AMENDMENT TO
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AMENDMENT is
entered into as of November 4, 2008, by and between Alon USA
GP, LLC, a Delaware limited liability company (the
“Company”), and Shai Even
(“Executive”).
WHEREAS, the
Company and Executive entered into that certain Executive
Employment Agreement, dated as of August 1, 2003 (the
“Agreement”), and wish to amend the Agreement to assure
that any payments under the Agreement that (i) constitute a
deferral of compensation within the meaning of Section 409A of
the Internal Revenue Code of 1986, as amended (the
“Code”), comply with the requirements of
Section 409A to avoid the imposition of excise taxes and
(ii) qualify for an exemption from deferred compensation
treatment under Section 409A of the Code satisfy the
requirements of such exemption. Terms not defined in this Amendment
will have the meaning set forth in the Agreement.
NOW, THEREFORE,
the parties agree as follows:
1. To the
extent that a payment becomes due to Executive under
Section 10 of the Agreement by reason of Executive’s
termination of employment, (i) the term “termination of
employment” will have the same meaning as “separation
from service” under Section 409A of the Code
(ii) except as provided in Section 2 below, all such
payments will be made in a single lump sum no later than 60 days
after the date on which Executive terminates employment.
2. If the
Company makes a good faith determination that a payment under the
Agreement (i) constitutes a deferral of compensation for
purposes of Section 409A, (ii) is made to Executive by
reason of his separation from service and (iii) at the time
such payment would otherwise be made Executive is a
“specified employee” as hereinafter defined, the
payment will be delayed until the first day of the seventh month
following the date of such termination of employment and will bear
interest at the prime rate of interest as published in the Wall
Street Journal on the first business day following the date of
Executive’s termination of employment. For purposes of this
Section 2, a specified employee is an officer of Alon USA
Energy, Inc. with annual compensation in excess of $150,000 (as
adjusted for years after 2008), provided that only the 50 highest
paid officers of Alon USA Energy, Inc. may constitute
“specified employees” for any 12-month period. An
individual who is identified as a one of the 50 highest paid
officers during any portion of a calendar year will be a specified
employee for purposes of the Agreement during the 12-month period
beginning on April 1 of the following calendar year.
3. To the
extent that any payment made under the Agreement constitutes a
deferral of compensation subject to Section 409A of the Code,
the time of such payment may not be accelerated except to the
extent permitted by Section 409A. Where Section 409A of
the Code permits a payment or benefit that constitutes a deferral
of compensation to be accelerated, the payment or benefit may be
accelerated in the sole discretion of the Company.
4. Any
expense reimbursements required to be made under the Agreement will
be for expenses incurred by Executive during the term of the
Agreement, and such reimbursements will be made not later than
December 31 st of
the year following the year in which Executive
