exv10w1



 







EXHIBIT 10.1




AMENDED AND RESTATED

MANAGEMENT EMPLOYMENT AGREEMENT




     This Amended and Restated Management Employment Agreement is entered into between Harlin Dean
(“Manager”) and Alon USA GP, LLC, a Delaware limited liability company (“Employer” or “Company”) on August 9,
2006, who, in return for the mutual promises set forth herein, agree as follows:



     1. Position/Term. (a) The term of the Manager’s employment hereunder shall be deemed to
have commenced as of October 1, 2002, (the “Commencement Date”).



          (b) Throughout the term of this Agreement, Employer shall employ Manager and Manager shall
render services to Employer in the capacity and with the titles of Vice President and General
Counsel, or such other title as may be established by Employer from time to time. In addition,
Manager shall serve as Vice President-Legal, Secretary and General Counsel of Alon USA Energy, Inc.
a Delaware corporation, the indirect parent of the Company. Manager 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 Manager’s ability, experience and talent.
Manager 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) Manager’s employment hereunder shall be for an initial term beginning on the Commencement
Date and ending on April 30, 2010. 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 90 days prior
to the expiration of the term.




     2. Compensation. (a) Manager’s salary (“Base Compensation”) shall be $300,000 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 Manager. It
is the intent of the Company to develop guidelines for annual merit increases for salaries of all
salaried employees/management, including Manager.



          (b) Manager shall be entitled to participate in the Alon USA Annual Cash Bonus Plan containing
such terms and conditions as shall be determined by the Company’s Board of Managers from time to
time. For purposes of determining the Manager’s Target Bonus Amount under such plan, the Manager
shall participate up to an amount equal to one hundred percent (100%) of base compensation.




          (c) Upon consummation of any merger, acquisition, disposition or financing transaction led by
Manager, Manager shall be entitled to an incentive bonus under the Alon USA Energy, Inc. 2005
Incentive Compensation Plan based on Manager’s personal performance in an amount equal to one-tenth
of one percent of the total consideration paid or received by the Company and its affiliates in
such transaction, including consideration in the




 









 




form of cash, assumed indebtedness or equity; provided that such bonus or bonuses shall not be
less than $50,000 in the aggregate in any fiscal year.




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



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



     4. Vacation. The number of vacation days to which Manager shall be entitled each year shall
be based on the years of service of the Manager for Employer as follows — 15 days up to 10 years,
20 days after 10 years, 25 days after 20 years and 30 days after 30 years. 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 Manager reports.



     5. Compliance With Employer Policies. Manager 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 Manager’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 Manager and the other benefits provided to Manager pursuant to this Agreement, Manager
agrees that during the term of Manager’s employment with Employer and for a period of one year
following any termination of Manager’s employment, if the Manager terminates employment during the
first two years of Manager’s employment, or nine months, if the Manager terminates employment after
the first two years of employment and before the completion of five years of employment (the
“Non-Compete Period”), Manager 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 Manager may be subject, during
the Non-Compete Period, Manager 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 refining petroleum distillates and the wholesale distribution of such products 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, Arkansas, Louisiana, Oklahoma, California, Washington, Oregon
and Nevada. 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 Manager 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) Manager recognizes that during the course of employment, Manager
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 management 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 Manager of knowledge that is in general
use in the industry or general business knowledge.



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




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




 









 





     8. Non-Interference with Employment Relationships. During Manager’s employment with Employer,
and for a period of one (1) year thereafter, Manager 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 Manager’s employment with Employer. Manager hereby
assigns to Employer all copyright ownership and rights to any work developed by Manager and reduced
to practice for or on behalf of Employer or which relate to Employer’s business during the course
of the employment relationship. At Employer’s expense, Manager 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 Manager’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 Manager 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
Manager of written notice of such breach; (vi) unlawful appropriation of a corporate opportunity;
or (vii) intentional misconduct in connection with the performance of any of Manager’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. Upon termination of
Manager’s employment with the Company for Cause, the Company shall be under no further obligation
to Manager, 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 Manager’s employment hereunder without Cause upon not less than one
hundred eighty (180) days prior written notice, or Manager may terminate his employment hereunder
for Good Reason upon not less than thirty (30) days prior written notice. In the event of any such
termination, Manager 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, during the first two years of Manager’s employment hereunder, an
additional amount of severance payment equal to one year’s Base Compensation as in effect
immediately before any notice of termination, and, after the first two years of Manager’s
employment hereunder, an amount of severance payment equal to nine months’ Base Compensation as in
effect immediately before any notice of termination. “Good Reason”
means (i) without the Manager’s prior written consent, the Employer reduces Manager’s




 









 




Base Compensation or the percentage of Manager’s Base Compensation established as Manager’s maximum
target bonus percentage for purposes of Employer’s annual cash bonus plan, or fails to continue in
effect defined benefit pension plans having vesting and benefit terms substantially similar to
those of the defined benefit plans maintained by the Company for the benefit of Manager prior to
the Commencement Date, unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan providing the Manager with substantially similar benefits) has been made with
respect to such 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 Manager to be based at an office or location that is more than thirty-five (35)
miles from the location at which Manager 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) Manager may submit his resignation at any
time after September 30, 2012, which will be considered to be for Good Reason.




     (c) Manager may terminate the employment relationship hereunder with not less than one hundred
eighty (180) days prior written notice. Upon any such termination of Manager’s employment, other
than for Good Reason, the Company shall be under no further obligation to Manager, 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).



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



     11. Mediation and Arbitration. (a) Employer and Manager 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 Manager 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
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 Manager’s employment without cause effective upon the closing of the referenced
transaction.



     13. No Inducement, Agreement Voluntary. Manager 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 Manager 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 Manager 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 GP, LLC
	 

	 	7616 LBJ Freeway STE 300
	 

	 	Dallas, TX 75251
	 

	 	Telecopy number: (972) 367-3723
	 
	 	 
	(b)

	 	if to Manager, to the address of Manager 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 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.



	 	 	 	 	 	 	 
	MANAGER:	 	EMPLOYER:
	 
	 	 	 	 	 	 
	Harlin Dean	 	ALON USA GP, LLC
	 
	 	 	 	 	 	 
	/s/
Harlin Dean
	 	By:	 	/s/ David Wiessman	 	 
	 

	 	 	 	 	 	 
	 	 	David Wiessman
	 	 	Chairman