EMPLOYMENT AGREEMENT
Exhibit 99.1
THIS EMPLOYMENT AGREEMENT (“Agreement”) is made and entered into effective as of the 6th day
of March, 2007 (“Effective Date”), by and between First United Ethanol, LLC, a Georgia limited
liability company (“FUEL”) and Xxxxxxxx Xxxx, a resident of the State of North Carolina
(“Executive”).
WHEREAS, the parties acknowledge that FUEL was formed for the purpose of developing a project
to build and operate a 100 million gallon dry mill corn-processing ethanol plant in Xxxxxxxx
County, Georgia near Camilla (the “Business of FUEL”); and
WHEREAS, the parties agree and acknowledge the Business of FUEL is a highly competitive one,
both inside of and outside the state of Georgia; and
WHEREAS, the parties agree and acknowledge FUEL 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 FUEL; and
WHEREAS, Executive agrees and acknowledges that Executive 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 FUEL; and
WHEREAS, the parties further agree and acknowledge that Executive’s position is one of
considerable responsibility and requires considerable experience and requires Executive to develop
and maintain good relationships with FUEL’s: (i) suppliers and potential suppliers, (ii) customers
and potential customers and (iii) employees, and that FUEL will incur substantial time and expense
to replace an employee who has the experience and relationships of Executive; and
WHEREAS, as a condition of employment and continued employment of Executive by FUEL, the
parties mutually agree that confidentiality is required in connection with the Business of FUEL and
in connection with the identity of FUEL’s suppliers and customers, and that accordingly, it is
vital that FUEL be protected from direct or indirect competition from Executive during his
employment and for a reasonable period of time thereafter; and
WHEREAS, FUEL and Executive now desire to provide for the employment of Executive by FUEL,
after the effective date of this Agreement, upon the terms and conditions set forth in this
Agreement.
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, FUEL will employ Executive
and Executive will accept such employment upon the terms and conditions set forth in this
Agreement. Employee shall be the Chief Financial Officer for FUEL and shall report directly to the
Chief Executive Officer. Executive shall devote substantially his entire time and attention to the
Business of FUEL. In so doing, Executive agrees to contribute his best skills and services at all
times for the business and benefit of FUEL. Executive 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 FUEL, Executive 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 as approved by the Chief Executive
Officer, so long as such activities do not interfere with the performance of his duties and
responsibilities hereunder. Executive may participate in other business activities that do not
otherwise interfere with his duties under this Agreement with the prior consent of the Chief
Executive Officer.
2. Term and Termination of Employment. The term of Executive’s employment under this
Agreement shall commence on the Effective Date of this Agreement and shall continue thereafter
until terminated as follows:
a. FUEL may terminate this Agreement without cause by notifying Executive of such termination
at least 90 days in advance of the effective date of such termination. FUEL may terminate this
Agreement for cause at any time without prior notice to Executive.
b. This Agreement shall automatically terminate upon the death or permanent disability (as
determined in good faith by the Board of Directors) of Executive.
c. Executive may terminate this Agreement by notifying the Chief Executive Officer of such
termination at least 90 days in advance of the effective date of such termination. However, in the
event Executive terminates this Agreement prior to one year from the Effective Date, Executive will
be required to repay the total costs to be prorated over 24 months reasonable recruiting costs
incurred by FUEL in recruiting him.
Except as provided herein, all of Executive’s right to compensation and other benefits hereunder
shall terminate upon the date his employment terminates, except: (1) as may be mandated by law with
respect to health insurance or other benefits, and (2) as to accrued and unpaid vacation benefits.
3. Position and Duties. Executive shall be appointed as the Chief Financial Officer of
FUEL and shall have the authority, duties, and responsibilities commensurate and
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consistent with such position and title and as designated by the Chief Executive Officer from time
to time, including, without limitation, (a) budgeting, managing and controlling regional,
departmental or office-specific expenditures, as applicable; (b) planning, developing and
participating in the implementation strategy for so as to meet such performance plans, budgets and
timescales as may be adopted by the Board or the Chief Executive Officer; (c) establishing and
maintaining appropriate systems for measuring key aspects of the business; and (d) monitoring,
measuring and reporting on operational issues; and (e) preparing year end financials and
interfacing, with auditors, (f) main with the companies lenders. Executive will report to
the Chief Executive Officer and perform such other duties and responsibilities as the Chief
Executive Officer shall assign to him from time to time consistent with his position. All
accounting staff and other functions as assigned report directly to Executive, unless the Board of
Directors concludes in good faith that a direct reporting relationship to the Board of Directors
with respect to any staff or function is required by applicable law or written policies of FUEL, or
is reasonably necessary to fulfill its fiduciary obligations to FUEL.
