refusal on
any ethanol related business opportunities which Employee might procure or
develop. If Company does not exercise its first right of refusal within a
reasonable time after presentation of the proposal, Employee may proceed with
that transaction on an individual basis with no further obligation or duty
therein to Company.
3. Employee may, at his option, continue to serve as an employee director of
the Company, with all the rights and responsibilities of that position, but
acknowledges that he will receive no additional compensation therefor unless
compensation is later paid to other employee directors of Company, or unless
the Board adopts a policy to provide for compensation to other employee
directors. Company does agree to pay reasonable expenses incurred by
Employee for attendance of out of town board meetings.
4. As compensation for this continued employment, Employee shall be paid the
total sum of $600,000 (less taxes and other lawful or agreed deductions),
with $300,000 of that amount payable on June 30, 1998, and the remaining
$300,000 payable ratably on the Company's normal payroll dates over the
twenty-four month term of employment.
During the continued employment, Employee shall continue to receive the
following employment benefits as if he were an employee officer under the
Company's current plans, or as those plans are amended, provided such
amendments apply uniformly throughout the company:
Health and Dental Insurance
Life Insurance
Disability Insurance
401(k) plan
Employee Stock Purchase Plan (continued as a 10 year employee officer)
Upon execution of this amendment, Employee shall pay Company an amount equal
to the cash surrender value of any key man life insurance policies owned by
Company, at which time Company shall assign ownership of said policies to
Employee. Company also grants to Employee the option to purchase the GMC
Suburban vehicle owned by the Company, and which is currently provided to
Employee, for the sum of $29,000, provided that this option is exercised on
the date of the execution of this amendment. Employee may also purchase the
cellular phone and charger/car adapter equipment installed in the Suburban
for the additional sum of $300. If Employee elects not to purchase this
vehicle or phone equipment, the items not purchased and all keys thereto,
shall be delivered to Company immediately. Employee may also keep the same
cellular phone number and account provided that the contract is assigned to
him personally, and Company is no longer responsible therefor.
Employee acknowledges receipt of all amounts and benefits due or accrued from
Company for wages, salary, bonus, vacation, expense reimbursement, or other
compensation or benefit of any kind whatsoever, through June 30, 1998, and
releases Company for any claims therefor. No additional vacation will accrue
during the term of continued employment, and any and all other employment
benefits from Company not specifically set forth herein are specifically
waived by Employee. Employee acknowledges that he has no authority to bind
the corporation to any contracts or agreements as of the date hereof, and
will not purport to commit the Company in any way. Employee will not be
entitled to reimbursement of any further expenses by the corporation unless
specifically provided herein, or approved in writing in advance by an
appropriate corporate officer, or the Company's Board of Directors.
In connection with this continued employment, Employee shall surrender all of
his existing stock options previously issued by the Company. All such
options (except the options described in the following sentence) shall be
reissued by Company to Employee as non-qualified options on terms set forth
in the Company's 1992 Stock Option plan, retaining the same exercise price
and re-load rights (if any) as the previous options, but eligible for
immediate exercise, and with an expiration date of September 30, 2000.
However, the parties agree that in return for Employee's surrender of the
72,000 stock options which he currently holds, and which have an exercise
price of $5.382 and an expiration date of 12/10/2002, Company shall issue
employee 36,000 new non-qualified stock options under the terms of the
Company's 1992 Stock Option Plan, with an exercise price of $2.625, and an
expiration date of 12/10/2001.
5. The letter of recommendation attached hereto as Exhibit A shall be
maintained in Employee's personnel file, and shall constitute the
recommendation letter disseminated by Company regarding Employee for all
future inquiries. The parties specifically agree that Company's employment
file on Employee shall not contain anything derogatory of Employee, and
Employee agrees that he shall not make any negative or derogatory statements
regarding Company, its officers, directors, or employees. Company agrees to
instruct its employees and directors not to make any negative or derogatory
statements regarding Employee, and further agrees to use reasonable efforts
to enforce that instruction. Provided, however, that the foregoing shall not
be construed to prevent full, fair, and complete discussion of grievances and
any future business among the parties, or to inhibit either party or its
representatives from testifying under subpoena or in the context of any
criminal or civil court proceeding.
