EXECUTION COPY Exhibit 10.1
EMPLOYMENT AGREEMENT
FOR
PRESIDENT AND GENERAL MANAGER XXXXXX X. XXXXXXXXX
This Employment Agreement ("Agreement"), effective as of October 30, 2007
(the "Effective Date"), is between NEDAK ETHANOL, LLC (the "Company") and Xxxxxx
X. Xxxxxxxxx (the "Professional").
WHEREAS, the Board of Directors of the Company has approved the appointment
and employment of the Professional to serve as President and General Manager of
the Company;
WHEREAS, Professional desires to serve as President and General Manager of
the Company; and
WHEREAS, the parties wish to set forth the terms and conditions of such
engagement and service.
NOW, THEREFORE, in consideration of the above premises and the mutual
covenants and agreements contained herein, Company agrees to employ
Professional, and Professional hereby accepts employment with Company, upon the
terms and conditions hereinafter set forth.
1. Terms of Employment: Authority and Responsibilities.
(a) The Company hereby employs Professional as President and General
Manager of the Company, and Professional accepts such employment with the
Company subject to the terms and conditions of this Agreement. All
decision-making authority regarding the hiring, termination, supervision,
promotion, and compensation of Professional shall rest solely with the Board of
Directors of the Company.
(b) Professional is engaged as a Company employee to perform the duties set
forth in Exhibit A attached hereto and incorporated herein.
2. Compensation and Benefits.
(a) For all services rendered by Professional under this Agreement, Company
shall compensate and provide benefits to Professional as described in
Exhibit B attached hereto and incorporated herein. Company shall withhold
from any compensation or other benefits payable under this Agreement any
federal, state, city, or other taxes as shall be required by law or
governmental regulation or ruling.
(b) Company's obligation to pay compensation hereunder shall be subject to
Professional complying with all material terms and provisions of this
Agreement.
(c) Professional acknowledges that the compensation and benefits provided
hereunder constitute all of the remuneration due Professional by Company
for services rendered hereunder and that no additional remuneration shall
be provided to Professional.
3. Termination of Employment.
(a) Term. Subject to the provisions of paragraph 3(b) below, the term of
employment pursuant to this Agreement (the "Term") shall be four years. The Term
of this Agreement shall
commence on November 1, 2007, and shall expire on October 31, 2011. This Term
may be extended for two additional two-year periods upon express written consent
of both parties on or before September 1, 2011 and September 1, 2013,
respectively.
(b) Termination. This Agreement and the Professional's employment by the
Company hereunder may be terminated before the anticipated end of this
Agreement's Term: (i) by the mutual written agreement of Professional and the
Company; (ii) by the Company immediately for cause (as defined, and pursuant to
the procedures set forth, below); (iii) by Professional with or without cause
upon not less than one hundred twenty (120) days' prior written notice to the
Board of Directors of the Company.; (iv) upon the death of Professional; (v)
upon the Date of Disability (as defined below) of Professional; (vi) upon the
dissolution of the Company or the end of its operations at its Atkinson,
Nebraska facility.
For purposes of this Agreement, "cause" shall mean (i) conduct by
Professional amounting to criminal conduct, fraud, dishonesty, malfeasance,
gross negligence, gross incompetence; repeated public or private conduct
contrary to the policies of the Company or that results in a material detriment
to the Company or is inimical to the Company, its reputation, or interests; or
(ii) a breach by Professional of this Agreement, if such breach is not cured
within thirty (30) days after written notice thereof from the Company to
Professional.
For purposes of this Agreement, "disability" shall mean the inability of
the Professional to carry out his duties for a period of one hundred twenty
(120) days, which need not be consecutive, within any twelve (12) month period.
The expiration of such period of one hundred twenty (120) days shall be termed
the "Date of Disability."
(c) Effect of Termination. Upon the termination of the Professional's
employment hereunder, the Company shall have no further obligation to
Professional or his agents, representatives, heirs, or estate with respect to
this Agreement or his employment by the Company, except as provided in Section
3(d) below.
