LAW AND ITS
BYLAWS (INCLUDING ADVANCEMENT OF LEGAL FEES) FOR ANY ACTION OR INACTION OF
EXECUTIVE WHILE SERVING AS AN OFFICER OR DIRECTOR OF THE COMPANY.
THE COMPANY
WILL COVER EXECUTIVE UNDER ITS DIRECTORS AND OFFICERS LIABILITY INSURANCE AND
ITS DEFAMATION POLICIES BOTH DURING AND, WHILE POTENTIAL LIABILITY EXISTS, AFTER
EXECUTIVE'S TERMINATION OF EMPLOYMENT.
THE PROVISIONS OF THIS SECTION 10 SHALL
SURVIVE THE TERMINATION OF EXECUTIVE'S EMPLOYMENT WITH THE COMPANY.
11.
RESTRICTIVE COVENANTS.
(A)
ACKNOWLEDGMENTS.
EXECUTIVE ACKNOWLEDGES THAT:
(I) AS A RESULT OF
EXECUTIVE'S EMPLOYMENT BY THE COMPANY, EXECUTIVE HAS OBTAINED AND WILL OBTAIN
CONFIDENTIAL INFORMATION (AS DEFINED BELOW); (II) THE CONFIDENTIAL INFORMATION
HAS BEEN DEVELOPED AND CREATED BY THE
10
COMPANY AND ITS AFFILIATES AT SUBSTANTIAL EXPENSE AND THE CONFIDENTIAL
INFORMATION CONSTITUTES VALUABLE PROPRIETARY ASSETS; (III) THE COMPANY AND ITS
AFFILIATES WILL SUFFER SUBSTANTIAL DAMAGE AND IRREPARABLE HARM WHICH WILL BE
DIFFICULT TO COMPUTE IF, DURING THE TERM OF EMPLOYMENT AND THEREAFTER, EXECUTIVE
SHOULD ENTER A COMPETITIVE BUSINESS (AS DEFINED HEREIN) IN VIOLATION OF THE
PROVISIONS OF THIS AGREEMENT; (IV) THE NATURE OF THE COMPANY'S AND ITS
AFFILIATES' BUSINESS IS SUCH THAT IT COULD BE CONDUCTED ANYWHERE IN THE WORLD
AND THAT IT IS NOT LIMITED TO A GEOGRAPHIC SCOPE OR REGION; (V) THE COMPANY AND
ITS AFFILIATES WILL SUFFER SUBSTANTIAL DAMAGE WHICH WILL BE DIFFICULT TO COMPUTE
IF, DURING THE TERM OF EMPLOYMENT OR THEREAFTER, EXECUTIVE SHOULD SOLICIT OR
INTERFERE WITH THE COMPANY'S OR ITS AFFILIATES' EMPLOYEES OR SHOULD DIVULGE
CONFIDENTIAL INFORMATION RELATING TO THE BUSINESS OF THE COMPANY AND ITS
AFFILIATES; (VI) THE PROVISIONS OF THIS AGREEMENT ARE REASONABLE AND NECESSARY
FOR THE PROTECTION OF THE BUSINESS OF THE COMPANY AND ITS AFFILIATES; (VI) THE
COMPANY WOULD NOT HAVE HIRED OR CONTINUED TO EMPLOY EXECUTIVE OR GRANT THE
EQUITY AWARDS AND OTHER BENEFITS CONTEMPLATED UNDER THIS AGREEMENT UNLESS HE
AGREED TO BE BOUND BY THE TERMS HEREOF; AND (VII) THE PROVISIONS OF THIS
AGREEMENT WILL NOT PRECLUDE EXECUTIVE FROM OTHER GAINFUL EMPLOYMENT.
"COMPETITIVE BUSINESS" MEANS ANY BUSINESS, PARTNERSHIP, ENTERPRISE, ASSOCIATION
OR ACTIVITY THAT IS ACTIVELY INVOLVED IN THE BUSINESS OF PRODUCING AND/OR
MARKETING ETHANOL AND ETHANOL CO-PRODUCTS, OR ANY OTHER ACTIVITY OR BUSINESS IN
WHICH THE COMPANY WAS ENGAGED, OR HAD TAKEN MATERIAL STEPS TO ENGAGE IN, AT THE
TIME OF EXECUTIVE'S TERMINATION OR IN THE TWELVE (12) MONTHS PERIOD IMMEDIATELY
PRIOR THERETO. "CONFIDENTIAL INFORMATION" AS USED IN THIS AGREEMENT SHALL MEAN
ANY AND ALL CONFIDENTIAL AND/OR PROPRIETARY KNOWLEDGE, DATA, OR INFORMATION OF
THE COMPANY OR ANY AFFILIATE, INCLUDING, WITHOUT LIMITATION, ANY: (A) TRADE
SECRETS, DRAWINGS, INVENTIONS, METHODOLOGIES, MASK WORKS, IDEAS, PROCESSES,
FORMULAS, SOURCE AND OBJECT CODES, DATA, PROGRAMS, SOFTWARE SOURCE DOCUMENTS,
WORKS OF AUTHORSHIP, KNOW-HOW, IMPROVEMENTS, DISCOVERIES, DEVELOPMENTS, DESIGNS
AND TECHNIQUES, AND ALL OTHER WORK PRODUCT OF THE COMPANY OR ANY AFFILIATE,
WHETHER OR NOT PATENTABLE OR REGISTRABLE UNDER TRADEMARK, COPYRIGHT, PATENT OR
SIMILAR LAWS; (B) INFORMATION REGARDING PLANS FOR RESEARCH, DEVELOPMENT, NEW
SERVICE OFFERINGS AND/OR PRODUCTS, MARKETING, ADVERTISING AND SELLING,
DISTRIBUTION, BUSINESS PLANS, BUSINESS FORECASTS, BUDGETS AND UNPUBLISHED
FINANCIAL STATEMENTS, LICENSES, PRICES AND COSTS,