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EXHIBIT 10.3
CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION
AGREEMENT
CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION AGREEMENT
dated
March 23, 2005 (the "AGREEMENT") by and between, Pacific
Ethanol, Inc., a
Delaware corporation (the "COMPANY") and ______________, an
individual (the
"EXECUTIVE").
RECITALS
WHEREAS, Accessity Corp., a New York corporation ("ACCESSITY")
has
entered into a Share Exchange Agreement (the "SHARE EXCHANGE
AGREEMENT") by and
among Accessity; Pacific Ethanol, Inc., a California corporation
("PEI");
Kinergy Marketing, LLC, an Oregon limited liability company
("KINERGY");
ReEnergy, LLC, a California limited liability company
("REENERGY," and together
with PEI and Kinergy, the "ACQUIRED COMPANIES"); each of the
shareholders of PEI
(collectively, the "PEI SHAREHOLDERS"); each of the holders of
options or
warrants to acquire shares of common stock of PEI (collectively,
the "PEI
WARRANTHOLDERS"); each of the limited liability company members
of Kinergy
identified on the signature pages hereof (collectively, the
"KINERGY Members");
each of the limited liability company members of ReEnergy
identified on the
signature pages hereof (collectively, the "REENERGY MEMBERS");
and
WHEREAS, immediately prior to the closing of the Share
Exchange
Agreement, Accessity will merge with and into the Company;
and
WHEREAS, the Executives, pursuant to the Share Exchange
Agreement, are
transferring their respective interests in one or more of the
Acquired Companies
in exchange for common stock shares of the Company; and
WHEREAS, the Company wishes to protect the confidential
information of
the Company and to protect against the Executive's skills,
knowledge,
experience, ideas and influence for the benefit of a competitor
of the Company.
Executive is willing to enter into an agreement to provide such
protection to
the Company upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual
agreements herein contained, the parties agree as follows.
1. CONFIDENTIALITY, NON-COMPETITION AND NON-SOLICITATION.
(a) Executive acknowledges that: the business manufacturing,
distributing, reselling and brokering Ethanol and/or other
alternative fuels
(the "BUSINESS") is intensely competitive and Executive's former
interest in one
or more of the Acquired Companies and/or the Executive's former
and current
position with the Company has exposed, and will continue to
expose the Executive
to knowledge of confidential information of the Company; the
direct and indirect
disclosure of any such confidential information to existing or
potential
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competitors of the Company would place the Company at a
competitive disadvantage
and would do damage, monetary or otherwise, to the Company's
Business; and the
engaging by Executive in any of the activities prohibited by
this Agreement may
constitute improper appropriation and/or use of such information
and trade
secrets. Executive expressly acknowledges the trade secret
status of the
confidential information and that the confidential information
constitutes a
protectable business interest of the Company. Confidential
information and trade
secrets include, but are not limited to, customer and client
lists, price lists,
marketing and sales strategies and procedures, operational and
equipment
techniques, business plans and systems, quality control
procedures and systems,
special projects and technological research, including projects,
research and
reports for any entity or client or any project, research,
report or the like
concerning sales or manufacturing or new technology, employee
compensation plans
and any other information relating thereto, and any other
records, files,
drawings, inventions, discoveries, applications or processes
which are not in
the public domain (all the foregoing shall be referred to herein
as the
"CONFIDENTIAL INFORMATION").
(b) For purposes of this Agreement, the term "COMPANY" shall
be construed to include the Company and its current and future
subsidiaries and
affiliates engaged in the Business.
(c) From and after the Closing Date of the Share Exchange
Agreement (the "EFFECTIVE TIME"), Executive shall not, directly
or indirectly,
whether individually, as a director, stockholder, owner,
partner, employee,
principal or agent of any business, or in any other capacity,
make known,
disclose, furnish, make available or utilize any of the
confidential information
of the Company other than in the proper performance of the
duties contemplated
thereafter, or as required by a court of competent jurisdiction
or other
administrative or legislative body; PROVIDED THAT, prior to
disclosing any of
the confidential information to a court or other administrative
or legislative
body, Executive shall promptly notify the Compa
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