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EXHIBIT 10.4
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
Neil Koehler, 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
competitors of the Company would place the
Company at a competitive disadvantage
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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
Company so that it may seek a
protectiv
