December 14, 2006 William G. Langley Pacific Ethanol, Inc. Fresno, CA 93711 Dear Bill:
Exhibit
10.1
December
14, 2006
Xxxxxxx
X. Xxxxxxx
0000
X.
Xxxx Xxxxxx
Xxxxxx,
XX 00000
Dear
Xxxx:
This
letter sets forth the terms and conditions of the separation and consulting
agreement (the “Agreement”)
between Pacific Ethanol, Inc. (the “Company”)
and
you for your transition to retirement.
1. Separation
Date. Your
retirement date and last day of employment shall be December 15, 2006 (the
“Separation
Date”).
2. Accrued
Salary and Vacation Pay.
On the
Separation Date, the Company will pay you all accrued salary and all accrued
and
unused vacation (if any) earned by you through the Separation Date, less
standard payroll deductions and withholdings. You are entitled to these payments
by law.
3. Consulting
Relationship.
As part
of this Agreement, the Company will engage you as a consultant, and you hereby
agree to be engaged as a consultant, under the following terms.
(a) Consulting
Period.
The
consulting relationship shall commence on the first day following the Separation
Date and continue until August 15, 2007 (the “Consulting
Period”).
(b) Consulting
Services. You
agree
that during the Consulting Period, upon the Company’s reasonable request, you
will provide consulting services in any area of your experience or expertise,
including but not limited to:
(i)
assisting in the preparation and filing of the Company’s Annual Report on Form
10-K with the SEC; (ii) assisting in the remediation of any material weaknesses
noted in the Company’s financial statements and SEC filings; and (iii) providing
information about, and assistance on, any and all Company matters or projects
with which you were involved, for which you were responsible, or about which
you
have knowledge (the “Consulting
Duties”).
You
agree to provide such Consulting Duties for up to eighty (80) hours per month
for the first three months of the Consulting Period and up to forty (40)
hours
per month for the remainder of the Consulting Period. You shall exercise
the
highest degree of professionalism and utilize your expertise and creative
talents in performing the Consulting Duties. During the Consulting Period,
you
shall be free to pursue employment or consulting with any third party who,
to
the best of your knowledge, is not competing with, or preparing to compete
with,
the Company. The Company shall not require you to perform the Consulting
Duties
in a manner that would unreasonably interfere with your performance of other
professional, consulting or employment duties that you may be required to
perform.
(c) Consulting
Compensation.
(i) Consulting
Fees. During
the Consulting Period, the Company will pay you consulting fees (the
“Consulting
Fees”)
in
equal monthly payments of fifteen thousand dollars ($15,000.00), beginning
with
the first payroll date after the Effective Date of this Agreement (as defined
in
Section 12 herein) and continuing on a monthly basis through the end of the
Consulting Period.
(ii) Health
Insurance Reimbursement.
To the
extent provided by the federal COBRA law or, if applicable, state insurance
laws, and by the Company’s current group health insurance policies, you will be
eligible to continue your group health insurance benefits at your own expense
following the Separation Date. Later, if you wish, you may be able to convert
to
an individual policy through the provider of the Company’s health insurance. You
will be provided with a separate notice describing your rights and obligations
under the applicable state and/or federal insurance laws. If you enter into
this
Agreement and allow it to become effective, and you timely elect such continued
group health
insurance coverage, the Company will reimburse your health insurance premiums
sufficient to continue your group health insurance coverage at the same level
in
effect as of the Separation Date (including dependent coverage, if any) through
the end of the Consulting Period, unless and until you become eligible for
other
health coverage with another employer which provides coverage for you and
your
family (the “Health
Insurance Reimbursement”).
You
agree to notify the Company in writing immediately upon commencing other
employment that provides health insurance benefits.
(iii) Stock
Options. You
previously were granted an option to purchase up to 425,000
shares
of the Company’s common stock pursuant to the terms of the Company’s 2004 Stock
Option Plan (the “Plan”)
and
your governing stock option agreement (the “Stock
Option Agreement”).
