EMPLOYMENT AGREEMENT Chief Financial Officer
Exhibit 10.27
EMPLOYMENT AGREEMENT
Chief Financial Officer
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into effective as of the
28th day of April, 2008 (“Effective Date”), by and between E Energy Xxxxx, LLC, a
Nebraska limited liability company (“E ENERGY”) and Xxxxxxxx Xxxxx (“Employee”). Employee’s hire
start date will be determined by E ENERGY and Employee.
WHEREAS, the parties acknowledge that E ENERGY was formed for the purpose of developing a
project to build and operate a 50 million gallon dry mill corn-processing ethanol plant in Gage
County, Nebraska near Adams (the “Business of E ENERGY”); and
WHEREAS, the parties agree and acknowledge the Business of E ENERGY is a highly competitive
one, both inside of and outside the state of Nebraska; and
WHEREAS, the parties agree and acknowledge E ENERGY has, is and will likely continue to
develop valuable confidential techniques and valuable proprietary and confidential information,
forms and methods for use in the Business of E ENERGY; and
WHEREAS, Employee agrees and acknowledges that Employee will have access to said valuable
techniques and employ said valuable proprietary and confidential information, forms and methods in
earning income in the employ of E ENERGY; and
WHEREAS, the parties further agree and acknowledge that Employee’s position is one of
considerable responsibility and requires considerable experience and requires Employee to develop
and maintain good relationships with E ENERGY: (i) suppliers and potential suppliers, (ii)
customers and potential customers and (iii) employees, and that E ENERGY will incur substantial
time and expense to replace an employee who has the experience and relationships of Employee; and
WHEREAS, as a condition of employment and continued employment of Employee by E ENERGY, the
parties mutually agree that confidentiality is required in connection with the Business of E ENERGY
and in connection with the identity of E ENERGY’S suppliers and customers, and that accordingly, it
is vital that E ENERGY be protected from direct or indirect competition from Employee during his
employment and for a reasonable period of time thereafter; and
WHEREAS, E ENERGY and Employee now desire to provide for the employment of Employee by E
ENERGY, after the effective date of this Agreement, upon the terms and conditions set forth in this
Agreement.
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NOW THEREFORE, in consideration of the mutual covenants contained herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
AGREEMENT
1. Employment and Duties. Effective as of the Effective Date, E ENERGY will employ Employee
and Employee will accept such employment upon the terms and conditions set forth in this Agreement.
Employee shall be the Chief Financial Officer for E ENERGY and shall report directly to the CEO and
Board of Directors. Employee shall devote substantially his entire time and attention to the
Business of E ENERGY. In so doing, Employee agrees to contribute his best skills and services at
all times for the business and benefit of E ENERGY. Employee hereby represents and confirms that he
is under no contractual or legal commitment that would prevent him from fulfilling his duties and
responsibilities as set forth in this Agreement. During his employment with E ENERGY, Employee may
participate in charitable activities and personal investment activities to a reasonable extent and
he may serve as a director of business and civic organizations so long as such activities do not
interfere with the performance of his duties and responsibilities hereunder. Employee may
participate in other business activities that do not otherwise interfere with his duties under this
Agreement with the prior consent of the CEO.
2. Term and Termination of Employment. The term of Employee’s employment under this
Agreement shall commence on the Effective Date of this Agreement and shall continue thereafter
until terminated as follows:
a. E ENERGY may terminate this Agreement without cause by notifying Employee of such
termination at least 30 days in advance of the effective date of such termination. E ENERGY may
terminate this Agreement for cause at any time without prior notice to Employee.
b. This Agreement shall automatically terminate upon the death or permanent disability
(as determined in good faith by the Board of Directors) of Employee.
c. Employee may terminate this Agreement by notifying the CEO of such termination at
least 60 days in advance of the effective date of such termination; however, in the event Employee
terminates this Agreement prior to one year from the Effective Date, Employee will be required to
repay all reasonable recruiting costs incurred by E ENERGY in recruiting him.
