EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), dated September 30, 2002, is
made and entered into between Iroquois Bio-Energy Company, LLC ("IBEC") and
Xxxxx Xxxxxx ("Xxxxxx").
WHEREAS, Xxxxxx and IBEC entered into a Consulting Agreement on
February 26, 2002; and
WHEREAS, Section 4 of that Consulting Agreement contained a Full-Time
Employment Option allowing Xxxxxx and IBEC to enter into an employment
relationship upon mutually agreed upon terms; and
WHEREAS, IBEC and Xxxxxx mutually agreed to enter into an employment
relationship in June of 2002, where IBEC employed Xxxxxx as its Project/Plant
Manager for IBEC's Ethanol Plant Project ("Ethanol Plant"); and
WHEREAS, IBEC and Xxxxxx desire to confirm the mutually agreed upon
terms of their employment relationship in writing;
NOW THEREFORE, in consideration of the foregoing and mutual obligations
herein, and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties mutually agree as follows:
Section 1. SCOPE OF WORK.
1.1 Xxxxxx is employed by IBEC to provide services as the
Project/Plant Manager for IBEC's Ethanol Plant. In that
capacity, Xxxxxx shall perform all services, acts or things
necessary to fulfill the duties of a Project/Plant Manager as
determined by IBEC's Board of Directors. Xxxxxx shall have the
full authority and responsibility of a Project/Plant Manager
as defined by IBEC's Board of Directors and consistent with
the policies, procedures and annual and strategic business
plans as adopted by IBEC's Board of Directors.
1.2 Xxxxxx will devote such portion of his time, attention, skill
and energy to the business of IBEC as may be reasonably
required to perform the services contemplated by this
Agreement.
1.3 In order for Xxxxxx to perform the services described in
Section 1.1 above, it may be necessary for IBEC to provide
Xxxxxx with Confidential Information (as defined below)
regarding IBEC's business and products. IBEC will rely heavily
upon Xxxxxx'x integrity and prudent judgment to use this
information only in the best interests of IBEC.
1.4 In rendering services under this Agreement, Xxxxxx shall
conform to high professional standards of work and business
ethics. In no event shall Xxxxxx take any action or accept any
assistance or engage in any activity that would result in any
governmental body, or other person, entity or organization
acquiring any rights of any nature in IBEC's products or
inventions.
Section 2. TERM AND COMPENSATION.
2.1 The term of Xxxxxx'x employment as Project/General Manager as
previously agreed to and described in this Agreement shall be
for two years commencing on June 1, 2002 and ending on June 1,
2004. It is agreed that Xxxxxx will receive a salary review
after one (1) year with performance evaluations occurring
every six (6) months, provided that either party may terminate
the contract upon 30 days' notice with or without cause, but
subject to the severance payment clause described below. This
Agreement and Xxxxxx'x employment with IBEC will automatically
renew on June 1, 2004 and every two years thereafter, unless
either party gives 30 days written notice of termination.
2.2 Xxxxxx shall receive a Base Salary of $94,000 (less applicable
withholdings) to be paid in accordance with IBEC's normal
payroll procedures. This salary will be reviewed after one (1)
year, or by June 1, 2003. If this Agreement is automatically
renewed, Xxxxxx will continue to receive the salary he is
receiving at the time of renewal.
2.3 Xxxxxx is entitled to participate in all employee benefit
plans or programs that IBEC has or may establish for its
employees to the extent Xxxxxx'x position, title, tenure,
salary, age, health and other qualifications make him eligible
to participate in such plans or programs. At a minimum it is
agreed that IBEC provides the following benefits at the time
Xxxxxx commenced full-time employment with IBEC: paid family
medical (with a prescription plan), dental insurance, 1x
annual salary life insurance, and short and long term
disability plans.
2.4 Xxxxxx shall receive two (2) weeks of paid vacation during the
first year of his employment with IBEC; three (3) weeks of
paid vacation during the second through seventh years of
employment; and four (4) weeks thereafter.
2.5 Xxxxxx shall be entitled to ten (10) paid holidays per year in
accordance with IBEC's paid holiday policy. Holidays may be
modified based upon the employee benefits plan.
