EXHIBIT 10.25
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is entered into between Xxxxxx X. Xxxxxxxxx, III
("Executive") and Alon USA GP, Inc., a Delaware corporation ("Employer" or
"Company") on February 5, 2001, who, in return for the mutual promises set forth
herein, agree as follows:
1. POSITION/TERM. (a) The term of the Executive's employment hereunder
shall commence on February 5, 2001 (the "Commencement Date").
(b) Throughout the term of this Agreement, Employer shall employ
Executive and Executive shall render services to Employer in the capacity and
with the title of Vice President of Refining and Transportation, or such other
title as many be established by Employer from time to time. Executive shall
devote his full time and best effort to the successful functioning of the
business of Employer and shall faithfully and industriously perform all duties
pertaining to his position, including such additional duties as may be assigned
from time to time, to the best of Executive's ability, experience and talent.
Executive shall be subject at all times during the term hereof to the direction
and control of Employer in respect of the work to be done.
(c) Executive's employment hereunder shall be for an initial term of
three (3) years from the Commencement Date. Thereafter, the term shall renew
automatically each year for a term of one year, unless either party provides the
other with written notice at least 30 days prior to the expiration of the term.
2. COMPENSATION. (a) Executive's salary ("Base Compensation") shall be
$175,000 per year, payable bi-weekly (unless the payroll practice of the
Company changes to monthly or semi-monthly) in arrears and subject to change
only with the mutual written consent of Employer and Executive. It is the
intent of the Company to develop guidelines for annual merit increases for
salaries of all salaried employees/management, including Executive.
(b) Executive shall be entitled to participate in an annual incentive
bonus program containing the terms and conditions set forth in Exhibit A
attached hereto and incorporated herein which will be subject to modification
from time to time as set forth therein. For purposes of determining the
Executive's Target Bonus Amount under such plan, the Executive shall
participate as a Senior Executive.
(c) Executive shall be entitled to participate in the Alon USA
Operating, Inc. 2000 Stock Option Plan and the Alon Assets, Inc. 2000 Stock
Option Plan pursuant to Incentive Stock Option Agreements attached hereto and
incorporated herein as Exhibit B.
3. FRINGE BENEFITS; REIMBURSEMENT OF EXPENSES. Employer shall make
available, or cause to be made available to Executive, throughout the period of
his employment hereunder, such benefits, including any disability,
hospitalization, medical benefits, retiree health benefits, life insurance,
pension plan or other benefits or policy, as may be put into effect from time
to time by Employer generally for other executives at the
level of Executive. The Company expressly reserves the right to modify such
benefits at any time, subject to the provisions of paragraph 10(b) hereof.
Executive will be reimbursed for all reasonable out-of-pocket business,
business entertainment and travel expenses paid by the Executive, in accordance
with and subject to applicable Company expense incurrence and reimbursement
policies.
4. VACATION. The number of vacation days to which Executive shall be
entitled each year shall be as follows: 20 days for the first 20 years, 25 days
after 20 years and 30 days after 30 years. Unless otherwise agreed, vacation may
not be carried over into a new calendar year. Vacation time shall be taken only
after providing reasonable notice to the person to whom the Executive reports.
5. COMPLIANCE WITH EMPLOYER POLICIES. Executive shall comply with and
abide by all employment policies and directives of Employer. Employer may, in
its sole discretion, change, modify or adopt new policies and directives
affecting Executive's employment. In the event of any conflict between the
terms of this Agreement and Employer's employment policies and directives, the
terms of this Agreement will be controlling.
6. RESTRICTIVE COVENANT
(a) In consideration of the confidential information of Employer
provided to Executive and the other benefits provided to Executive pursuant to
this Agreement, Executive agrees that during the term of Executive's
employment with Employer and for a period of one year following any termination
of Executive's employment, if the Executive terminates employment during the
first two years of Executive's employment, or nine months, if the Executive
terminates employment after the first two years of employment and before the
completion of five years of employment (the "Non-Compete Period"), Executive
will not, without the prior written consent of Employer, directly or
indirectly, either as an individual or as an employee, officer, director,
shareholder, partner, sole proprietor, independent contractor, consultant or
in any other capacity conduct any business, or assist any person in conducting
any business, that is in competition with the business of Employer or its
Affiliates (as defined below).
(b) In addition to any other covenants or agreements to which
Executive may be subject, during the Non-Compete Period, Executive will not,
directly or indirectly, either as an individual or as an employee, officer,
director, shareholder, partner, sole proprietor, independent contractor,
consultant or in any other capacity whatsoever approach or solicit any customer
or vendor of Employer for the purpose of causing, directly or indirectly, any
such customer or vendor to cease doing business with Employer or its Affiliates.