Except as provided herein, all of Employee’s right to compensation and other benefits hereunder
shall terminate upon the date his employment terminates, except: as may be mandated by law with
respect to health insurance or other benefits.
d. E ENERGY may terminate this Agreement immediately based on Employee’s failure to pass a
post-offer alcohol and drug test, and background checks.
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3. Position and Duties. Employee shall be the Chief Financial Officer of E ENERGY and
shall have the authority, duties, and responsibilities commensurate and consistent with such
position and title as designated by the CEO and the Board of Directors from time to time,
including, within established limitations, (a) budgeting, managing and controlling departmental or
office-specific expenditures, as applicable; (b) planning, developing and implementing strategy for
operational management and development so as to meet such performance plans, budgets and timescales
as may be adopted by the Board; (c) establishing and maintaining appropriate systems for measuring
key aspects of operational management and development; (d) monitoring, measuring and reporting on
operational issues; (e) ensuring compliance with any relevant requirements for quality management,
health and safety, legal stipulations, and general duties of care and (f) seeking and evaluating
business development opportunities including evaluating strategic options, mergers, acquisitions
and other corporate transactions. Employee additionally will be responsible for all such duties as
listed in E ENERGY’S job description for the Chief Financial Officer position.
4. Compensation.
a. Base Salary. For all services rendered by Employee to E ENERGY hereunder,
Employee shall be paid an annual base salary of One Hundred Five Thousand Dollars ($105,000). Base
salary payments shall be paid in accordance with E ENERGY’S payroll policies and procedures as
established from time to time. During each year after the first year of Employee’s employment
hereunder, the CEO and Board of Directions will conduct an annual performance review of Employee
and thereafter establish Employee’s base salary for the upcoming year.
b. Sign-On Bonus. Employee will receive a $3,000 sign-on bonus, to be paid within
two weeks from the Employee’s start date.
c. Annual Performance Bonus. As per E ENERGY’S Employee Bonus Structure, Employee will
be eligible for an annual performance bonus up to and including, but not greater than, 50% of his
base salary at the discretion of the CEO and Board of Directors. Such bonus will be based upon
achievement of certain profitability, operational efficiencies relative to the industry, Employee’s
performance evaluation and such other criteria that the CEO and Board of Directors from time to
time determine in good faith and at their sole discretion. The Employee’s first annual bonus will
be prorated based on length of employment in 2008 (i.e., from start date to December 31, 2008).
d. Employee Benefits. While Employee is employed by E ENERGY hereunder, Employee
will be entitled to participate in all employee benefit plans and programs of E ENERGY, including
without limitations, a 401(K) plan, Section 125 Cafeteria Plan, and medical, dental, life, long
term disability, and disability insurance plans, to the extent E ENERGY offers such plans , in its
sole discretion, and to the extent that Employee meets the eligibility requirements of each
individual plan or program as generally applicable to
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other employees of E ENERGY provided, however, that except as herein otherwise provided E
ENERGY provides no assurance as to the adoption or continuance of any particular employee benefit
plan or program and Employee’s participation in such plan or program is subject to the provisions,
rules and regulations generally applicable to other employees of E ENERGY.
e. Expenses. While Employee is employed by E ENERGY hereunder, E ENERGY will
reimburse Employee for reasonable and necessary out-of-pocket business, travel and educational
expenses incurred by him in the performance of his duties and responsibilities hereunder, subject
to E ENERGY’S policies and procedures for expense verification and documentation in effect from
time to time
f. Relocation Expense. Upon moving family to the local area, Employee will receive
reimbursement for relocation costs as per E ENERGY’S New Hire Relocation Policy.
g. Paid Time Off and Holidays. While Employee is employed by E ENERGY hereunder,
Employee shall be entitled to paid PTO days as follows:
Year 0 (1st year of employment) -10 days per year
Years 1 to 4 of employment — 20 days per year
Years 5 to 14 of employment — 25 days per year
Years 15 + of employment — 30 days per year
Years 1 to 4 of employment — 20 days per year
Years 5 to 14 of employment — 25 days per year
Years 15 + of employment — 30 days per year
PTO is earned and accrued per pay period beginning on the first day of employment. Employee is
eligible to use PTO following completion of his 60-day interim employment period. The PTO policy
is subject to annual review and amendment by the Executive Committee and subject to change.
