EXECUTIVE EMPLOYMENT AGREEMENT
PACIFIC ETHANOL, INC.
JOHN T. MILLER
TABLE OF CONTENTS
1. General Duties of Employer and Executive..............................1
2. Compensation and Benefits.............................................2
3. Preservation of Business; Fiduciary Responsibility....................3
5. Termination Other Than by Expiration of the Term......................3
6. Effect of Termination.................................................4
7. Covenants of Confidentiality, Nondisclosure and Noncompetition........7
9. No Violation..........................................................9
10. Return of Employer's Property.........................................9
11. Injunctive Relief.....................................................9
12. Dispute Resolution....................................................9
APPENDIX I - Certain Definitions
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT
(this "AGREEMENT"), is made and
entered into as of June 26, 2006 (the "EFFECTIVE DATE") by and between PACIFIC
ETHANOL, INC., a Delaware corporation ("EMPLOYER"), and JOHN T. MILLER
Employer desires that the Executive enter into an employment
relationship with Employer in order to provide the necessary leadership and
senior management skills that are important to the success of Employer. Employer
believes that obtaining the Executive's services as an employee of Employer and
the benefits of his business experience are of material importance to Employer
and Employer's stockholders.
NOW, THEREFORE, in consideration of Executive's employment by Employer
and the mutual promises and covenants contained herein, the receipt and
sufficiency of which is hereby acknowledged, Employer and Executive intend by
this Agreement to specify the terms and conditions of Executive's employment
relationship with Employer.
1. GENERAL DUTIES OF EMPLOYER AND EXECUTIVE.
1.1 Employer agrees to employ Executive and Executive agrees to accept
employment by Employer and to serve Employer in an executive capacity upon the
terms and conditions set forth herein. Employer hereby employs Executive as the
Chief Operating Officer of Employer as of the Effective Date, reporting to the
Board of Directors of Employer (the "BOARD"). Executive's duties and
responsibilities shall be those normally assumed by the Chief Operating Officer
of a publicly-owned company similarly situated to Employer, as well as such
other or additional duties, as may from time-to-time be assigned to Executive by
the Board. Such other or additional duties shall be consistent with the senior
executive functions referenced above. Executive shall be provided with an office
and the administrative support reasonably necessary to fulfill the
responsibilities assumed by Executive under this Agreement.
1.2 While employed hereunder, Executive shall use his best efforts to
obey the lawful directions of the Board. Executive shall also use his best
efforts to promote the interests of Employer and to maintain and to promote the
reputation of Employer. While employed hereunder, Executive shall devote his
full business time, efforts, skills and attention to the affairs of Employer and
faithfully perform his duties and responsibilities hereunder.
1.3 While this Agreement is in effect, Executive may from time to time
engage in any activities that do not compete directly with Employer, provided
that such activities do not interfere with his performance of his duties.
Executive shall be permitted to (i) invest his personal assets as a passive
investor in such form or manner as Executive may choose in his discretion, (ii)
participate in various charitable efforts, and (iii) serve as a member of the
Board of Directors of other corporations which are not competitors of Employer.
2. COMPENSATION AND BENEFITS.
2.1 As compensation for his services to Employer, Employer shall pay to
Executive an annual base salary of One Hundred Eighty-Five Thousand Dollars
($185,000) during the first 12-month period that this Agreement is in effect,
payable in equal semimonthly payments or in accordance with the Employer's
regular payroll policy for salaried employees (the "SALARY"). Thereafter, or
earlier from time to time in the discretion of the Compensation Committee of the
Board, but not less frequently than annually, the Compensation Committee shall
perform a review of the Executive's Salary based on Executive's performance of
his duties and the Employer's other compensation policies. The Compensation
Committee may, in its sole discretion, increase (but not decrease) the Salary
following such review.
2.2 In addition, Executive shall be entitled to receive a cash bonus
not to exceed fifty percent (50%) of his base salary to be paid based upon
performance criteria to be established by the Board of Directors of Employer on
an annual basis ("INCENTIVE BONUS").
