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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
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This shall constitute Amendment No. 1 to that
certain Employment Agreement (the “Employment
Agreement”), dated as of August 18, 2006, by and between ALL
Energy Company, a Delaware corporation (“Employer”),
and Dean Sukowatey (“Employee”), pursuant to which
Employee agreed to serve as president of Employer.
The Employment Agreement is hereby
amended, as follows:
1. Exhibit III(A), Statement of
Compensation, is deleted in its entirety and replaced with the
following:
“Salary. Employee shall be
paid as and for a salary the sum of $240,000 per year, net of
lawful and required withholding, which salary shall begin to accrue
immediately upon the mutual execution of the Employment Agreement
to which this Exhibit III(A) relates; provided, however, that no
amount of Employee’s accrued salary shall be paid unless and
until Employer shall have obtained not less than $1,300,000
pursuant to Employer’s proposed private offering.
Notwithstanding the foregoing
paragraph to the contrary, for the year 2007, Employee shall be
paid his salary as follows:
$120,000 of such salary shall be
paid on January 2, 2007, and the balance of such salary, $120,000,
shall be paid in equal installments during the remainder of
2007.
Moving Allowance. Employee shall
be paid a one-time moving allowance of $15,000, upon
Employer’s receipt of Employee’s written notice of his
intent to move his residence to an appropriate location in the
State of Iowa.
Insurance and Other Benefits. As
further consideration for his covenants contained in the Employment
Agreement to which this Exhibit III(A) relates, Employer will
provide Employee with such insurance, welfare, sick leave and other
benefits as may be established by Employer from time to time with
respect to its employees in accordance with Employer’s
established procedures. Employee shall be entitled to
Directors’ and Officers’ indemnification insurance
coverage to the same extent as is provided to other persons
employed as officers of Employer.
Other Compensation Plans. Employee
shall be entitled to participate, to the same extent as is provided
to other persons employed by Employer, in any future stock bonus
plan, stock option plan or employee stock ownership plan of
Employer.”
In all other respects, the Employment
Agreement is ratified and affirmed.
Dean Sukowatey, individually
THIS EMPLOYMENT AGREEMENT
(“Agreement”) is made by and between All Energy
Company, a duly organized Delaware corporation
(“Employer”), and Dean Sukowatey
(“Employee”).
WHEREAS, Employer is in need of a person to
serve as its president and secretary; and
WHEREAS, Employee possesses the credentials
deemed necessary by Employer to serve Employer in such capacities;
and
WHEREAS, Employee is willing to be employed by
Employer, and Employer is willing to employ Employee, on the terms,
covenants and conditions hereinafter set forth; and
WHEREAS, Employer and its affiliates have
accumulated valuable and confidential information, including,
without limitation, trade secrets and know-how relating to the
ethanol production industry, marketing plans, business strategies
and other business records; and
WHEREAS, the giving of the covenants contained
herein is a condition precedent to the employment of Employee by
Employer and Employee acknowledges that the execution of this
Agreement and the entering into of these covenants is an express
condition of his employment by Employer and that said covenants are
given in consideration for such employment and the other benefits
conferred upon him by this Agreement; and
NOW, THEREFORE, in consideration of such
employment and other valuable consideration, the receipt and
adequacy of which is hereby acknowledged, Employer and Employee
hereby agree as follows:
SECTION I. EMPLOYMENT OF EMPLOYEE
Employer hereby employs, engages and
hires Employee as President and Secretary of Employer, and Employee
hereby accepts and agrees to such hiring, engagement and
employment, subject to the general supervision of the Board of
Directors of Employer. Employee shall perform duties as are
customarily performed by one holding such position in other, same
or similar businesses or enterprises as that engaged in by
Employer, and shall also additionally render such other and
unrelated services and duties as may be reasonably assigned to him
from time to time by Employer.
Employee shall devote all necessary efforts to
the performance of his duties as President and Secretary of
Employer.
SECTION II. EMPLOYEE’S PERFORMANCE
Employee hereby agrees that he will, at all
times, faithfully, industriously and to the best of his ability,
experience and talents, perform all of the duties that may be
required of and from him pursuant to the express and implicit terms
hereof, to the reasonable satisfaction of Employer.
SECTION III. COMPENSATION OF EMPLOYEE
Employer shall pay Employee, and Employee
shall accept from Employer, in full payment for Employee's services
hereunder, compensation as follows:
A. Salary and Other Compensation.
Employee shall be paid as and for a salary the compensation set
forth in Exhibit III(A).
B. Expenses. It is acknowledged that, during
the term of employment, Employee will be required to incur ordinary
and necessary business expenses on behalf of Employer in connection
with the performance of his duties hereunder. Employer shall
reimburse Employee promptly the amount of all such expenses upon
presentation of itemized vouchers or other evidence of those
expenditures.
C. Vacations. During the term of this
Agreement, Employee shall be entitled to three (3) weeks’
paid vacation.