5. Confidential Information.
a. For purposes of this Agreement, (1) “Confidential Information” shall mean any
information, other than Trade Secrets (as defined herein), that is of tangible or intangible value
to E ENERGY and is not generally known by or available to the competitors of E ENERGY, including,
but not limited to, (a) future business plans, licensing strategies, and advertising campaigns; (b)
information regarding agreements with employees, customers and vendors; (c) the terms and
conditions hereof, (d) any data or information defined herein as a Trade Secret, but which is not a
“trade secret” under applicable law; (e) designs, processes, formulas, plans, devices, or material
(whether or not patented or patentable) directly or indirectly useful in any aspect of the business
of E ENERGY; (f) any customer of supplier lists of E ENERGY including special terms with suppliers
or customers or any other information relative to any past, present or prospective customers: (g)
any confidential, proprietary, or secret development or research work of E ENERGY; (h) any
strategic or other business, marketing, or sales plans of E ENERGY; (i) the content of all manuals,
memoranda, production statements, sales records, business methods, systems and forms, production
records, billing rates, cost
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rates, employee salaries and work histories, mailing lists, processes, inventions, formulas,
job production and cost records; (j) any other confidential or proprietary information or secret
aspects of the business of E ENERGY: (2)”Trade Secrets” shall mean all information, designs,
processes, procedures, formulas or improvements that are valuable and secret (in the sense that
such is not generally known to competitors of E ENERGY) and which fall within the definition of a
“trade secret” under applicable law. For purposes of this Agreement; (3)”Non-Competition Period”
shall mean the term of this Agreement and the twenty-four (24) month period following any
expiration or termination of this Agreement; (4) “Competitive Business” shall mean any business
engaged in the production, marketing or sale of ethanol or other bio-fuels or otherwise conducts
the Business of E ENERGY.
b. Employee hereby covenants and agrees that, as to Confidential
Information, at all times during the Non-Competition Period, and as to Trade Secrets, for
such time as the same shall constitute a ‘trade secret” under applicable law, Employee will not,
other than as necessary or appropriate in connection with his provision of services to E ENERGY
hereunder or in the conduct of the business of E ENERGY, either directly or indirectly, use,
distribute, sell license, transfer, assign, disclose, appropriate or otherwise communicate any
trade secrets or confidential information to any person or entity nor shall employee make use of
any such trade secrets or confidential information for his own purposes in a competitive business
or for the benefit of any other person or entity engaged in a competitive business.
c. Employee shall immediately notify E ENERGY of any intended or
unintended, unauthorized disclosure or use of any Trade Secrets or Confidential Information by
Employee or any other person or entity of which Employee becomes aware. Employee shall cooperate
fully with E ENERGY in the procurement of any protection of E ENERGY’S rights to or in any of the
Trade Secrets of Confidential Information.
Employee acknowledges that the above described confidential information and trade secrets
constitute unique and valuable assets of E ENERGY and represent a substantial investment of time
and expense by E ENERGY and that any disclosure or other use of such confidential information or
trade secrets other than for the sole benefit of E ENERGY would be wrongful and would cause
irreparable harm to E ENERGY. During the term of Employee’s employment with E ENERGY, Employee
shall refrain from any acts or omissions that would reduce the value of such confidential
information or trade secrets. The foregoing obligations of confidentiality shall not apply to any
knowledge or information that (i) is now or subsequently becomes generally publicly known in the
form in which it was obtained from E ENERGY, other than as a direct or indirect result of the
breach of this Agreement by Employee, (ii) is independently made available to Employee in good
faith by a third party who has not violated a confidential relationship with E ENERGY, or (iii) is
required to be disclosed by legal process.
