Exhibit 10.1


AMENDED AND RESTATED EMPLOYMENT AGREEMENT


          THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(this “Agreement”)
is entered into effective the 12th day of March 2014 (the “Effective
Date”) by and between Craig M. McKenzie, a resident of the State of
Minnesota (“Employee”),
and Dakota Plains Holdings, Inc., a Nevada corporation (the “Company”).


          WHEREAS, the Company’s primary business is
developing, owning and operating rail facilities and other means to support the
loading, marketing and transporting of crude oil and related products from,
into and within the North Dakota Bakken oil fields;


          WHEREAS, the Company and Employee entered into an Employment Agreement effective as of February 8, 2013
(the “Prior
Agreement”) and Employee has been employed by the Company pursuant
to the terms and conditions of the Prior Agreement.


          WHEREAS, during his employment with the
Company, Employee has had and will continue to have access to the Company’s
confidential, proprietary and trade secret information. Employee and the
Company agree that it is in the best interests of the Company to protect its
confidential, proprietary and trade secret information, to prevent unfair
competition by former executives following separation of their employment and
to secure cooperation from former executives with respect to matters related to
their employment with the Company; and


          WHEREAS, Employee acknowledges that his
receipt of benefits under this Agreement depends on, among other things, his
agreement to abide by the confidentiality, non-competition, non-solicitation
and other covenants contained in this Agreement, including those in Sections
5 and 6 below.


          WHEREAS, the Company and Employee now desire to amend and fully restate the
Prior Agreement.


          NOW, THEREFORE, in consideration of the foregoing recitals and the respective
agreements of the Company and Employee as set forth below, the Company and
Employee, intending to be legally bound, agree as follows: 


	
 

	
 


	
          1.
Employment.


	
 

	
 


	
 

	
          1.1 Term.
As of the Effective Date, the Company hereby agrees to continue to employ
Employee, and Employee hereby accepts such continued employment on the terms
and conditions set forth herein, for the period commencing on the Effective
Date and ending on the three year anniversary of the Effective Date (the “Initial Term”), subject to earlier
termination pursuant to the terms of this Agreement. This Agreement will be
automatically extended after the end of the Initial Term for successive one
year terms (each a “Renewal Term”),
subject to earlier termination pursuant to the terms of this Agreement,
unless either party delivers to the other party written notice of non-renewal
no fewer than ninety (90) days prior to the expiration of the Initial Term or
any Renewal Term then in effect stating that such party does not wish to
extend the Term beyond the end of the Initial Term or the Renewal Term then
in effect; provided, further, that if a “Change in Control” (as defined in the
Company’s 2011 Equity Incentive Plan) occurs prior to the expiration of the
Initial Term or the then-current Renewal Term, then the Initial Term or
then-current Renewal Term (as applicable) shall be extended through the
two-year anniversary of the Change in Control without any option for the
Company to not renew this Agreement prior to the end of such two-year period.
The Initial Term together with any Renewal Term(s) is herein referred to as
the “Term.” If Employee remains
employed by the Company after the Term, then such employment shall be
according to such terms and conditions as the Company may establish from time
to time.















	
 

	
 


	
 

	
          1.2 Services.
The Company hereby agrees to continue to employ Employee in the role of the
Company’s Chief Executive Officer, and Employee hereby accepts such continued
employment with the Company on the terms and conditions set forth herein.
Employee shall perform all activities and services as the Company’s Chief
Executive Officer, which shall include such duties and responsibilities as
the Company’s Board of Directors (the “Board”) may from time-to-time reasonably
prescribe consistent with the duties and responsibilities of a Chief
Executive Officer of the Company (the “Services”). Employee shall use his best
efforts to make himself available to render such Services to the best of his
abilities. The Services shall be performed in a good professional and
workmanlike manner by Employee, to the Company’s reasonable satisfaction,
which shall include duties and responsibilities as the Company’s Chief
Executive Officer. Employee shall be considered an executive officer for
purposes of Section 16 of the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”). The Company and Employee acknowledge that Employee has been
appointed to serve as a member of the Board. During the Term, the Board will
nominate Employee for reelection to the Board at the expiration of each term
of office, and Employee agrees to serve as a member of the Board for each
period for which Employee is so elected.