4. Compensation.
a. Base Salary. For all services rendered by Executive to FUEL hereunder, Executive
shall be paid an annual base salary of One Hundred Fifteen Thousand Dollars ($115,000.00), which
base salary payments shall be paid in accordance with FUEL’s payroll policies and procedures as
established from time to time. During each year after the first year of Executive’s employment
hereunder, the Chief Executive Officer, will conduct an annual performance review of Executive and
thereafter, but within the parameters set by the Compensation Committee (the Committee) of the
Board of Directors, establish Executive’s base salary for the upcoming year.
b. Annual Performance Bonus. Beginning one year from the Effective Date of this
Agreement, for each full or partial fiscal year Executive is employed by FUEL hereunder, Executive
shall be eligible for a performance bonus. Such bonus shall be up to 20% of Executive’s annual
base salary for such fiscal year, and will be based upon achievement of certain profitability and
operational efficiencies relative to the industry and such other criteria that the Committee may,
from time to time, determine. Achievement by Executive of the objectives for each fiscal year will
be determined in good faith by the Chief Executive Officer, as applicable, in its sole discretion,
within 60 days after the end of each year; and the annual performance bonus will be paid in a lump
sum promptly following such determination.
c. Nonqualified Option. Beginning at the close of FUEL’s federally registered
offering of Membership Units on Form SB-2 (the “Offering”), Executive shall be granted an option to
purchase up to 1/4 of 1% of the then-outstanding Membership Units in FUEL at a purchase price of
$1,000 per unit. The complete terms and conditions of such options will be as set forth in a
membership unit option plan (the “Option Plan”) and accompanying agreement (the “Option Agreement”)
to be prepared and entered into between FUEL and Executive and approved by the Board of Directors,
but will
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include among other things a requirement that Executive agree to be bound by the terms and
restrictions contained in the FUEL Operating Agreement as it may be amended from time to time.
In addition, the Option Plan and Option Agreement will allow Executive’s rights to exercise such
options to vest in accordance with the following schedule:
Calendar year 2007
|
0% | |
Calendar year 2008
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8% on the last day of each calendar quarter | |
Calendar year 2009
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8% on the last day of each calendar quarter | |
Calendar Year 2010
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8% on the last day of each of the first three calendar quarters, and 12% vesting in the 4th quarter. |
In the event of a “change of control” in FUEL prior to year 4, rights to exercise such option shall
immediately become fully vested. The option will expire as to both vested and unvested portions of
the option upon the earlier of Executive’s Termination under paragraph 2 of this Agreement or 10
years following the close of the Offering. The terms of the Option Plan and Option Agreement will
control over this Section 4(c). The parties will cooperate in good faith to finalize an Option
Plan and Option Agreement as soon as reasonably possible. For purposes of this Agreement, a
“change of control” in FUEL shall be deemed to have occurred upon (a) any merger, consolidation or
other similar transaction in which FUEL is not the surviving entity or resulting in any one person
or entity and its affiliates, in the aggregate, owning a majority of the then-outstanding
Membership Units; or (b) upon the sale of all or substantially all of the assets or business of
FUEL.
d. Employee Benefits. While Executive is employed by FUEL hereunder, Executive will
be entitled to participate in all employee benefit plans and programs of FUEL, including without
limitation, a 401(k) plan, and medical, life, and disability insurance plans, to the extent FUEL
offers such plans to its executive officers, in its sole discretion, and to the extent that
Executive meets the eligibility requirements of each individual plan or program as generally
applicable to other executive officers of FUEL; provided, however, that except as herein otherwise
provided FUEL provides no assurance as to the adoption or continuance of any particular employee
benefit plan or program and Executive’s participation in such plan or program is subject to the
provisions, rules and regulations generally applicable to other executive officers of FUEL.
