Exhibit 10.1




 


EMPLOYMENT AGREEMENT


 


This Employment Agreement is made and entered
into this 19th day of June, 2012, by and between South Dakota Soybean Processors, LLC, a South Dakota limited liability
company ("SDSP"), and Thomas J. Kersting ("Employee").


 


RECITALS


 


A.           SDSP
desires to employ Employee as its Chief Executive Officer, and Employee desires to be employed by SDSP in this capacity.


 


B.           SDSP
and Employee desire that their employment relationship be governed by the terms and conditions of this Agreement.


 


NOW, THEREFORE, the parties agree as follows:


 


1.          Employment.
SDSP hereby employs Employee, and Employee hereby accepts such employment, upon the terms and conditions set forth in this Agreement.


 


2.          Duties.
Employee shall be engaged in full-time employment by SDSP as SDSP's Chief Executive Officer. Employee shall use Employee's best
efforts to promote the interests of SDSP and shall devote such time, energy and skill as may be required to perform Employee's
duties under this Agreement. The duties and responsibilities of Employee shall include those duties and responsibilities consistent
with Employee's employment position with SDSP and such other duties and responsibilities that SDSP, acting through its Board of
Managers, from time to time may assign to Employee. If requested by SDSP's Board of Managers, Employee's duties shall include general
management and oversight of any affiliates of SDSP.


 


3.          Other
Activities. Employee shall devote substantially all of Employee's working time and efforts during the normal business hours
of SDSP to the business and affairs of SDSP and to the diligent and faithful performance of the duties and responsibilities assigned
to Employee pursuant to this Agreement. Employee may not engage in any other activity that conflicts with Employee's obligations
to SDSP.


 


4.          Review.
Employee shall undergo annual performance and salary reviews. Such reviews shall be conducted by SDSP's Board of Managers and shall
be held on or about January 15 of each year or as soon thereafter as may be scheduled by the Board of Managers.


 


5.          Base
Salary. For all services to be rendered by Employee to SDSP pursuant to this Agreement, SDSP shall pay Employee a base salary
(the "Base Salary") of $210,105.00 per year. The Board of Managers of SDSP, each year in conjunction with the annual
performance and salary review described in Section 4 above, shall review the Base Salary and determine in its sole discretion whether
an adjustment to the Base Salary should be made. The Base Salary shall be paid in periodic installments in accordance with SDSP's
regular payroll practices. The Base Salary shall be subject to tax and other deductions and withholdings as required by law.






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6.          Bonus.
In addition to the Base Salary paid to Employee, SDSP may, but shall not be required to, pay to Employee a profit sharing benefit
as determined by the Board of Managers of SDSP in its sole discretion.


 


7.          Vacation.
Employee shall be entitled to paid vacations and holidays in accordance with the policies of SDSP in effect from time-to-time for
similarly situated employees.


 


8.          Other
Benefits. Employee shall be entitled to participate in such benefit plans or programs which SDSP from time to time may make
available to similarly situated employees, subject to the same terms, conditions and eligibility requirements as are applicable
to such employees. Employee shall receive a copy of SDSP's Employee Handbook further detailing the benefits to which Employee is
entitled and SDSP's personnel and general policies. SDSP, acting through its Board of Managers, shall be entitled to amend, modify
or replace the Employee Handbook and personnel regulations and policies in its sole discretion.


 


9.          Expenses.
Employee shall be entitled to reimbursement by SDSP of reasonable ordinary and necessary travel and other expenses incurred by
Employee in performing his duties under this Agreement, in accordance with the policies established by SDSP for similarly situated
employees and upon proper accounting by Employee for such expenses, including any accounting required by applicable federal tax
laws and regulations.


 


10.         Life
Insurance. SDSP, in sole its discretion, may purchase or renew insurance on the life of Employee. Employee shall submit to
reasonable medical examinations and otherwise reasonably cooperate with SDSP in connection with obtaining such insurance.


 


11.         Term
and Termination.


 


(a)          Term.
The term of employment under this Agreement shall commence on the date of this Agreement and shall continue thereafter unless and
until terminated as provided in this Section 11. Either party may terminate Employee's employment with SDSP at any time and for
any reason, and this Agreement shall terminate effective as of the date of termination of such employment, except as otherwise
expressly provided herein. The provisions in this Agreement relating to "cause" shall not be construed as restricting
SDSP's right to terminate Employee's employment, but shall relate only to the determination and payment of any amounts that may
be payable to Employee under this Agreement. Notwithstanding anything to the contrary in this Agreement, Employee shall at all
times be an "at-will" employee of SDSP.