For the purposes of this Agreement, the "business of Employer or its
Affiliates" means the business of refining petroleum distillates and the
wholesale distribution of such products in the Territory. The term "Affiliates"
means all subsidiaries of Employer and each person or entity that controls, is
controlled by, or is under common control with Employer. The
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"Territory" means the states of Texas, New Mexico, Arizona, Arkansas, Louisiana
and Oklahoma. It is understood and agreed that the scope of each of the
covenants contained in this Section 6 is reasonable as to time, area, and
persons and is necessary to protect the legitimate business interest of
Employer. It is further agreed that such covenants will be regarded as
divisible and will be operative as to time, area and persons to the extent that
they may be so operative. The terms of this Section 6 shall not apply to the
ownership by Executive of less than 5% of a class of equity securities of an
entity, which securities are publicly traded on the New York Stock Exchange,
the American Stock Exchange, or the National Market System of the National
Association of Securities Dealers Automated Quotation System. The provisions of
this Section 6 will survive any termination or expiration of this Agreement.
7. CONFIDENTIALITY. (a) Executive recognizes that during the course of
employment, Executive will be exposed to information or ideas of a confidential
or proprietary nature which pertain to Employer's business, financial, legal,
marketing, administrative, personnel, technical or other functions or which
constitute trade secrets (including, but not limited to, specifications,
designs, plans, drawings, software, data, prototypes, the identity of sources
and markets, marketing information and strategies; business and financial plans
and strategies, methods of doing business; data processing and management
information and technical systems, programs and practices; customers and users
and their needs, sales history; and financial strength), and such information
of third parties which has been provided to Employer in confidence
("Confidential Information"). All such information is deemed "confidential" or
"proprietary" whether or not it is so marked, provided that it is maintained as
confidential by the Company. Information will not be considered to be
Confidential Information to the extent that it is generally available to the
public. Nothing in this Section 7 will prohibit the use or disclosure by
Executive of knowledge that is in general use in the industry or general
business knowledge.
(b) Executive shall hold Confidential Information in confidence, use
it only in connection with the performance of duties on behalf of Employer, and
restrict its disclosure to those directors, employees or independent
contractors of Employer having a need to know.
(c) Executive shall not disclose, copy or use Confidential
Information for the benefit of anyone other than Employer without Employer's
prior written consent.
(d) Executive shall, upon Employer's request or Executive's
termination of employment, return to Employer any and all written documents
containing Confidential Information in Executive's possession, custody or
control.
8. NON-INTERFERENCE WITH EMPLOYMENT RELATIONSHIPS. During Executive's
employment with Employer, and for a period of one (1) year thereafter, Executive
shall not, without Employer's prior written consent, directly or indirectly:
(a) induce or attempt to induce any employee to leave the Employer's employ; or
(b) interfere with or disrupt the Employer's relationship with any of its
employees or independent contractors.
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9. COPYRIGHT, INVENTIONS, PATENTS. Employer shall have all right, title
and interest to all features (including, but not limited to, graphic designs,
copyrights, trademarks and patents) created during the course of or resulting
from Executive's employment with Employer. Executive hereby assigns to Employer
all copyright ownership and rights to any work developed by Executive and
reduced to practice for or on behalf of Employer or which relate to Employer's
business during the course of the employment relationship. At Employer's
expense, Executive shall do all other things including, but not limited to, the
giving of evidence in suits and proceedings, and the furnishing and/or
assigning of all documentation and other materials relative to Employer's
intellectual property rights, necessary or appropriate for Employer to obtain,
maintain, and assert its rights in such work.
10. TERMINATION OF EMPLOYMENT. (a) Employer may terminate Executive's
employment hereunder at any time for Cause. For purposes hereof, Cause shall
mean; (i) conviction of a felony or a misdemeanor where imprisonment is imposed
for more than 30 days; (ii) commission of any act of theft, fraud, dishonesty,
or falsification of any employment or Employer records; (iii) improper
disclosure of Confidential Information, (iv) any intentional action by the
Executive having a material detrimental effect on the Company's reputation or
business; (v) any material breach of this Agreement, which breach is not cured
within ten (10) business days following receipt by Executive of written notice
of such breach; (vi) unlawful appropriation of a corporate opportunity; or
(vii) intentional misconduct in connection with the performance of any of
Executive's duties, including, without limitation, misappropriation of funds or
property of the Company, securing or attempting to secure to the detriment of
the Company any profit in connection with any transaction entered into on
behalf of the Company, any material misrepresentation to the Company, or any
knowing violation of law or regulations to which the Company is subject. Upon
termination of Executive's employment with the Company for Cause, the Company
shall be under no further obligation to Executive, except to pay all earned but
unpaid Base Compensation and all accrued benefits and vacation to the date of
termination (and to the extent required by law).