6. Ventures. If during the term of Employee’s employment with E ENERGY, Employee is engaged
in or associated with the planning or implementing of any project, program or
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venture involving E ENERGY and a third party or parties, all rights in such project, program or
venture shall belong to E ENERGY. Except as approved in writing by the Board of Directors, Employee
shall not be entitled to any interest in any such project, program, or venture or to any
commission, finder’s fee or other compensation in connection therewith, other than the compensation
to be paid to Employee by E ENERGY as provided herein. Employee shall have no interest, direct or
indirect, in any customer or supplier that conducts business with E ENERGY, unless such interest
has been disclosed in writing to and approved by the Board of Directors before such customer or
supplier seeks to do business with E ENERGY.
7. Intellectual Property Rights. Employee agrees that any and all work product, property,
data, documentation, concepts, plans, techniques, inventions, improvements, discoveries, formulas,
processes, copyrightable material, know-how and trade secret information relating to the Business
of E ENERGY which have been invented, discovered, conceived developed, created, or learned by
Employee in connection with (i) the performance of his services hereunder or (ii) the use of E
ENERGY’S resources (collectively, “Work Product”) will be at once fully disclosed by Employee to E
ENERGY shall be deemed to be “work made for hire” (as defined in the Copyright Act. 17 U.S.C.A. §
101 et seq., as amended’) and will be the sole and absolute property of E ENERGY. Employee hereby
unconditionally and irrevocably transfers and assigns to E ENERGY all rights, title and interest
Employee currently has or in the future may have, by operation of law or otherwise, in or to any
Work Product, including without limitation, all patents, copyrights, trademarks, service marks and
other intellectual property rights. Employee agrees to execute and deliver to E ENERGY any
transfers, assignments, documents or other instruments which E ENERGY may deem necessary or
appropriate to vest complete title and ownership of any Work Product, and all rights therein,
exclusively in E ENERGY.
8. Covenant not to Compete. The parties recognize that Employee will be entrusted with all
aspects of the Business of E ENERGY in his role as Chief Financial Officer, and that the following
restrictions are reasonable based upon the extensive trust placed in Employee in his position with
E ENERGY. During the Non-competition Period, Employee shall not, in exchange for any financial
consideration or benefit, directly or indirectly, by or for himself or through others as his
affiliates or agents:
a. Own, manage, operate, or control;
b. Participate in the ownership, management, operation or control of; or
c. Be engaged, for compensation or otherwise, as a director, officer, partner, or
consultant for, or be employed in a managerial capacity by any Competitive Business;
provided that Employee may own up to one percent (1%) of any Person whose shares are listed
on a national stock exchange or traded in the over-the-counter market.
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The geographical area in which the foregoing prohibition shall apply shall be limited to that area
which is within a 200 mile radius of E ENERGY’S facilities in Gage County, Nebraska (the
“Restricted Territory”).
9. Covenant Not To Solicit. Employee further agrees during the Non-competition Period that
he shall not, directly or indirectly, either for himself or any other person, firm or corporation,
without E ENERGY’S prior written consent:
a. solicit, raid, entice, induce or contact any person or entity that is an employee
or that has a contractual or business relationship with, or is employed by, E ENERGY (a
“Restricted Person”) to provide similar services or enter into similar arrangements with
any Competitive Business in the Restricted Territory or solicit, entice, divert, appropriate,
contact or request any Restricted Person to curtail or cancel its business with E ENERGY; or
b. solicit, recruit or attempt to solicit or hire away any employee, consultant,
contractor or other personnel of E ENERGY or solicit or induce any such Person to terminate or
otherwise diminish in any respect his, her or its relationship with E ENERGY or employ, engage or
seek to employ or engage any Person who within the twelve (12) months prior to such employment or
engagement had been an employee of E ENERGY.
