exv10w49



 





Exhibit
10.49




EXECUTIVE EMPLOYMENT AGREEMENT




     This Agreement is entered into between Shai Even (“Executive”) and ALON USA, GP, LLC
(“Employer” or “Company”) on August 1, 2003, who, in return for the mutual promises set forth
herein, agree as follows:



     1. Position/Term. (a) The term of the Executive’s employment hereunder shall commence upon
the date that the employment process, including obtaining a visa allowing entry and employment in
the United States is completed (the “Commencement Date”); provided that, except for purposes of
Sections 2, 3, 4 and 10 hereof, Executive shall be deemed to have commenced employment as of August
1, 2003.



          (b) Throughout the term of this Agreement, Employer shall employ Executive and Executive shall
render services to Employer in the capacity and with the title of Treasurer, or such other title as
may be established by Employer from time to time. Executive shall devote his full time and best
effort to the successful functioning of the business of Employer and shall faithfully and
industriously perform all duties pertaining to his position, including such additional duties as
may be assigned from time to time, to the best of Executive’s ability, experience and talent.
Executive shall be subject at all times during the term hereof to the direction and control of
Employer in respect of the work to be done.




          (c) Executive’s employment hereunder shall be for an initial term beginning on the
Commencement Date and ending on August 1, 2006. Thereafter, the term shall renew
automatically each year for a term of one year, unless either party provides the other with written
notice at least 30 days prior to the expiration of the term.




     2. Compensation. (a) From and after the Commencement Date, Executive’s salary (“Base
Compensation”) shall be $135,000 per year, payable bi-weekly (unless the payroll practice of the
Company changes to monthly or semi-monthly) in arrears and subject to change only with the mutual
written consent of Employer and Executive. It is the intent of the Company to develop guidelines
for annual merit increases for salaries of all salaried employees/Executive, including Executive.



          (b) From and after the Commencement Date, Executive shall be entitled to participate in the
Alon USA Annual Cash Bonus Plan containing the terms and conditions set forth in Exhibit A attached
hereto and incorporated herein which will be subject to modification from time to time as set forth
therein. For purposes of determining the Executive’s Target Bonus Amount under such plan, the
Executive shall participate up to an amount equal to fifty percent (50%) of base compensation.




     3. Fringe Benefits; Reimbursement of Expenses. Employer shall make available, or cause to be
made available to Executive, throughout the period of his employment hereunder, such benefits,
including any disability, hospitalization, medical benefits, life insurance, or other benefits or
policy, directors and officers insurance, as may be put into effect from time to time by Employer
generally for other Executive members at the level of Executive. The Company expressly reserves the
right to modify such benefits at any time, subject to the provisions of paragraph 10(b) hereof.



1









 





     Employer will pay for Executive’s primary living expenses including apartment rent or monthly
housing costs, utilities, cable and telephone according to the terms of Company’s Ex-Patriate
Policy. Employer will also provide Executive with a leased automobile including fuel and
maintenance. Housing and automobile costs deemed personal (not business) use will be taxable to
Executive according to Internal Revenue Service regulations. Any such amount deemed taxable will
be grossed up and reimbursed at his marginal tax rate.



     Executive will be reimbursed for all reasonable out-of-pocket business, business entertainment
and travel expenses paid by the Executive, in accordance with and subject to applicable Company
expense incurrence and reimbursement policies



     4. Vacation. Executive will be granted 15 days of vacation per year. Employer will pay for 2
roundtrip tickets per year for Executive and his spouse’s personal trips to Israel. Personal trips
taken during normal business hours will count against Executive’s allotted vacation days. Unless
otherwise agreed, vacation may not be carried over into a new calendar year. Vacation time shall be
taken only after providing reasonable notice to the person to whom the Executive reports.



     5. Compliance With Employer Policies. Executive shall comply with and abide by all employment
policies and directives of Employer. Employer may, in its sole discretion, change, modify or adopt
new policies and directives affecting Executive’s employment. In the event of any conflict between
the terms of this Agreement and Employer’s employment policies and directives, the terms of this
Agreement will be controlling.