 


(b)          Termination
By Employee. If this Agreement is terminated by Employee or is terminated due to Employee's death, Employee or Employee's
estate or beneficiaries, as the case may be, shall be entitled to receive: (i) the Base Salary through the effective date of such
termination or the date of Employee's death, as the case may be; (ii) any other amounts earned, accrued, or owed to Employee under
this Agreement but not paid as of the effective date of such termination or the date of Employee's death, as the case may be;
and (iii) any other benefits payable to Employee under any benefit plans or programs of SDSP in effect on the date of such termination
or the Employee's death, as the case may be.






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(c)          Termination
By SDSP For Cause. If this Agreement is terminated by SDSP for “cause” as defined below, Employee shall be entitled
to receive (i) the Base Salary through the effective date of such termination; (ii) any other amounts earned, accrued or owed to
Employee under this Agreement but not paid as of the effective date of such termination; and (iii) any other benefits payable to
Employee upon such termination under any benefit plans or programs of SDSP in effect on the date of such termination.


 


(d)          Termination
By SDSP Without Cause. If this Agreement is terminated by SDSP without "cause", Employee shall be entitled to receive:
(i) the Base Salary until the effective date of such termination; (ii) any other amounts earned, accrued or owed to Employee under
this Agreement but not paid as of the effective date of such termination; and (iii) any other benefits payable to Employee upon
such termination under any benefit plans or programs of SDSP in effect on the date of such termination.


 


(e)          Occurrence
of Extraordinary Event. Notwithstanding anything to the contrary herein, upon the occurrence of an "extraordinary event"
as defined below, this Agreement shall be deemed to have been terminated by SDSP without cause, thereby entitling Employee to
the payments described in subsection (d) above. For purposes of this Agreement, the term "extraordinary event" shall
mean (i) the merger or consolidation of SDSP with another entity in which SDSP is not the surviving entity, unless Employee is
employed in a similar position by the surviving entity; or (ii) the voluntary sale of all or substantially all of the assets of
SDSP as a going concern, unless Employee is employed in a similar position by a successor company that has purchased substantially
all of the assets of SDSP.


 


(f)          Definition
of Cause. For purposes of this Agreement, the term "cause" shall mean: (i) Employee's confession or conviction of
theft, fraud, embezzlement or other crime involving dishonesty; (ii) Employee's excessive absenteeism (other than by reason of
physical injury, disease, or mental illness) without reasonable cause; (iii) Employee's act or omission constituting a material
breach of any provision of this Agreement, including Sections 12, 13, 14 and 15 below; (iv) habitual and material negligence by
Employee in the performance of Employee's duties under this Agreement; (v) Employee's abuse, misuse or destruction of property
of SDSP, its affiliates, or its customers; (vi) Employee's making or publishing of false or malicious statements concerning SDSP;
or (vii) material failure by Employee to comply with the policies of SDSP or a lawful directive of the Board of Managers of SDSP
and the failure to cure such non-compliance within ten days after his receipt of a written notice from the Board of Managers setting
forth in reasonable detail the pat1iculars of such non-compliance. The preceding list is not intended to be exhaustive; other
conduct of a similar nature may result in the termination of this Agreement for "cause." However, the results of SDSP's
operations or any business judgment made in good faith by Employee shall not constitute an independent basis for termination of
this Agreement for "cause." The provisions in this Agreement relating to cause shall not be construed as restricting
SDSP's right to terminate Employee's employment, but shall relate only to the determination and payment of Base Salary and any
other amounts or benefits that may be payable to Employee under this Agreement.






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12.         Confidential
Information. Employee acknowledges and agrees that SDSP owns and controls proprietary information concerning the operations,
processes, methods and accumulated experience incidental to producing, processing, refining, marketing and selling soybased and
related agricultural products, services and systems, including business and technical information, financial information, accounting
data, marketing techniques and materials, business plans, business operations, pricing policies and manuals, profit margins, expense
ratios, personnel information, customer information, supplier information, technology, intellectual property, trade secrets, ideas,
discoveries, inventions, patents, patent applications, techniques, drawings, designs, plans, specifications and products (the
"Confidential Information"), Employee agrees that by reason of Employee's employment by SDSP, Employee has, and/or may
in the future come into possession of, knowledge of or contribute to the Confidential Information. Employee agrees that all Confidential
Information is and shall remain the exclusive property of SDSP and that, during the term of this Agreement and following the termination
hereof for any reason, Employee shall not disclose or use the Confidential Information for any purpose except in the course of
Employee's duties under this Agreement in furtherance of SDSP's business.


 


13.         Delivery
of Confidential Information and Employer Property. Upon request of SDSP and in any event upon termination of Employee's employment
for any reason, Employee shall promptly deliver to SDSP all Confidential Information, including all originals, copies, summaries
or extracts of books, catalogues, sale brochures, customer lists, prospective customer lists, price lists, employee manuals, notes,
photographs, tape recordings, specifications, operations manuals and all other documents or tangible materials reflecting or referencing
Confidential Information, as well as all other materials furnished to or acquired by Employee as a result of or during the course
of Employee's employment.


