Exhibit 10.1
Final
EMPLOYMENT
AGREEMENT
EMPLOYMENT AGREEMENT
(“Agreement”) dated as
of the 29th day of August 2006, by and between Tom Manuel
(“Executive”) and ASAlliances Biofuels, LLC (“the
Company”) (the “Effective Date”).
WITNESSETH
WHEREAS, the Company desires to secure the experience,
abilities and service of Executive by employing Executive in the
position of Chief Executive Officer (“CEO”) of the
Company upon the terms and conditions specified herein;
and
WHEREAS, Executive desires to accept such employment and
service as CEO of the Company and to enter into this
Agreement.
NOW, THEREFORE,
in consideration of the mutual
covenants herein set forth, Executive and the Company do agree to
the terms of employment as follows:
1. Definitions
. The following words and terms
shall have the meanings set forth below for the purposes of this
Agreement:
(a) Affiliate . Affiliate of
any person or entity means any stockholder or person or entity
controlling, controlled by under common control with such person or
entity, or any director, officer or key executive of such entity or
any of their respective relatives. For purposes of this definition,
“control,” when used with respect to any person or
entity, means the power to direct the management and policies of
such person or entity, directly or indirectly, whether through
ownership of voting securities, by contracting or otherwise; and
the terms “controlling” and “controlled”
have meanings that correspond to the foregoing.
(b) Base Salary . “Base
Salary” shall have the meaning set forth in Section 3(a)
hereof.
(c) Board . The Board of
Directors of ASAlliances Biofuels, LLC.
(d) Cause .
“Cause” shall mean as determined in good faith by the
Board (after first providing Executive thirty (30) days
written notice and his failure to cure the act or omission giving
rise to the determination), (i) misconduct having a material
adverse affect upon the Company, (ii) negligent failure to
perform Executive’s duties, provided that a refusal to
approve any financials or execute any documents based on such
financials shall not be Cause if Executive in good faith believes
that the accounting in such financials is not appropriate and so
notifies the Chairman of the Audit Committee of the Board,
(iii) Executive’s violation of his obligations under the
Agreement, and (iv) Executive’s violation of any
material policy or code of conduct of the Company. Notwithstanding
anything in this Agreement to the contrary, “Cause”
shall mean as determined in good faith by the Board (i) with
regard to the Company or its Affiliates, dishonesty, theft, fraud,
or embezzlement, (ii) breach of fiduciary duty with regard to
the
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Company, (iii) conviction of,
or pleading guilty or nolo contendere to, any felony involving
moral turpitude (other than traffic violations or as a result of
vicarious liability); and (iv) a breach by Executive of any of
the covenants made by him in Section 6 hereof.
(e) Change in Control.
“Change in Control” shall mean the occurrence of any of
the following events subsequent to the date of this
Agreement:
(i) any person, other than an exempt
person (which includes the Company and its subsidiaries and
employee benefit plans), becoming a beneficial owner of 50% or more
of the shares of common stock or equity interests or voting stock
or equity interests of the Company then outstanding;
(ii) the approval by the
stockholders or members of the Company of a reorganization, merger
or consolidation in which existing Company stockholders or members
own less than 50% of the equity of the resulting
company;
(iii) the consummation of the sale
or other disposition of all or substantially all of the assets of
the Company; or
(iv) the approval by the
stockholders or members of the company of a liquidation or
dissolution of the Company, unless such liquidation or dissolution
is part of a plan of liquidation or dissolution involving a sale to
an entity of which more than 50% of the stock is owned by existing
Company stockholders or members.
(f) Cod e. “Code”
shall mean the Internal Revenue Code of 1986, as
amended.
(g) Confidential and Proprietary
Information . “Confidential and Proprietary
Information” shall mean any and all (i) confidential or
proprietary information or material not in the public domain about
or relating to the business, operations, assets or financial
condition of the Company or any Affiliate of the Company or any of
the Company’s or any such Affiliate’s trade secrets;
and (ii) information, documentation or material not in the
public domain by virtue of any action by or on the part of
Executive, the knowledge of which gives or may give the Company or
any Affiliate of the Company an advantage over any person not
possessing such information. For purposes hereof, the term
Confidential and Proprietary Information shall not include any
information or material (i) that is known to the general
public other than due to a breach of this Agreement by Executive or
(ii) that was disclosed to Executive by a person who Executive
did not reasonably believe was bound to a confidentiality or
similar agreement with the Company or (iii) that does not
relate to the fuel ethanol industry or to any industry in which the
Company is presently, or from time-to-time, conducting
business.
(h) Date of Termination .
“Date of Termination” shall mean the date the Company
terminated Executive’s employment for any reason, including,
without limitation, the expiration of the term of this Agreement,
or, if Executive’s employment is terminated by Executive, the
date on which a notice of termination is given or as specified in
such notice.
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(i) Disability .
“Disability” shall mean termination because of any
physical or mental impairment that has prevented Executive from
performing his material duties for the Company for three
(3) consecutive months.