     6. Restrictive Covenant. (a) In consideration of the confidential information of Employer
provided to Executive and the other benefits provided to Executive pursuant to this Agreement,
Executive agrees that during the term of Executive’s employment with Employer and for a period of
one year following any termination of Executive’s employment, if the Executive terminates
employment during the first two years of Executive’s employment, or nine months, if the Executive
terminates employment after the first two years of employment and before the completion of five
years of employment (the “Non-Compete Period”), Executive will not, without the prior written
consent of Employer, directly or indirectly, either as an individual or as an employee, officer,
director, shareholder, partner, sole proprietor, independent contractor, consultant or in any other
capacity conduct any business, or assist any person in conducting any business, that is in
competition with the business of Employer or its Affiliates (as defined below).



          (b) In addition to any other covenants or agreements to which Executive may be subject, during
the Non-Compete Period, Executive will not, directly or indirectly, either as an individual or as
an employee, officer, director, shareholder, partner, sole proprietor, independent contractor,
consultant or in any other capacity whatsoever approach or solicit any customer or vendor of
Employer for the purpose of causing, directly or indirectly, any such customer or vendor to cease
doing business with Employer or its Affiliates.




     For the purposes of this Agreement, the “business of Employer or its Affiliates” means the
business of convenience stores or retail fuel marketing in the Territory. The term “Affiliates”
means all subsidiaries of Employer and each person or entity that controls, is controlled by, or is
under common control with Employer. The “Territory” means the states of Texas, New Mexico, Arizona,



2









 







Arkansas, Louisiana and Oklahoma. It is understood and agreed that the scope of each of the
covenants contained in this Section 6 is reasonable as to time, area, and persons and is necessary
to protect the legitimate business interest of Employer. It is further agreed that such covenants
will be regarded as divisible and will be operative as to time, area and persons to the extent that
they may be so operative. The terms of this Section 6 shall not apply to the ownership by
Executive of less than 5% of a class of equity securities of an entity, which securities are
publicly traded on the New York Stock Exchange, the American Stock Exchange, or the National Market
System of the National Association of Securities Dealers Automated Quotation System. The
provisions of this Section 6 will survive any termination or expiration of this Agreement.



     7. Confidentiality. (a) Executive recognizes that during the course of employment, Executive
will be exposed to information or ideas of a confidential or proprietary nature which pertain to
Employer’s business, financial, legal, marketing, administrative, personnel, technical or other
functions or which constitute trade secrets (including, but not limited to, specifications,
designs, plans, drawings, software, data, prototypes, the identity of sources and markets,
marketing information and strategies; business and financial plans and strategies, methods of doing
business; data processing and Executive information and technical systems, programs and practices;
customers and users and their needs, sales history; and financial strength), and such information
of third parties which has been provided to Employer in confidence (“Confidential Information”).
All such information is deemed “confidential” or “proprietary” whether or not it is so marked,
provided that it is maintained as confidential by the Company. Information will not be considered
to be Confidential Information to the extent that it is generally available to the public. Nothing
in this Section 7 will prohibit the use or disclosure by Executive of knowledge that is in general
use in the industry or general business knowledge.



          (b) Executive shall hold Confidential Information in confidence, use it only in connection
with the performance of duties on behalf of Employer, and restrict its disclosure to those
directors, employees or independent contractors of Employer having a need to know.




          (c) Executive shall not disclose, copy or use Confidential Information for the benefit of
anyone other than Employer without Employer’s prior written consent.




          (d) Executive shall, upon Employer’s request or Executive’s termination of employment, return
to Employer any and all written documents containing Confidential Information in Executive’s
possession, custody or control.




     8. Non-Interference with Employment Relationships. During Executive’s employment with
Employer, and for a period of one (1) year thereafter, Executive shall not, without Employer’s
prior written consent, directly or indirectly: (a) induce or attempt to induce any employee to
leave the Employer’s employ; or (b) interfere with or disrupt the Employer’s relationship with any
of its employees or independent contractors.



     9. Copyright, Inventions, Patents. Employer shall have all right, title and interest to all
features (including, but not limited to, graphic designs, copyrights, trademarks and patents)
created during the course of or resulting from Executive’s employment with Employer. Executive
hereby assigns to Employer all copyright ownership and rights to any work developed by Executive
and reduced to practice for or on behalf of Employer or which relate to Employer’s business during



3









 







the course of the employment relationship. At Employer’s expense, Executive shall do all
other things including, but not limited to, the giving of evidence in suits and proceedings, and
the furnishing and/or assigning of all documentation and other materials relative to Employer’s
intellectual property rights, necessary or appropriate for Employer to obtain, maintain, and assert
its rights in such work.