2.3 Upon Executive's furnishing to Employer customary and reasonable
documentary support (such as receipts or paid bills) evidencing costs and
expenses incurred by him in the performance of his services and duties hereunder
(including, without limitation, for gifts, travel and entertainment and cellular
telephone expenses) and containing sufficient information to establish the
amount, date, place and essential character of the expenditure, Executive shall
be reimbursed for such costs and expenses in accordance with Employer's normal
expense reimbursement policy.
2.4 As long as this Agreement is in effect, Executive shall be entitled
to participate in the medical (including hospitalization), dental, life and
disability insurance plans, to the extent offered by Employer, and in amounts
consistent with the Employer's policy, for other senior executive officers of
Employer, with premiums for all such insurance for Executive to be paid by
Employer and all or a portion of the premiums for Executive's dependants to be
paid in accordance with Employer's policy.
2.5 Executive shall have the right to participate in any additional
compensation, benefit, pension, stock option, stock purchase, 401(k) or other
plan or arrangement of Employer now or hereafter existing for the benefit of
other senior executive officers of Employer. Executive's participation in
Employer's stock option plan shall be developed in relative proportion to
Executive's position with Employer.
2.6 Executive shall be entitled to vacation (but in no event less than
three (3) weeks per year), holiday and other paid or unpaid leaves of absence
consistent with Employer's normal policies for other senior executive officers
of Employer or as otherwise approved by the Board. Executive shall be entitled
to accrue vacation time for one year. If he does not take the accrued vacation
during the next year, he shall be paid for the unused vacation at his Salary
rate then in effect.
2.7 Executive shall be entitled to reimbursement for all reasonable
costs, including air travel, car rental and temporary housing, incurred in
connection with commuting from Los Gatos, California to Employer's corporate
headquarters for such period of time as mutually agreed between Executive and
Employer and, in any event, for a period of not less than six (6) months from
the date of this Agreement.
2.8 Executive shall be entitled to reimbursement for all reasonable
relocation costs in connection with his relocation to the city where Employer's
corporate headquarters are located.
2.9 Subject to stockholder approval of Employer's 2006 Stock Incentive
Plan (the "Plan"), Executive shall be issued an aggregate of 54,000 shares of
Employer's common stock pursuant to a restricted stock or restricted stock unit
award under the Plan that will vest as to 13,500 shares immediately and as to an
additional 10,125 shares on each of the first, second, third and fourth
anniversaries of the initial grant. The Plan shall include terms comparable to
those contained in Employer's 2004 Stock Option Plan providing for accelerated
vesting in a Change in Control.
3. PRESERVATION OF BUSINESS; FIDUCIARY RESPONSIBILITY.
Executive shall use his best efforts to preserve the business and
organization of Employer and to preserve the business relations of Employer. So
long as the Executive is employed by Employer, Executive shall observe and
fulfill proper standards of fiduciary responsibility attendant upon his service
The term of this Agreement shall commence on the Effective Date and
shall end on the first (1st) anniversary of the Effective Date; provided,
however, that this Agreement shall automatically renew for successive one (1)
year periods unless, at least 90 days prior to the expiration of the initial
term or any renewal term, either party gives written notice to the other of his
or its intention not to renew.
5. TERMINATION OTHER THAN BY EXPIRATION OF THE TERM.
Employer or Executive may terminate Executive's employment under this
Agreement at any time, but only on the following terms:
5.1 Either Executive or Employer may terminate this Agreement in
accordance with SECTION 4.
5.2 Employer may terminate Executive's employment under this Agreement
at any time for "Due Cause" (as defined in APPENDIX I attached hereto and
incorporated herein by this reference) upon the good faith determination by the
Board that Due Cause exists for the termination of the employment relationship.
