EMPLOYMENT AGREEMENTEmployee Retention Agreement |
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Exhibit 99.1
EMPLOYMENT AGREEMENT
This
Employment Agreement (the
Agreement) is effective as of one oclock a.m. Central Daylight
Time August 8, 2008, by and between Red Trail Energy, LLC (the Company),
and Mark Klimpel (the Executive).
Whereas, the Company is engaged in
the business of owning and operating a corn-based ethanol plant;
Whereas, Executive and Company
recognize and acknowledge that Executives executive responsibilities will give
Executive knowledge of all aspects of the Companys operations, including its
business plans and strategies, current and contemplated ethanol projects and
ventures, customers, and other proprietary information, which information would
seriously harm Company if provided to a competitor.
Whereas, the Company desires to
employ the Executive and the Executive desires to be employed by the Company;
and
Whereas, the Company and the
Executive desire to enter into this Agreement to set forth the rights, duties,
benefits and obligations with respect to the employment of the Executive by the
Company under the terms and conditions herein provided.
Now, Therefore, in consideration of
the Executives employment with the Company, and the mutual and respective
covenants and agreements of the parties herein contained, and other good and
valuable consideration present but not specifically set forth, the parties
hereto agree as follows:
1. Employment.
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to be employed by the Company, on the terms and conditions set forth
herein. This Agreement and Executives duties hereunder shall commence on one
oclock p.m. Central Daylight Time August 8, 2008 (the Start Date)
and this Agreement and Executives employment hereunder shall end on the fifth
anniversary thereafter, unless sooner terminated in accordance with the
provisions of Section 6 hereof (the Term). Thereafter, the Term
and any extension of this Agreement shall be automatically extended for
successive one year periods unless either party gives the other party written
notice at least sixty (60) days in advance of the anniversary date that
the Agreement shall expire on the next anniversary date or the Agreement is
terminated as provided in Section 6 of this Agreement.
2. Position
and Duties. During the Term and any extension of this Agreement, the
Executive shall serve as Chief Financial Officer of the Company or such other
executive position as assigned by the Company. The Executive shall perform
those job duties customary to his position and as assigned by the Companys
Board of Governors (the Board) to the extent such other duties
assigned by the Board are consistent with Executives position.
3.
Compensation and Related Matters.
(a)
Base Salary. The Executive shall receive an annual base salary of One
Hundred Fifteen Thousand Dollars ($115,000.00), less required and authorized
withholding and
deductions (Base
Salary). The Base Salary shall increase a minimum of 6% per year, on
the anniversary date of the Executives original date of hire, during the term
and any extension of this Agreement.
(b)
Bonus. During the Term and any extension of this Agreement, in addition
to the Base Salary, the Executive may be eligible to earn an annual bonus of up
to 20% of the Base Salary in effect at the time the Bonus is calculated. The
Bonus is due and payable to the Executive on or before January 15 of the
year following the year for which the Bonus is being calculated (i.e.
January 15, 2009 for the year ended December 31, 2008). The following
criteria will be evaluated by the Compensation Committee of the Board in
determining the bonus percentage:
(1) Bonus
Criteria: The Executives Bonus shall be based on the following criteria:
(a) The
Executive shall be awarded 50% of the Bonus (10% of Base Salary then in effect)
each year as long as the Executive is employed on December 31 of the year
for which the Bonus is calculated (i.e. employed on December 31, 2008 for
the year ended December 31, 2008).
(b) The
remaining 50% of the Bonus (10% of the Base Salary) shall be determined by the
performance of the Executive. The Compensation Committee, with input from the
President and CEO of the Company, shall rate the Executives performance upon the
completion of each calendar year. If less than the full 10% of Base Salary, the
Compensation Committee shall provide written documentation of the areas they
felt the Executive underperformed and should work to improve.