	
 

	
 


	
          2. At-Will Relationship. Employee’s employment with the Company
shall be entirely “at-will,” meaning that either Employee or the Company may
terminate such employment relationship at any time for any reason or for no
reason at all, subject to the provisions of this Agreement. The date upon
which Employee’s termination of employment with the Company occurs is the “Termination
Date.” For purposes of Sections 8.2(iv), 8.2(v) and 8.2(vi)
of this Agreement only, with respect to the timing of any payments
thereunder, the “Termination Date” shall mean the date on which a “separation
from service” has occurred for purposes of Section 409A of the Internal
Revenue Code of 1986, as amended from time to time (the “Code”) and the regulations
and guidance thereunder.


	
 

	
 


	
          3.
Compensation and Incentive Awards.
In consideration for Employee entering
into this Agreement with the
Company and performing the Services required hereunder during the Term, the
Company shall provide Employee with the following compensation while Employee
is employed by the Company during the Term:


	
 

	
 


	
 

	
          3.1 Annual
Salary. The Company shall pay Employee an annualized base salary
according to this Section 3.1 (the “Salary”), which Salary
shall be paid monthly on the 15th day of each calendar
month, or the last business day immediately preceding the 15th day
of each calendar month, in the event the 15th falls on a weekend
or a holiday. Employee’s annualized Salary as of the Effective Date shall be
$425,000.


	
 

	
 


	
 

	
          3.2 Short Term Incentive. For each calendar year during the Term,
Employee shall be eligible to receive an annual incentive bonus in the
discretion of the Company’s Compensation Committee or Board based upon
Employee meeting or exceeding mutually agreed upon performance goals, with a
target annual incentive bonus equal to 100% of Employee’s annualized Salary
and to be paid in cash, subject to all applicable corporate approvals, to be
issued no later than March 15 of the calendar year immediately following the
calendar year for which such bonus is earned; provided, however, that nothing
herein shall obligate the Company to pay any Short Term Incentive bonus under
this Section 3.2 to Employee at any time.





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          3.3 Long Term Incentive. For each calendar year during the Term,
Employee shall be eligible to receive an annual incentive bonus in the
discretion of the Company’s Compensation Committee or Board based upon
Employee meeting or exceeding mutually agreed upon performance goals, with a
target annual incentive bonus equal to 200% of Employee’s annualized Salary
and to be paid in restricted stock, subject to all applicable corporate
approvals, to be issued no later than March 15 of the calendar year
immediately following the calendar year for which such bonus is earned;
provided, however, that nothing herein shall obligate the Company to pay any
Long Term Incentive bonus under this Section 3.3 to Employee at any
time. The Company agrees that upon the vesting of restricted stock issued
pursuant to this Section 3.3, Employee will have the option of paying
the required withholding tax due upon such vesting or receiving a certain
number of net shares of common stock, in either case in accordance with the
terms of the applicable grant agreements and plan document(s) governing such
restricted stock.


	
 

	
 


	
          4. Benefits.
In consideration for Employee entering
into this Agreement with the
Company and performing the Services required hereunder during the Term, the
Company shall provide Employee with the following employee benefits while
Employee is employed by the Company during the Term:


	
 

	
 


	
 

	
          4.1 Retirement
Plans. Employee shall be entitled to participate in the Company’s 401(k),
profit sharing and other retirement plans (the “Plan”) presently in effect
or hereafter adopted by the Company, to the extent that such Plan relates
generally to all employees of the Company. Employee shall be able to
contribute up to the legal limit, as a percentage of his annualized Salary,
into any such Plan, of which the Company shall match Employee’s contribution
up to a maximum of eight percent (8.0%) of Employee’s qualified annualized
Salary.


	
 

	
 


	
 

	
          4.2 Vacation.
Employee shall be entitled to four weeks paid vacation annually pursuant to
such general policies and procedures of the Company consistent with past
practices as are from time to time adopted by the Company.


	
 

	
 


	
 

	
          4.3 Expense
Reimbursement. Employee shall be reimbursed by the Company for all
ordinary and customary business expenses, including travel. Employee shall
provide such appropriate documentation regarding such expenses and
disbursements as Company may reasonably require. Reimbursement shall occur
once per month and must be paid within thirty (30) days after the Company
receives appropriate documentation from Employee related to such expenses but
in no event later than the end of the Company’s taxable year following the
taxable year in which such expenses are incurred.