(b) Employer may terminate Executive's employment hereunder without
Cause, or Executive may terminate his employment hereunder for Good Reason,
upon not less than thirty (30) days prior written notice. In the event of any
such termination, Executive shall be entitled to receive his Base Compensation
through the termination date and any annual bonus entitlement, prorated for the
number of months of employment for the fiscal year in question, all accrued
benefits and vacation to the date of termination (and to the extent required by
law), plus, during the first two years of Executive's employment hereunder, an
additional amount of severance payment equal to one year's Base Compensation as
in effect immediately before any notice of termination, or, after the first two
years of Executive's employment hereunder, an additional amount of severance
payment equal to nine months' Base Compensation as in effect immediately before
any notice of termination. ''Good Reason'' means (i) without the Executive's
prior written consent, the Employer reduces Executive's Base Compensation or
the percentage of Executive' Base Compensation established as Executive's
maximum target bonus percentage for purposes of Employer's annual cash bonus
plan; (ii) any material breach of this Agreement, which breach is not cured
within ten (10) business days following receipt by Employer of written notice
of such breach, (iii) the delivery by Employer of notice pursuant to
Section 1 (c) of this
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Agreement that it does not wish this Agreement to automatically renew for any
subsequent year, and (iv) Executive may submit his resignation at any time
after December 31, 2011, which will be considered to be for Good Reason.
(c) Executive may terminate the employment relationship hereunder with not
less than thirty (30) days prior written notice. Upon any such termination of
Executive's employment, other than for Good Reason, the Company shall be under
no further obligation to Executive, except to pay all earned but unpaid Base
Compensation and all accrued benefits and vacation to the date of termination
(and to the extent required by law), subject to the provisions of any other
agreement to which the Executive and the Company are a party, including but not
limited to any stock option agreement or shareholders agreement.
(d) The provisions of Sections 6, 7, 8 and 9 of this Agreement will
continue in effect notwithstanding any termination of Executive's employment.
11. MEDIATION AND ARBITRATION. (a) Employer and Executive hereby state
their mutual desire for any dispute concerning a legally cognizable claim
arising out of this Agreement or in connection with the employment of Executive
by Employer, including, but not limited to, claims of breach of contract, fraud,
unlawful termination, discrimination, harassment, workers' compensation
retaliation, defamation, tortious infliction of emotional distress, unfair
competition, and conversion ("Legal Dispute"), to be resolved amicably, if
possible, and without the need for litigation.
(b) Based on this mutual desire, in the event a Legal Dispute arises,
the parties shall utilize the following protocol:
(i) The parties shall first submit the Legal Dispute to mediation
under the auspices of the American Arbitration Association ("AAA") and pursuant
to the mediation rules and procedures promulgated by the AAA.
(ii) In the event mediation is unsuccessful in fully resolving the
Legal Dispute, binding arbitration shall be the method of final resolution of
the Legal Dispute. The parties expressly waive their rights to bring action
against one another in a court of law, except as expressly provided in
subsection (d). The parties hereto acknowledge that failure to comply with this
provision shall entitle the non-breaching party not only to damages, but also to
injunctive relief to enjoin the actions of the breaching party. Any Legal
Dispute submitted to Arbitration shall be under the auspices of the AAA and
pursuant to the "National Rules for the Resolution of Employment Disputes," or
any similar identified rules promulgated at such time the Legal Dispute is
submitted for resolution. All mediation and arbitration hearings shall take
place in Dallas, Texas.
(c) Notice of submission of any Legal Dispute to mediation shall be
provided no later than three hundred sixty-five (365) calender days following
the date the submitting party became aware of the conduct constituting the
alleged claims. Failure to do so shall result in the irrevocable waiver of the
claim made in the Legal Dispute.
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(d) Notwithstanding that mediation and arbitration are established
as the exclusive procedures for resolution of any Legal Dispute, (i) either
party may apply to an appropriate judicial or administrative forum for
injunctive relief and (ii) claims by Employer arising in connection with
paragraphs 6, 7, 8 or 9 may be brought in any court of competent jurisdiction.
(e) Each party acknowledges that a remedy at law for any breach or
attempted breach of paragraphs 6, 7, 8 or 9 of this Agreement will be
inadequate, agrees that Employer will be entitled to specific performance and
injunctive and other equitable relief in case of any breach or attempted breach,
and agrees not to use as a defense that any party has an adequate remedy at law.