6. Any press releases announcing Employee's resignation as president, or the
change in Employee's relationship with the Company pursuant to this
amendment, shall be subject to approval by Employee prior to release.
7. All material correspondence directed to Employee and received by Company
during the term of this agreement shall be copied and/or logged and provided
to Employee within a reasonable time after receipt. Regarding phone calls
received by the Company for Employee during the term of this agreement,
Company agrees to ask its staff to respond as set forth in the attached
Exhibit B.
8. All payments to Employee set forth herein (exclusive of employment
benefits) shall continue in the event of the death or disability of Employee,
during the term of this Amended Employment Agreement. All such payments
shall be paid directly to Employee's heirs at law under the same terms and
conditions.
9. This agreement represents the sole agreement of the parties hereto,
incorporating all other agreements, whether written or oral, no modifications
of this agreement shall be effective unless in writing and signed by both
parties, and no other prior agreements between the parties shall be of any
further force or effect.
10. In the event the Company terminates the Employee, whether with or
without cause, then Company agrees that it shall still be obligated to
specifically perform all the terms and conditions herein.
IN WITNESS WHEREOF, the parties have executed this agreement as of the day
and year first written above.
EMPLOYEE: COMPANY:
/s/Xxxxxxx X. Friend HIGH PLAINS CORPORATION
By: /s/Xxxx X. Xxxxx, C.E.O.
Exhibit A
(On Company letterhead)
To: Whom it may concern
Re: Xxxxxxx X. Friend
Employment History
Date: June 18, 1998
Ray Friend was initially employed by our company in June 1985 as
Controller. In April of 1990, he became an officer in our company, being
elected to the positions of Vice President of Finance and Marketing and
Chief Financial Officer of the company. In 1995, Mr. Friend was elected
Executive Vice President and retained his title of Chief Financial
Officer. In April 1997, he was elected President of High Plains
Corporation and in May of 1997 was appointed to the Company's Board of
Directors. In November of 1997, he was elected by shareholders to the Board
for a three year term.
Mr. Friend resigned as President in June of 1998 for personal reasons and
continues as a Director for the company, serving on both the Finance and
Capital Expenditures and the Mergers and Acquisition committees of the
Board.
Mr. Friend was active within the Industry, serving for eleven years on the
Board of The Clean Fuels Development Coalition (CFDC), a national
organization with headquarters in Washington, DC that was formed to promote
the development and use of clean alternative fuel sources. During this time,
he served as Chairman of CFDC for two terms. He has also served as
President of the Kansas Ethanol Association, an organization of ethanol
producers which operate plants in the state of Kansas, for twelve years.
He was part of a three person team that took over management of this publicly
owned company in 1985, when the company was essentially bankrupt, and through
their combined efforts turned the company around, increasing the market
capitalization from $47 thousand to a level as high as $150 million.
Mr. Friend has been a dedicated employee during the thirteen years he has
worked here performing an assortment of duties. We would highly recommend
him to any potential future employer for almost any facet of business
management or marketing.
Sincerely,
/s/Xxxxxx X. Xxxxxxxx
Chairman of the Board
High Plains Corporation
Exhibit B
MEMO RE TELEPHONE REQUESTS
FOR RAY FRIEND
To: High Plains Corporation Office Staff
In the event you receive telephone calls asking to speak with Ray Friend,
please respond as follows:
"Mr. Friend is no longer involved in the daily operations of the Company. I
would be happy to direct your call to the appropriate department. If you
need to speak directly with Mr. Friend, his new phone number is 000-0000."
If further questioned as to Ray's status, refer the calls to Xxxx Xxxxx or
Xxxxx Xxxxxxxx.
Responses by Xxxx and/or Xxxxx will essentially state that "Ray is no longer
officing here. We have retained his services on a consulting basis to assist
with ongoing business. What may I do to help you."