As of
your Separation Date, 170,000 of these options have vested and you may exercise
these vested options (to the extent not already exercised) as set forth in
the
Plan and the Stock Option Agreement. The remaining 255,000 unvested options
shall cease vesting as of the Separation Date; provided, however, that:
(1) If
you
enter into this Agreement and allow it to become effective, then the Company
will accelerate vesting of 42,500 options such that these options shall be
fully
vested and exercisable as of the Effective Date of this Agreement;
and
(2) If
you
enter into this Agreement and allow it to become effective, and if you fully
comply with all of your obligations under this Agreement during the Consulting
Period (including without limitation your obligation to exercise the highest
degree of professionalism and utilize your expertise and creative talents
in
performing the Consulting Duties as set forth in Section 3(b); your obligations
to refrain from competing with the Company during the Consulting Period as
set
forth in Section 3(b); your proprietary information obligations as set forth
in
Section 7; and your nondisparagement obligations as set forth in Section
8),
then the Company will accelerate vesting of an additional 42,500 options
such
that these options shall be fully vested and exercisable as of the last date
of
the Consulting Period (collectively, the “Accelerated
Vesting”).
-2-
The
170,000 options that have vested as of your Separation Date, together with
the
options that may vest in accordance with clause (1) above, shall be exercisable
from the date of vesting through the end of the three-month period initiated
by
the termination of your employment, as provide in Section 8.1 of the Stock
Option Agreement (the “Exercise Termination Date”); provided, however, that if
the Exercise Termination Date would otherwise fall on a date when you would
be
prohibited from trading in the Company’s stock pursuant to the Company’s Xxxxxxx
Xxxxxxx And Other Prohibited Trading Activities Policy, then the Exercise
Termination Date will be extended to the date which is three business days
after
you are again permitted to trade in the Company’s stock. The options that may
vest in accordance with clause (2) above shall be exercisable from the date
of
vesting through December 31, 2007. Except as modified in this Section 3(c)(iii),
your options shall continue to be governed by the terms of the Plan and the
Stock Option Agreement.
(d) Independent
Contractor.
You
acknowledge and agree that during the Consulting Period you will be and act
as
an independent contractor of the Company and not an employee. You further
acknowledge and agree that, during the Consulting Period, other than as
expressly provided herein, you will not be entitled to any of the benefits
that
the Company may make available to its employees, such as group insurance,
workers’ compensation insurance coverage, profit sharing or retirement
benefits.
(e) Taxes
and Withholding.
You are
solely responsible for, and will file, on a timely basis, all tax returns
and
payments required to be filed with, or made to, any federal, state or local
tax
authority with respect to the performance of services and receipt of fees
under
this Agreement. You are solely responsible for, and must maintain adequate
records of, expenses incurred in the course of performing services under
this
Agreement. The Company will not withhold from the Consulting Fees any amount
for
taxes, social security or other payroll deductions. The Company will regularly
report amounts paid to you by filing Form 1099-MISC with the Internal Revenue
Service as required by law. You acknowledge that you will be entirely
responsible for payment of any such taxes, and you hereby indemnify and save
harmless the Company from any liability for any taxes, penalties or interest
that may be assessed by any taxing authority with respect to all compensation
you receive under this Agreement, with the exception of the employer’s share of
social security, if any.
(f) Protection
of Information.
You
agree that, during the Consulting Period and thereafter, you will not, except
for the purposes of performing your Consulting Duties, use or disclose any
confidential or proprietary information or materials of the Company that
you
obtain or develop in the course of performing the Consulting
Duties.
(g) Authority
During Consulting Period.
After
the Separation Date, you will have no authority to bind the Company to any
contractual obligations, whether written, oral or implied. You agree that
after
the Separation Date, you will not represent or purport to represent the Company
in any manner whatsoever to any third party unless authorized to do so in
writing by the Company.
-3-
4. No
Other Compensation or Benefits.
You
acknowledge that, except as expressly provided in this Agreement, you have
not
earned and will not receive from the Company any additional compensation,
severance, or benefits relating to or arising from your employment with the
Company (or the termination thereof), after the Separation Date. You acknowledge
and agree that you are not and shall not be entitled to any severance
compensation or benefits set forth in your Executive Employment Agreement
dated
August 10, 2005 (the “Employment
Agreement”),
including but not limited to any compensation or benefits set forth in Section
6
of the Employment Agreement.
5. Expense
Reimbursement.