5.3 If Executive is incapacitated by accident, sickness or otherwise so
as to render Executive mentally or physically incapable of performing the
services required under SECTION 1 of this Agreement for a period of 180
consecutive days, and the incapacity is confirmed by the written opinion of two
practicing medical doctors licensed by and in good standing in the State of
California (one selected by Employer and one by Executive), upon the expiration
of that period or at any time reasonably thereafter, Employer may terminate
Executive's employment under this Agreement upon giving Executive or his legal
representative written notice at least 30 days prior to the termination date,
subject to the provisions of SECTION 6.2. Executive agrees, after written notice
by the Board, to submit to examinations by the practicing medical doctors. If
the medical doctors do not agree as to whether Executive is disabled, they shall
promptly select a mutually acceptable third practicing medical doctor to further
evaluate Executive, whose conclusion shall be rendered, in writing, within ten
days of his or her selection. The conclusion of the third practicing medical
doctor shall be final and binding on Employer and Executive.
5.4 This Agreement shall terminate immediately upon Executive's death,
subject to the provisions of SECTION 6.2.
5.5 Subject to the provisions of SECTION 6.3, Employer may terminate
Executive's employment under this Agreement at any time for any reason
whatsoever, even without Due Cause, by giving a written notice of termination to
Executive, in which case the employment relationship shall terminate immediately
upon the giving of the notice. If Employer terminates the employment of
Executive other than (i) pursuant to SECTION 4, (ii) pursuant to SECTION 5.2 for
Due Cause, (iii) due to incapacity pursuant to SECTION 5.3 or due to Executive's
death pursuant to SECTION 5.4, or (iv) Executive's resignation (other than for
Good Reason) or retirement, then the action by Employer, unless consented to in
writing by Executive, shall be deemed to be a constructive termination by
Employer of Executive's employment (a "CONSTRUCTIVE TERMINATION"), and, in that
event, Executive shall be entitled to receive the compensation set forth in
5.6 Executive may terminate this Agreement at any time for "Good
Reason" (as defined in APPENDIX I attached hereto and incorporated herein by
this reference) within 30 days after Executive learns of the event or condition
constituting "Good Reason" and, in that event, shall be entitled to receive the
compensation set forth in SECTION 6.3.
5.7 Executive may terminate this Agreement at any time for any reason
whatsoever, even without Good Reason, upon giving Employer written notice at
least 30 days prior to the termination date, and, in that event, Executive shall
be entitled to receive the compensation set forth in SECTION 6.1.
6. EFFECT OF TERMINATION.
6.1 If the employment relationship is terminated (a) by Employer or
Executive upon 90 days' written notice pursuant to SECTION 4, (b) by Employer
for Due Cause pursuant to SECTION 5.2, or (c) by Executive pursuant to SECTION
5.7 or by Executive breaching this Agreement by refusing to continue his
employment and failing to give the requisite 90 days' written notice, all
compensation and benefits shall cease as of the date of termination, other than:
(i) those benefits that are provided by retirement and benefit plans and
programs specifically adopted and approved by Employer for Executive that are
earned and vested by the date of termination; (ii) Executive's pro rata annual
Salary (as in effect as of the date of termination, payable in the manner as
prescribed in the first sentence of SECTION 2.1) through the date of
termination; (iii) any restricted stock awards which have vested as of the date
of termination pursuant to the terms of the agreement granting the awards; and
(iv) accrued vacation as required by California law.
6.2 If Executive's employment relationship is terminated due to
Executive's incapacity pursuant to SECTION 5.3 or due to Executive's death
pursuant to SECTION 5.4, Executive or Executive's estate or legal
representative, will be entitled to (i) those benefits that are provided by
retirement and benefits plans and programs specifically adopted and approved by
Employer for Executive that are earned and vested at the date of termination, a
prorated Incentive Bonus for the fiscal year in which incapacity or death
occurs, and, even though no longer employed by Employer, Executive shall
continue to receive the annual Salary compensation (as in effect as of the date
of termination, payable in the manner as prescribed in the first sentence of
SECTION 2.1) for six (6) months following the date of termination, offset,
however, by any payments received by Executive as a result of any disability
insurance maintained by Employer for Executive's benefit.