This Agreement shall be enforceable in a court of equity, or other tribunal with
jurisdiction, by a decree of specific performance, and appropriate injunctive
relief may be applied for and granted in connection herewith. Such remedy shall
not be exclusive and shall be in addition to any other remedies now or hereafter
existing at law or in equity, by statute or otherwise. Except as provided in
subsection (c) no delay or omission in exercising any right or remedy set forth
in this Agreement shall operate as a waiver thereof or of any other right or
remedy and no single or partial exercise thereof shall preclude any other or
further exercise thereof or the exercise of any other right or remedy.
12. ASSIGNMENT. This Agreement shall not be assignable by either party
except that upon any sale or transfer of all or substantially all of its
business by Employer, Employer may assign this Agreement to its successor; any
failure to make such an assignment will be considered to constitute the
termination of Executive's employment without cause effective upon the closing
of the referenced transaction.
13. NO INDUCEMENT, AGREEMENT VOLUNTARY. Executive represents that (a) he
has not been pressured, misled, or induced to enter into this Agreement based
upon any representation by Employer or its agents not contained herein, (b) he
has entered into this Agreement voluntarily, after having the opportunity to
consult with representatives of his own choosing and that (c) his agreement is
freely given.
14. INTERPRETATION. Any paragraph, phrase or other provision of this
Agreement that is determined by a court, arbitrator or arbitration panel of
competent jurisdiction to be unreasonable or in conflict with any applicable
statute or rule, shall be deemed, if possible, to be modified or altered so that
it is not unreasonable or in conflict or, if that is not possible, then it shall
be deemed omitted from this Agreement. The invalidity of any portion of this
Agreement shall not affect the validity of the remaining portions.
15. PRIOR AGREEMENTS SUPERSEDED; AMENDMENTS. This Agreement revokes and
supersedes all prior agreements, written and oral, and represents the entire
agreement between the parties in relation to the employment of the Executive by
the Company after the Commencement Date and shall not be subject to modification
or amendment by any oral representation, or any written statement by either
party, except for a dated writing signed by the Executive and the Employer.
16. NOTICES. All notices, demands and requests of any kind to be delivered
in connection with this Agreement shall be in writing and shall be deemed to
have been duly
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given if personally delivered or if sent by nationally-recognized overnight
courier or by registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) if to the Company, to:
Alon USA GP, Inc.
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telecopy number: (000) 000-0000
(b) if to Executive, to the address of Executive set
forth on the signature page hereto;
or to such other address as the party to whom notice is to be given may have
furnished to the other in writing in accordance with the provisions of this
Section 16. Any such notice or communication shall be deemed to have been
received: (i) in the case of personal delivery, on the date of such delivery;
(ii) in the case of nationally-recognized overnight courier, on the next
business day after the date sent; and (iii) if by registered or certified mail,
on the third business day following the date postmarked.
17. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAW.
EXECUTIVE: EMPLOYER:
ALON USA GP, INC.
/s/ XXXXXX X. XXXXXXXXX, III By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
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Title: President/CEO
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Address for notices:
___________________________________
___________________________________
___________________________________
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AMENDMENT TO EXECUTIVE/MANAGEMENT EMPLOYMENT AGREEMENT
This Amendment is made as of May 1, 2005 by and among Alon USA GP, LLC
("Employer") and Xxxxxx X Xxxxxxxxx III ("Executive").
Whereas, the Employer and Executive entered into that certain
Executive/Management Employment Agreement dated as of February 5, 2001 (the
"Employment Agreement"); and
Whereas, it is necessary to amend the Employment Agreement to extend the term of
the Employment Agreement and provide for additional provisions related to the
title and capacity of the Executive.
Now therefore, the parties agree as follows:
1. In addition to capacity and title set forth in Section 1(b) of the
Employment Agreement, Executive shall serve as Vice President of Refining
and Transportation of Alon USA Energy, Inc., a Delaware corporation, the
indirect parent of the Company.
2. Notwithstanding Section 1(c) of the Employment Agreement, the initial term
of employment shall end on April 30, 2010; thereafter, the term shall
renew automatically as provided in Section 1(c) of the Agreement.
3. Except as set forth in this Amendment, nothing contained herein is
intended to modify or otherwise affect the terms and conditions of the
Employment Agreement which shall remain in full force and effect.
In witness whereof, the parties have caused this Amendment to be executed and
delivered as of the date first written above.
Alon USA GP, LLC
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
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Executive: /s/ XXXXXX X. XXXXXXXXX III
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