You
agree that, within thirty (30) days after the end of the Consulting Period,
you
will submit your final documented expense reimbursement statement reflecting
all
business expenses you incurred through the last day of the Consulting Period,
if
any, for which you seek reimbursement. The Company will reimburse you for
such
expenses pursuant to its regular business practice; provided that you shall
not
incur reimbursable expenses during the Consulting Period without the prior
written consent of the Company. During the Consulting Period, reimbursable
expenses shall include (without limitation) any travel costs (including airfare
and lodging costs) associated with any onsite work in Fresno, Sacramento,
or any
other location reasonably requested by the Company, and costs associated
with
the moving of your household goods from Fresno back to Portland, Oregon (up
to a
maximum of $5,000, which amount may be subject to payroll withholding). However,
you shall not be entitled to receive any temporary living expense reimbursements
after the Separation Date.
6. Return
of Company Property.
Except
for materials which the Company authorizes you in writing to retain for purposes
of performing the Consulting Duties, within ten (10) days after the Separation
Date, you agree to return to the Company all Company documents (and all copies
thereof) and other Company property that, to the best of your knowledge,
is in
your possession or control. You agree that you will make a diligent search
to
locate any such documents, property and information. In addition, if you
have
used any personal computer, server, or e-mail system to receive, store, prepare
or transmit any Company confidential or proprietary data, materials or
information, you agree to immediately provide the Company with a
computer-useable copy of all such information, and once you have done so
you
agree to permanently delete and expunge all Company confidential or proprietary
information and data from those systems; and you agree to provide the Company
access to your system as reasonably requested to verify that the necessary
copying and/or deletion is completed. Your timely return of all such Company
documents and other property is a precondition to your receipt of the Consulting
Fees, Health Insurance Reimbursement, Accelerated Vesting and other rights
and
benefits provided under this Agreement. Notwithstanding the foregoing, the
Company will allow you to keep your Company-issued laptop computer provided
that
on both the Separation Date and the final date of the Consulting Period,
you
return the computer to the Company and allow the Company to remove all
confidential and proprietary Company information contained on it. The Company
also agrees that you may take over the contract for your Blackberry with
Nextel.
7. Proprietary
Information Obligations.
You
acknowledge that during your employment with the Company you had access to
and
obtained proprietary information and trade secrets of the Company. Concurrent
with your signing of this Agreement, and as a condition of your receipt of
the
Consulting Fees and Health Insurance Reimbursement provided hereunder, you
shall
sign and return the Proprietary Information Agreement attached hereto as
Exhibit
A.
-4-
8. Nondisparagement;
Public Announcement.
You
agree
not to disparage the Company or its officers, directors, employees, shareholders
and agents, in any manner likely to be harmful to them or their business,
business reputations or personal reputations; and the Company (through its
officers and directors) agrees not to disparage you in any manner likely
to be
harmful to you or your business, business reputation or personal reputation;
provided that you and the Company may respond accurately and fully to any
inquiry or request for information if required by legal process. In addition,
within four days of the Effective Date of this Agreement, the Company will
publicly announce that you are retiring from the Company but will remain
as a
consultant to the Company for an eight-month period after your separation
to
assist in transitioning your duties. Finally, as part of this Agreement,
the
Company (through its Board Chairman) will provide you with a letter of
reference.
9. No
Voluntary Adverse Action.
You
agree that you will not voluntarily (except in response to legal compulsion)
assist any third party in bringing or pursuing any proposed or pending
litigation, arbitration, administrative claim or other formal proceeding
against
the Company, its parent or subsidiary entities, affiliates, officers, directors,
employees or agents.
10. Cooperation.
You
agree to cooperate fully with any reasonable requests by the Company in
connection with its actual or contemplated defense, prosecution, or
investigation of any claims or demands by or against third parties, or other
matters arising from events, acts, or failures to act that occurred during
the
period of your employment by the Company. Such cooperation includes, without
limitation, making yourself available to the Company upon reasonable notice,
without subpoena, to provide complete, truthful and accurate information
in
witness interviews, depositions and trial testimony. The Company will reimburse
you for reasonable out-of-pocket expenses you incur in connection with any
such
cooperation (excluding forgone wages, salary, or other compensation) and
will
make reasonable efforts to accommodate your scheduling needs. In addition,
you
agree to execute all documents that are reasonably requested (if any) and
necessary to carry out the terms of this Agreement.