(c)
Benefits. Executive shall be entitled to all rights and benefits for
which he is eligible under the terms and conditions of the Companys standard
employee handbook and the benefits and compensation practices that may be in
effect from time to time and provided by the Company to its employees
generally. In addition to, and not in limitation of, the foregoing, during the
Term and any extension of this Agreement, the Executive started employment with
three (3) weeks (15 business days) of paid vacation per year exclusive of
any business day with respect to which the Company is closed for business due
to any federal, state or local holiday or any day off generally granted by the
Company to its employees, subject to the Companys then-current vacation policy
(which shall not have the effect of reducing said three (3) weeks (15
business days) of paid vacation. The Executive shall earn one additional day of
vacation for each year employed with the Company, so noted on January 1 of each
successive year of employment. In addition to, and not in limitation of the
foregoing, during the Term and any extension of this Agreement the Executive
shall receive any additional benefits generally provided by the Company to
executive employees of the Company.
(d)
Expense Reimbursement. The Company will reimburse the Executive for
reasonable business expenses in accordance with the Companys standard expense
account and reimbursement policies.
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(e)
Vehicle Allowance. During the Term and any extension of this Agreement,
in addition to the Base Salary, Bonus and Benefits, the Executive shall receive
$500 per month as a vehicle allowance. The Company also agrees to pay for fuel
used by the Executive for commuting to work at the Plant site.
4.
Representations and Warranties of Executive. In order to induce the
Company to employ the Executive, the Executive hereby represents and warrants
to the Company as follows:
(a)
Binding Agreement. This Agreement has been duly executed and delivered
by the Executive and constitutes a legal, valid and binding obligation of the
Executive and is enforceable against the Executive in accordance with its
terms.
(b)
No Violations of Law. The execution and delivery of this Agreement and
the other agreements contemplated hereby by the Executive do not, and the
performance by the Executive of his obligations under this Agreement and the
other agreements contemplated hereby will not, violate any term or provision of
any law, or any writ, judgment, decree, injunction, or similar order applicable
to the Executive.
(c)
Litigation. The Executive is not involved in any proceeding, claim,
lawsuit, or investigation alleging wrongdoing by the Executive before any court
or public or private arbitration board or panel or governmental department,
commission, board, bureau, agency or instrumentality.
(d)
No Conflicting Obligations. Executive is not under, or bound to be under
in the future, any obligation to any person or entity that is or would be
inconsistent or in conflict with this Agreement or would prevent, limit, or
impair in any way the performance by him of his obligations hereunder,
including but not limited to any duties owed to any former employers not to compete
or use or disclose Confidential Information. Executive represents and agrees
that he will not disclose to the Company or use on behalf of the Company any
Confidential Information or trade secrets belonging to a third party, including
any former employer. Executive further represents and agrees that he has
returned, or will return before his last day of employment with his current
employer, all property belonging to Executives current and previous employers,
including but not limited to any and all Confidential Information. Provided
these representations are met by Executive and Executive has acted in good
faith and has not otherwise violated any contractual or legal obligations, the
Company will provide and pay for legal services to defend the Executive in the
event of litigation initiated by Executives preceding employer. In the event
the Company is required to defend Executive pursuant to this Section, the
Company and Executive shall be represented by the same legal counsel as chosen
by the Company.
(e)
Opportunity to Review. Executive has carefully read and fully
understands all provisions of this Agreement, and Executive has had a full
opportunity to review this Agreement before signing and to have all the terms
of this Agreement explained to him by counsel.
5. Confidentiality,
Assignment of Inventions and Copyrights.
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(a) |
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Confidential
Information. Executive
expressly agrees that he will not, during the term of employment or at any
time thereafter, divulge, furnish or make accessible to anyone or use in any
way, on behalf of himself or others, any Confidential Information, others
than for the benefit of the Company in the ordinary course of the business of
the Company. |
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Confidential
Information means any information not generally known in the Companys line
of business or readily ascertainable by proper means by others, including the
Companys competitors or the general public, and includes trade secrets.
