THIS EMPLOYMENT
AGREEMENT (“Agreement”) is made and entered into
effective as of the 2nd day of January 2007
(“Effective Date”), by and between. E Energy Adams,
LLC. a Nebraska limited liability company (“E ENERGY”)
and Andrew Johansen (“Employee”).
WHEREAS, the
parties acknowledge that E ENERGY was formed for the purpose of
developing a project to build and operate a 50 million gallon
dry mill corn-processing ethanol plant in Gage County, Nebraska
near Adams (the “Business of E ENERGY ”);
and
WHEREAS, the
parties agree and acknowledge the Business of E ENERGY is a highly
competitive one, both inside of and outside the state of Nebraska;
and
WHEREAS, the
parties agree and acknowledge E ENERGY has, is and will likely
continue to develop valuable confidential techniques and valuable
proprietary and confidential information, forms and methods for use
in the Business of E ENERGY; and
WHEREAS. Employee
agrees and acknowledges that Employee will have access to said
valuable techniques and employ said valuable proprietary and
confidential information, forms and methods in earning income in
the employ of E ENERGY; and
WHEREAS, the
parties further agree and acknowledge that Employee’s
position is one of considerable responsibility and requires
considerable experience and requires Employee to develop and
maintain good relationships with E ENERGY’S:
(i) suppliers and potential suppliers, (ii) customers and
potential customers and (iii) employees, and that E ENERGY
will incur substantial time and expense to replace an employee who
has the experience and relationships of Employee; and
WHEREAS, as a
condition of employment and continued employment of Employee by E
ENERGY, the parties mutually agree that confidentiality is required
in connection with the Business of E ENERGY and in connection with
the identity of E ENERGY’S suppliers and customers, and that
accordingly, it is vital that E ENERGY be protected from direct or
indirect competition from Employee during his employment and for a
reasonable period of time thereafter; and
WHEREAS, E ENERGY
and Employee now desire to provide for the employment of Employee
by E ENERGY, after the effective date of this Agreement, upon the
terms and conditions set forth in this Agreement.
NOW THEREFORE, in
consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
I.
Employment and Duties . Effective as of the Effective Date,
E ENERGY will employ Employee and Employee will accept such
employment upon the terms and conditions set forth in this
Agreement. Employee shall be the Grain Manager for E ENERGY and
shall report directly to the CEO/General Manager or to such other
person as the CEO designates. Employee shall devote substantially
his entire time and attention to the Business of E ENERGY. In so
doing, Employee agrees to contribute his best skills and services
at all times for the business and benefit of E ENERGY. Employee
hereby represents and confirms that he is under no contractual or
legal commitment that would prevent him from fulfilling his duties
and responsibilities as set forth in this Agreement. During his
employment with E ENERGY, Employee may participate in charitable
activities and personal investment activities to a reasonable
extent and he may serve as a director of business and civic
organizations as approved by the CEO, so long as such activities do
not interfere with the performance of his duties and
responsibilities hereunder. Employee may participate in other
business activities that do not otherwise interfere with his duties
under this Agreement with the prior consent of the CEO.
2. Term and
Termination of Employment . The term of Employee’s
employment under this Agreement shall commence on the Effective
Date of this Agreement and shall continue thereafter until
terminated as follows:
a. E ENERGY
may terminate this Agreement without cause by notifying Employee of
such termination at least 30 days in advance of the effective
date of such termination.
b. This
Agreement shall automatically terminate upon the death or permanent
disability (as determined in good faith by the Board of Directors)
of Employee.
c. Employee
may terminate this Agreement by notifying the CEO of such
termination at least 90 days in advance of the effective date of
such termination. However, in the event Employee terminates this
Agreement prior to one year from the Effective Date, Employee will
be required to repay all reasonable recruiting costs incurred by E
ENERGY in recruiting him and his replacement.
Except as
provided herein, all of Employee’s right to compensation and
other benefits hereunder shall terminate upon the date his
employment terminates, except: as may he mandated by law with
respect to health insurance or other benefits.