10. Enforcement. The necessity of protection against competition from Employee and
the nature and scope of such protection has been carefully considered by the parties hereto. The
parties agree and acknowledge that the duration, scope and geographic areas applicable to the
covenants not to compete and not to solicit described in this Agreement are fair, reasonable and
necessary, that adequate compensation (in the form of Employees continued employment by E ENERGY
under the terms of this Agreement) has been received by Employee for such obligations, and that
these obligations (including specifically the obligations of Employee under Sections 9 and 10 of
this Agreement, which the parties expressly agree survive the termination of this Agreement) do not
prevent Employee from earning a livelihood, however, any court determines that any of the
restrictions imposed on Employee under this Agreement are not completely enforceable because they
are not reasonable, the parties hereby give the court the right and power to interpret, alter,
amend, or modify any or all of the terms contained herein to include as much of the scope, time
period and geographic area as will render such restrictions reasonable and enforceable.
Employee agrees that in the event of a breach or violation or attempted breach or violation of any
or all of the Sections 9 and 10 above, said provisions xxxx cause irreparable harm to E ENERGY and
for that reason Employee further agrees that E ENERGY shall be entitled as a matter of right, to
both temporary and permanent injunctive relief from any court of competent jurisdiction, restraining further violation of such
covenants by the Employee, his employer, employees, partners, or agents. Employee further agrees to
pay E ENERGY’S reasonable costs and expenses, including reasonable attorney fees, if E ENERGY
brings an action and substantially prevails for breach of this
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Agreement by Employee. E ENERGY agrees to pay Employee’s reasonable costs and expenses, including
reasonable attorney fees, if E ENERGY brings an action for breach of this Agreement by Employee,
and Employee substantially prevails.
11 Acknowledgments. Employee hereby acknowledges and agrees that during the Term (i)
Employee will frequently be exposed to certain Trade Secrets and Confidential Information; (ii)
Employee’s responsibilities on behalf of E ENERGY will extend throughout the United States (and to
all geographical areas of the Restricted Territory); (iii) Employee may, either personally or
through E ENERGY employees, be overseeing, developing, acquiring and negotiating on behalf of E
ENERGY for expansion of E ENERGY’S business and facilities and will have knowledge of all such
additions and expansions of E ENERGY’S facilities; (iv) Employee will, either personally or through
E ENERGY employees, have responsibility in recruiting and retaining employees and Restricted
Persons on behalf of E ENERGY, which will generate goodwill for E ENERGY with respect to such
employees and Restricted Persons; and (v) any breach of Section 6, 7 or 9 on Employee’s part, or
any breach of Section 9 or on Employee’s part in the Restricted Territory for a reasonable period
thereafter, would necessarily involve Employee’s use of E ENERGY’S Trade Secrets and Confidential
Information and would unfairly threaten E ENERGY’S legitimate business interests, including its
substantial investment in the proprietary aspects of its business and its associated goodwill.
Moreover, Employee acknowledges that, in the event of the termination of this Agreement, Employee
would have sufficient skills to find alternative, commensurate work in his field of expertise that
would not involve a violation of any of the provisions of Section 9 or 10. Therefore, Employee
acknowledges and agrees that the covenants set forth in Sections 6 through 10 are necessary to
protect E ENERGY’S legitimate business interests and are reasonable in their scope, duration and
geographic breadth in light of E ENERGY’S need to protect such interests.
12. Governing Law, This Agreement shall be construed, interpreted and enforced in
accordance with the laws of the State of Nebraska.
13. Counter parts. This Agreement may be executed in one or more counterparts, all of
which, taken together, shall be deemed one and the same Agreement.
14. Further Acts. The parties hereto agree to perform such other acts that may be required
to carry out the terms of this Agreement.
15. Notices. Any and all notices, designations, offers, acceptances, or any other
communication provided for herein shall be given in writing by registered or certified mail,
postage prepaid, which shall be addressed, in the case of Employee, to his last known address on
the payroll records of E ENERGY, and, in the case of E ENERGY to:
E ENERGY XXXXX, LLC
00000 Xxxx Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
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16. Binding Effect. This Agreement shall he binding upon the heirs, successors, legal
representatives and assigns of the parties hereto, all of whom, regardless of the number of
intervening transfers, shall be bound in the same manner as the parties hereto.