Confidential Information includes information about processes, manufacturing,
products and services of the Company, including information relating to
research, development, engineering, software development, and marketing,
selling to and servicing of the Company customers. Confidential Information
also includes, but is not limited to, information about the Companys
customers, customer lists, suppliers, pricing, costing, purchasing, profits,
markets, product capabilities, marketing, business ventures, manufacturing
plans, merchandising plans or ideas, sales, data processing, compensation,
finances, methods, know-how, formulas, drawings, blueprints, inventions,
processes, discoveries, equipment, machines, algorithms, computer programs,
software and software development and documentation. |
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(b) |
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Assignment
of Inventions.
(i) Executive hereby irrevocably assigns to the Company and its
successors, assigns, and legal representatives: |
A) Except as provided by any
statutory notice provided herewith, the entire right, title and interest to all
Inventions;
Inventions, as used herein,
means all inventions conceived or made or reduced to practice in whole or in
part by Employee after being employed by the Company, including discoveries,
improvements, designs, processes, techniques, equipment, trademarks, and ideas
(whether patentable or not and including, without limitation, those that might
be copyrightable).
B) The entire right, title
and interest to any United States or foreign Letters Patents which may issue or
that has issued with respect to Inventions;
C) The entire right, title
and interest to any renewals, reissues, extensions, substitutions,
continuations, continuations-in-part, or divisions that may be filed with
respect to the Inventions, applications, and patents;
D) The right to apply for
Letters Patents in foreign countries in its own name and to claim any priority
rights to which such foreign applications are entitled under international
conventions, treaties or otherwise; and
E) The right to sue for past,
present, and future infringement of such Inventions and Letters Patent.
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(ii) Executive
further agrees to keep accurate, complete and timely records of all such
Inventions, which records shall be Companys property, and promptly and fully
disclose and describe in writing all Inventions in which Executive has any
involvement to Company and to no one else, even if an Invention is not
assigned according to terms of any statutory notice provided herewith. |
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(iii) Executive
hereby authorizes and requests the Commissioner of Patents and Trademarks to
issue to the Company any Letters Patents which may be granted in accordance
with this Assignment. |
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c) |
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Copyrights. |
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i) |
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Executive
hereby acknowledges and agrees that, to the extent any work performed by
Executive for the Company gives rise to the creation of any copyrightable
material (Work), all such Work, including all text, software, source code,
scripts, designs, diagrams, documentation, writings, visual works, or other
materials shall be deemed to be a work made for hire for the Company. |
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ii) |
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To the extent
that title to any Work may not, by operation of law, vest in the Company or
such Work may not be considered work made for hire for the Company, all
rights, title and interest therein were assigned and are hereby irrevocably
assigned to the Company, including but not limited to the right to sue for
past, present, and future infringement of any Work. All such Work shall
belong exclusively to the Company, with the Company having the right to
obtain and to hold in its own name, copyrights, registrations or such other
protection as may be appropriate to the subject matter, and any extensions
and renewals thereof. |
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iii) |
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To the extent
that title to any Work may not be assigned to the Company, Executive hereby
grants the Company a worldwide, nonexclusive, perpetual, irrevocable, fully
paid-up, royalty-free, unlimited, transferable, sublicensable license,
without right of accounting, in such Work. |
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d) |
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Executive
agrees to execute and deliver without further consideration such documents
and to perform such other lawful acts as the Company, its successors and
assigns may deem necessary to fully secure the Companys rights, title or
interest in all Works and Inventions as set forth in this Agreement. |
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e) |
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This Agreement
does not apply to an invention for which no equipment, supplies, facility or
