SUPPLIERS, CUSTOMERS OR
DISTRIBUTION ARRANGEMENTS; (C) ANY INFORMATION REGARDING THE SKILLS AND
COMPENSATION OF EMPLOYEES, SUPPLIERS, AGENTS, AND/OR INDEPENDENT CONTRACTORS OF
THE COMPANY OR ANY AFFILIATE; (D) CONCEPTS AND IDEAS RELATING TO THE DEVELOPMENT
AND DISTRIBUTION OF CONTENT IN ANY MEDIUM OR TO THE CURRENT, FUTURE AND PROPOSED
PRODUCTS OR SERVICES OF THE COMPANY OR ANY AFFILIATE; OR (E) ANY OTHER
INFORMATION, DATA OR THE LIKE THAT IS LABELED CONFIDENTIAL OR ORALLY DISCLOSED
TO EXECUTIVE AS CONFIDENTIAL.
(B)
CONFIDENTIALITY.
IN CONSIDERATION OF THE BENEFITS PROVIDED FOR
UNDER THIS AGREEMENT, EXECUTIVE AGREES NOT TO, AT ANY TIME, EITHER DURING THE
TERM OF EMPLOYMENT OR THEREAFTER, DIVULGE, USE, PUBLISH OR IN ANY OTHER MANNER
REVEAL, DIRECTLY OR INDIRECTLY, TO ANY PERSON, FIRM, CORPORATION OR ANY OTHER
FORM OF BUSINESS ORGANIZATION OR ARRANGEMENT AND KEEP IN THE STRICTEST
CONFIDENCE ANY CONFIDENTIAL INFORMATION, EXCEPT (I) IN THE GOOD FAITH
PERFORMANCE OF EXECUTIVE'S DUTIES HEREUNDER, (II) WITH THE COMPANY'S EXPRESS
WRITTEN CONSENT, (III) TO THE EXTENT THAT ANY SUCH INFORMATION IS IN OR BECOMES
IN THE PUBLIC DOMAIN OR THE RELEVANT TRADE OR INDUSTRY OTHER THAN AS A RESULT OF
EXECUTIVE'S BREACH OF ANY OF OBLIGATIONS HEREUNDER, OR (IV) WHERE REQUIRED TO BE
DISCLOSED BY COURT ORDER, SUBPOENA OR OTHER GOVERNMENT PROCESS AND IN SUCH
EVENT, EXECUTIVE SHALL COOPERATE WITH THE COMPANY IN ATTEMPTING TO KEEP SUCH
INFORMATION CONFIDENTIAL.
UPON THE REQUEST OF THE COMPANY, EXECUTIVE AGREES TO
PROMPTLY DELIVER TO THE COMPANY THE ORIGINALS AND ALL COPIES, IN WHATEVER
MEDIUM, OF ALL SUCH CONFIDENTIAL INFORMATION.
11
(C)
NON-COMPETE.
IN CONSIDERATION OF THE BENEFITS PROVIDED FOR IN
THIS AGREEMENT, EXECUTIVE COVENANTS AND AGREES THAT DURING EXECUTIVE'S
EMPLOYMENT AND DURING THE RESTRICTIVE PERIOD (AS DEFINED BELOW), EXECUTIVE WILL
NOT, DIRECTLY OR INDIRECTLY FOR OR ON BEHALF OF HIMSELF OR ANY OTHER PERSON OR
ENTITY (I) ENGAGE IN ANY COMPETITIVE BUSINESS (AS DEFINED BELOW) OR
(II) PARTICIPATE OR INVEST IN, PROVIDE OR FACILITATE THE PROVISION OF FINANCING
TO, OR ASSIST (WHETHER AS OWNER, PART-OWNER, SHAREHOLDER, MEMBER, PARTNER,
DIRECTOR, OFFICER, TRUSTEE, EMPLOYEE, AGENT OR CONSULTANT, OR IN ANY OTHER
CAPACITY) ANY COMPETITIVE BUSINESS (AS DEFINED BELOW).
FOR THE AVOIDANCE OF
DOUBT, THIS COVENANT SHALL NOT PRECLUDE EXECUTIVE FROM TRADING ETHANOL-RELATED
COMMODITIES; PROVIDED THAT SUCH ACTIVITY DOES NOT HAVE A MATERIAL AND ADVERSE
EFFECT ON THE COMPANY.
"RESTRICTIVE PERIOD" SHALL MEAN THE PERIOD OF EXECUTIVE'S EMPLOYMENT WITH THE
COMPANY AND (I) IN THE EVENT OF TERMINATION OF EXECUTIVE'S EMPLOYMENT BY THE
COMPANY FOR CAUSE OR WITHOUT CAUSE OR BY THE EXECUTIVE FOR GOOD REASON, THE
12-MONTH PERIOD THEREAFTER OR (II) IN THE EVENT OF TERMINATION OF EXECUTIVE'S
EMPLOYMENT BY THE EXECUTIVE WITHOUT GOOD REASON OR UPON EXPIRATION OF THE TERM,
THE PERIOD OF UP TO 12 MONTHS FOLLOWING EXECUTIVE'S EMPLOYMENT FOR WHICH THE
COMPANY ELECTS (PURSUANT TO 15 DAYS ADVANCE WRITTEN NOTICE) TO PAY EXECUTIVE THE
PRO RATA PORTION OF THE NON-COMPETE AMOUNT.
"NON-COMPETE AMOUNT" SHALL MEAN THE
SUM OF EXECUTIVE'S BASE SALARY AND THE AVERAGE OF THE ANNUAL BONUSES EARNED
UNDER SECTION 5 DURING HIS EMPLOYMENT; PROVIDED