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e. Expenses. While Executive is employed by FUEL hereunder, FUEL will reimburse
Executive for reasonable and necessary out-of-pocket business, travel and entertainment expenses
incurred by him in the performance of his duties and responsibilities hereunder, subject to FUEL’s
policies and procedures for expense verification and documentation in effect from time to time.
f. Relocation. Executive’s employment hereunder will be based at FUEL’s corporate
headquarters, to be located in Xxxxxxxx County, Georgia. FUEL will pay up to $10,000 of
Executive’s relocation expenses.
g. Vacation. While Executive is employed by FUEL hereunder, Executive shall be
entitled to paid vacation time off in accordance with the vacation policies of FUEL as are in
effect from time to time, provided that Executive shall be entitled to at least 1 week paid
vacation per calendar year.
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 FUEL and
is not generally known by or available to the competitors of FUEL, including, but not limited to,
(a) future business plans, licensing strategies, and advertising campaigns; (b) information
regarding executives and employees; (c) the terms and conditions hereof; (c) any data or
information defined herein as a Trade Secret, but which is not a “trade secret” under applicable
law; (d) designs, processes, formulae, plans, devices or material (whether or not patented or
patentable) directly or indirectly useful in any aspect of the business of FUEL; (e) any customer
of supplier lists of FUEL including special terms with suppliers or customers or any other
information relative to any past, present or prospective customers; (f) any confidential,
proprietary or secret development or research work of FUEL; (g) any strategic or other business,
marketing or sales plans of FUEL; (h) the content of all manuals, memoranda, production statements,
sales records, business methods, systems and forms, production records, billing rates, cost rates,
employee salaries and work histories, mailing lists, processes, inventions, formulas, job
production and cost records; and (vii) any other confidential or proprietary information or secret
aspects of the business of FUEL; (2) “Trade Secrets” shall mean the 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 FUEL) 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 twelve (12) month period following any
expiration or termination of this Agreement; and (4) “Competitive Business” shall mean any business
engaged in the production, marketing or sale of ethanol or other biofuels or otherwise conducts the
Business of FUEL.
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b. Executive 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, Executive will not, other than as necessary or
appropriate in connection with his provision of services to FUEL hereunder or in the conduct of the
business of FUEL, 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 Executive 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. Executive shall immediately notify FUEL of any intended or unintended, unauthorized
disclosure or use of any Trade Secrets or Confidential Information by Executive or any other person
or entity of which Executive becomes aware. Executive shall cooperate fully with FUEL in the
procurement of any protection of FUEL’s rights to or in any of the Trade Secrets or Confidential
Information.
Executive acknowledges that the above-described Confidential Information and Trade Secrets
constitute unique and valuable assets of FUEL and represent a substantial investment of time and
expense by FUEL and that any disclosure or other use of such Confidential Information or Trade
Secrets other than for the sole benefit of FUEL would be wrongful and would cause irreparable harm
to FUEL. During the term of Executive’s employment with FUEL, Executive 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 FUEL, other than as a direct or indirect result of the breach of this Agreement by Executive,
(ii) is independently made available to Executive in good faith by a third party who has not
violated a confidential relationship with FUEL, or (iii) is required to be disclosed by legal
process.
6. Ventures. If during the term of Executive’s employment with FUEL, Executive is engaged
in or associated with the planning or implementing of any project, program or venture involving
FUEL and a third party or parties, all rights in such project, program or venture shall belong to
FUEL. Except as approved in writing by the Board of Directors, Executive 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 Executive by FUEL
as provided herein. Executive shall xxxx no interest, direct or indirect, in any customer or
supplier that conducts business with FUEL, 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
FUEL.
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7. Intellectual Property Rights. Executive 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 FUEL which have been invented, discovered, conceived developed created or learned by Executive
in connection with (i) the performance of his services hereunder or (ii) the use of FUEL’s
resources (collectively, “Work Product”) will be at once fully disclosed by Executive to FUEL,
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 FUEL. Executive hereby
unconditionally and irrevocably transfers and assigns to FUEL all rights, title and interest
Executive 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. Executive agrees to execute and deliver to FUEL any transfers,
assignments, documents or other instruments which FUEL may deem necessary or appropriate to vest
complete title and ownership of any Work Product, and all rights therein, exclusively in FUEL.