trade secret information of the Company was used and which was developed
entirely on Executives own time, and (1) which does not relate
(a) directly to the business of the Company or (b) to the Companys
actual or demonstrably anticipated research or development, or (2) which
does not result from any work performed by Executive for the Company. |
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f) |
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Return of
Confidential Information and Other Property. Executive specifically acknowledges that
all of the records of any and all business conducted |
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by or related
to the Company, including but not limited to records and files pertaining to
products, services, suppliers, the Companys customers, practices,
techniques, licensors, and licensees are the property of the Company and not
that of Executive. Upon the termination of his employment, or upon the
Companys earlier request, Executive agrees to deliver promptly to the
Company all of the Companys property, including all Works, Inventions, and
copies thereof, work in progress, research data, equipment, drawings,
photographs, graphs, tables, charts, documents, correspondence,
specifications, blueprints, notebooks, reports, sketches, formulas, computer
programs, software, software documentation, sales data, business manuals,
price lists, customer lists, supplier information, samples and all other
materials and copies thereof relating any in any way to the business of the
Company. |
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g) |
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Injunctive
Relief. The Executive
acknowledges and agrees that any breach by him of any of the covenants and
agreements contained in this Section 5 would give rise to irreparable
injury and would not be adequately compensable in damages. Accordingly, the
Executive agrees that the Company may seek and obtain injunctive relief
against the breach or threatened breach of any of the provisions of this
Agreement in addition to any other legal remedies available. |
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h) |
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Survival. The provisions of this Section 5
shall survive the termination of this Agreement and the Executives
employment, regardless of the reason for such termination, whether voluntary
or involuntary. |
6. Termination.
(a)
Termination upon Death. If the Executive dies during the Term or any
extension of this Agreement, this Agreement shall terminate, except that the
Executives legal representatives shall be entitled to receive the Base Salary
and other accrued benefits earned up to the date of the Executives death.
(b)
Termination By The Company With Cause. The Company has the right, at any
time during the Term and any extension of this Agreement, to terminate the
Executives employment with the Company for Cause (as defined below) by giving
written notice to the Executive as described in this Section 6(b) below. Prior
to the effectiveness of termination for Cause under subclause (i), (ii), (iii)
or (iv) below, the Executive shall be given thirty (30) calendar
days prior written notice from the Company, specifically identifying the
reasons which are alleged to constitute Cause for any termination pursuant to
the aforementioned subclauses, and an opportunity to cure in the event the
Executive disputes such allegations; provided, however, that the
Company shall have no obligation to continue to employ the Executive following
such thirty (30) calendar day notice period unless the Executives cure
meets the Companys reasonable satisfaction. The Companys termination of the
Executives employment for Cause under subclause (v) or (vi) below
shall be effective immediately upon the Companys written notice to the
Executive. If the Company terminates Executives employment for Cause, the
Companys obligation to the Executive shall be limited solely to the payment of
unpaid Base Salary accrued up to the effective date of termination plus any
accrued but unpaid bonus and benefits.
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As
used in this Agreement, the term Cause shall mean and include
(i) the Executives abuse of alcohol that affects Executives performance
of Executives duties under this Agreement, or misuse of any controlled
substance; (ii) a willful act of fraud, dishonesty or breach of fiduciary
duty on the part of the Executive with respect to the business or affairs of
the Company; (iii) material failure by the Executive to comply with applicable
laws and regulations or professional standards relating to the business of the
Company; (iv) material failure by the Executive to satisfactorily perform
his duties hereunder, a material breach by the Executive of this Agreement, or
Executive engaging in conduct that materially conflicts with the best interests
of the Company or that may materially harm the Companys reputation; (v) the
Executive being subject to an inquiry or investigation by a governmental
authority or self-regulatory organization such that the existence of such
inquiry or investigation may result in damage to the Companys business
interests, licenses, reputation or prospects; or (vi) conviction of a
felony.