(d) Termination Payment. Except as otherwise provided herein, the
compensation and termination payments provided pursuant to this Section 3 shall
be paid at such times and in such manner as payments normally would be made
under Section 2 above and Exhibit B attached hereto and shall be subject to
deductions and withholding as provided in Section 2(a) above.
(i) In the event this Agreement and the Professional's employment
hereunder are terminated by mutual agreement pursuant to Section 3(b)(i)
above, the Professional's termination payments, if any, shall be as
mutually agreed in writing by Professional and the Company.
(ii) In the event this Agreement and the Professional's employment
hereunder are terminated for cause pursuant to Section 3(b)(ii) above, the
Company's sole obligation to Professional shall be the provision of any
payments or benefits pursuant to Section 2 above and Exhibit B attached
hereto which have been earned but have not been provided through the date
of termination.
(iii) In the event this Agreement and the Professional's employment
hereunder are terminated by Professional upon not less than one hundred
twenty (120) days' prior written notice to the Company pursuant to Section
3(b)(iii) above, the Company shall
provide all payments and benefits to Professional pursuant to Section 2
above and Exhibit B attached hereto which have been earned but have not
been provided through the date of termination.
(iv) In the event this Agreement and the Professional's employment
hereunder are terminated by the death of the Professional pursuant to
Section 3(b)(iv) above, the Company shall provide to the Professional's
estate all payments and benefits pursuant to Section 2 above and Exhibit B
attached hereto which have been earned but have not been provided through
the date of the Professional's death.
(v) In the event this Agreement and the Professional's employment
hereunder are terminated by the disability of Professional pursuant to
Section 3(b)(v) above, the Company shall provide to Professional all
payments and benefits pursuant to Section 2 above and Exhibit B attached
hereto which have been earned but have not been provided through the Date
of Disability.
(vi) In the event this Agreement and the Professional's employment
hereunder are terminated by the dissolution of the Company or the end of
its operations at its Atkinson, Nebraska facility pursuant to Section
3(b)(vi) above, the Company shall provide to Professional all payments and
benefits pursuant to Section 2 above and Exhibit B attached hereto which
have been earned but have not been provided through the date of the
dissolution or end of operations.
(e) Cooperation after Termination. Professional shall cooperate with
Company following termination to the extent necessary for an orderly transition.
In the event of Professional's termination as part of a planned retirement,
Professional shall provide at least nine (9) months' notice of his intent to
retire and agrees to assist, train and work on the transition of his replacement
until such retirement.
4. Compliance with Laws, Regulations, Rules, and Standards.
Professional covenants that at all times during the term of this
Agreement, he shall:
(a) comply with all applicable laws, rules, and regulations of the United
States, the State of Nebraska, and any other applicable governmental
agencies in the performance of services hereunder;
(b) not engage in any personal or professional conduct which, in the
reasonable determination of Company, does or may adversely affect the
delivery of goods and services to the Company's clients and customers
and/or the Company's general reputation;
(c) provide all of the goods and services as required by this Agreement for
Company clients and customers and execute all of his duties under this
Agreement regardless of an employee's, client's, or customer's race, color,
religion, sex, national origin, age, disability, marital status, or any
other characteristic protected by applicable local, state, or federal law;
and
(d) review, acknowledge, abide by, and comply with Company's Employee
Handbook and other applicable policies and procedures, and participate in
compliance education and training as requested by Company.
5. Conflicts of Interest.
Professional shall avoid all activities and other actions that might
conflict with, or that might appear to conflict with, the interests of the
Company. Professional shall not use his position, or any knowledge gained
therefrom or in connection therewith, in such a manner that a conflict, or the
appearance of a conflict, arises between (i) the interest of the Company, and
(ii) the Professional or the Professional's personal, immediate family, or
private economic or other interests.