11. Release
of Claims.
In
exchange for the consideration under this Agreement to which you would not
otherwise be entitled, including but not limited to the Consulting Fees,
Health
Insurance Reimbursement and Accelerated Vesting, you hereby generally and
completely release the Company and its parent, subsidiary, and affiliated
entities (along with their predecessors and successors) and their directors,
officers, employees, shareholders, partners, agents, attorneys, insurers,
affiliates and assigns, from any and all claims, liabilities and obligations,
both known and unknown, that arise from or are in any way related to events,
acts, conduct, or omissions occurring at any time prior to and including
the
date that you sign this Agreement. This general release includes, but is
not
limited to: (a) all claims arising out of or in any way related to your
employment with the Company or the termination of that employment; (b) all
claims related to your compensation or benefits from the Company, including
salary, bonuses, commissions, vacation pay, expense reimbursements, severance
payments, fringe benefits, stock, stock options, or any other ownership or
equity interests in the Company, with the exception of the Accelerated Vesting
to the extent that such vesting may be claimed to be covered by this release;
(c) all claims for breach of contract, wrongful termination, and breach of
the implied covenant of good faith and fair dealing; (d) all tort claims,
including but not limited to claims for fraud, defamation, emotional distress,
and discharge in violation of public policy; and (e) all federal, state,
and
local statutory claims, including but not limited to claims for discrimination,
harassment, retaliation, attorneys’ fees, or other claims arising under the
federal Civil Rights Act of 1964 (as amended), the federal Americans with
Disabilities Act of 1990 (as amended), the federal Age Discrimination in
Employment Act of 1967 (as amended) (the “ADEA”),
the
California Family Rights Act, the California Labor Code (as amended), and
the
California Fair Employment and Housing Act. Notwithstanding anything in this
paragraph, you are not hereby releasing the Company from any obligation it
may
otherwise have to indemnify you for your acts within the course and scope
of
your employment with the Company (including without limitation the Company’s
obligation to indemnify you pursuant to the terms of that certain
Indemnification Agreement between you and the Company dated as of April 13,
2005), nor from any obligations undertaken by the Company in this Agreement.
You
represent that you have no lawsuits, claims or actions pending in your name,
or
on behalf of any other person or entity, against the Company or any other
person
or entity subject to the release granted in this paragraph.
-5-
12. ADEA
Waiver.
You
hereby acknowledge that you are knowingly and voluntarily waiving and releasing
any rights you may have under the ADEA and that the consideration given for
the
waiver and release in the preceding paragraph is in addition to anything
of
value to which you were already entitled. You further acknowledge that you
have
been advised, as required by the ADEA, that: (a) your waiver and release
do not
apply to any rights or claims that may arise after the date that you sign
this
Agreement; (b) you should consult with an attorney prior to signing this
Agreement (although you may voluntarily decide not to do so); (c) you have
twenty-one (21) days within which to consider this Agreement (although
you may choose voluntarily to sign this Agreement earlier);
(d) you have seven (7) days following the date that you sign this
Agreement to
revoke
this Agreement (in a written revocation received by the Company’s Chief
Executive Officer); and (e) this Agreement will not be effective until the
eighth day after this Agreement has been signed both by you and by the Company
(the “Effective
Date”).
13. Section
1542 Waiver.
In
giving the releases set forth in this Agreement, which include claims which
may
be unknown to you at present, you acknowledge that you have read and understand
Section 1542 of the California Civil Code which reads as follows: “A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her settlement
with
the debtor.”
You
hereby expressly waive and relinquish all rights and benefits under that
section
and any law or legal principle of similar effect in any jurisdiction with
respect to the releases granted herein, including but not limited to the
release
of unknown and unsuspected claims granted in this Agreement.
14. Representations.
You
hereby represent that, except for the payments required by this Agreement,
you
have been paid all compensation owed and for all hours worked, have received
all
the leave and leave benefits and protections for which you are eligible,
pursuant to the Family and Medical Leave Act or otherwise, and have not suffered
any on-the-job injury for which you have not already filed a claim.
-6-
15. Dispute
Resolution.