(c)
Termination By The Company Without Cause. The Company shall have the
right, at any time during the Term and any extension of this Agreement, to
terminate the Executives employment with the Company without Cause by giving
written notice to the Executive, which termination shall be effective thirty
(30) calendar days from the date of such written notice. The Company may
provide 30 days pay in lieu of notice. If the Company terminates the
Executives employment without Cause, the Companys obligation to the Executive
shall be limited solely to (i) unpaid Base Salary plus any bonus and
benefits accrued up to the effective date of termination; and
(ii) payments equal to the Executives then-current Base Salary for a
period of six (6) months payable on the Companys then current payroll
practices during the six (6) months after termination or in one lump sum
payment at the Executives discretion. As a condition to his receipt of the
post-employment payments under this Section 6(c), Executive shall be in
compliance with Section 5 of this Agreement, and required to execute,
return, not rescind and comply with a release of claims agreement in favor of
the Company, in a form substantially similar to the attached Exhibit A.
Executive shall have no duty to mitigate damages under this Section 6(c) during
the applicable severance period and, in the event Executive shall subsequently
receive income from providing Executives services to any person or entity,
including self employment income, or otherwise, then no such income shall in
any manner offset or otherwise reduce the payment obligations of the Company
hereunder.
(d)
Termination By The Company Through Change in Control of the Company. Termination
of the Executives employment related to a change in control of the Company (as
defined in Section 8 of this Agreement) shall be covered under the
provisions of Section 6( c) of this Agreement (Termination by the Company
Without Cause), unless otherwise provided in Sections 6(d), 6(d)(1), 6(e),
6(e)(1), 6(e)(2), or 6(e)(3), as applicable.
(1) If
a change in control of the Company takes place during the Term and any
extension of this agreement, and the Chief Executive Officer (Mick Miller)
and/or Plant Manager (Ed Thomas) do not continue employment after the change in
control, and an offer of employment has been extended to the Executive, the
Executive shall have the option to choose employment with the new Company or to
be covered under the provisions of Section 6( c) of this agreement
(Termination by the Company Without Cause).
(e)
Termination By The Company Through Change in Control of the Company related
to any potential acquirer in discussions with the Company as of July
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2008. If, as of July 2008 Red Trail Energy had entered
in to merger negotiations with a potential acquirer, the following shall apply
and Sections 6(d) and (d)(1) will not apply to any change in control that
occurs due to those negotiations.
(1) If
a change in control occurs involving the potential acquirer (and/or its
financial backers), and the Executive is not offered continued employment, then
the Companys obligation to the Executive shall be limited solely to
(i) unpaid Base Salary plus any bonus and benefits accrued up to the
effective date of termination; and (ii) payments equal to the Executives
then-current Base Salary for a period of twelve (12) months, payable on
the Companys then current payroll practices during the twelve (12) months
after termination or in one lump sum payment, at the Executives discretion.
(2) If
a change in control occurs involving the potential acquirer (and/or its
financial backers) and the Chief Executive Officer (Mick Miller) and/or Plant
Manager (Ed Thomas) do not continue employment after the change in control for
a period not less than twelve (12) months, and an offer of employment has
been extended to the Executive, the Executive shall have the option to choose
employment with the new Company or to be covered under the provisions of
Section 6(e)(1) of this agreement. If either the Chief Executive Officer
or the Plant Manager leave employment within 6 months of the change of
control date, the Executive shall have the option to continue employment or be
covered under the provisions of Section 6(e)(1) of this Agreement. If
either the Chief Executive Officer or the Plant Manager leave employment at any
time after 6 months of the change of control date, Executive shall have
the option, exercisable within 30 days of the date when the Chief
Executive Officer or Plant Manager leave employment, to continue employment or
be covered under the provisions of Section 6(e)(1) of this Agreement,
except that Executive shall be entitled to only receive the then-current Base
Salary for a period of six (6) months payable on the Companys then
current payroll practices during the six (6) months after termination or
in one lump sum payment, at the Executives discretion.
