Exhibit
10.1
E MPLOYMENT AGREEMENT
THIS EMPLOYMENT
AGREEMENT (the “ Agreement
”) is entered into as of February 2, 2009 (the “
Effective Date ”), between Four Rivers BioEnergy,
Inc., a Nevada corporation (the “ Company ”),
and Mr. Gary Hudson (the “ Executive
”).
NOW,
THEREFORE ,
in consideration of the mutual covenants, representations,
warranties and agreements contained herein, and for other valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
Definitions and Interpretations
1.1
Definitions
For purposes of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires, the following terms shall have the
following respective meanings:
“ Base
Salary ” shall have the meaning specified in Section
3.1.
“ Board of
Directors ” shall mean the Board of Directors of the
Company.
“ Cause
” shall have the meaning specified in Section 4.3.
“ Company
” will also include its subsidiaries, parents and affiliates
where it is reasonably logical the use of the word would include
such other entities, and include any successor to its business
and/or substantially all its assets which executes and delivers the
Agreement as provided for in Section 7.4 or which otherwise becomes
bound by all terms and provisions of this Agreement by operation of
law.
“ Code
” shall mean the Internal Revenue Code of 1986, as
amended.
“ Confidential
Information ” shall have the meaning specified in Section
5.1(a).
“
Disability ” shall mean a physical or mental condition
of the Executive that, in the good faith judgment of not less than
a majority of the Board of Directors, prevents the Executive from
being able to perform the services required under this Agreement
and that results in the Executive becoming eligible for long-term
disability benefits (if such benefits are directly provided by the
Company). If any dispute arises as to whether a Disability
has occurred, or whether a Disability has ceased and the Executive
is able to resume duties, then such dispute shall be referred to a
licensed physician mutually agreed upon by the Executive and the
Company, which physician will not be any of the Executive’s
regular physicians. The Executive shall submit to such
examinations and provide information as such physician may request
and the determination of such physician as to the Executive's
physical or mental condition shall be binding and conclusive on the
parties. The Company shall pay the cost of any such physician
and examination.
“ Dispute
” shall have the meaning specified in Article VI.
“ Exchange
Act ” shall mean the Securities Exchange Act of 1934, as
amended.
“ Expiration
Date ” shall have the meaning specified in Section
2.2.
“ Notice of
Termination ” shall mean a notice purporting to terminate
the Executive's employment in accordance with Section 4.1, 4.2 or
4.3.
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“ Person
” shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust and an unincorporated
organization.
“ Bonus
Plan ” shall have the meaning specified in Section
3.2.
“ Term
” shall have the meaning specified in Section 2.2.
“ Termination
Date ” shall mean the termination date specified in a
Notice of Termination delivered in accordance with this
Agreement.
1.2
Interpretations
(a)
In this Agreement,
unless a clear contrary intention appears, (i) the words
“herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Article,
Section or other subdivision, (ii) reference to any Article or
Section, means such Article or Section hereof, (iii) the words
“including” (and with correlative meaning
“include”) means including, without limiting the
generality of any description preceding such term, and (iv) where
any provision of this Agreement refers to action to be taken by
either party, or which such party is prohibited from taking, such
provision shall be applicable whether such action is taken directly
or indirectly by such party.
(b)
The Article and Section
headings herein are for convenience only and shall not affect the
construction hereof.
ARTICLE II
Employment: Term, Positions and Duties, Etc.
2.1
Employment
The Company agrees to
employ the Executive and the Executive agrees to accept employment
with the Company, in each case on the terms and conditions set
forth in this Agreement.
2.2
Term of
Employment
Unless sooner
terminated pursuant to Article IV, the term of the Executive's
employment under this Agreement (the “ Term ”)
will commence on the Effective Date and continue for 24 months (the
“ Expiration Date ”) subject to extension as
herein provided. The Term will be automatically extended by
an additional 12 months unless one party gives written notice to
the other at least 12 months before the then effective Expiration
Date indicating that the party does not extend Term of the
Agreement. If the Term is extended, then the Expiration Date
will be automatically extended by a corresponding 12 months.
The right not to extend the Term and corresponding Expiration
Date is separate from the right to give a Notice of Termination
herein.
2.3
Positions and
Duties
(a)
While employed
hereunder, the Executive shall serve as the Chief Executive Officer
of the Company. As such, the Executive shall have the
responsibilities and authorities designated to him by the bylaws of
the Company, if stated therein, and the Board of
Directors.
(b)
While employed
hereunder, the Executive shall (i) report to the Board of Directors
and (ii) observe and comply with all lawful policies, directions
and instructions of the Board of Directors and the Company that are
consistent with the provisions of this paragraph 2.3.
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(c)
While employed
hereunder, the Executive shall (i) devote substantially all of the
Executive's business time, attention, skill and efforts to the
faithful and efficient performance of the Executive's duties
hereunder and (ii) not accept employment with any Person other than
with the Company. Notwithstanding the foregoing, the
Executive may engage in the following activities so long as they do
not interfere in any material respect with the performance of the
Executive's duties and responsibilities hereunder: (i) serve on
corporate, civic, religious, educational or charitable boards or
committees and (ii) manage the Executive's personal
investments.
(d)
While employed
hereunder, the Executive shall not knowingly prejudice, in any
material respect, the reputation of the Company in the fields of
business in which it is engaged or with the investment community or
the public at large.