Your
compliance with your obligations under this Agreement will be monitored by
either the Audit Committee of the Company’s Board of Directors or by the full
Board of Directors. To aid in the rapid and economical resolution of any
disputes which may arise under this Agreement, you and the Company agree
that
any and all claims, disputes or controversies of any nature whatsoever arising
from or regarding the interpretation, performance, negotiation, execution,
enforcement or breach of this Agreement shall be resolved by confidential,
final
and binding arbitration conducted before a single arbitrator with Judicial
Arbitration and Mediation Services, Inc. (“JAMS”) in San Francisco, California,
under JAMS’ then-applicable arbitration rules. The
parties acknowledge that by agreeing to this arbitration procedure, they
waive
the right to resolve any such dispute through a trial by jury, judge or
administrative proceeding. You
will
have the right to be represented by legal counsel at any arbitration proceeding.
The arbitrator shall: (a) have the authority to compel adequate discovery
for
the resolution of the dispute and to award such relief as would otherwise
be
available under applicable law in a court proceeding; and (b) issue a written
statement signed by the arbitrator regarding the disposition of each claim
and
the relief, if any, awarded as to each claim, the reasons for the award,
and the
arbitrator’s essential findings and conclusions on which the award is based. The
Company shall bear the JAMS arbitration fees and administrative costs. Nothing
in this Agreement shall prevent either you or the Company from obtaining
injunctive relief in court to prevent irreparable harm pending the conclusion
of
any such arbitration.
16. Miscellaneous.
This
Agreement, including
Exhibit A, constitutes the complete, final and exclusive embodiment of the
entire agreement between you and the Company with regard to this subject
matter.
It is entered into without reliance on any promise or representation, written
or
oral, other than those expressly contained herein, and it supersedes any
other
such promises, warranties or representations (including but not limited to
any
promises set forth in the Employment Agreement). This Agreement may not be
modified or amended except in a writing signed by both you and a duly authorized
officer of the Company. This Agreement will bind the heirs, personal
representatives, successors and assigns of both you and the Company, and
inure
to the benefit of both you and the Company, their heirs, successors and assigns.
If any provision of this Agreement is determined to be invalid or unenforceable,
in whole or in part, this determination will not affect any other provision
of
this Agreement and the provision in question will be modified by the court
so as
to be rendered enforceable. This Agreement will be deemed to have been entered
into and will be construed and enforced in accordance with the laws of the
State
of California without regard to conflicts of law principles. This Agreement
may
be executed in counterparts, each of which shall be deemed to part of one
original, and facsimile signatures shall be equivalent to original signatures.
Sincerely,
By:
/S/
XXXX XXXXX
Xxxx
Xxxxx
Chairman
of Board of Directors
-7-
Understood
and Agreed:
/S/
XXXXXXX X. XXXXXXX
Xxxxxxx X. Xxxxxxx
Date:
14
December 2006
Exhibit
A
-Proprietary Information and Inventions Agreement
-8-
Exhibit
A
PROPRIETARY
INFORMATION AND INVENTIONS AGREEMENT
In
consideration of my continued consultancy by Pacific Ethanol, Inc.
(“Company”)
as a
consultant, and the compensation paid to me now and during my consultancy
with
the Company, I agree to the terms of this Agreement as follows:
| 1. |
Confidential
Information Protections.
|
1.1 Nondisclosure;
Recognition of Company’s Rights.
At all
times during and after my consultancy, I will hold in confidence and will
not
disclose, use, lecture upon, or publish any of Company’s Confidential
Information (defined below), except as may be required in connection with
my
work for Company, or as expressly authorized by the General Counsel (the
“GC”)
of
Company. I will obtain the GC’s written approval before publishing or submitting
for publication any material (written, oral, or otherwise) that relates
to my
work at Company and/or incorporates any Confidential Information. I hereby
assign to Company any rights I may have or acquire in any and all Confidential
Information and recognize that all Confidential Information shall be the
sole
and exclusive property of Company and its assigns.
1.2 Confidential
Information.
The term
“Confidential
Information”
shall
mean any and all confidential knowledge, data or information related to
Company’s business or its actual or demonstrably anticipated research or
development, including without limitation (a) trade secrets, inventions,
ideas,
processes, computer source and object code, data, formulae, programs, other
works of authorship, know-how, improvements, discoveries, developments,
designs,
and techniques; (b) information regarding products, services, plans for
research
and development, marketing and business plans, budgets, financial statements,
contracts, prices, suppliers, and customers; (c) information regarding
the
skills and compensation of Company’s employees, contractors, and any other
service providers of Company; and (d) the existence of any business discussions,
negotiations, or agreements between Company and any third party.