	
 

	
 


	
 

	
          4.4 Health
Insurance. Employee, Employee’s spouse and any children of Employee (the
“Employee’s
Family”) shall be entitled to participate in health,
hospitalization, disability, dental and other such health-related benefits
and/or insurance plans that the Company may have in effect from time-to-time
and provided Employee and Employee’s Family meets the eligibility
requirements for each such individual plan or program, all of which insurance
premiums shall be paid by the Company on behalf of Employee and Employee’s
Family. The Company provides no assurance as to the adoption or continuance
of any particular health, hospitalization, disability, dental and other such
health-related benefits and/or insurance plans or programs and Employee and
Employee’s Family’s participation in any such plan or program shall be
subject to the provisions, rules and regulations applicable thereto.


	
 

	
 


	
 

	
          4.5 Other
Benefits. Employee shall also be entitled to such other benefits as the
Company may from time-to-time generally provide to its personnel, at the discretion
of and as permitted by the Company’s management.





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          5.
Confidential Information.


	
 

	
 


	
 

	
          5.1
Employee shall maintain the confidentiality of all trade secrets, (whether
owned or licensed by the Company) and related or other interpretative
materials and analyses of the Company’s projects, or knowledge of the
existence of any material, information, analyses, projects, proposed joint
ventures, mergers, acquisitions, divestitures and other such anticipated or
contemplated business ventures of the Company, and other confidential or
proprietary information of the Company (“Confidential Information and Materials”)
obtained by Employee as result of Employee’s employment with the Company
(including Employee’s employment with the Company before the Effective Date)
and for two (2) years following termination of Employee’s employment with the
Company for any reason, whether such termination is at the initiative of
Employee or the Company or before or after expiration of the Term.


	
 

	
 


	
 

	
          5.2 In
the event that such Confidential Information and Materials are memorialized
on any computer hardware, software, CD-ROM, disk, tape, or other media,
Company shall have the right, subject to the rights of third parties under
contract, copyright, or other law, to view, use, and copy for safekeeping or
backup purposes such Confidential Information and Materials. During the
period of confidentiality, Employee shall make no use of such Confidential
Information and Materials for his own financial or other benefit, and shall
not retain any originals or copies, or reveal or disclose any Confidential
Information and Materials to any third parties, except as otherwise expressly
agreed by the Company. Except in the performance of the Services, Employee
shall have no right to use the Company’s corporate logos, trademarks, service
marks, or other intellectual property without prior written permission of the
Company and subject to any limitations or restrictions upon such use as the
Company may require.


	
 

	
 


	
 

	
          5.3 Upon
expiration or termination of this Agreement, Employee shall turn over to a
designated representative of the Company all property in Employee’s
possession and custody and belonging to the Company. Employee shall not
retain any copies or reproductions of correspondence, memoranda, reports,
notebooks, drawings, photographs or other documents relating in any way to
the affairs of the Company and containing Confidential Information and
Materials which came into Employee’s possession at any time during the term
of Employee’s employment with the Company.


	
 

	
 


	
 

	
          5.4
Employee acknowledges that the Company is a public company subject to the
reporting requirements of the Exchange Act and that this Agreement may be
subject to the filing requirements of the Exchange Act. Employee acknowledges
and agrees that the applicable insider trading rules and limitations on
disclosure of non-public information set forth in the Exchange Act and rules
and regulations promulgated by the SEC shall apply to this Agreement and
Employee’s employment with the Company. Employee (on behalf of himself as
well as his executors, heirs, administrators and assigns) absolutely and
unconditionally agrees to indemnify and hold harmless the Company and all of
its past, present and future affiliates, executors, heirs, administrators,
shareholders, employees, officers, directors, attorneys, accountants, agents,
representatives, predecessors, successors and assigns from any and all
claims, debts, demands, accounts, judgments, causes of action, equitable
relief, damages, costs, charges, complaints, obligations, controversies,
actions, suits, proceedings, expenses, responsibilities and liabilities of
every kind and character whatsoever (including, but not limited to,
reasonable attorneys’ fees and costs) in the event of Employee’s breach or
alleged breach of any obligation under the Exchange Act, any rules
promulgated by the SEC and any other applicable Federal or state laws, rules,
regulations or orders.