(j) Good Reason. Termination
by Executive of Executive’s employment for “Good
Reason” shall mean termination by Executive because of one of
the following, without Executive’s express written
consent:
(i) a significant diminution of
Executive’s then functions, authority, duties or
responsibilities as CEO of the Company;
(ii) any reduction by the Company in
Executive’s Base Salary, except to the extent the base
salaries of other similarly situated Executives are similarly
reduced but not to exceed more than a 20% reduction in the
aggregate;
(iii) any other material breach of
this Agreement which is not cured within thirty (30) days
after written notice of such breach is delivered by Executive to
the Company; or
(iv) the failure of the Company to
complete an Initial Public Offering within two (2) years of
the Effective Date; provided, however, that this
Section 1(j)(iv) shall only apply in the event Executive has
(A) relocated his family to Dallas, Texas, and
(B) provided notice of termination as described in
Section 5(c).
(k) Initial Equity Offering
Date. The first to occur of (i) the closing date of the
first registered underwritten public offering to purchase common
stock of the Company, or (ii) the closing date of any offering
of equity securities pursuant to Rule 144A of the Securities Act of
1933, as amended, in each case where such offering raises gross
proceeds to the Company of at least $100,000,000.
(l) Initial Public Offering .
The closing date of the first registered underwritten public
offering to purchase common stock of the Company.
(m) Restrictive Period . The
two (2) year period following the Date of Termination except
that, if the Company fails to complete an Initial Public Offering
within one (1) year of the Effective Date and the Company
terminates Executive’s employment as described in
Section 5(b), the six (6) month period following the Date
of Termination.
(n) Waiver and Release . The
waiver and release of claims document, in the form attached hereto
as Exhibit A or such other form as may be prescribed by the
Company, in which Executive, in exchange for the benefits described
in Section 5(e) of this Agreement, among other things,
releases the Company, its parents, subsidiaries and Affiliates, and
their officers, directors, agents, servants, employees, successors,
assigns and insurers, and any and all other persons, firms,
organizations and corporations from liability and damages in any
way related to Executive’s employment with or termination of
employment with the Company or Affiliate of the Company.
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(o) Waiver Effective Date .
The expiration of seven (7) days after Executive executes and
returns to the Company a valid Waiver and Release within the time
period prescribed by the Company following the Executive’s
Date of Termination, provided that Executive does not revoke such
Waiver and Release.
2. Term of Employment
.
(a) The Company hereby employs
Executive as the CEO of the Company, and Executive hereby accepts
said employment and agrees to render such services to the Company,
on the terms and conditions set forth in this Agreement. The term
of employment under this Agreement shall be for a term of three
years, commencing as of the Effective Date, unless such term ends
sooner as provided in this Agreement.
(b) During the term of this
Agreement, Executive shall report to the Board and perform
executive services for the Company as reasonably prescribed by the
Board from time to time, consistent with his position as CEO and
have the authority, duties and responsibilities commensurate with
his position as CEO. Executive 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. Executive acknowledges and agrees that Executive owes a
fiduciary duty to the Company. In keeping with these duties,
Executive shall make full disclosure to the Company of all business
opportunities pertaining to the Company’s business and shall
not appropriate for Executive’s own benefit business
opportunities concerning the subject matter of the fiduciary
relationship. The fiduciary duty Executive owes to the Company
shall not prevent Executive from serving on the board of another
company so long as (i) such service is disclosed to the Board
(ii) such service is approved by the Board and (iii) the
other company does not compete in any manner with the Company or
from personal investment activities so long as they don’t
interfere with his duties hereunder.
3. Compensation and
Benefits .
(a) Compensation.
(i) Base Salary. The Company
shall pay Executive for his services during the term of this
Agreement a minimum base salary of $500,000 per year (“Base
Salary”) which shall be payable semi-monthly or such other
payroll period pursuant to the Company’s normal payroll
practices for its executives, and shall be subject to withholding
for federal, state, city or other taxes as may be required pursuant
to any law or governmental regulation or ruling, or as otherwise
permissible under Company practices or policies. Base Salary may be
increased but may only be reduced in the event Base Salary for all
similarly situated executives is also reduced but in no event may
such reduction be greater than 25% in the aggregate. The Company
shall annually review Executive’s Base Salary.
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(ii) Annual Bonus. For the
year commencing 2006 and for each year thereafter, Executive shall
have a bonus opportunity target of $500,000 (“Annual Bonus
Target”) under terms and conditions determined by the
Compensation Committee and in accordance with the provisions of the
bonus plan as approved by Compensation Committee. The Annual Bonus
Target for 2006 shall be pro-rated as follows: (x) $500,000
multiplied by (y) a fraction, the numerator of which is the
number of days elapsed between the Effective Date and the end of
the calendar year 2006 and the denominator of which is 365. For the
calendar year commencing January 1, 2007, Executive’s
actual bonus paid shall not be less than $250,000.
(iii) Long Term Incentive
Compensation Beginning in 2006.