6. Membership on Outside Boards of Directors.
Professional shall not serve on the board of directors, governing body,
committee of the board of directors, or as an officer or employee of any company
or organization (collectively, "organization") without the prior written consent
of the Board of Directors of the Company. Notwithstanding the foregoing, during
his employment by the Company, Professional shall not serve on the board of
directors, governing body, committee of the board of directors, or as an officer
or employee of any organization if the Professional's simultaneous service and
the interests of the Company or the Professional's obligations or duties under
this Agreement, would conflict in any manner. If, during the term of this
Agreement, any such conflict arises as a result of the Professional's membership
on the board of directors, governing body, committee of the board of directors,
or status as an officer or employee of another organization, Professional shall
resign immediately from such position.
7. Use of Name of the Company.
Professional shall not use the name of the Company or be identified as the
President and General Manager of the Company or as an employee, officer or agent
of the Company (i) in connection with any outside company or organization, any
campaign for public office, any outside fund-raising activities, or any public
policy matters (including efforts to enact, defeat or alter legislation,
regulations or other governmental policy) other than public policy matters
pursued at the direction and on behalf of the Company, (ii) or in connection
with any other activities that are outside the scope of the Professional's
employment by Company, unless in each instance Professional receives the prior
written consent of the Board of Directors of the Company.
8. Indemnification. The Company shall indemnify, defend and hold harmless
Professional in the manner and to the extent provided by the Company's Operating
Agreement, as the same may be amended from time to time.
9. Protective Covenants. The Professional and the Company agree that the
following provisions are necessary and appropriate for the protection of the
Company's legitimate business interests.
(a) Confidentiality. In the course of his employment by the Company,
Professional will have access to Confidential Information (as defined in this
paragraph) of the Company. Professional agrees to maintain the strict
confidentiality of all Confidential Information during the
term of this Agreement and thereafter. For purposes of this Agreement,
"Confidential Information" shall mean all information and materials of the
Company, and all information and materials received by the Company from third
parties, which are not generally publicly available and all other information,
and materials, which are of a proprietary or confidential nature, even if they
are not marked as such. This provision shall survive the termination of this
Agreement indefinitely.
(b) Intellectual Property. Professional recognizes and agrees that all
copyrights, trademarks, patents, and other intellectual property rights to works
or marks arising in, from or in connection with the Professional's employment by
the Company, and that are within the scope of the Professional's employment by
the Company, are the sole and exclusive property of the Company. Professional
agrees to assign, and hereby does assign, to the Company all rights, if any, in
or to such works or marks that may accrue to Professional during the term of
this Agreement. This provision shall survive the termination of this Agreement
indefinitely.
(c) Agreement Not to Solicit Employees. During the term of this Agreement
and for a period of twelve (12) months immediately following the termination of
this Agreement, the Professional shall not, either directly or indirectly, on
his own behalf or in the service or on behalf of others, solicit or recruit (or
attempt to solicit or recruit) any person employed by the Company to or for any
business, organization, program, or activity, other than for a program, activity
or operation of the Company.
(d) Non-competition. During the term of this Agreement and for a period of
twelve (12) months immediately following the termination of this Agreement, the
Professional shall not, either directly or indirectly, on his own behalf or in
the service of or on behalf of others, whether as an employee, officer,
director, independent contractor, consultant, stockholder, partner, or otherwise
contact or solicit business from any individual or entity that was a customer or
account of the Company with whom he did business and had personal contact during
the term of his employment with the Company.
10. Nondiscrimination.
Professional recognizes that the Company is an equal employment opportunity
employer. Professional agrees that he will not unlawfully discriminate against
any employee, prospective employee, member, vendor, client, customer or other
individual or entity on the basis of race, color, religion, sex, national
origin, age, disability, marital status or any other characteristic protected by
any applicable local, state or federal law.