(e)
If elected or appointed
thereto, and only for the duration of such elected term or
appointment, the Executive shall serve as a director of the Company
and any of its subsidiaries and/or in one or more executive
positions of any of such subsidiaries, provided that the Executive
is indemnified for serving in any and all such capacities on a
basis consistent with that provided by the Company to other
directors and executive officers of the Company or similarly
situated executive officers of any such subsidiaries.
(f)
Executive represents
that there are no restrictions imposed upon him by any covenants or
agreements arising out of any prior employment which materially
affect his ability to carry out his duties and obligations as set
forth in this Agreement. Executive agrees to indemnify and
hold the Company harmless for any judgment and related costs,
including attorney’s fees, which may be entered against the
Company as a result of his breach of any such covenants or
violation of any such restrictions, and agrees that any such breach
or violation shall qualify for “Cause” termination
pursuant to Section 4.3 below.
ARTICLE III
Compensation and Benefits
3.1
Base
Salary
(a)
For services rendered
by the Executive under this Agreement, the Company shall pay to the
Executive an annual base salary (“ Base Salary
”) of $250,000 evenly paid twice a month or on such other
schedule as salaried employees of the Company are generally and
regularly compensated.
3.2
Bonus
Plan
During the Term, the
Company may maintain an annual incentive bonus plan open to senior
employees and certain other employees of the Company (the “
Bonus Plan ”). If the Company does maintain a
Bonus Plan, then the Executive shall be entitled to participate in
the Bonus Plan. Criteria for earning any bonus will be
established by the Board of Directors based on the Company's
financial performance, the Executive's contributions to the Company
and other factors deemed appropriate by the Board of Directors, all
in its sole discretion. The amount of the bonus earned, if
any, will be based on the performance of the Company and the
Executive against such criteria as well as other factors deemed
relevant by the Board of Directors. The establishment of such
criteria and the necessary standards of performance for partial or
full earning of the Bonus, if any, shall be at the sole discretion
of the Board of Directors. The Bonus, if any, may be paid in
the form of cash, stock or other property, or in any combination
thereof, as the Board of Directors determine in their sole
discretion and may be paid either annually or on a schedule during
the year, as determined by the Board of Directors.
3.3
Vacation
While employed
hereunder, the Executive shall be entitled to vacation benefits in
accordance with the vacation policy adopted by the Company from
time to time for senior employees. Unless changed by the
Board of Directors in a manner generally applicable to senior
employees of the Company, the Executive shall be entitled to five
weeks of paid vacation per year. Unless otherwise approved by
the Board the Executive shall not be entitled to accumulate and
carry over unused vacation time from year to year.
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3.4
Expenses
The Company shall
reimburse the Executive for all reasonable travel and other
business expenses incurred by him in the performance of his duties
to the Company, in accordance with the Company’s policy on
documentation of reimbursed expenses and other policies with
respect thereto.
3.5
Other
Benefits
The Executive shall be
entitled to receive all employee benefits, fringe benefits and
other perquisites that may be offered from time to time by the
Company to its senior employees as a group, and where applicable,
the Executive's dependents. These plans may include pension
plans, profit sharing plans, stock plans, health plans and
insurance, life insurance, car allowances, parking fees and
disability insurance. Within these programs of employee
benefits, the Board of Directors, in its sole discretion, may
establish a reimbursement program for the Executive’s actual
out of pocket expense (against presentation of evidence of such
expense actually paid by Executive) to obtain for Executive and
Executive’s dependents medical (including eyes, dental, and
cancer), life and disability insurance, which insurance is owned by
Executive, the reimbursement to be up to a maximum amount for each
such insurance as set from time to time by the Board of Directors
in its discretion, which scheduled amounts may include a gross up
factor of to cover any additional income and payroll taxes to
Executive of such reimbursement amounts. The maximum amount
reimbursable under this provision is an amount equal to 35% of the
Base Salary. However, nothing in this Section 3.5 shall be deemed
to prohibit the Company from making any changes in any of the
plans, programs or benefits described herein, provided such changes
apply to all similarly situated senior employees.
ARTICLE IV
Termination of
Employment
4.1
Termination by the
Executive
The Executive may, at
any time prior to the Expiration Date, terminate the Executive's
employment hereunder for any reason by delivering a Notice of
Termination to the Board of Directors. The Notice of
Termination by the Executive shall be effective not less than 90
days after the date of the notice and state the effective
Termination Date and if none is specified then the Termination Date
will be the 90 th day after the date of the Notice of
Termination. The Termination Date under this provision may be
beyond the Expiration Date.
4.2
Termination by the
Company
The Board of Directors
may, at any time six months after the date of this Agreement and
prior to the Expiration Date, terminate the Executive's employment
hereunder for any reason by delivering a Notice of Termination to
the Executive. The Notice of Termination by the Company shall
be effective not less than 90 days after the date of the notice and
state the effective Termination Date and if none is specified then
the Termination Date will be the 90 th day after the
date of the Notice of Termination. The Termination Date under
this provision may be beyond the Expiration Date.
4.3
Termination for
Cause
The Company may
terminate the Executive’s employment hereunder for
“Cause” upon the giving of a Notice of Termination to
the Executive, subject to the terms of this sub-part, which shall
be effective immediately. The Notice of Termination for Cause
shall state the basis for the notice. The Company shall have
“Cause” to terminate the Executive’s employment
hereunder if, during the Term of this Agreement, the
Executive’s actions result in:
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