6.3 In the event of a termination of this Agreement by Executive for
Good Reason or by Employer pursuant to SECTION 5.5, then Employer shall:
(a) pay to Executive on the date of termination his Salary in
effect as of the date of termination through the end of the month
during which the termination occurs plus credit for any vacation earned
but not taken;
(b) pay to Executive, as severance pay, six (6) months of
Executive's Salary in effect as of the date of termination, with such
amount payable in equal semimonthly payments in accordance with the
Employer's regular payroll policy for salaried employees;
(c) pay to Executive the prorated Incentive Bonus for the
fiscal year during which termination occurs; and
(d) maintain, at Employer's expense, in full force and effect,
for Executive's continued benefit, all medical and life insurance to
which Executive was entitled immediately prior to the date of
termination (or at the election of Executive in the event of a Change
in Control, immediately prior to the date of the Change in Control)
until the earliest of (i) 12 months or (ii) the date or dates that
Executive's continued participation in Employer's medical and/or life
insurance plans, as applicable, is not possible under the terms of the
plans (the earliest of (i) and (ii) is referred to herein as the
"BENEFITS DATE"). If Employer's medical and/or life insurance plans do
not allow Executive's continued participation in the plan or plans,
then Employer will pay to Executive, in monthly installments, from the
date on which Executive's participation in the medical and/or life
insurance, as applicable, is prohibited until the Benefits Date, the
monthly premium or premiums which had been payable by Employer with
respect to Executive for the discontinued medical and/or life
insurance, as applicable.
6.4 Anything in this Agreement to the contrary notwithstanding, if the
Auditors (as defined in APPENDIX I attached hereto and incorporated herein by
this reference) determine that any payment or distribution by Employer to or for
the benefit of Executive, whether paid or payable (or distributed or
distributable) pursuant to the terms of this Agreement or otherwise (a
"PAYMENT"), would be nondeductible by Employer for federal income tax purposes
because of the application of Section 280G of the Code (as defined in APPENDIX I
attached hereto and incorporated herein by this reference), or because of the
application of any federal or state income tax law enacted after the date hereof
which restricts or limits the deductibility of compensation paid to an Executive
(a "SUBSEQUENT LAW"), then the aggregate present value of the amounts payable or
distributable to or for the benefit of Executive pursuant to this Agreement (the
"PAYMENTS") shall be reduced (but not below zero) to the Reduced Amount. For
purposes of this SECTION 6.4, the "REDUCED AMOUNT" shall be an amount which
maximizes the aggregate amount of Payments without causing any Payment to be
nondeductible by Employer because of the application of Subsequent Law, or which
maximizes the aggregate present value of Payments without causing any Payment to
be nondeductible by Employer because of the application of Section 280G of the
Code. For purposes of this Section 6.4, present value shall be determined in
accordance with Section 280G(d)(4) of the Code and Income Tax Regulations
6.5 If the Auditors determine that any Payment would be nondeductible
by Employer because of the application of Section 280G of the Code, or because
of the application of Subsequent Law, then Employer shall promptly give notice
to that effect and a copy of the detailed calculation thereof and of the Reduced
Amount, and Executive may then elect, in his sole discretion, which and how much
of the Payments shall be eliminated or reduced (as long as after the election
the aggregate present value of the Payments equals the Reduced Amount) and shall
advise Employer in writing of his election within 20 days of his receipt of
notice. If no election is made by Executive within such 20 day period, then
Employer may elect which and how much of the Payments shall be eliminated or
reduced (as long as after the election the aggregate present value of Executive
Payments equals the Reduced Amount) and shall notify Executive promptly of the
election. All determinations made by the Auditors under this SECTION 6.5 and
SECTION 6.4 shall be binding upon Employer and Executive and shall be made
within 60 days of Executive's termination of employment. As promptly as
practicable following the determination and the elections hereunder, Employer
shall pay to or distribute to or for the benefit of Executive the amounts then
due to him under this Agreement, as modified by SECTION 6.4 and this SECTION
6.5, and shall promptly pay to or distribute for the benefit of Executive in the
future the amounts that become due to him under this Agreement.