1.3 Third
Party Information. I
understand that Company has received and in the future will receive from
third
parties confidential or proprietary information (“Third
Party Information”)
subject
to a duty on Company’s part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During and after the term
of my
consultancy, I will hold Third Party Information in strict confidence and
will
not disclose to anyone (other than Company personnel who need to know such
information in connection with their work for Company) or use, Third Party
Information, except in connection with my work for Company or unless expressly
authorized by an officer of Company in writing.
1.4 No
Improper Use of Information of Prior Employers and Others.
I
represent that my consultancy by Company does not and will not breach any
agreement with any former employer, including any noncompete agreement
or any
agreement to keep in confidence or refrain from using information acquired
by me
prior to my consultancy by Company. I further represent that I have not
entered
into, and will not enter into, any agreement, either written or oral, in
conflict with my obligations under this Agreement. During my consultancy
by
Company, I will not improperly make use of, or disclose, any information
or
trade secrets of any former employer or other third party, nor will I bring
onto
the premises of Company or use any unpublished documents or any property
belonging to any former employer or other third party, in violation of
any
lawful agreements with that former employer or third party. I will use
in the
performance of my duties only information that is generally known and used
by
persons with training and experience comparable to my own, is common knowledge
in the industry or otherwise legally in the public domain, or is otherwise
provided or developed by Company.
| 2. |
Inventions.
|
2.1 Inventions
and Intellectual Property Rights. As
used
in this Agreement, the term “Invention”
means
any ideas, concepts, information, materials, processes, data, programs,
know-how, improvements, discoveries, developments, designs, artwork, formulae,
other copyrightable works, and techniques and all Intellectual Property
Rights
in any of the items listed above. The term “Intellectual
Property Rights”
means
all trade secrets, copyrights, trademarks, mask work rights, patents and
other
intellectual property rights recognized by the laws of any jurisdiction
or
country.
2.2 Prior
Inventions.
I have
disclosed on Exhibit
A a
complete list of all Inventions that (a) I have, or I have caused to be,
alone
or jointly with others, conceived, developed, or reduced to practice prior
to
the commencement of my consultancy by Company; (b) in which I have an ownership
interest or which I have a license to use; (c) and that I wish to have
excluded
from the scope of this Agreement (collectively referred to as “Prior
Inventions”).
If no
Prior Inventions are listed in Exhibit
A,
I
warrant that there are no Prior Inventions. I agree that I will not incorporate,
or permit to be incorporated, Prior Inventions in any Company Inventions
(defined below) without Company’s prior written consent. If, in the course of my
consultancy with Company, I incorporate a Prior Invention into a Company
process, machine or other work, I hereby grant Company a non-exclusive,
perpetual, fully-paid and royalty-free, irrevocable and worldwide license,
with
rights to sublicense through multiple levels of sublicensees, to reproduce,
make
derivative works of, distribute, publicly perform, and publicly display
in any
form or medium, whether now known or later developed, make, have made,
use,
sell, import, offer for sale, and exercise any and all present or future
rights
in, such Prior Invention.
1
2.3 Assignment
of Company Inventions.
Inventions assigned to the Company or to a third party as directed by the
Company pursuant to the section titled “Government or Third Party” are referred
to in this Agreement as “Company
Inventions.”
Subject to the section titled “Government or Third Party” and except for
Inventions that I can prove qualify fully under the provisions of California
Labor Code section 2870 and I have set forth in Exhibit
A,
I
hereby assign and agree to assign in the future (when any such Inventions
or
Intellectual Property Rights are first reduced to practice or first fixed
in a
tangible medium, as applicable) to Company all my right, title, and interest
in
and to any and all Inventions (and all Intellectual Property Rights with
respect
thereto) made, conceived, reduced to practice, or learned by me, either
alone or
with others, during the period of my consultancy by Company.
2.4 Obligation
to Keep Company Informed.