     10. Termination of Employment. (a) Employer may terminate Executive’s employment hereunder
at any time for Cause. For purposes hereof, Cause shall mean: (i) conviction of a felony or a
misdemeanor where imprisonment is imposed for more than 30 days; (ii) commission of any act of
theft, fraud, dishonesty, or falsification of any employment or Employer records; (iii) improper
disclosure of Confidential Information; (iv) any intentional action by the Executive having a
material detrimental effect on the Company’s reputation or business; (v) any material breach of
this Agreement, which breach is not cured within ten (10) business days following receipt by
Executive of written notice of such breach; (vi) unlawful appropriation of a corporate opportunity;
(vii) intentional misconduct in connection with the performance of any of Executive’s duties,
including, without limitation, misappropriation of funds or property of the Company, securing or
attempting to secure to the detriment of the Company any profit in connection with any transaction
entered into on behalf of the Company, any material misrepresentation to the Company, or any
knowing violation of law or regulations to which the Company is subject; or (viii) loss of
immigration status allowing Executive to be employed in the United States. Upon termination of
Executive’s employment with the Company for Cause, the Company shall be under no further obligation
to Executive, except to pay all earned but unpaid Base Compensation and all accrued benefits and
vacation to the date of termination (and to the extent required by law).



          (b) Employer may terminate Executive’s employment hereunder without Cause, or Executive may
terminate his employment hereunder for Good Reason, in each case upon not less than thirty (30)
days prior written notice. In the event of any such termination, Executive shall be entitled to
receive his Base Compensation through the termination date and any annual bonus entitlement,
prorated for the number of months of employment for the fiscal year in question, all accrued
benefits and vacation to the date of termination (and to the extent required by law), plus, an
additional amount of severance payment equal to three month’s Base Compensation as in effect
immediately before any notice of termination. “Good Reason” means (i) without the Executive’s
prior written consent, the Employer reduces Executive’s Base Compensation or the percentage of
Executive’s Base Compensation established as Executive’s maximum target bonus percentage for
purposes of Employer’s annual cash bonus plan; (ii) any material breach of this Agreement, which
breach is not cured within ten (10) business days following receipt by Employer of written notice
of such breach; (iii) Employer requires Executive to be based at an office or location that is more
than thirty-five (35) miles from the location at which Executive was based as of the Commencement
Date, other than in connection with reasonable travel requirements of Employer’s business; (iv) the
delivery by Employer of notice pursuant to Section 1 (c) of this Agreement that it does not wish
this Agreement to automatically renew for any subsequent year; and (v) Executive may submit his
resignation at any time after July 31, 2010, which will be considered to be for Good Reason.




          (c) Executive may terminate the employment relationship hereunder with not less than thirty
(30) days prior written notice. Upon any such termination of Executive’s employment, other than for
Good Reason, the Company shall be under no further obligation to Executive, except to pay




4









 







all earned but unpaid Base Compensation plus a severance of 1 month of Base Compensation and
all accrued benefits and vacation to the date of termination (and to the extent required by law).




          (d) The provisions of Sections 6, 7, 8 and 9 of this Agreement will continue in effect
notwithstanding any termination of Executive’s employment.




     11. Mediation and Arbitration. (a) Employer and Executive hereby state their mutual desire
for any dispute concerning a legally cognizable claim arising out of this Agreement or in
connection with the employment of Executive by Employer, including, but not limited to, claims of
breach of contract, fraud, unlawful termination, discrimination, harassment, workers’ compensation
retaliation, defamation, tortious infliction of emotional distress, unfair competition, and
conversion (“Legal Dispute”), to be resolved amicably, if possible, and without the need for
litigation.



          (b) Based on this mutual desire, in the event a Legal Dispute arises, the parties shall
utilize the following protocol:




               (i) The parties shall first submit the Legal Dispute to mediation under the auspices of the
American Arbitration Association (“AAA”) and pursuant to the mediation rules and procedures
promulgated by the AAA.



               (ii) In the event mediation is unsuccessful in fully resolving the Legal Dispute, binding
arbitration shall be the method of final resolution of the Legal Dispute. The parties expressly
waive their rights to bring action against one another in a court of law, except as expressly
provided in subsection (d). The parties hereto acknowledge that failure to comply with this
provision shall entitle the non-breaching party not only to damages, but also to injunctive relief
to enjoin the actions of the breaching party. Any Legal Dispute submitted to Arbitration shall be
under the auspices of the AAA and pursuant to the “National Rules for the Resolution of Employment
Disputes,” or any similar identified rules promulgated at such time the Legal Dispute is submitted
for resolution. All mediation and arbitration hearings shall take place in Dallas, Texas.