6.6 If the Auditors determine that Payments have been made by Employer
which should not have been made ("OVERPAYMENTS") or that additional Payments
which will not have been made by Employer could be due ("Underpayments"),
consistent in each case with the calculation of the Reduced Amount pursuant to
SECTION 6.4, then the following actions are to be taken: If the Auditors, based
upon the assertion of a deficiency by the Internal Revenue Service against
Employer or Executive which the Auditors believe has a high probability of
success, determine that an Overpayment has been made, the Overpayment shall be
treated for all purposes as a loan to Executive which he shall repay to
Employer, together with interest at the applicable federal rate provided for in
Section 7872(f)(2)(A) of the Code. If the Auditors, based upon controlling
precedent, determine that an Underpayment has occurred, the Underpayment shall
promptly be paid by Employer to or for the benefit of Executive, together with
interest at the applicable federal rate provided for in Section 7872(f)(2)(A) of
6.7 Executive shall not be required to mitigate damages or the amount
of any payment provided for under this Agreement by seeking other employment or
otherwise, nor shall the amount of any payment provided for under this Agreement
be reduced by any compensation earned by Executive as the result of employment
by another Employer after the date of termination, or otherwise.
6.8 Except as expressly provided herein, the provisions of this
Agreement, and any payment or benefit provided for hereunder, shall not reduce
any amounts otherwise payable, or in any way diminish Executive's existing
rights, or rights which would accrue solely as a result of the passage of time,
under any Employer benefit plan, employment agreement or other contract, plan or
6.9 Except as may be required pursuant to SECTION 6.4, the amount of
any payment provided under this Agreement shall not be reduced by reason of any
present value calculation.
6.10 Upon termination of this Agreement, compensation and benefits
shall be paid to the Executive as set forth in the applicable subsection of this
SECTION 6 and restricted stock awards granted to Executive, if any, shall be
governed by the provisions of all restricted stock award agreements between
Employer and Executive. In the event of a termination of this Agreement by
Executive for Good Reason, all other rights and benefits Executive may have
under the employee and/or executive benefit plans and arrangements of Employer
generally shall be determined in accordance with the terms and conditions of
those plans and arrangements.
7. COVENANTS OF CONFIDENTIALITY, NONDISCLOSURE AND NONCOMPETITION.
7.1 During the term of this Agreement, Employer will provide to
Executive certain confidential and proprietary information owned by Employer as
more fully described below. Executive acknowledges that he occupies or will
occupy a position of trust and confidence with Employer, and that Employer would
be irreparably damaged if Executive were to breach the covenants set forth in
this SECTION 7.1. Accordingly, Executive agrees that he will not, without the
prior written consent of Employer, at any time during the term of this Agreement
or any time thereafter, except as may be required by competent legal authority
or as required by Employer to be disclosed in the course of performing
Executive's duties under this Agreement for Employer, use or disclose to any
person, firm or other legal entity, any confidential records, secrets or
information obtained by Executive during his employment hereunder related to
Employer or any parent, subsidiary or affiliated person or entity (collectively,
"CONFIDENTIAL INFORMATION"). Confidential Information shall include, without
limitation, information about Employer's Inventions (as defined in SECTION 8.1),
customer lists and product pricing, data, know-how, formulae, processes, ideas,
past, current and planned product development, market studies, computer software
and programs, database and network technologies, strategic planning and risk
management. Executive acknowledges and agrees that all Confidential Information
of Employer and/or its affiliates will be received in confidence and as a
fiduciary of Employer. Executive will exercise utmost diligence to protect and
guard the Confidential Information.
7.2 Executive agrees that he will not, without the express written
consent of the Board, take with him upon the termination of this Agreement, any
document or paper, or any photocopy or reproduction or duplication thereof,
relating to any Confidential Information.
7.3 For purposes of this SECTION 7, "EMPLOYER" shall include any of
Pacific Ethanol, Inc.'s direct or indirect subsidiaries.