3. Position
and Duties . Employee shall be the Grain Manager of E ENERGY
and shall have the authority, duties, and responsibilities
commensurate and consistent with such position and title as
designated by the CEO from time to time, including, within
established limitations, (a) budgeting, managing and
controlling departmental, or grain — specific expenditures,
as applicable; (b) planning, developing, and implementing strategy
for grain procurement, hedging, logistics, and development so as to
meet such performance plans, grain/hedging limits, budgets, and
timescales as may be adopted by the CEO/Board of Directors of E
ENERGY; (c) establishing and maintaining
appropriate
systems for
measuring key aspects of grain and hedging positions, plant needs,
and development; and (d) monitoring, measuring and reporting
on those issues; and (e) ensuring compliance with any relevant
requirements for grain management, and quality stipulations, and
general duties of total care. Employee will be the most senior
management person in the grain procurement/marketing staff at E
ENERGY and will, subject to the supervision of the CEO, have
discretion and authority to manage and direct the day-to-day grain
affairs and plant logistics of E ENERGY, and to hire and terminate
(after consulting with the HR Manager and CEO) the employment of
grain procurement/marketing employees of E ENERGY. Employee will
report to the CEO and perform such other duties and
responsibilities as the CEO shall assign to him from time to time
consistent with his position. All grain procurement staff and other
marketing functions of E ENERGY will report directly or indirectly
(through a subordinate of Employee who reports directly or
indirectly to Employee) to Employee, unless the CEO concludes in
good faith that a direct reporting relationship with respect to any
staff or function is required by applicable law or written policies
of E ENERGY, or is reasonably necessary to fulfill his fiduciary
obligations to E ENERGY.
a. Base
Salary . For all services rendered by Employee to E ENERGY
hereunder, Employee shall be paid an annual base salary of Eighty
Thousand Dollars ($80,000.00). Which base salary payments shall be
paid in accordance with E ENERGY’S payroll policies and
procedures as established from time to time. 90 days after
At the official start up of the plant, the base salary will be
increased to Eighty-Five Thousand Dollars ($85,000). During each
year after the first year of Employee’s employment hereunder,
the CEO will conduct an annual performance review of Employee and
thereafter establish Employee’s base salary for the upcoming
year.
b.
Pre-Start up Bonus . For exceptional services rendered by
Employee to E ENERGY prior to startup, a bonus up to and including,
but not greater than, Twenty Thousand Dollars ($20,000) may be
awarded at the discretion of the CEO and Board of Directors or the
Committee,
c. Annual
Performance Bonus . Beginning ninety (90) days after the
startup, Employee will be eligible for an annual performance bonus
up to and including, but not greater than, 50% of his base salary
at the discretion of the CEO and Board of Directors. Such bonus
will be based upon achievement of certain profitability and
operational efficiencies relative to the industry and such other
criteria that the CEO from time to time, determine in their sole
discretion.
d.
Employee Benefits . While Employee is employed by E Energy
hereunder, Employee will be entitled to participate in all employee
benefit plans and programs of E ENERGY, including without
limitations, a 401(K) plan, Section 125 Cafeteria Plan, and
medical, dental, life, long term disability and disability
insurance plans, to the extent E ENERGY offers such plans , in its
sole discretion, and to the extent that Employee meets the
eligibility requirements of each individual plan or program as
generally applicable to other employees of E ENERGY: provided,
however, that except as herein otherwise provided E ENERGY provides
no assurance as to the adoption or continuance of any
particular
employee benefit plan or program and Employee’s participation
in such plan or program is subject to the provisions, rules and
regulations generally applicable to other employees of E
ENERGY.
e.
Expenses . While Employee is employed by E ENERGY hereunder,
E ENERGY will reimburse Employee for reasonable and necessary
out-of-pocket business, travel and educational expenses incurred by
him in the performance of his duties and responsibilities
hereunder, subject to E ENERGY’S policies and procedures for
expense verification and documentation in effect from time to
time
f. Paid
Time Off and Holidays . While Employee is employed by E ENERGY
hereunder, Employee shall be entitled to paid PTO days as
follows:
1 to
4 years of employment 15 20 days per year
5 to 9 14 years of employment 20 25 days
per year
10 + 15 + years of employment 25 30 days per
year
5.
Confidential Information .
a. For
purposes of this Agreement, (1) “Confidential
Information” shall mean any information, other than Trade
Secrets (as defined herein), that is of tangible or intangible
value to E ENERGY and is not generally known by or available to the
competitors of E ENERGY, including, but not limited to,
(a) future business plans, licensing strategies, and
advertising campaigns; (b) information regarding agreements
with employees, customers and vendors; (c) the terms and
conditions hereof,(d) any data or information defined herein as a
Trade Secret, but which is not a “trade secret” under
applicable law; (e) designs, processes, formulas, plans,
devices, or material ( whether or not patented or
patentab
|