17. Assignment; Benefit. This Agreement shall not be assigned by any party hereto except
upon the written consent of the other party (except as to any assignment of this Agreement by E
ENERGY to a successor of E ENERGY which conducts E ENERGY’S ethanol production and management
business activities, for which the consent of the Employee shall not be required). Nothing in this
Agreement, express or imp1ied, is intended to confer upon any other person any rights or remedies
under or by reason of this Agreement.
18. Severance Pay. Employee shall be entitled to receive severance pay if Employee’s
employment is terminated without cause, if Employee declines an offer of a lesser position or if
Employee declines on offer of a lesser salary by E ENERGY by reason of a Change in Control. A
Change in Control for purposes of this Section 18 shall mean a transaction that results in: (1) the
sale, lease, transfer, conveyance or other disposition of all or substantially all of the assets of
E Energy Xxxxx to a single party or alliance other than a majority-owned or wholly-owned subsidiary
of E Energy Xxxxx; or (2) the adoption of a plan of liquidation or dissolution of E Energy Xxxxx;
or (3) the beneficial ownership of more than 50% of the outstanding equity interests of E Energy
Xxxxx by a single party or alliance other than a majority-owned or wholly-owned subsidiary of E
Energy Xxxxx or a parent company created by E Energy Xxxxx.
Upon the occurrence of termination of Employee due to a Change in Control as noted above, E ENERGY
shall pay Employee, as severance pay, a sum equal to six months of Employee’s annual base salary
then in-effect. The severance pay shall be paid in one lump-sum payment within two weeks from the
Employee’s termination date.
Upon the occurrence of Employee declining an offer of a lesser position and/or a lesser salary due
to a Change in Control as noted above, E ENERGY shall pay Employee, as severance pay, a sum equal
to six months of Employee’s annual base salary then in-effect. The severance pay shall be paid in
one lump-sum payment within two weeks from the Employee’s termination date.
19. Legal Fees. In the event either party to this Agreement sues the other party alleging
a violation of any term of this Agreement, the prevailing party shall be entitled to reimbursement
from the non-prevailing party of the actual attorneys’ fees and costs incurred in such suit.
20. Severability. Any term or provision of this Agreement which is invalid or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendered invalid or unenforceable the remaining terms and provisions of
this Agreement, or affecting the validity or unenforceability of any of the terms of this Agreement
in any other jurisdiction.
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21. Captions. The captions herein are inserted for the convenience of reference only and
shall be ignored in the construction or interpretation hereof.
22. Entire Agreement. This Agreement, together with the exhibits, contains the entire
agreement of the parties relating to the subject matter of this Agreement and supersedes all prior
agreements and understandings with respect to such subject matter, and the parties hereto have made
no agreements, representations and warranties relating to the subject matter of this Agreement that
are not set forth herein.
23. Amendment. This Agreement sets forth the entire understanding of the parties and may
not be amended, altered or modified except by written agreement between the parties.
24. Waiver. Any waiver of any of the terms and/or conditions of this Agreement by any party
shall not be construed to be a general waiver of such terms and/or conditions, with or without
notice to the other parties.
25. Receipt and Understanding. By signing this Agreement, Employee acknowledges that
Employee has read all of this Agreement, has asked whatever questions he deems appropriate,
understands this Agreement in full and has received a copy of this Agreement.
IN WITNESS WHEREOF; each party hereto has executed this Agreement effective as of the date
first above written.
| E ENERGY XXXXX, LLC: | EMPLOYEE: | |||||||||
| /s/ Xxxx Xxxxxxxx | /s/ Xxxxxxxx Xxxxx | |||||||||
| Xxxx Xxxxxxxx | Xxxxxxxx Xxxxx | |||||||||
| Chief Executive Officer | Chief Financial Officer | |||||||||
Date:
|
4/29/08
|
Date: | 4/28/2008
|
|||||||
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