8. Covenant Not to Compete. The parties recognize that Executive will be entrusted with
all aspects of the Business of FUEL in his role as Chief Financial Officer, and that the following
restrictions are reasonable based upon the extensive trust placed in Executive in his position with
FUEL. During the Non-competition Period, Executive 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
Executive 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.
| The geographical area in which the foregoing prohibition shall apply shall be limited to that area which is within a 200 mile radius of FUEL’s facilities in Xxxxxxxx County, Georgia (the “ Restricted Territory”). |
9. Covenant Not To Solicit. Executive 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 FUEL’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, FUEL (a “Restricted
Person”) to provide similar services or enter into similar arrangements with any Competitive
Business in the Restricted Territory or solicit, entice,
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divert, appropriate, contact or request any Restricted Person to curtail or cancel its business
with FUEL; or
b. solicit, recruit or attempt to solicit or hire away any employee, consultant, contractor or
other personnel of FUEL or solicit or induce any such Person to terminate or otherwise diminish in
any respect his, her or its relationship with FUEL 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 FUEL.
10. Enforcement. The necessity of protection against competition from Executive 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 Executive’s continued employment by FUEL
under the terms of this Agreement) has been received by Executive for such obligations, and that
these obligations (including specifically the obligations of Executive under Sections 8 and 9 of
this Agreement, which the parties expressly agree survive the termination of this Agreement) do not
prevent Executive from earning a livelihood. If, however, any court determines that any of the
restrictions imposed on Executive 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.
Executive agrees that in the event of a breach or violation or attempted breach or violation of any
or all of the Sections 8 and 9 above, said provisions will cause irreparable harm to FUEL and for
that reason Executive further agrees that FUEL 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 Executive, his employer, employees, partners, or agents.
Executive further agrees to pay FUEL’s reasonable costs and expenses, including reasonable
attorney fees, if FUEL brings an action and substantially prevails for breach of this Agreement by
Executive. FUEL agrees to pay Executive’s reasonable costs and expenses, including reasonable
attorney fees, if FUEL brings an action for breach of this Agreement by Executive, and Executive
substantially prevails.
11. Acknowledgments. Executive hereby acknowledges and agrees that during the Term (i)
Executive will frequently be exposed to certain Trade Secrets and Confidential Information; (ii)
Executive’s responsibilities on behalf of FUEL will extend throughout the United States (and to all
geographical areas of the Restricted Territory); (iii) Executive may, either personally or through
FUEL employees, be overseeing, developing, acquiring and negotiating on behalf of FUEL for
expansion of FUEL’s business and facilities and will have knowledge of all such additions and
expansions of
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FUEL’s facilities; (iv) Executive will, either personally or through FUEL employees, have
responsibility in recruiting and retaining employees and Restricted Persons on behalf of FUEL,
which will generate goodwill for FUEL with respect to such employees and Restricted Persons; and
(v) any breach of Section 5, 6 or 7 on Executive’s part, or any breach of Section 8 or 9 on
Executive’s part in the Restricted Territory for a reasonable period thereafter, would necessarily
involve Executive’s use of FUEL’s Trade Secrets and Confidential Information and would unfairly
threaten FUEL’s legitimate business interests, including its substantial investment in the
proprietary aspects of its business and its associated goodwill. Moreover, Executive acknowledges
that, in the event of the termination of this Agreement, Executive 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 8 or 9. Therefore, Executive acknowledges and agrees that the
covenants set forth in Sections 5 through 9 are necessary to protect FUEL’s legitimate business
interests and are reasonable in their scope, duration and geographic breadth in light of FUEL’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 Georgia.
13. Counterparts. 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 Executive, to his last known address on
the payroll records of FUEL, and, in the case of FUEL to:
First United Ethanol, LLC
0 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
0 Xxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
16. Binding Effect. This Agreement shall be 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 FUEL
to a successor of FUEL which conducts FUEL’s ethanol production and management business activities,
for which the consent of the Executive shall not be required). Nothing in this Agreement, express
or implied, is intended to confer upon any other person any rights or remedies under or by reason
of this Agreement.
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18. 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.
19. 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.
20. Captions. The captions herein are inserted for the convenience of reference only and
shall be ignored in the construction or interpretation hereof.
21. 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.
22. 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.
23. 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.
24. Receipt and Understanding. By signing this Agreement, Executive acknowledges that
Executive 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.
| FIRST UNITED ETHANOL, LLC: | EXECUTIVE: | |||||||
By:
|
/s/ Xxxxxxx Xxxxx | /s/ Xxxxxxxx Xxxx | ||||||
| Xxxxxxx Xxxxx | Xxxxxxxx Xxxx | |||||||
| Chief Executive Officer | ||||||||
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