EXECUTION COPY
Exhibit 10.1
EMPLOYMENT AGREEMENT
FOR
PRESIDENT AND GENERAL MANAGER JEROME A. FAGERLAND
This Employment Agreement ("Agreement"), effective as of
October 30, 2007
(the "Effective Date"), is between NEDAK ETHANOL, LLC (the
"Company") and Jerome
A. Fagerland (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 (col
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