8.1 Any and all inventions, product, discoveries, improvements,
processes, formulae, manufacturing methods or techniques, designs or styles,
software applications or programs (collectively, "INVENTIONS") made, developed
or created by Executive, alone or in conjunction with others, during regular
hours of work or otherwise, during the term of Executive's employment with
Employer and for a period of two years thereafter that may be directly or
indirectly related to the business of, or tests being carried out by, Employer,
or any of its subsidiaries, shall be promptly disclosed by Executive to Employer
and shall be Employer's exclusive property. The following provisions of the
California Labor Code shall supplement this SECTION 8.1:
SECTION 2870 OF THE CALIFORNIA LABOR CODE
Application of Provisions Providing That Employee Shall Assign
or Offer to Assign Rights in Invention to Employer.
(a) Any provision in an employment agreement which
provides that an employee shall assign, or offer to assign,
any of his or her rights in an invention to his or her
employer shall not apply to an invention that the employee
developed entirely on his or her own time without using
employer's equipment, supplies, facilities, or trade secret
information except for those inventions that either:
(1) Relate at the time of conception or
reduction to practice of the invention to employer's
business, or actual or demonstrably anticipated
research or development of employer, or
(2) Result from any work performed by the
employee for employer.
(b) To the extent a provision in an employment
agreement purports to require an employee to assign an
invention otherwise excluded from being required to be
assigned under subdivision (a), the provision is against the
public policy of this state and is unenforceable.
8.2 Executive will, upon Employer's request and without additional
compensation, execute any documents necessary or advisable in the opinion of
Employer's legal counsel to direct the issuance of patents to Employer with
respect to Inventions that are to be Employer's exclusive property under this
SECTION 8 or to vest in Employer title to the Inventions; the expense of
securing any patent, however, shall be borne by Employer.
8.3 Executive will hold for Employer's sole benefit any Invention that
is to be Employer's exclusive property under this SECTION 8 for which no patent
9. NO VIOLATION.
Executive represents that he is not bound by any Agreement with any
former employer or other party that would be violated by Executive's employment
10. RETURN OF EMPLOYER'S PROPERTY.
Upon the termination of this Agreement or whenever requested by
Employer, Executive shall immediately deliver to Employer all property in his
possession or under his control belonging to Employer, in good condition,
ordinary wear and tear excepted.
11. INJUNCTIVE RELIEF.
Executive acknowledges that the breach, or threatened breach, by
Executive of the provisions of this Agreement shall cause irreparable harm to
Employer, which harm cannot be fully redressed by the payment of damages to
Employer. Accordingly, Employer shall be entitled, in addition to any other
right or remedy it may have at law or in equity, to seek an injunction or
restraining Executive from any violation or threatened violation of this
12. DISPUTE RESOLUTION.
Subject to SECTION 11, all claims, disputes and other matters in
controversy ("DISPUTE") arising, directly or indirectly out of or related to
this Agreement, or the breach thereof, whether contractual or noncontractual,
and whether during the term or after the termination of this Agreement, shall be
resolved exclusively according to the procedures set forth in this SECTION 12,
and not through resort to any judicial proceedings.
12.1 Neither party shall commence an arbitration proceeding pursuant to
the provisions of SECTION 12.2 unless that party first gives a written notice (a
"DISPUTE NOTICE") to the other party setting forth the nature of the dispute.
The parties shall attempt in good faith to resolve the dispute by mediation
under the American Arbitration Association Commercial Mediation Rules in effect
on the date of the Dispute Notice. If the parties cannot agree on the selection
of a mediator within 20 days after delivery of the Dispute Notice, the mediator
will be selected by the American Arbitration Association. If the dispute has not
been resolved by mediation within 60 days after delivery of the Dispute Notice,
then the dispute shall be determined by arbitration in accordance with the
12.2 Any dispute that is not settled by mediation as provided in
SECTION 12.1 shall be resolved by arbitration before a single arbitrator
appointed by the American Arbitration Association or its successor in Fresno,
California. The determination of the arbitrator shall be final and absolute. The
arbitrator shall be governed by the duly promulgated rules and regulations of
the American Arbitration Association or its successor then in effect, and the
pertinent provisions of the laws of the State of California relating to
arbitration. The decision of the arbitrator may be entered as a final judgment
in any court of the State of California or elsewhere. The prevailing party in
any such arbitration shall also be entitled to recover reasonable attorneys',
accountants' and experts' fees and costs of suit in addition to any other relief
awarded the prevailing party.