11. Miscellaneous.
(a) Assignment. Professional may not assign any part of the Professional's
rights or obligations under this Agreement. In the event of the dissolution of
the Company, this Agreement shall continue in force through the then-current
term of this Agreement (unless otherwise terminated as provided herein). In the
event of any merger, consolidation or reorganization involving the Company, this
Agreement shall become an obligation of, inure to the benefit of, and be
assigned to, any legal successor or successors to the Company. The Company may
not otherwise assign this Agreement without the express prior written consent of
Professional.
(b) Warranties. Each party hereto covenants, warrants and represents that
it shall comply with all laws and regulations applicable to this Agreement, and
that it shall exercise due care and act in good faith at all times in
performance of its obligations under this Agreement.
(c) Headings. Titles or captions of sections or paragraphs contained in
this Agreement are intended solely for the convenience of reference, and shall
not serve to define, limit, extend, modify, or describe the scope of this
Agreement or the meaning of any provision hereof.
(d) Waiver. A waiver by the Company of any breach of this Agreement by
Professional shall not be effective unless in writing, and no such waiver shall
constitute a waiver of the same or another breach on a subsequent occasion.
(e) Governing Law and Jurisdiction for Dispute Resolution. All questions
with respect to the construction of this Agreement or the rights and liabilities
of the parties hereunder shall be determined in accordance with the laws of the
State of Nebraska. Any legal action taken or to be taken by either party
regarding this Agreement or the rights and liabilities of parties hereunder
shall be brought only before a federal, state or local court of competent
jurisdiction located within the State of Nebraska. Each party hereby consents to
the jurisdiction of the federal, state and local courts located within the State
of Nebraska for such purposes.
(e) Severability. All provisions of this Agreement are severable. If any
provision or portion hereof is determined to be unenforceable in arbitration or
by a court of competent jurisdiction, then the remaining portion of the
Agreement shall remain in full force and effect.
(f) Force Majeure. Neither party shall be liable for failure to perform its
obligations under this Agreement due to events beyond that party's reasonable
control, including, but not limited to, strikes, riots, wars, fire, acts of God,
and acts in compliance with any applicable law, regulation or order (whether
valid or invalid) of any governmental body.
(g) Counterparts. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one (1) and the same instrument.
(h) Entire Agreement and Amendment. This Agreement: (i) constitutes the
entire agreement between the parties with respect to the subject matter hereof;
(ii) supersedes and replaces all prior agreements, oral and written, between the
parties relating to the subject matter hereof; and (iii) may be amended only by
a written instrument clearly setting forth the amendment(s) and executed by both
parties.
(i) Effective Only Upon Board Approval. While this Agreement may be signed
on behalf of the Company, it shall be effective only if and when it is approved
by the Board of Directors of the Company ("Board").
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above set forth.
NEDAK ETHANOL, LLC PROFESSIONAL
/s/ Xxxxxxx Xxxxx /s/ Xxxxxx Xxxxxxxxx
-------------------------- ----------------------------
Xxxxxxx Xxxxx Xxxxxx X. Xxxxxxxxx
Chairman Date: October 30, 2007
Date: October 30, 2007
EXHIBIT A
DUTIES
1. General Duty of Care.
In his capacity as President and General Manager of the Company,
Professional shall perform all of the duties and have all of the obligations as
may be provided and determined in the Articles of Organization and Operating
Agreement of the Company and the Job Description for the President and General
Manager position, as the same may be amended from time to time, and as may be
determined by the Board of Directors of the Company. Throughout his employment,
Professional shall devote all of his time, energy and skill during regular
business hours to the performance of the duties of his employment by the Company
(reasonable vacation time and reasonable absences due to illness excepted),
shall faithfully and industriously perform such duties, and shall diligently
follow and implement all management policies and decisions of the Company.
