Exhibit 10.1
AMENDED & RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment
Agreement (this “ Agreement ”) is
effective as of this 24th day of October , 2008
(“Effective Date”), by and between GREEN PLAINS
RENEWABLE ENERGY, INC., an Iowa corporation (the “
Company ”), and JERRY PETERS, an individual
(“ Executive ”).
In consideration of the promises and
mutual covenants contained herein, the parties hereto agree as
follows:
1.
Employment; Location
. The Company hereby employs Executive
and Executive hereby accepts such employment in the Omaha, Nebraska
metro area.
2.
Term . Executive’s employment shall be
“at-will” and may be terminated at any time, by either
party, for any reason whatsoever (the “ Term
”).
3.
Duties and Authorities
. During the Term:
3.1
Executive shall be appointed and serve as
the Chief Financial Officer of the Company and will report to the
Chief Executive Officer (“CEO”) of the Company.
Executive shall have responsibilities, duties and authority
reasonably accorded to and expected of such positions in similar
businesses in the United States, including and such
responsibilities and duties assigned by Chief Operating Officer and
Chief Executive Officer from time to time (the “
Duties ”).
3.2
Except as otherwise expressly provided
herein, Executive shall diligently execute such Duties and shall
devote his full time, skills and efforts to such Duties, subject to
the general supervision and control of the CEO. Except as
expressly approved by the Board, Executive will not engage in any
other employment, occupation or consulting activity during the Term
of this Agreement. The Board will, however, allow Executive
to serve on one outside board of directors or advisory board.
This commitment may not require more than eight hours per
month and is subject to Company’s right to discontinue this
authorization at any time and for any or no reason.
4.
Compensation and Benefits
. The Company shall pay Executive, and
Executive accepts as full compensation for all services to be
rendered to the Company, the following compensation and
benefits:
4.1
Base Salary . The Company shall pay Executive a base salary of
Two Hundred Eighty Thousand Dollars ($280,000) per year. Base
salary shall be payable in equal installments twice monthly or at
more frequent intervals in accordance with the Company’s
customary pay schedule. The Company shall annually consider
increases of Executive’s base salary and may periodically
increase such base salary in its discretion.
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4.2
Additional Compensation
. In addition to base salary, the
Company shall pay the following to Executive:
(a)
Special One-Time Bonus
. The Company shall pay to
Executive a one-time bonus in connection with the execution of this
Agreement in the amount equal to Sixty Thousand Dollars ($60,000),
payable within 10 business days following the Effective Date of
this Agreement.
(b)
Annual Bonus . Executive will be entitled to a bonus of up
to fifty percent (50%) of annual base salary, payable annually,
based on objectives set by the Company. The Company will
obtain feedback from Executive before setting bonus
objectives.
(c)
Long-Term Incentive
Compensation . The
Compensation Committee will engage an outside compensation
consultant to assist in the development of a long-term incentive
program (“LTIP”) for the Company. Executive shall be
eligible to participate in such LTIP at the sole discretion of the
Company.
4.3
Equity Incentive
Compensation .
(a)
Stock Compensation.
On the Effective Date, the Company
shall provide Executive a grant of 25,000 shares of the
Company’s common stock which shall be subject to terms and
conditions set out in the Company’s 2007 Equity Compensation
Plan and related stock grant and to approval by the Company’s
shareholders (or in the alternative, allocated from the 2007 Equity
Compensation Plan, or any successor thereto, in 2009). As
will be set forth in the related stock grant, the shares shall vest
as follows: one-fourth shall vest at the Effective Time
(subject to the Company’s shareholder approval or the
alternative set forth above), with one-fourth vesting each year
thereafter until fully vested. All shares not vested at the
time of Executive’s termination from employment shall be
forfeited. Executive hereby requests the Company withhold a portion
of these shares to apply against applicable income and employment
tax withholding on the issuance of shares. Accordingly, at
the time of each share issuance 65 percent of the vesting shares
shall be released and the value of the remaining 35 percent of the
vesting (determined based on the closing price of the stock on the
date of vesting) shall be applied against the Executives tax
withholding.
(b)
Option Compensation
. On the Effective Date, Executive
will be granted an option exercisable for 50,000 shares of the
Company’s common stock at a strike price of $5.99. The
option shall vest as follows: one-fourth shall vest at the
Effective Time with one-fourth vesting each year thereafter until
fully vested. The options shall terminate on the earlier of
the ten (10) year anniversary of the Effective Date or the 90
th day after Executive’s termination of employment
for any reason, other than for death or disability, in which case
the grant shall terminate on the 366 th day after death
or disability, and shall be subject to terms and conditions set out
in the Company’s 2007 Equity Compensation Plan and related
stock option grant.
4.4
Additional Benefits
. Executive shall be permitted,
during the Term, if and to the extent eligible, to participate in
any group life, hospitalization or disability insurance plan,
health or dental program, pension plan, similar benefit plan or
other so-called “fringe benefits” of the Company made
available to officers of the Company.