13.1 If any provisions contained in this Agreement is for any reason
held to be totally invalid or unenforceable, such provision will be fully
severable, and in lieu of such invalid or unenforceable provision there will be
added automatically as part of this Agreement a provision as similar in terms as
may be valid and enforceable.
13.2 All notices and other communications required or permitted
hereunder or necessary or convenience in connection herewith shall be in writing
and shall be deemed to have been given when mailed by registered mail or
certified mail, return receipt requested or hand delivered, as follows (provided
that notice of change of address shall be deemed given only when received):
If to Employer: Pacific Ethanol, Inc.
5711 N. West Avenue
Fresno, California 93711
Attention: Compensation Committee
If to Executive: 108 Naramore Lane
Los Gatos, California 95032
or to such other names or addresses as Employer or Executive, as the case may
be, shall designate by notice to the other party hereto in the manner specified
in this SECTION 13.2.
13.3 This Agreement shall be binding upon and inure to the benefit of
Employer, its successors, legal representatives and assigns, and Executive, his
heirs, executors, administrators, representatives, legatees and permitted
assigns. Executive agrees that his rights and obligations hereunder are personal
to him and may not be assigned without the express written consent of Employer.
If Executive should die while any amounts are due to him pursuant to this
Agreement, all such amounts shall be paid to Executive's devisee, legatee or
other designee, or if there be no such designee, to Executive's estate. Employer
will require any successor or assign (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of Employer, by Agreement in form and substance satisfactory to
Executive and his legal counsel, expressly, absolutely and unconditionally to
assume and agree to perform this Agreement in the same manner and to the same
extent that Employer would be required to perform each of them if no such
succession or assignment had taken place. Any failure of Employer to obtain such
Agreement prior to the effectiveness of any such succession or assignment shall
be a material breach of this Agreement and shall entitle Executive to terminate
Executive's employment for Good Reason. As used in this Agreement, "EMPLOYER"
means Pacific Ethanol, Inc. and any successor or assign to its business and/or
assets which executes and delivers the Agreement provided for in this Section or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law. If at any time during the term of this Agreement Executive
is employed by any company a majority of the voting securities of which is then
owned by Employer, "EMPLOYER" as used in this Agreement shall in addition
include that subsidiary company. In that event, Employer agrees that it shall
pay or shall cause the subsidiary company to pay any amounts owed to Executive
pursuant to this Agreement.
13.4 Except as expressly provided in this Section, this Agreement
replaces and merges all previous agreements and discussions relating to the same
or similar subject matters between Executive and Employer with respect to the
subject matter of this Agreement including, without limitation, that certain
Offer Letter dated May 30, 2006 regarding the terms of Executive's employment.
This Agreement may not be modified in any respect by any verbal statement,
representation or agreement made by any employee, officer, or representative of
Employer or by any written agreement unless signed by an officer of Employer who
is expressly authorized by Employer to execute that document.
13.5 The laws of the State of California will govern the
interpretation, validity and effect of this Agreement without regard to
principles of conflicts of law, the place of execution or the place for
performance thereof. Employer and Executive agree that the state and federal
courts situated in Fresno County, California shall have personal jurisdiction
over Employer and Executive to hear all disputes arising under this Agreement.
This Agreement is to be at least partially performed in Fresno County,
California and, as such, Employer and Executive agree that venue shall be proper
with the state or federal courts in Fresno County, California to hear such
13.6 Executive and Employer shall execute and deliver any and all
additional instruments and agreements that may be necessary or proper to carry
out the purposes of this Agreement.