(a) Option Award . In
addition to the Base Salary set forth in Section 3(a)(i)
hereof and the Annual Bonus Target set forth in
Section 3(a)(ii) hereof, on the Initial Equity Offering Date,
Executive shall be awarded long term incentive compensation having
a value of $3,500,000 (“Option Compensation”), such
Option Compensation to be granted in the form of an option to
purchase a number of shares of stock in the Company. Such options
shall have a ten (10) year term and shall in any event expire
ninety (90) days after the Date of Termination and have such
other terms and conditions as established by the Company. The
number of shares of stock of the Company subject to the options
shall be determined by the Board in its sole discretion, using
Black-Scholes or another generally accepted option valuation
methodology. The options shall vest on each anniversary of the
Effective Date according to the following schedule:
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Options
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On the first anniversary of the Effective
Date
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One-fifth
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On the second anniversary of the Effective
Date
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One-fifth
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On the third anniversary of the Effective
Date
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One-fifth
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On the fourth anniversary of the Effective
Date
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One-fifth
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On the fifth anniversary of the Effective
Date
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One-fifth
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In the event that the options are
granted on or after the first anniversary of the Effective Date,
they shall be in part immediately vested determined in accordance
with the foregoing schedule.
(b) Stock Award . Executive
shall also receive an immediately vested stock award (“Stock
Award”) having a value of $1,166,667 on the later to occur of
the first anniversary of the Effective Date or the Initial Equity
Offering Date. Executive shall receive a Stock Award having a value
of $1,166,667 on the later to occur of the second anniversary of
the Effective Date or the Initial
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Equity Offering Date. Executive
shall also receive a Stock Award having value of $1,166,667 on the
later to occur of the third anniversary of the Effective Date or
the Initial Equity Offering Date.
During the period in which the
Option Compensation vests, it is anticipated Executive may not
receive any further awards of restricted stock or options or other
long term incentive compensation unless otherwise determined by the
Board. An award of additional incentive compensation may be
revisited at such time as this Agreement is subject to
renewal.
(c) Change in Control
.
I. Notwithstanding the above vesting
schedule for options, in the event of a Change in Control after the
Initial Equity Offering Date, the Option Compensation shall vest
(including all previously vested amounts) on an accelerated basis
as follows:
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Options
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If the Change in Control occurs prior to first
anniversary of the Effective Date
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One-fifth
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If the Change in Control occurs after the first
anniversary of the Effective Date and prior to the second
anniversary of the Effective Date
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Two-fifths
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If the Change in Control occurs after the
second anniversary of the Effective Date and prior to the third
anniversary of the Effective Date
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Three-fifths
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II. Notwithstanding the above grant
schedule for Stock Awards, in the event of a Change in Control
after the Initial Equity Offering Date, any then ungranted Stock
Awards shall be granted on the date of such Change in
Control.
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(iv) Alternative to Incentive
Compensation . In the event of a Change in Control prior to the
Initial Equity Offering Date and Executive has not been awarded the
Option Compensation described in Section 3(a)(iii)(a),
Executive shall be entitled to a cash payment in the amount of the
Option Value as reflected in the following schedule. In the event
of a Change in Control prior to the Initial Equity Offering Date
and Executive has not been awarded the Stock Award described in
Section 3(a)(iii)(b), Executive shall be entitled to a cash
payment in the amount of the Stock Award Value as reflected in the
following schedule.
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Option
Value
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Stock Award
Value
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If the Change in Control occurs prior to first
anniversary of the Effective Date
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$
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700,000
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$
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1,166,667
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If the Change in Control occurs after the first
anniversary and prior to the second anniversary of the Effective
Date
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$
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1,400,000
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$
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2,333,333
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If the Change in Control occurs after the
second anniversary and prior to the third anniversary of the
Effective Date
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$
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2,100,000
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$
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3,500,000
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The payment under this
Section 3(a)(iv) will be made within three (3) business
days after the effectiveness of the Change in Control.
(v) Signing Bonus . Executive
shall be entitled to a payment of $500,000 on November 1,
2006. The payment under this Section 3(a)(v) will be made
within three (3) business days after the date on which it is
earned.
(d) Vacation.
(i) Except as provided in
Section 3(b)(ii) below, during the term of this Agreement,
Executive shall accrue four (4) weeks paid vacation each
calendar year in accordance with the Company’s established
policies. Executive shall not be entitled to receive any additional
compensation from the Company for failure to take a vacation, nor
shall Executive be able to accumulate unused vacation time from one
year to the next, except to the extent authorized by the Company or
as Company policies or practice may otherwise provide.
(ii) During the 2006 calendar year,
Executive shall be entitled to take the pro-rata portion of four
(4) weeks paid vacation earned from the Effective Date through
the end of the calendar year.
(e) Benefit Plans. During the term,
Executive shall be entitled to participate in such benefit plans,
including without limitation: (i) medical, (ii) dental,
(iii) life insurance; (iv) short-term disability;
(v) long-term disability; and (vi) 401(k), as provided to
other senior executives of the Company at a level commensurate with
his position.
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4. Expenses.
The Company shall reimburse
Executive or otherwise provi