SECTION IV. INDEMNIFICATION OF EMPLOYEE
As further consideration of
Employee’s executing this Agreement, Employer shall have
executed, prior to the execution of this Agreement, an Indemnity
Agreement (the “Indemnity Agreement”), in the form
attached hereto as Exhibit IV(A). The obligations under the
Indemnity Agreement shall survive the termination of this
Agreement.
SECTION V. COMPANY POLICIES
Employee agrees to abide by the
policies, rules, regulations or usages applicable to Employee as
established by Employer from time to time and provided to Employee
in writing.
SECTION VI. CONFIDENTIALITY AGREEMENT;
NON-COMPETITION AGREEMENT
A. In consideration of Employer’s
executing this Agreement, Employee shall have executed, prior to
the execution of this Agreement, a Confidentiality Agreement (the
“Confidentiality Agreement”), in the form attached
hereto as Exhibit “B”.
B. In consideration of Employer’s
executing this Agreement, Employee agrees, effective as of the date
hereof, to sign and be bound by the obligations of an Agreement Not
to Compete (the “Non-Competition Agreement”), in the
form attached hereto as Exhibit “C”.
C. The obligations under the
Confidentiality Agreement and the Non-Competition Agreement shall
survive the termination of this Agreement.
SECTION VII. TERM AND TERMINATION
A. Term. The term of this Agreement shall be a
period of seven (7) years, commencing on August 18, 2006. This
Agreement shall renew for additional one-year periods, provided
neither party hereto submits a written notice of termination within
sixty (60) days prior to the termination of either the initial term
hereof or any renewal term.
B. Termination. Employer agrees not to
terminate this Agreement except for “just cause”. For
purposes of this Agreement, “just cause” shall mean (1)
the willful failure or refusal of Employee to implement or follow
the written policies or directions of Employer's Board of
Directors, provided that Employee's failure or refusal is not based
upon Employee's belief in good faith, as expressed to Employer in
writing, that the implementation thereof would be unlawful; (2)
conduct which is inconsistent with Employee's position with
Employer and which results in a material adverse effect (financial
or otherwise) or misappropriation of assets of Employer; (3)
conduct which violates the provisions contained in the
Confidentiality Agreement or the Non-Competition Agreement; (4) the
intentional causing of material damage to Employer's physical
property; and (5) any act involving personal dishonesty or criminal
conduct against Employer.
Although Employer retains the right to
terminate Employee for any reason not specified above, Employer
agrees that if it discharges Employee for any reason other than
just cause, as is solely defined above, Employee will be entitled
to full compensation for one year or the remainder of the
then-current term, original or renewal, as the case may be, of
employment, whichever is greater.
If Employee should cease his employment
hereunder voluntarily for any reason, or is terminated for just
cause, all compensation and benefits payable to Employee shall
thereupon, without any further writing or act, cease, lapse and be
terminated. However, all reimbursements which accrued prior to
Employee's ceasing employment or termination, will become
immediately due and payable and shall be payable to
Employee’s estate should his employment cease due to
death.
SECTION VIII. COMPLETE AGREEMENT
This Agreement contains the complete agreement
concerning the employment arrangement between the parties hereto
and shall, as of the effective date hereof, supersede all other
agreements between the parties. The parties hereto stipulate that
neither of them has made any representation with respect to the
subject matter of this Agreement or any representations including
the execution and delivery hereof, except such representations as
are specifically set forth herein and each of the parties hereto
acknowledges that he or it has relied on his or its own judgment in
entering into this Agreement. The parties hereto further
acknowledge that any payments or representations that may have
heretofore been made by either of them to the other are of no
effect and that neither of them has relied thereon in connection
with his or its dealings with the other.
SECTION IX. WAIVER; MODIFICATION
The waiver by either party of a breach or
violation of any provision of this Agreement shall not operate as,
or be construed to be, a waiver of any subsequent breach hereof. No
waiver or modification of this Agreement or of any covenant,
condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and
no evidence of any waiver or modification shall be offered or
received in evidence of any proceeding or litigation between the
parties hereto arising out of, or affecting, this Agreement, or the
rights or obligations of the parties hereunder, unless such waiver
or modification is in writing, duly executed as aforesaid, and the
parties further agree that the provisions of this Section IX may
not be waived except as herein set forth.
All agreements and covenants contained herein
are severable, and in the event any one of them, with the exception
of those contained in Sections I, III, IV, V and VI hereof, shall
be held to be invalid in any proceeding or litigation between the
parties, this Agreement shall be interpreted as if such invalid
agreements or covenants were not contained herein.
Any and all notices will be sufficient if
furnished in writing, sent by registered mail to his last known
residence, in case of Employee, or, in case of Employer, to its
principal office address.
SECTION XII. REPRESENTATIONS OF EMPLOYER
The execution of this Agreement by
Employer has been approved by the Board of Directors of
Employer.