During
the period of my consultancy and for one (1) year after my consultancy
ends, I
will promptly and fully disclose to Company in writing (a) all Inventions
authored, conceived, or reduced to practice by me, either alone or with
others,
including any that might be covered under California Labor Code section
2870,
and (b) all patent applications filed by me or in which I am named as an
inventor or co-inventor.
2.5 Government
or Third Party.
I agree
that, as directed by the Company, I will assign to a third party, including
without limitation the United States, all my right, title, and interest
in and
to any particular Company Invention.
2.6 Enforcement
of Intellectual Property Rights and Assistance.
During
and after the period of my consultancy, I will assist Company in every
proper
way to obtain and enforce United States and foreign Intellectual Property
Rights
relating to Company Inventions in all countries. If the Company is unable
to
secure my signature on any document needed in connection with such purposes,
I
hereby irrevocably designate and appoint Company and its duly authorized
officers and agents as my agent and attorney in fact, which appointment
is
coupled with an interest, to act on my behalf to execute and file any such
documents and to do all other lawfully permitted acts to further such purposes
with the same legal force and effect as if executed by me.
2.7 Incorporation
of Software Code.
I agree
that I will not incorporate into any Company software or otherwise deliver
to
Company any software code licensed under the GNU General Public License
or
Lesser General Public License or any other license that, by its terms,
requires
or conditions the use or distribution of such code on the disclosure, licensing,
or distribution of any source code owned or licensed by Company.
3. Records.
I agree
to keep and maintain adequate and current records (in the form of notes,
sketches, drawings and in any other form that is required by the Company)
of all
Inventions made by me during the period of my consultancy by the Company,
which
records shall be available to, and remain the sole property of, the Company
at
all times.
4. Additional
Activities.
I agree
that (a) during the term of my consultancy by Company, I will not, without
Company’s express written consent, engage in any consultancy or business
activity that is competitive with, or would otherwise conflict with my
consultancy by, Company, and (b) for the period of my consultancy by Company
and
for one (l) year thereafter, I will not, either directly or indirectly,
solicit
or attempt to solicit any employee, independent contractor, or consultant
of
Company to terminate his, her or its relationship with Company in order
to
become an employee, consultant, or independent contractor to or for any
other
person or entity.
5. Return
Of Company Property. Upon
termination of my consultancy or upon Company’s request at any other time, I
will deliver to Company all of Company’s property, equipment, and documents,
together with all copies thereof, and any other material containing or
disclosing any Inventions, Third Party Information or Confidential Information
and certify in writing that I have fully complied with the foregoing obligation.
I agree that I will not copy, delete, or alter any information contained
upon my
Company computer or Company equipment before I return it to Company.
In
addition, if I have used any personal computer, server, or e-mail system
to
receive, store, review, prepare or transmit any Company
information, including but not limited to, Confidential Information, I
agree to
provide the Company with a computer-useable copy of all such Confidential
Information and then permanently delete and expunge such Confidential
Information from those systems; and I agree to provide the Company access
to my
system as reasonably requested to verify that the necessary copying and/or
deletion is completed. I
further
agree that any property situated on Company’s premises and owned by Company is
subject to inspection by Company’s personnel at any time with or without notice.
Prior to the termination of my consultancy or promptly after termination
of my
consultancy, I will cooperate with Company in attending an exit interview
and
certify in writing that I have complied with the requirements of this section.
6. Notification
Of New Employer.
I
consent to the notification of my new employer of my rights and obligations
under this Agreement, by Company providing a copy of this Agreement or
otherwise.
| 7. |
General
Provisions.
|
7.1 Governing
Law and Venue.
This
Agreement and any action related thereto will be governed and interpreted
by and
under the laws of the State of California, without giving effect to any
conflicts of laws principles that require the application of the law of
a
different state. I
expressly consent to personal jurisdiction and venue in the state and federal
courts for the county in which Company’s principal place of business is located
for any lawsuit filed there against me by Company arising from or related
to
this Agreement.
2
7.2 Severability.
If any
provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of this Agreement will remain enforceable
and the invalid or unenforceable provision will be deemed modified so that
it is
valid and enforceable to the maximum extent permitted by law.
7.3 Survival.
This
Agreement shall survive the termination of my consultancy and the assignment
of
this Agreement by Company to any successor or other assignee and be binding
upon
my heirs and legal representatives.
