form8k_033009exh101.htm


    Exhibit 10.1


     

    AGREEMENT
TO LEND EMPLOYEES

     

     

        This
agreement (“Agreement”) is
entered into this 24th day of March, 2009, between Southwest Iowa Renewable
Energy, LLC. (“SIRE”) and Bunge
North America, Inc. (“Bunge”),
each referred to herein as a “Party” and collectively, the “Parties.”

     

        WHEREAS, SIRE
desires to utilize the services of a specified individual with certain or
special skills (“Borrowed
Employee”); and

     

        WHEREAS, Bunge
agrees to supply SIRE with such Borrowed Employee.

     

        THEREFORE, for
good and valuable consideration, the Parties agree as follows:

     

     

    1.     Borrowed
Employee.   Bunge agrees to loan employee James M. Lay to SIRE
to work in SIRE’s offices located at 10868 189th Street, Council Bluffs, Iowa,
as the Borrowed Employee. The Borrowed Employee shall be the “borrowed servant”
of SIRE as that term is defined by all applicable workers’ compensation
statutes, decisions, regulations, and programs.

     

        2.     Loan
Period.   Bunge agrees to lend the Borrowed Employee to SIRE
commencing on the date of this Agreement and, subject to the terms of this
Agreement, continuing until such date as mutually agreed by the Parties (the
“Loan Period”). Provided,
however, that either Party may terminate this Agreement if the other Party
breaches any of its obligations hereunder, which breach is not cured within five
(5) business days of receipt of written notice of such breach. Upon termination
of this Agreement, all obligations of the Parties with respect to the Borrowed
Employee under this Agreement shall cease, except as provided
herein.

     

            Bunge may cease
loaning the Borrowed Employee to SIRE for any reason upon thirty (30) days
written notice to SIRE. In the event that an issue arises regarding the
performance of services by the Borrowed Employee, SIRE shall notify Bunge to
discuss such performance issues and the Parties agree to cooperate to bring
about a mutually agreeable resolution to any such issue. In the event that the
Parties are unable to resolve the performance issues within thirty (30) days
from the date SIRE notified Bunge of such issues, SIRE may cease borrowing the
Borrowed Employee from Bunge.

     

     

            In the event that the
Borrowed Employee terminates his or her employment with Bunge, all obligations
of the Parties with respect to the Borrowed Employee under this Agreement shall
cease, except as provided herein.

     

     

        3.     Authority.  
The Borrowed Employee shall serve as interim general manager, president and
chief executive officer of SIRE, to perform such duties as may be assigned to
such positions under SIRE’s operating agreement and by SIRE’s Board of
Directors. SIRE shall be vested with such authority to direct and control the
Borrowed Employee during the Loan Period and to assign the Borrowed Employee
work duties and provide day to day supervision.

     

     

        4.     Workers’ Compensation
Coverage.   SIRE shall supply and maintain workers’
compensation coverage to the Borrowed Employee. SIRE shall be responsible for
the payment or defense of all workers’ compensation claims arising out of the
performance of services by the Borrowed Employee under this Agreement, including
any claims which accrue during the Loan Period but have not closed prior to the
ending of the Loan Period, as well as all costs incurred by Bunge as a result of
any claim for workers’ compensation benefits.

     

     

        5.     Indemnification.  
SIRE on behalf of itself and any of its parent companies, subsidiaries, limited
liability companies, divisions, affiliates, merged companies, successors,
assigns, directors, officers, shareholders, lenders, general and limited
partners, agents, servants and employees, past and/or present, or anyone else
taking through or under them, agrees to and shall indemnify and hold harmless
Bunge and its parent companies, subsidiaries, limited liability companies,
divisions, affiliates, merged companies, successors, assigns, directors,
officers, shareholders, lenders, general and limited partners, agents, servants
and employees, past and/or present, and anyone else taking through or under
them, from and against any and all liabilities, claims, damages, costs or
expenses (including attorneys’ fees) arising from or relating to (i) any actions
or omissions of the Borrowed Employee, including but not limited to any claims
of negligence, arising directly or indirectly out of the performance of services
under this Agreement, and (ii) any actions or omissions of SIRE, including but
not limited to any claims of negligence, arising directly or indirectly from the
Borrowed Employee arrangement generally or from this Agreement in particular.
The provisions of this Section 5 shall survive the termination of this
Agreement.

     

     

        6.     Pay and
Benefits.   The Borrowed Employee shall be paid by Bunge, and,
subject to applicable laws, shall participate in any applicable employee benefit
plans of Bunge, pursuant to the terms of such plan(s). Bunge shall have the
right and responsibility to determine the amount of base pay compensation and
performance award (if applicable) payable to the Borrowed Employee; provided,
SIRE agrees to meet with Bunge from time to time to discuss the Borrowed
Employee’s performance under this Agreement. Bunge shall be responsible for
paying all applicable federal and municipal income taxes, social security,
unemployment, health, and other taxes required as relates to the Borrowed
Employee. Any performance award paid to the Borrowed Employee shall be paid by
Bunge.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    

       

      Exhibit
10.1



     

        7.    Charge for
Service.   SIRE shall (1) pay Bunge $13,875 per month, reduced
by the monthly amount SIRE pays for an apartment for the Borrowed Employee in
Council Bluffs, Iowa, (2) lease an acceptable apartment for the Borrowed
Employee in Council Bluffs, Iowa, at SIRE’s sole cost and expense, (3) reimburse
Bunge for all travel-related and entertainment related expenses incurred by the
Borrowed Employee, and (4) provide an acceptable car for the Borrowed Employee,
at SIRE’s sole cost and expense. SIRE shall pay Bunge for such costs within ten
(10) days of the end of the month in which the costs were incurred.