SECTION XIII. REPRESENTATIONS OF EMPLOYEE
A. Employee hereby represents to
Employer that he is under no legal disability with respect to his
entering into this Agreement.
B. Employee represents and warrants that
he has investigated Employer, its financial condition, business and
prospects, and has had the opportunity to ask questions of, and to
receive answers from, Employer with respect thereto. Employee
acknowledges that he is aware that Employer currently lacks
adequate capital to pursue its full plan of business.
SECTION XIV. COUNTERPARTS
This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original and,
together, shall constitute one and the same agreement, with one
counterpart being delivered to each party hereto.
The provisions of this Agreement shall extend
to the successors, surviving corporations and assigns of Employer
and to any purchaser of substantially all of the assets and
business of Employer. The term “Employer” shall be
deemed to include Employer, any joint venture, partnership, limited
liability company, corporation or other juridical entity, in which
Employer shall have an interest, financial or otherwise.
The parties agree that any dispute
arising between them related to this Agreement or the performance
hereof shall be submitted for resolution to the American
Arbitration Association for arbitration in the Chicago, Illinois,
office of the Association under the then-current rules of
arbitration. The Arbitrator or Arbitrators shall have the authority
to award to the prevailing party its reasonable costs and attorneys
fees. Any award of the Arbitrators may be entered as a judgment in
any court competent jurisdiction.
Notwithstanding the provisions contained
in the foregoing paragraph, the parties hereto agree that Employer
may, at its election and without delivering the notice to Employee
required in Section VII(B) hereof, seek injunctive or other
equitable relief from a court of competent jurisdiction for a
violation or violations by Employee of the Confidentiality
Agreement or the Non-Competition Agreement.
SECTION XVII. LEGAL REPRESENTATION
Employer and Employee both acknowledge
that each has utilized separate legal counsel with respect to this
Agreement. Specifically, Employee acknowledges that the law firm of
Newlan & Newlan has drafted this Agreement on behalf of
Employer. EMPLOYEE IS ADMONISHED TO SEEK HIS OWN LEGAL COUNSEL.
SECTION XVIII. GOVERNING LAW
It is the intention of the parties hereto that
this Agreement and the performance hereunder and all suits and
special proceedings hereunder be construed in accordance with and
under and pursuant to the laws of the State of Iowa, and that, in
any action, special proceeding or other proceeding that may be
brought arising out of, in connection with or by reason of this
Agreement, the laws of the State of Iowa shall be applicable and
shall govern to the exclusion of the law of any other forum,
without regard to the jurisdiction in which any such action or
special proceeding may be instituted.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the 18th of August, 2006.
Dean Sukowatey, individually
West Des Moines, Iowa 50265
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Exhibit III(A) - Statement of Compensation
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Statement of Compensation — Dean
Sukowatey
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Salary. Employee shall be paid as and
for a salary the sum of $240,000 per year, net of lawful and
required withholding, which salary shall begin to accrue
immediately upon the mutual execution of the Employment Agreement
to which this Exhibit III(A) relates; provided, however, that no
amount of Employee’s accrued salary shall be paid unless and
until Employer shall have obtained not less than $1,300,000
pursuant to Employer’s proposed private offering.
Moving Allowance. Employee shall be paid
a one-time moving allowance of $15,000, upon Employer’s
receipt of Employee’s written notice of his intent to move
his residence to an appropriate location in the State of Iowa.
Insurance and Other Benefits. As further
consideration for his covenants contained in the Employment
Agreement to which this Exhibit III(A) relates, Employer will
provide Employee with such insurance, welfare, sick leave and other
benefits as may be established by Employer from time to time with
respect to its employees in accordance with Employer’s
established procedures. Employee shall be entitled to
Directors’ and Officers’ indemnification insurance
coverage to the same extent as is provided to other persons
employed as officers of Employer.
Other Compensation Plans. Employee shall
be entitled to participate, to the same extent as is provided to
other persons employed by Employer, in any future stock bonus plan,
stock option plan or employee stock ownership plan of Employer.
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Exhibit IV(A) - Indemnity Agreement
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THIS AGREEMENT is made and entered into
as of the 18th day of August, 2006, by and between All Energy
Company, a Delaware corporation (the “Corporation”),
and Dean Sukowatey (“Agent”).
WHEREAS, Agent performs a valuable service to
the Corporation in his capacity as President and Secretary of the
Corporation;
WHEREAS, the Corporation’s bylaws (the
“Bylaws”) provide for the indemnification of the
directors, officers, employees and other agents of the Corporation,
including persons serving at the request of the Corporation in such
capacities with other corporations or enterprises, as authorized by
the Delaware General Corporation Law (the “GCL”);
WHEREAS, the Bylaws and the GCL, by their
non-exclusive nature, permit contracts between the Corporation and
its agents, officers, employees and other agents with respect to
indemnification of such persons; and
WHEREAS, in order to induce Agent to continue
to serve as President and Secretary of the Corporation, the
Corporation has determined and agreed to enter into this