(3) Termination
By the Executive for Good Reason. If a change in control occurs involving
the potential acquirer (and/or its financial backers), the Executive may
exercise his right, under the terms of this Agreement, to terminate his
employment for the following reasons (Good Reason): (i) being
asked to relocate to a location different from the current plant location
(Richardton, ND), (ii) reassignment of duties inconsistent with duties
customary to the Executives position, (iii) a demotion from current
Executive position or (iv) a proposed decrease in salary or benefits, the
Executive shall be entitled to receive (i) the Base Salary and other accrued
but unpaid bonus and benefits earned up to the date of requested termination
and (ii) payments equal to the Executives then-current Base Salary for a
period of (12) months payable on the Companys then current payroll
practices during the twelve (12) months after termination or in one lump
sum payment, at the Executives discretion. The Executive shall be able to
exercise his right, under this Section 6(e)(3) if any of the above
mentioned circumstances occur within six (6) months of the date of a change
in control occurring in a transaction with Asset Solutions, LLC.
(f)
Termination By The Executive. The Executive has the right, at any time
during the Term and any extension of this Agreement, to terminate his
employment with the Company by giving written notice to the Company, which
termination shall be effective sixty
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(60) calendar days from
the date of such written notice. If the Executive terminates his employment,
the Companys obligation to the Executive shall be limited solely to the
payment of unpaid Base Salary accrued up to the effective date of termination
plus any accrued but unpaid bonus and benefits except as provided in
Sections 6(d), 6(d)(1), 6(e), 6 (e)(1), 6(e)(2), 6(e)(3) and 6(f)(1).
(1) Termination
By the Executive for Good Reason. If, at any time during the Term and any
extension of this Agreement, the Executive exercises his right, under the terms
of this Agreement, to terminate his employment for the following reasons (Good
Reason): (i) being asked to relocate to a location different from the
current plant location (Richardton, ND), (ii) reassignment of duties
inconsistent with duties customary to the Executives position, (iii) a
demotion from current Executive position or (iv) a proposed decrease in
salary, the Executive shall be entitled to receive (i) the Base Salary and
other accrued but unpaid bonus and benefits earned up to the date of requested
termination and (ii) payments equal to the Executives then-current Base
Salary for a period of (6) months payable on the Companys then current
payroll practices during the six (6) months after termination or in one
lump sum payment, at the Executives discretion.
(f)
Termination Upon Disability. This Agreement shall terminate upon
Executives disability, as defined below. Executive shall be entitled to
receive (i) the Base Salary and other accrued but unpaid bonus and
benefits earned up to the date of Executives disability and (ii) payments
equal to the Executives then current Base Salary for a period of six
(6) months payable on the Companys then current payroll practices during
the six (6) months after the termination or in one lump sum, at the
Executives discretion.
For
purposes of this Agreement, Disability shall mean (i) Executive is
considered totally disabled under Companys group disability plan in effect at
the time, if any, or (ii) in the absence of a group disability plan
applicable to Executive, Executive is disabled within the meaning of section
22(e)(3) of the Internal Revenue Code.
7. Code
Section 409A. Notwithstanding anything herein to the contrary, if any
payments to be made to the Executive hereunder are subject to the requirements
of Code Section 409A and the Company determines that Executive is a
specified employee as defined in Code Section 409A as of the date of the
termination, such payments shall not be paid or commence earlier than the date
that is six months after the termination, but shall be paid or commence during
the calendar year following the year in which the termination occurs and within
thirty (30) calendar days of the earliest possible date permitted under
Code Section 409A.
8. Change
in Control (defined). For purposes of this agreement, Change of Control
shall mean a sale of all or substantially all of the assets of the Company; the
event of a merger, exchange, reorganization of the Company with or into any
other entity; or the occurrence of any transaction requiring member approval
for a transaction involving the Company, such as a sale of all or substantially
all of the Companys assets.
9. Successors;
Assignment, Etc.; Third Party Beneficiaries.
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(a) Executive
consents to and the Company shall have the right to assign this Agreement to
its successors or assigns. All covenants or agreements hereunder shall inure to
the benefit of and be enforceable by or against its successors or assigns.