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4.5
Vacation . Executive shall be entitled to an aggregate
of up to four weeks leave for vacation for each calendar year
during the Term at full pay. Executive agrees to give
reasonable notice of his vacation scheduling requests, which shall
be allowed subject to the Company’s reasonable business
needs. No more than five (5) days vacation may be carried over from
one year to the next year.
4.6
Deductions . The Company shall have the right to deduct
from the compensation due to Executive hereunder any and all sums
required for social security and withholding taxes and for any
other federal, state or local tax or charge which may be hereafter
enacted or required by law as a charge on the compensation of
Executive.
5.
Business Expenses
. Executive may incur reasonable,
ordinary and necessary business expenses in the course of his
performance of his obligations under this Agreement. The Company
shall reimburse Executive in accordance with the Company’s
business expense reimbursement policy.
6.
Reserved .
7.
Termination .
7.1
Termination for Cause
. Executive’s employment
hereunder shall be terminable for Cause (as defined below) upon
written notice from the Company to Executive. As used in this
Agreement, “ Cause ” shall mean one of
the following: (a) a material breach by Executive of the terms of
this Agreement, not cured within thirty (30) days from receipt of
notice from the Board of such breach, (b) conviction of or plea of
guilty or no contest to, a felony; (c) willful misconduct or gross
negligence in connection with the performance of Executive’s
duties; or (d) willfully engaging in conduct that constitutes
fraud, gross negligence or gross misconduct that results in
material harm to the Company. For purposes of this
definition, no act, or failure to act, on Executive’s part
shall be considered "willful" unless done, or omitted to be done,
by Executive in knowing bad faith and without reasonable belief
that his action or omission was in, or not opposed to, the best
interests of the Company. If the Company terminates
Executive’s employment for Cause, Executive shall be paid his
salary and benefits through the date of termination and, except as
otherwise required by applicable law or under any applicable and
properly approved compensation plan or arrangement, no other
amounts shall be payable.
7.2
Termination without Cause or for Good
Reason . The Company may
terminate Executive’s employment at any time for any reason
(or no reason) other than Cause, as determined by the Board and the
Executive may terminate Executive’s employment with the
Company for Good Reason and resign any and all positions as officer
of the Company and any related companies. If the Company terminates
Executive’s employment without Cause or the Executive
terminates his employment for Good Reason:
(a)
The Company shall pay within 10 business
days after such termination: (1) an amount equal to six (6)
months of Executive’s full base salary on the date of his
termination plus (2) an amount equal to the greater of one-half
times the maximum annual cash bonus that could be paid to Executive
for the year in which termination occurred or one-half times the
average bonus paid to Executive during the prior two years;
and
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(b)
All options and other equity awards,
whether made pursuant to this agreement or otherwise, shall become
fully vested and released from any restrictions on transfer upon
such termination.
As used in this Agreement, “
Good Reason ” shall mean any of the following
if the same occurs without Executive’s express written
consent: (a) a material diminution in Executive’s base
salary as described in Section 4.1, which for such purposes shall
be deemed to exist with a reduction of greater than fifteen percent
(15%) ; (b) a material diminution in Executive’s authority,
Duties, or responsibilities; (c) a material diminution in the
authority, duties, or responsibilities of the person to whom
Executive is required to report; (d) a material change in the
geographic location at which Executive must perform the services
pursuant to Section 1 (for this purpose, any relocation of more
that 50 miles shall be deemed a material change following a Change
in Control as defined in the 2007 Equity Compensation Plan; (e) any
material reduction or other adverse change in Executive’s
benefits under any applicable and properly approved compensation
plan or arrangement without the substitution of comparable
benefits; or (f) any other action or inaction that constitutes a
material breach by the Company under this Agreement. To terminate
for Good Reason, an Executive must incur a termination of
employment on or before the second (2 nd ) anniversary
of the initial existence of the condition.
Executive shall be required to provide
notice to the Company of the existence of any of the foregoing
conditions within 60 days of the initial existence of the
condition, upon the notice of which the Company shall have a period
of 30 days during which it may remedy the condition.
7.3
Termination by Executive Without Good
Reason . If Executive
terminates without Good Reason, then Executive will be required to
give the Company at least ninety (90) days notice. If
Executive terminates without Good Reason then Executive will be
paid his salary and benefits through the date of termination and,
except as otherwise required by applicable law, no other amounts
shall be payable except as provided under any applicable and
properly approved compensation plan or arrangement.
7.4
Section 280G Adjustments
. In the event that the severance
benefits provided the Executive as described in Section 7.2 and all
other benefits provided for in this Agreement or otherwise payable
to the Executive (excluding for this purpose any payments that may
be made under this section) (the “ Company
Payments ”) constitute “parachute
payments” within the meaning of Section 280G of the Code, and
will be subject to the excise tax imposed by Section 4999 of the
Code (the “ Excise Tax ”), then the
Company shall pay to the Executive, at the time specified in
paragraph (i) below, an addition