2.6 Xxxxxx is entitled to Incentive Pay calculated as follows: The
bonus percent of base salary equal to the fiscal year's net
income of the Ethanol Plant, divided by two (2) times Xxxxxx'x
Base Salary. The Incentive Pay is capped at 25% of Xxxxxx'x
Base Salary. It is agreed that the Incentive Pay will be paid
to Xxxxxx
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(less applicable withholdings) within thirty (30) days of the
end of IBEC's fiscal year.
2.7 If IBEC terminates this Agreement, unless it does so on
account of Xxxxxx'x malfeasance or "for cause" as that term is
defined in Section 8.1 of this Agreement, Xxxxxx will be
entitled to a severance payment of four (4) months of his
normal monthly pay and four (4) months of continued benefits.
Section 3. CONFIDENTIAL INFORMATION.
3.1 In performing services under this Agreement, Xxxxxx may be
exposed to and be required to use IBEC's "Confidential
Information" (as defined below). Xxxxxx agrees that he will
not use, directly or indirectly, such Confidential Information
for the benefit of any person, entity or organization other
than IBEC or disclose such Confidential Information without
the express written authorization of an officer of IBEC to do
so, either during or after the term of this Agreement.
3.2 "Confidential Information" means information not generally
known whether presently existing or developed in the future by
IBEC, including, but not limited to, trade secrets about
IBEC's methods, processes, technology, intellectual property
and products, and information related to IBEC's research and
development, manufacturing methods, patents, inventions,
materials or designs, vendor names and information, customer
names and information, and sales and marketing plans. In
addition, all information disclosed to Xxxxxx or to which
Xxxxxx has access or that is generated by Xxxxxx on behalf of
IBEC during the term of this Agreement that Xxxxxx has a
reasonable basis to believe is Confidential Information or
that is treated by IBEC as Confidential Information shall be
presumed to be Confidential Information.
3.3 Upon the termination of this Agreement for any reason, Xxxxxx
shall immediately deliver to IBEC all Confidential
Information, including, but not limited to, trade secrets,
vendor and customer information, plant and product design
information and information related to the management and
operation of IBEC's Ethanol Plant, together with any other
material belonging to IBEC, whether Confidential Information
or not, that is in Xxxxxx'x possession or control.
Section 4. RIGHTS AND DATA.
4.1 All ideas, concepts, drawings, models, designs, methods,
information, works of authorship, documents and tangible items
prepared by Xxxxxx for or submitted to IBEC by Xxxxxx in
connection with the services rendered under this Agreement
shall belong exclusively to IBEC and shall be deemed to be
works made for hire ("Deliverable Items"). To the extent that
any of the Deliverable Items may not, by operation of law, be
works for hire, Xxxxxx hereby assigns to IBEC the ownership of
copyright or patent in the Deliverable Items, and IBEC shall
have the right to obtain and hold in its own name any
trademark, patent or copyright
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registration, and any other registrations and similar
protection that may be available in the Deliverable Items.
Xxxxxx agrees to give IBEC or its designees all assistance
reasonably required to perfect such rights.
4.2 No license or right is granted to Xxxxxx, either expressly or
by implication, estoppel or otherwise, to use, execute,
publish, reproduce, prepare derivative works based upon,
distribute copies, or publicly display the Deliverable Items
either during or after the term of this Agreement.
Section 5. INVENTIONS.
5.1 Xxxxxx agrees that all "Inventions" (as defined below) that
Xxxxxx may conceive or reduce to practice in the performance
of his services for IBEC during the term of this Agreement and
all Inventions that may be conceived or reduced to practice by
Xxxxxx and that are based in whole or part upon Confidential
Information Xxxxxx obtained or conceived as a result of his
performing services for IBEC shall be the exclusive property
of IBEC and are hereby assigned by Xxxxxx without charge to
IBEC.
5.2 "Invention" shall mean any invention, discovery, work of
authorship, modification, improvement, concept or idea,
whether patentable or not, including, but not limited to any
and all intellectual property, products, technologies,
machines, devices, instruments, processes, methods,
techniques, know-how and formulae.
Section 6. NON-COMPETITION AND NON-SOLICITATION.
6.1 During the term of this Agreement and for a period of one (1)
year following its termination, for any reason, Xxxxxx shall
not, directly or indirectly engage in or participate in any
business that (a) competes with IBEC in anyway in any market
that IBEC did or does business in during the term of this
Agreement and specifically, but not limited to, competes with
IBEC in the Ethanol Industry or (b) otherwise conducts any
business activity in the Ethanol Industry.