(b) Neither
this Agreement nor any of the rights or obligations of the Executive under this
Agreement may be assigned or delegated except as provided in the last sentence
of this Section 9(b). This Agreement and all rights of the Executive hereunder
shall inure to the benefit of and be enforceable by, and shall be binding upon,
the Executives personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees, and legatees. If the Executive
should die while any amounts would still be payable to him hereunder had he
continued to live, then all such amounts (unless otherwise provided herein)
shall be paid in accordance with the terms of this Agreement to the devisee,
legatee, or other designee under the Executives testamentary will or, if there
be no such will, to the Executives estate.
10. Notice.
For purposes of this Agreement, all notices and other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly
given when delivered in person or when mailed by United States registered or
certified mail, return receipt requested, first-class postage prepaid,
addressed as follows:
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If to the Executive : |
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If to the Company : |
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Red Trail Energy, LLC |
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PO Box 11 |
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3682 Hwy 8 South |
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Richardton, ND 58652 |
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Attn: Mick Miller |
or to such other address as
any party may have furnished to the other in writing in accordance with this
Section 10, except that notices of any change of address shall be
effective only upon actual receipt.
11. Miscellaneous.
No provision of this Agreement may be modified, waived, or discharged unless
such waiver, modification, or discharge is agreed to in writing signed by the
Executive and such officers as may be specifically designated by the board of
governors of the Company. No waiver by either party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of any similar or dissimilar condition or
provision at the same or any other time. No agreements or representations
(whether oral or otherwise, express or implied) with respect to the subject
matter of this Agreement have been made by either party which are not set forth
expressly in this Agreement or which are not specifically referred to in this
Agreement. The validity, interpretation, construction, and performance of this
Agreement shall be governed by the laws of the State of North Dakota. Unless
the context otherwise requires, words using the singular or plural number shall
respectively include the plural or singular number, and pronouns of any gender
shall include each other gender.
12. Validity.
If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under any present or future law or court decision, and if the
rights or obligations
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of the Company and the
Executive will not be materially and adversely affected thereby, (a) such
provision shall be fully severable from this Agreement, (b) this Agreement
shall be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions
of this Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance herefrom, and (d) in lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of this
Agreement a legal, valid, and enforceable provision as similar to the terms and
intent of such illegal, invalid, or unenforceable provision as may be possible.
13. Counterparts.
This Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.
14. Litigation.
The parties agree that the exclusive venue for any litigation commenced by the
Company or the Executive relating to this Agreement shall be the state courts
located in Burleigh County, North Dakota and the United States District Court
of North Dakota in Burleigh County, North Dakota. The parties waive any rights
to object to venue as set forth herein, including any argument of inconvenience
for any reason.
15. Entire
Agreement. This Agreement constitutes (i) the binding agreement
between the parties and (ii) represents the entire agreement between the
parties and supersedes all prior agreements relating to the subject matter
contained herein. All prior negotiations concerning Executives employment with
the Company have been merged into this Agreement and are reflected in the terms
herein.
16. Consideration.
Executive and Company agree that the provisions of this Agreement are
reasonable and necessary for the protection of Company and its business. In
exchange for Executives agreement to be bound by the terms of this Agreement,
Company has provided Executive the consideration provided in this Agreement,
which Executive accepts and acknowledges as adequate consideration. All
benefits and other compensation provided by Company to Executive are subject to
change from time to time at the discretion of Company with or without prior
notice. Executive agrees that any changes in his or her compensation and/or
benefits during the Term or any extension of this Agreement will not impair the
validity or enforceability of the remaining terms of this Agreement.
In Witness Whereof, the parties
have duly executed and delivered this Agreement as of the date first above
written.
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Executive: |
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By: |
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/s/ Mark E Klimpel |
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Name: Mark E Klimpel, Chief
Financial Officer |
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Company: |
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