 


14.         Non-Competition.
To prevent improper use of Confidential Information and unfair competition and diminution of the goodwill and other proprietary
interests of SDSP, Employee agrees that, during the term of this Agreement and for a period of one (I) year following the termination
hereof for any reason, and in a geographical area encompassing all of North America, Employee shall not, directly or indirectly,
own, manage, operate, control, be employed by, work for, consult with or for, participate in, or be connected in any manner whatsoever
with, the ownership, operation or control of any business that: (a) solicits any customer of SDSP for the purpose of obtaining
the business of such customer in competition with SDSP; (b) solicits any prospective customer of SDSP (meaning any person or entity
with whom SDSP has had any significant contact to develop new business), for the purpose of obtaining the business of such customer
in competition with SDSP; or (c) engages in any business which is the same or essentially the same as the business of SDSP.


 


15.         Non-Solicitation.
During the term of this Agreement and for a period of one (1) year following the termination hereof for any reason, Employee,
directly or indirectly, shall not employ, solicit for employment, assist any other person in employing or soliciting for employment,
or advise or recommend to any other person that such other person employ or solicit for employment, any person who then is, or
during any portion of the twelve (12) months prior to such employment or solicitation, an employee of SDSP.


 


16.         Reasonableness
of Restrictions. Employee acknowledges that he has carefully read and considered the provisions of this Agreement and, having
done so, agrees that the restrictions and limitations in this Agreement are reasonable as to geographic scope and duration and
are necessary to protect SDSP's proprietary interests in the Confidential Information and to preserve for SDSP the competitive
advantages necessary for their success.






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17.         Remedies.
Employee acknowledges and agrees that it is impossible to measure in money the damages which will accrue to SDSP if Employee breaches
any of Employee's obligations under Sections 12, 13, 14 or 15 above, and that SDSP would be irreparably damaged by such breach
by Employee. Accordingly, if any action or proceeding is instituted by or on behalf of SDSP to enforce such sections, Employee
hereby waives any claim or defense thereto that SDSP has an adequate remedy at law or that SDSP has not been irreparably injured
thereby. The rights and remedies of SDSP pursuant to this section are cumulative, and shall not exclude any other right or remedy
SDSP may have pursuant to this Agreement or at law or in equity.


 


18.         Costs.
In the event either party hereto institutes legal proceedings to enforce the terms of this Agreement, the prevailing party shall
be entitled to recover reasonable costs and attorneys' fees incurred in connection with such proceeding.


 


19.         Successors
and Assigns. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the parties hereto and their
respective successors and assigns. The services to be provided by Employee hereunder are personal in nature, and Employee may not
assign or transfer this Agreement or any right or obligation hereunder.


 


20.         Survival.
Upon termination of this Agreement for any reason, any section that by its nature should survive this Agreement shall survive and
continue in effect and be binding upon the Parties, including Sections 11 through 18.


 


21.         Severability.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other
provision hereof, which other provisions shall remain in full force and effect. Without limiting the foregoing, the parties agree
that the covenants contained in Sections 12, 13, 14 and 15 above are independent of one another and severable. In the event any
part of the covenants contained in such sections is held to be invalid or unenforceable, the remaining parts thereof shall continue
to be valid and enforceable as though the invalid and unenforceable part had not been included herein. If any provisions of the
covenants contained in Sections 12, 13, 14 or 15 relating to the time period, geographical area, or restricted activity are declared
by a court to exceed the maximum time periods or restricted activities which such court deems reasonable and enforceable, the
parties agree that the court making such a determination shall have the power and is directed to reduce the time period, geographical
area, and/or restricted activity to the maximum time period, geographical area, and/or restricted activity which such court deems
reasonable.


 


22.         Waiver.
The waiver by SDSP of a breach of any covenant of this Agreement, or the failure of SDSP to take action against any other employee
for similar breaches, shall not operate or be construed as a waiver of any subsequent or later breach by Employee.


 


23.         Governing
Law; Jurisdiction. All rights and obligations missing out of or relating to this Agreement shall be governed by and construed
in accordance with the laws of the State of South Dakota. The parties hereby agree that any legal proceeding brought to enforce
the terms






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Employment Agreement Pages." of this Agreement shall be
brought in the courts of the State of South Dakota located in Brookings County, South Dakota, and the parties hereby consent to
the jurisdiction and venue of such courts.


 


24.         Entire
Agreement: Amendment. This Agreement represents the entire agreement between the parties relating to the subject matter hereof.
No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed
to in writing by Employee and SDSP.


 


IN WITNESS WHEREOF, the parties have executed
this Employment Agreement the date first written above.


 


	SOUTH DAKOTA SOYBEAN	 	EMPLOYEE
	PROCESSORS, LLC 	 	 
	 	 	 
	/s/ Ronald Gorder	 	/s/ Tom J. Kersting
	Chairman of the Board of Managers	 	Thomas J. Kersting






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