2. Services.
The services Professional shall provide in his position of President and
General Manager of the Company shall include, but not be limited to: (a)
supervise, manage, and direct all general operations of the Company with
efficiency and proper economy; (b) plan, direct, and coordinate the programs and
activities of the plant; (c) execute quality control measures ensuring all
aspects of the operation are functioning to the level desired by the Board of
Directors; (d) hire, supervise, and discharge all employees as necessary; (e)
manage, supervise, and motivate employees; (f) ensure all benefits, taxes, and
insurance are properly and timely administered; (g) comply with all laws and
regulations, including environmental permits, OSHA and other safety regulations
and all Securities and Exchange limitations or regulations; (h) report to the
Board of Directors on a quarterly basis; and (h) perform any other duty,
assignment or task as assigned by the Board of Directors of the Company. The
Professional's Main Accountabilities in his position as President and General
Manager are to: (1) perform Human Resources responsibilities (including
interviewing prospective employees, disciplining employees, and terminating
employees, handling employee grievances and complaints, retaining outside
professionals to present on safety, employee relations, and plant efficiency,
and conducting yearly reviews of employees); (2) meet with the Plant Manager,
Maintenance Manager, Quality Assurance Manager, and Production Manager (or such
other employees that are his direct reports) on a daily basis; (3) prepare
annual budget with Controller or similar position; (4) oversee all plant
operations to ensure compliance with all local, state, and federal laws,
including but not limited to, OSHA, FMLA, FLSA, and EPA; and (5) report to the
Board of Directors on no less than a quarterly basis, providing the Board with
information on the plant's financial position, and operational issues.
EXHIBIT B
COMPENSATION AND BENEFITS
1. Annual Base Salary.
In consideration for his service under the terms of this Agreement, the
Company shall pay to Professional an annual base salary ("Base Salary"), which
amount shall be paid in installments in accordance with the normal payroll
payment practices of the Company and shall be subject to such deductions and
withholding as are required by law and by the policies of the Company, from time
to time in effect. The Base Salary shall be at the rate of One-Hundred Thirty
Thousand Dollars ($130,000.00) per annum, effective November 1, 2006, increased
by a minimum of a five percent (5%) per annum upon each anniversary thereafter
during the term of the Agreement.
The Base Salary shall be reviewed by the Compensation Committee and the
Board of Directors on Professional's fourth anniversary date of employment under
this Agreement and annually on each anniversary date thereafter. In the sole
discretion of the Compensation Committee and the Board of Directors based upon
its assessment of Professional's job performance, achievement of targets and
goals set by the Board, the general performance of the Company, and other
factors the Board considers relevant, Professional may receive a raise in his
annual base salary during his fourth and subsequent years of employment under
this Agreement, in the Committee's and Board's reasonable discretion.
2. Expenses.
Professional shall be reimbursed by the Company for expenses incurred in
direct relationship with Professional's employment with the Company. All
expenses must be submitted on the Company's expense report form. Original
receipts should be enclosed with the Company's expense report. Expenses must be
submitted to the secretary of the Board within thirty days to be reimbursed by
the Company. Reimbursement will occur on the payday following the submission and
approval of the Expense report.
3. Fringe Benefits.
Professional shall be entitled to participate in fringe benefit programs
which the Company may from time to time have in effect, potentially including
health insurance, dental insurance, 401(k), short-term disability, long-term
disability, and life insurance, on the terms and conditions offered the
Company's other employees.
4. Vacation and Sick Leave.
Professional shall be entitled to three (3) weeks (fifteen (15) business
days) of vacation/sick leave during the each calendar year of this Agreement
without any
deduction in his compensation, at such times within each year as the
Professional may determine, taking into account the Company's schedule and the
Professional's duties relative thereto. During Professional's initial and last
years of employment, this entitlement to vacation/sick leave shall be prorated
for any portion of the calendar year Professional is not employed by the
Company.
5. Company Car.
The Company shall provide a vehicle allowance of $750 per month.
6. Bonus.
A bonus will be offered at a rate of one percent (1%) per fiscal quarter of
net profits (as defined in accordance with GAAP), and it will not exceed seventy
five percent (75%) of Base Salary annualized. Such bonus will be paid at the end
of the calendar year or a reasonable period thereafter, as determined by the
Compensation Committee, as may be necessary for the closing of the books and the
computation of such amounts.