          (c) Notice of submission of any Legal Dispute to mediation shall be provided no later than
three hundred sixty-five (365) calendar days following the date the submitting party became aware
of the conduct constituting the alleged claims. Failure to do so shall result in the irrevocable
waiver of the claim made in the Legal Dispute.




          (d) Notwithstanding that mediation and arbitration are established as the exclusive procedures
for resolution of any Legal Dispute, (i) either party may apply to an appropriate judicial or
administrative forum for injunctive relief and (ii) claims by Employer arising in connection with
paragraphs 6, 7, 8 or 9 may be brought in any court of competent jurisdiction.




          (e) Each party acknowledges that a remedy at law for any breach or attempted breach of
paragraphs 6, 7, 8 or 9 of this Agreement will be inadequate, agrees that Employer will be entitled
to specific performance and injunctive and other equitable relief in case of any breach or
attempted breach, and agrees not to use as a defense that any party has an adequate remedy at law.
This Agreement shall be enforceable in a court of equity, or other tribunal with jurisdiction, by a
decree of specific performance, and appropriate injunctive relief may be applied for and granted in
connection herewith. Such remedy shall not be exclusive and shall be in addition to any other

5









 








remedies now or hereafter existing at law or in equity, by statute or otherwise. Except as
provided in subsection (c) no delay or omission in exercising any right or remedy set forth in this
Agreement shall operate as a waiver thereof or of any other right or remedy and no single or
partial exercise thereof shall preclude any other or further exercise thereof or the exercise of
any other right or remedy.




     12. Assignment. This Agreement shall not be assignable by either party except that upon any
sale or transfer of all or substantially all of its business by Employer, Employer may assign this
Agreement to its successor; any failure to make such an assignment will be considered to constitute
the termination of Executive’s employment without cause effective upon the closing of the
referenced transaction.



     13. No Inducement, Agreement Voluntary. Executive represents that (a) he has not been
pressured, misled, or induced to enter into this Agreement based upon any representation by
Employer or its agents not contained herein, (b) he has entered into this Agreement voluntarily,
after having the opportunity to consult with representatives of his own choosing and that (c) his
agreement is freely given.



     14. Interpretation. Any paragraph, phrase or other provision of this Agreement that is
determined by a court, arbitrator or arbitration panel of competent jurisdiction to be unreasonable
or in conflict with any applicable statute or rule, shall be deemed, if possible, to be modified or
altered so that it is not unreasonable or in conflict or, if that is not possible, then it shall be
deemed omitted from this Agreement. The invalidity of any portion of this Agreement shall not
affect the validity of the remaining portions.



     15. Prior Agreements Superseded; Amendments. This Agreement revokes and supersedes all prior
agreements, written and oral, and represents the entire agreement between the parties in relation
to the employment of the Executive by the Company after the Commencement Date and shall not be
subject to modification or amendment by any oral representation, or any written statement by either
party, except for a dated writing signed by the Executive and the Employer.



     16. Notices. All notices, demands and requests of any kind to be delivered in connection with
this Agreement shall be in writing and shall be deemed to have been duly given if personally
delivered or if sent by nationally-recognized overnight courier or by registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:




	 	(a)	 	if to the Company, to:






ALON USA

7616 LBJ Freeway Suite 300

Dallas, TX 75251

Telecopy number: (972) 367-3725




	 	(b)	 	if to Executive, to the address of Executive
set forth on the signature page hereto;




or to such other address as the party to whom notice is to be given may have furnished to the other
in

6









 








writing in accordance with the provisions of this Section 16. Any such notice or communication
shall be deemed to have been received: (i) in the case of personal delivery, on the date of such
delivery; (ii) in the case of nationally-recognized overnight courier, on the next business day
after the date sent; and (iii) if by registered or certified mail, on the third business day
following the date postmarked.




     17. Applicable Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas without giving effect to principles of conflicts of law.









	 	 	 	 	 	 	 	 	 	 	 
	EXECUTIVE:	 	 	 	EMPLOYER:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Shai Even	 	 	 	ALON USA	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	/s/ Shai Even	 	 	 	By:	 	/s/ Jeff D. Morris	 	 
	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name:
	 	Jeff D. Morris	 	 
	 

	 	 	 	 	 	Title:
	 	President and Chief Executive Officer	 	 







7