6.2 Section 6.1 does not prohibit Xxxxxx from owning or purchasing
any corporate securities that are regularly traded on a
recognized stock exchange or over-the-counter market, or from
purchasing and holding less than 10% of the securities of a
privately held company for personal investment purposes.
6.3 During the term of this Agreement and for a period of one (1)
year following its termination, for any reason, Xxxxxx shall
not directly or indirectly solicit, hire, recruit, or
encourage any other employee of IBEC to leave IBEC or work for
any person or entity that is engaged in business in the
Ethanol Industry.
6.4 Xxxxxx agrees and acknowledges, that IBEC's offer of full-time
employment to him was contingent upon him agreeing to be bound
by the provisions in Section 6
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of this Agreement and that this was made clear and agreed upon
in Section 4.1(i) of the February 26, 2002 Consulting
Agreement entered into between Xxxxxx and IBEC.
Section 7. RIGHT TO INJUNCTIVE RELIEF.
7.1 Xxxxxx acknowledges that a breach of any of the terms of
Section 3, 4, 5, or 6 of this Agreement will result in
irreparable harm to IBEC and that a remedy at law for such
breach is inadequate and that IBEC shall therefore be entitled
to any and all equitable relief, including, but not limited
to, injunctive relief and any other remedy allowed by law.
Xxxxxx acknowledges that the constraints within the Sections
of this Agreement are reasonably necessary to protect the
legitimate business interests of IBEC and are reasonable in
scope and duration and are not unduly restrictive.
Section 8. TERMINATION.
8.1 IBEC may terminate Xxxxxx'x employment and this Agreement at
any time "for cause". For purpose of this Agreement "for
cause" is defined as:
(a) Xxxxxx'x material breach of any of his
obligations under this Agreement or his
repeated failure or refusal to perform or
observe his duties, responsibilities or
obligations to IBEC for reasons other than
disability or incapacity;
(b) Any dishonesty or breach of duty of loyalty
by Xxxxxx affecting IBEC or its customers,
vendors or employees;
(c) Xxxxxx'x use of alcohol or other drugs in a
manner that adversely affects the
performance of his duties to IBEC;
(d) Xxxxxx'x conviction of a felony or of any
crime involving misrepresentation, moral
turpitude or fraud; or
(e) Willful or intentional acts by Xxxxxx that
could reasonably be expected to injure the
reputation, business of business
relationships of IBEC.
Section 9. GENERAL PROVISIONS.
9.1 The provisions of Sections 3, 4, 5 and 6 of this Agreement
shall survive the termination of this Agreement and remain in
full force and effect thereafter.
9.2 In the event a court of competent jurisdiction holds any
provision of this Agreement unenforceable, such provision
shall be severed and shall not affect the validity or
enforceability of the remaining provisions.
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9.3 This Agreement constitutes the complete agreement and set
forth the entire understanding and agreement of the parties as
to the subject matter of this Agreement and supersedes all
prior discussions and understandings in respect to the subject
matter of this Agreement, whether written or oral.
9.4 No modification, termination or attempted waiver of this
Agreement, or any provision thereof shall be valid unless in
writing signed by the party against whom the same is sought to
be enforced.
9.5 The waiver by IBEC of a breach of any provision of this
Agreement by Xxxxxx shall not operate as a waiver of any other
or subsequent breach by Consultant.
9.6 This Agreement may not be assigned by either party without the
prior written consent of the other party.
9.7 This Agreement shall be governed by and construed in
accordance with the laws of the State of Indiana.
9.8 Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by
facsimile or by certified/registered mail with return receipt
requested to the addresses set forth below.
If to IBEC: If to Xxxxxx:
0000 X. 000xx Xxx. Xxxxx Xxxxxx
Xxxxxx, XX 00000 000 X. Xxxxx Xx.
Xxxxxxxxxx, XX 00000
9.9 This Agreement may be executed in any number of counterparts
and each fully executed counterpart shall be deemed an
original.
9.10 Xxxxxx and IBEC acknowledge that they enter this Agreement of
their own free will and that they have had ample time and
opportunity to review and consider this Agreement.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first set forth
above.
IROQUIS BIO-ENERGY COMPANY, LLC
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Its President
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XXXXX XXXXXX
/s/ Xxxxx X. Xxxxxx
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