     

        8.     No
Solicitation.   During the term of this Agreement, and for a
period of one (1) year from the earlier of the date of termination of this
Agreement or the termination of employment of the Borrowed Employee, SIRE will
not directly or indirectly, for any reason or purpose whatsoever, solicit the
employment of, recruit, employ, hire, cause to be employed or hired, enticed
away, or establish a business with, the Borrowed Employee, or suggest to or
discuss with the Borrowed Employee the discontinuation of his employment with
Bunge, or directly or indirectly suggest or discuss with the Borrowed Employee
job possibilities, career interest or other employment related
information.

     

        9.     At-Will Employment.
This Agreement does not modify the Borrowed Employee’s status as an at-will
employee of Bunge.

     

     

        10.     Notices.  
All notices required or permitted under this Agreement shall be in writing and
shall be deemed given and made (i) if by personal delivery, on the date of such
delivery, (ii) if by delivery by facsimile, on the date sent (as evidenced by
confirmation of transmission by the transmitting equipment), (iii) if by
nationally recognized overnight courier, on the next business day following
deposit and (iv) if by certified mail, return receipt requested, postage
prepaid, on the third business day following such mailing, in each case
addressed at the address or facsimile number shown below for, or such other
address as may be designated by notice by, such Party:

     

     

    To Bunge:


            Bunge North America,
Inc.

            11720 Borman
Drive

            St. Louis, MO
63146

    Attention:    
General Manager, Biofuels

    Fax
No.:    (314)
292-2110

     

    with a
mandatory copy to:

     

            Bunge North America,
Inc.

            Legal
Department

            11720 Borman
Drive

            St. Louis, MO
63146

    Attention:    
General Counsel

    Fax
No.:     (314)
292-2521

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    
       

      Exhibit
10.1

       

    

    To SIRE:


            Southwest Iowa
Renewable Energy, LLC

            10868 189th
Street

            Council Bluffs, IA
51503

    Attention:   
 Chairman of the
Board

    Fax
No.:         (712) 366-0394

     

    with a
mandatory copy to:

     

            Husch Blackwell
Sanders, LLP

            Attn: David E.
Gardels

            1620 Dodge Street,
Suite 2100

            Omaha, NE
68102

    Fax
No.:     (402)
964-5050

     

     

        11.     Entire Agreement.
This Agreement constitutes the entire agreement of the Parties regarding the
subject matter of the Agreement and supersedes all prior and contemporaneous
statements, promises, understandings or agreements, written or oral, regarding
the subject matter of this Agreement.

     

     

        12.     Counterparts. This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, and signature pages may be exchanged by facsimile or other
electronic communication. All of such counterparts together shall constitute one
instrument.

     

     

        13.     Waiver. No waiver
of any provision of this Agreement shall be valid unless in writing and signed
by the Party against whom such waiver is sought to be enforced. A waiver or
consent given by a Party on any occasion is effective only in that instance and
shall not be construed as a bar to, or waiver of, any right on any other
occasion.

     

     

        14.     Amendment. This
Agreement may be amended only by a written agreement by the
Parties.

     

     

        15.     Controlling
Law.  This Agreement shall be governed by the internal substantive
laws of the State of Iowa, without regard to conflicts of law
provisions.

     

     

     

    
      
        	 BUNGE
      NORTH AMERICA, INC.	 	 	
                 SOUTHWEST
      IOWA RENEWABLEENERGY, LLC.

                 

              	 
	
                /s/
      Eric
      Hakmiller 

              	 	 	
                /s/
      Karol King

              	 
	
                Eric
      Hakmiller 

              	 	 	
                Karol
      King

              	 
	
                General
      Manager, Biofuels 

              	 	 	
                Chairman
      of the Board

              	 


      

    

    


     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    Exhibit
10.1

     

     

    EMPLOYEE
CONSENT

     

     

    I am an
employee of Bunge North America, Inc. (“Bunge”). I consent to being called
upon to work under the control of Southwest Iowa Renewable Energy, LLC. (“SIRE”) at SIRE’s office located at
10868 189th Street, Council Bluffs, Iowa. I agree that while performing work for
SIRE, I will be provided with workers’ compensation coverage by SIRE. I agree
that during my loan period, I am not entitled to any compensation or benefits
from SIRE other than as set out herein and will receive all other compensation
and benefits from Bunge.

     

     

    I will
make my best efforts to perform the duties assigned to me by SIRE in a
professional and workmanlike manner in accordance with applicable professional
standards.

     

     

    I agree
that this consent is not a guarantee of continued employment, nor does it change
my status as an at-will employee of Bunge. I agree that in the event my
employment terminates or I cease being on loan to SIRE, I am not entitled to any
separation benefits or payments whatsoever from SIRE. This consent supersedes
and replaces any similar acknowledgement, employment agreement or offer letter
with respect to these matters.

     

    
      
        
          	 	 	 
	 	 	 	 
	Signature:
      	 	 
	 	 	Printed
      Name:  James M. Lay	 
	 	 	Date:	 
	 	 	 	 


        

      

    

     

     

    Subscribed
and Sworn to me this

     

    ______
day of _________, 2009

     

    __________________________

    Signature
of Notarial Officer