13.7 The descriptive headings of the several sections of this Agreement
are inserted for convenience only and do not constitute a party of this
13.8 This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same Agreement.
13.9 Executive acknowledges that Executive has had the opportunity to
read this Agreement and discuss it with advisors and legal counsel, if Executive
has so chosen. Executive also acknowledges the importance of this Agreement and
that Employer is relying on this Agreement in entering into an employment
relationship with Executive.
(Signature page follows.)
The undersigned, intending to be legally bound, have executed this
Agreement on the date first written above.
EMPLOYER: PACIFIC ETHANOL, INC.
By: /s/ Neil Koehler
Neil Koehler, President and Chief Executive
EXECUTIVE: /s/ John T. Miller
John T. Miller
For purposes of this Agreement, the following additional capitalized
terms shall have the respective definitions set forth below:
AUDITORS. The term "AUDITORS" means Employer's independent registered
public accounting firm.
BENEFIT PLAN. The term "BENEFIT PLAN" means any benefit plan or
arrangement (including, without limitation, Employer's profit sharing or stock
incentive plans, if any, and medical, disability and life insurance plans) in
which Executive is participating (or any other plans providing Executive with
substantially similar benefits).
CHANGE IN CONTROL. A "CHANGE IN CONTROL" of Employer shall be deemed to
have occurred if, in a single transaction or series of related transactions: (i)
any person (as such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934 ("Exchange Act")), or persons acting as a group, other than
a trustee or fiduciary holding securities under an employment benefit program,
is or becomes a "beneficial owner" (as defined in Rule 13-3 under the Exchange
Act), directly or indirectly of securities of Employer representing 51% or more
of the combined voting power of Employer, (ii) there is a merger, consolidation
or other business combination transaction of Employer with or into another
corporation, entity or person, other than a transaction in which the holders of
at least a majority of the shares of voting capital stock of Employer
outstanding immediately prior to such transaction continue to hold (either by
such shares remaining outstanding or by their being converted into shares of
voting capital stock of the surviving entity) a majority of the total voting
power represented by the shares of voting capital stock of Employer (or the
surviving entity) outstanding immediately after such transaction, or (iii) all
or substantially all of Employer's assets are sold.
CODE. The term "CODE" means the Internal Revenue Code of 1986, as
DUE CAUSE. The term "DUE CAUSE" means any of the following events:
(a) any intentional misapplication by Executive of Employer's
funds or other material assets, or any other act of dishonesty
injurious to Employer committed by Executive; or
(b) Executive's conviction of (i) a felony or (ii) a crime
involving moral turpitude; or
(c) Executive's use or possession of any controlled substance
or chronic abuse of alcoholic beverages, which use or possession the
Board reasonably determines renders Executive unfit to serve in his
capacity as a senior executive of Employer; or
(d) Executive's breach, nonperformance or nonobservance of any
of the terms of this Agreement, including but not limited to
Executive's failure to adequately perform his duties or comply with the
reasonable directions of the Board. Notwithstanding anything in the
foregoing subsections (c) or (d) to the contrary, Employer shall not
terminate Executive unless the Board first provides Executive with a
written memorandum describing in detail how his performance hereunder
is not satisfactory and Executive is given a reasonable period of time
(not less than 30 days) to remedy the unsatisfactory performance
related by the Board to Executive in that memorandum. A determination
of whether Executive has satisfactorily remedied the unsatisfactory
performance shall be promptly made by a majority of the disinterested
directors of the Board (or the entire Board, but not including
Executive, if there are no disinterested directors) at the end of the
period provided to Executive for remedy, and their determination shall
GOOD REASON. The term "GOOD REASON" as used in this Agreement shall
mean any of the following which occur without Executive's express written
(a) a general assignment by Employer for the benefit of
creditors or filing by Employer of a voluntary bankruptcy petition or
the filing against Employer of any involuntary bankruptcy which remains
undismissed for thirty days or more or if a trustee, receiver or
liquidator is appointed;
(b) any material changes in Executive's titles, duties or
(c) Executive is not paid the compensation and benefits
required under this Agreement;
PROVIDED, HOWEVER, that any of the foregoing actions shall not
be considered to be Good Reason if the action is undertaken by Employer
as a termination for Due Cause.