MANAGEMENT EMPLOYMENT
AGREEMENT
This Agreement is
entered into between Michael Oster (“Manager”)
and Alon USA GP, LLC, a Delaware corporation
(“Employer” or “Company”) on
October 30, 2008, who, in return for the mutual promises set
forth herein, agree as follows:
1.
Position/Term . (a) The term of the Manager’s
employment hereunder shall be deemed to have commenced as of
January 1, 2003 .
(b) Throughout
the term of this Agreement, Employer shall employ Manager and
Manager shall render services to Employer in the capacity and with
the title of Senior VP of Mergers and Acquisitions , or such
other title as may be established by Employer from time to time.
Manager shall devote his full time and best effort to the
successful functioning of the business of Employer and shall
faithfully and industriously perform all duties pertaining to his
position, including such additional duties as may be assigned from
time to time, to the best of Manager’s ability, experience
and talent. Manager shall be subject at all times during the term
hereof to the direction and control of Employer in respect of the
work to be done.
(c) Manager’s
employment hereunder shall be for an initial term of three years.
Thereafter, the term shall renew automatically each year for a term
of one year, unless either party provides the other with written
notice at least 30 days prior to the expiration of the
term.
2.
Compensation . (a) Manager’s salary (“Base
Compensation”) shall be $ 225,000 per year, payable
bi-weekly (unless the payroll practice of the Company changes to
monthly or semi-monthly) in arrears and subject to change only with
the mutual written consent of Employer and Manager. It is the
intent of the Company to develop guidelines for annual merit
increases for salaries of all salaried employees/management,
including Manager.
(b) Manager
shall be entitled to participate in the Alon USA Annual Cash Bonus
Plan containing the terms and conditions set forth in
Exhibit A attached hereto and incorporated herein which will
be subject to modification in the sole discretion of the Company
without advanced notice from time to time as set forth therein. For
purposes of determining the Manager’s Target Bonus Amount
under such plan, the Manager shall participate up to an amount
equal to sixty five percent ( 65 %) of base
compensation.
3. Fringe
Benefits; Reimbursement of Expenses . Employer shall make
available, or cause to be made available to Manager, throughout the
period of his employment hereunder, such benefits, including any
disability, hospitalization, medical benefits, life insurance,
pension plan or other benefits or policy, as may be put into effect
from time to time by Employer generally for other Management
members at the level of Management. The Company expressly reserves
the right to modify such benefits at any time, subject to the
provisions of paragraph 10(b) hereof.
Manager will be
reimbursed for all reasonable out-of-pocket business, business
entertainment and travel expenses paid by the Manager, in
accordance with and subject to applicable Company expense
incurrence and reimbursement policies. Any expense reimbursements
required to be made under this Agreement will be for expenses
incurred by Manager during the term of this Agreement, and such
reimbursements will be made not later than December 31
st of the year following the year in which Manager
incurs the expense; provided, that in no event will the amount of
expenses eligible for payment or reimbursement in one calendar year
affect the amount of expenses to be paid or reimbursed in any other
calendar year. Manager’s right to expense reimbursement will
not be subject to liquidation or exchange for another
benefit.
4.
Vacation . The number of vacation days to which Manager
shall be entitled each year shall be based on the years of service
of the Manager for Employer as follows — 15 days up to
10 years, 20 days after 10 years, 25 days after
20 years and 30 days after 30 years. Unless
otherwise agreed, vacation may not be carried over into a new
calendar year. Vacation time shall be taken only after providing
reasonable notice to the person to whom the Manager
reports.
5.
Compliance With Employer Policies . Manager shall comply
with and abide by all employment policies and directives of
Employer. Employer may, in its sole discretion, change, modify or
adopt new policies and directives affecting Manager’s
employment. In the event of any conflict between the terms of this
Agreement and Employer’s employment policies and directives,
the terms of this Agreement will be controlling.
6.
