Exhibit 10.1
EMPLOYMENT
AGREEMENT
This Agreement is made to be
effective as of January 25, 2009 (“Effective
Date”), by and between WESTERN PLAINS ENERGY L.L.C., a
limited liability company organized under the laws of Kansas (the
“ Company ”) and Steven R. McNinch (“
Employee ”).
RECITALS:
WHEREAS, the Company wishes to
engage Employee’s services upon the terms and conditions
hereinafter set forth; and
WHEREAS, the Employee wishes to be
employed by the Company upon the terms and conditions hereinafter
set forth, and the parties desire to set forth the terms upon which
the Company will employ him.
NOW, THEREFORE, in consideration of
the premises and mutual promises set forth herein, the sufficiency
of which is hereby acknowledged, the parties agree as
follows:
1.
Employment; Duties.
Subject to the terms of this
Agreement, the Company hereby agrees to employ Employee as its
General Manager and Chief Executive Officer, and in any other
capacity that the Company shall determine is necessary or
appropriate in connection with the operation of the Company, and
Employee hereby agrees to serve in such capacity.
Employee’s principal area of responsibility, subject to
modification by the Company, shall be to serve as the chief
operating officer and to oversee the day to day operations of the
company. The Employee shall at all time report to and take
direction from the Board of Managers and shall perform such
additional duties not inconsistent with this position as shall be
designated from time to time by the Company.
2.
Loyalty to Company.
Employee agrees to use his
best efforts to promote the interests of the Company and shall,
except for illness, reasonable vacation periods and leaves of
absence approved by the Company, devote his full business time and
energies to the business and affairs of the Company. Employee
shall schedule his vacations so as to not unreasonably interfere
with the business of the Company. Employee will not during
the term hereof have any business interests or activities which are
adverse to the interests of the Company. Employee further
agrees that he will not accept any compensated employment from any
other employer during the term of this Agreement except with the
prior written consent of the Company.
3.
Compensation and
Benefits.
3.1
Base Salary
. As compensation for
Employee’s services rendered hereunder, the Company shall pay
to Employee a base salary at an annual rate equal to One hundred
Sixty-four thousand five hundred dollars ($164,500) (the
“Base Salary”). The Base Salary shall be reviewed
by the Board of Managers periodically (but no more than once a
year) and may be modified to reflect, among other factors,
Employee’s performance, the cost of living and the
profitability of the Company.
The Base Salary shall be payable to Employee semi-monthly, in
accordance with the Company’s standard practice for
management personnel and the Company shall make all tax withholding
required by applicable law.
3.2
Signing Bonus
. The Employee will be
entitled to a $25,000.00 contract signing bonus payable upon
execution of this contract by Employee and Company.
3.3
Incentive Compensation
. The Employee will be
entitled to earn additional, incentive compensation on a quarterly
basis equal to .0033 of net earnings, not to exceed 110% of base
salary, as long as the performance of the plant meets the following
minimum requirements:
(a)
The overall operations of the plant
are producing a positive cash flow.
(b)
The conversion rate of grain to
anhydrous alcohol is at least 2.65 to 1.
(c)
Cost of production, less the price
of grain is no more than 5% over budget.
3.4
Benefits . Employee shall be entitled to
participate in all benefit programs established by the Company and
generally applicable to the Company’s staff, including group
health and life insurance. Employee shall also be reimbursed
for reasonable and necessary business expenses incurred in the
course of his employment with the Company pursuant to Company
policies established from time to time.
3.5
Office, Equipment and
Assistance . The
Company shall provide for Employee all facilities, equipment and
services suitable to his position and adequate for the performance
of his duties.
3.6
Vacation and Time off.
The Company shall provide
Four weeks of paid vacation two weeks of which must be taken
consecutively. At the end of this contract the vacation policy will
be reviewed. Time off and sick days will be the same as what is in
the Employee Handbook.
4.
Term of Employment
.
4.1
“ At Will”
Employment .” Employee is an employee “at
will.” As such, his employment may be terminated at any
time, by either the Employee or the Company, for no reason or any
reason not prohibited by law. If either party terminates the
Agreement, Employee shall have no claim for compensation beyond the
last day actually worked except as provided in Section 4.4
below or as otherwise required by law. No officer, manager or
agent of the Company has the authority to orally modify these
provisions. Any representation to the contrary regarding the
Employee’s status by any person is invalid and unenforceable
and therefore will not be relied upon unless the agreement is set
forth in an amendment to this Agreement and signed by the
appropriate officer.
4.2
Expiration Date
. Unless sooner terminated as
provided in this Section 4, this Agreement shall expire on
January 25, 2012 (the “Expiration Date”).
Following the Expiration
2
Date, or unless sooner terminated as
provided herein, Employee shall have no claim against the Company
for salary or benefits, except as set forth herein.
4.3
Death or Incapacity
. This Agreement shall
automatically terminate upon the death or Total Disability of
Employee, subject to subsection (b) below.
(a)
In the event of termination because
of death, Employee shall have no further claim against the Company
for compensation or benefits beyond the last day actually worked,
except that his surviving spouse and any other dependents shall be
entitled to benefits to the extent required by law.
(b)
Employee shall not be entitled to
any compensation or benefits beyond the last day actually worked in
the event of his Total Disability. For purposes of this
Section 4.3, Total Disability shall be determined by
Employee’s attending physician but shall be based on the
Employee’s inability to perform the material responsibilities
of his job with the Company, not any occupation. In the event
that the Company shall disagree with the determination of the
physician selected by Employee, it shall so notify him in writing
not less than 10 days following receipt of the determination.
Employee and Company shall then endeavor to mutually agree on
another physician to examine Employee and make the determination,
and the determination of the second physician shall be binding on
the parties. In the event the parties are unable to agree on
a second physician, then the parties may apply to an arbitrator to
make the selection of the physician. Notwithstanding a
determination of Total Disability as described above, in the event
that Employee is able to return to the material responsibilities of
his job within six months of the date of determination of Total
Disability, as determined by the same physician who made the
original determination, Employee shall be entitled to return to the
Company as an employee under the same terms and conditions as set
forth herein.
4.4
Payment Upon
Termination .
(a)
If this Agreement is terminated by
the Company for Cause, Employee shall not be entitled to severance
pay of any kind but shall be entitled to all reasonable
reimbursable business expenses inc