7.4 Consultancy.
I agree
and understand that nothing in this Agreement shall give me any right to
continued consultancy by Company, and it will not interfere in any way
with my
right or Company’s right to terminate my consultancy at any time, with or
without cause and with or without advance notice.
7.5 Notices.
Each
party must deliver all notices or other communications required or permitted
under this Agreement in writing to the other party at the address listed
on the
signature page, by courier, by certified or registered mail (postage prepaid
and
return receipt requested), or by a nationally-recognized express mail service.
Notice will be effective upon receipt or refusal of delivery. If delivered
by
certified or registered mail, notice will be considered to have been given
five
(5) business days after it was mailed, as evidenced by the postmark. If
delivered by courier or express mail service, notice will be considered
to have
been given on the delivery date reflected by the courier or express mail
service
receipt. Each party may change its address for receipt of notice by giving
notice of the change to the other party.
7.6 Injunctive
Relief.
I
acknowledge that, because my services are personal and unique and because
I will
have access to the Confidential Information of Company, any breach of this
Agreement by me would cause irreparable injury to Company for which monetary
damages would not be an adequate remedy and, therefore, will entitle Company
to
injunctive relief (including specific performance). The rights and remedies
provided to each party in this Agreement are cumulative and in addition
to any
other rights and remedies available to such party at law or in
equity.
7.7 Waiver.
Any
waiver or failure to enforce any provision of this Agreement on one occasion
will not be deemed a waiver of that provision or any other provision on
any
other occasion.
7.8 Export.
I agree
not to export, directly or indirectly, any U.S. technical data acquired
from
Company or any products utilizing such data, to countries outside the United
States, because such export could be in violation of the United States
export
laws or regulations.
7.9 Entire
Agreement.
If no
other agreement governs nondisclosure and assignment of inventions during
any
period in which I was previously employed or am in the future employed
by
Company as an independent contractor, the obligations pursuant to sections
of
this Agreement titled “Confidential Information Protections” and “Inventions”
shall apply. This Agreement is the final, complete and exclusive agreement
of
the parties with respect to the subject matter hereof and supersedes and
merges
all prior communications between us with respect to such matters. No
modification of or amendment to this Agreement, or any waiver of any rights
under this Agreement, will be effective unless in writing and signed by
me and
the GC of Company. Any subsequent change or changes in my duties, salary
or
compensation will not affect the validity or scope of this Agreement.
This
Agreement shall be effective as of the first day of my consultancy with
Company.
|
CONSULTANT:
I
have read, understand, and Accept this agreement and have been
given the
opportunity to Review it with independent legal
counsel.
/S/
XXXXXXX X. XXXXXXX
(Signature)
By:
Xxxxxxx X. Xxxxxxx
Title:
_____________________________________________
Date:
14 December 2006
Address:
__________________________________________
|
PACIFIC
ETHANOL, INC:
Accepted
and agreed:
/S/
XXXX XXXXX
(Signature)
By:
Xxxx Xxxxx
Title:
Chairman
Date:
14 December 2006
Address:
0000 X. Xxxx Xxxxxx, Xxxxxx, XX 00000
|
3
EXHIBIT
A
INVENTIONS
1. Prior
Inventions Disclosure.
The
following is a complete list of all Prior Inventions (as provided in Section
2.2
of the attached Confidential Information and Inventions Assignment Agreement,
defined herein as the “Agreement”):
| x |
None
|
| o |
See
immediately below:
|
2. Limited
Exclusion Notification.
This
is to notify you
in
accordance with Section 2872 of the California Labor Code that the foregoing
Agreement between you and Company does not require you to assign or offer
to
assign to Company any Invention that you develop entirely on your own time
without using Company’s equipment, supplies, facilities or trade secret
information, except for those Inventions that either:
a. Relate
at
the time of conception or reduction to practice to Company’s business, or actual
or demonstrably anticipated research or development; or
b. Result
from any work performed by you for Company.
To
the
extent a provision in the foregoing Agreement purports to require you to
assign
an Invention otherwise excluded from the preceding paragraph, the provision
is
against the public policy of this state and is unenforceable.
This
limited exclusion does not apply to any patent or Invention covered by
a
contract between Company and the United States or any of its agencies requiring
full title to such patent or Invention to be in the United States.
A-1