Restrictive Covenant. In consideration of the confidential
business information that Employer promises to provide Manager
access or exposure to during the term of employment as described in
paragraph 7 of the Agreement, Manager agrees to the restrictive
covenants set forth in this paragraph 6 and its
subparts:
(a) Manager
agrees that during the term of Manager’s employment with
Employer and for a period of one year following any termination of
Manager’s employment, if the Manager terminates employment
during the first two years of Manager’s employment, or nine
months, if the Manager terminates employment after the first two
years of employment and before the completion of five years of
employment (the “Non-Compete Period”), Manager will
not, without the prior written consent of Employer, directly or
indirectly, either as an individual or as an employee, officer,
director, shareholder, partner, sole proprietor, independent
contractor, consultant or in any other capacity conduct any
business, or assist any person in conducting any business, that is
in competition with the business of Employer or its Affiliates (as
defined below).
(b) In
addition to any other covenants or agreements to which Manager may
be subject, during the Non-Compete Period, Manager will not,
directly or indirectly, either as an individual or as an employee,
officer, director, shareholder, partner, sole proprietor,
independent contractor, consultant or in any other capacity
whatsoever approach or solicit any customer or vendor of Employer
with whom the Manager had contact or received information about
during the course of employment for the purpose of causing,
directly or indirectly, any such customer or vendor to cease doing
business with Employer or its Affiliates.
2
For the purposes
of this Agreement, the “business of Employer or its
Affiliates” means the business of refining petroleum
distillates and the wholesale distribution of such products in the
Territory. The term “Affiliates” means all subsidiaries
of Employer and each person or entity that controls, is controlled
by, or is under common control with Employer. The
“Territory” means the states of Texas, New Mexico,
Arizona, California, Oregon, Washington and Nevada. It is
understood and agreed that the scope of each of the covenants
contained in this Section 6 is reasonable as to time, area,
and persons and is necessary to protect the legitimate business
interest of Employer. It is further agreed that such covenants will
be regarded as divisible and will be operative as to time, area and
persons to the extent that they may be so operative. The terms of
this Section 6 shall not apply to the ownership by Manager of
less than 5% of a class of equity securities of an entity, which
securities are publicly traded on the New York Stock Exchange, the
American Stock Exchange, or the National Market System of the
National Association of Securities Dealers Automated Quotation
System. The provisions of this Section 6 will survive any
termination or expiration of this Agreement.
7.
Confidentiality . (a) During the course of employment,
Employer promises to provide Manager with access or exposure to
information or ideas of a confidential or proprietary nature which
pertain to an area of Employer’s business, financial, legal,
marketing, administrative, personnel, technical or other functions
or which constitute trade secrets (including, but not limited to,
as examples specifications, designs, plans, drawings, software,
data, prototypes, the identity of sources and markets, marketing
information and strategies; business and financial plans and
strategies, methods of doing business; data processing and
management information and technical systems, programs and
practices; customers and users and their needs, sales history; and
financial strength), and such information of third parties which
has been provided to Employer in confidence (“Confidential
Information”). All such information is deemed
“confidential” or “proprietary” whether or
not it is so marked, provided that it is maintained as confidential
by the Company. Information will not be considered to be
Confidential Information to the extent that it is generally
available to the public. Nothing in this Section 7 will
prohibit the use or disclosure by Manager of knowledge that is in
general use in the industry or general business
knowledge.
(b) Manager
shall hold Confidential Information in confidence, use it only in
connection with the performance of duties on behalf of Employer,
and restrict its disclosure to those directors, employees or
independent contractors of Employer having a need to
know.
(c) Manager
shall not disclose, copy or use Confidential Information for the
benefit of anyone other than Employer without Employer’s
prior written consent.
(d) Manager
shall, upon Employer’s request or Manager’s termination
of employment, return to Employer any and all written documents
containing Confidential Information in Manager’s possession,
custody or control.
8.
Non-Interference with Employment Relationships . In
consideration of the confidential business information that
Employer promises to provide Manager access or exposure to during
the term of employment as described in paragraph 7 of
this
3
Agreement,
Manager promises that during the term of his/her employment with
Employer, and for a period of one (1) year thereafter, Manager
shall not, without Employer’s prior written consent,
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