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          5.5 The
foregoing obligations of confidentiality shall not apply to any Confidential
Information and Materials that: (i) are now or subsequently become generally
publicly known, other than as a direct or indirect result of the breach by
Employee of this Agreement, (ii) are independently made available to Employee
in good faith by a third party who has not violated a confidential
relationship with the Company, or (iii) are required to be disclosed by law
or legal process. Employee understands and agrees that Employee’s obligations
under this Agreement to maintain the confidentiality of the Company’s
Confidential Information are in addition to any obligations of Employee under
applicable statutory or common law. The parties agree that the provisions of
this Section 5 shall survive any termination of Employee’s employment
with the Company and this Agreement.








	
 

	
 

	
 


	
          6.
Non-Competition and Non-Solicitation.


	
 

	
 

	
 


	
 

	
          6.1
Employee agrees that he will not:


	
 

	
 

	
 


	
 

	
 

	
          (i)
anywhere the Company does business, including but not limited to Williston
Basin and the Rocky Mountain Region, engage, directly or indirectly, alone or
as a shareholder (other than as a holder of less than ten percent (10%) of
the common stock of any publicly traded corporation), partner, officer,
director, employee, consultant or advisor, or otherwise in any way
participate in or become associated with, any other business organization
that is engaged or becomes engaged in any business that is the same or
substantially identical business of the Company, or is directly competitive
with, any business activity that the Company is conducting at the time of
Employee’s termination or has notified Employee that it proposes to conduct
and for which the Company has, prior to the time of such termination,
expended substantial resources (the “Designated Industry”),


	
 

	
 

	
 


	
 

	
 

	
          (ii)
divert to any competitor of the Company any customer of the Company, or


	
 

	
 

	
 


	
 

	
 

	
          (iii)
solicit any employee, consultant or independent contractor of the Company to
change its relationship with the Company, or hire or offer employment to, or
a consulting or independent contractor relationship with, any person to whom
Employee actually knows the Company has offered employment; provided,
however, that this provision does not apply to any employee, consultant or
independent contractor of the Company who responds to a general solicitation
for an advertised position provided Employee has not otherwise engaged in
conduct prohibited by this Section 6.


	
 

	
 

	
 


	
 

	
          6.2 Employee agrees to be bound by the provisions of this Section 6
in consideration for the Company’s employment of Employee,
payment of the compensation and benefits provided under Section 3 and Section
4 above and the covenants and agreements set forth herein. The provisions
of this Section 6 shall apply during the term of Employee’s employment
with the Company and for a period of two (2) years following termination of
Employee’s employment with the Company for any reason, whether such
termination is at the initiative of Employee or the Company or before or
after expiration of the Term. The parties agree that the provisions of this Section
6 shall survive any termination of this Agreement, Employee will continue
to be bound by the provisions of this Section 6 until their expiration
and Employee shall not be entitled to any compensation from the Company with
respect thereto except as provided under this Agreement.





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          6.3 Employee acknowledges that the provisions of this Section 6
are essential to protect the business and goodwill of the
Company. If at any time the provisions of this Section 6 shall be
determined to be invalid or unenforceable by reason of being vague or
unreasonable as to area, duration or scope of activity, this Section 6
shall be considered divisible and shall become and be immediately amended to
only such area, duration and scope of activity as shall be determined to be
reasonable and enforceable by the court or other body having jurisdiction
over the matter; and Employee agrees that this Section 6 as so amended
shall be valid and binding as though any invalid or unenforceable provision
had not been included herein.


	
 

	
 

	
 


	
          7.
Non-Disparagement. Both the Company and
Employee agree that neither they nor any of their respective affiliates,
predecessors, subsidiaries, partners, principals, officers, directors,
authorized representatives, agents, employees, successors, assigns, heirs or
family members shall disparage or defame any other party hereto relating in
any respect to this Agreement, their relationship or the Company’s employment
of Employee.


	
 


	
          8. Rights Upon Termination of Employment.



	
 

	
 

	
 


	
 

	
          8.1 If
Employee’s employment with the Company is terminated by the Company or
Employee for any reason upon or following the expiration of the Term, or if
Employee’s employment with the Company is terminated during the Term by the
Company for Cause (as defined below) or by Employee for any reason other than
Good Reason (as defined below), or if Employee’s employment with the Company
is terminated during the Term by reason of Employee’s death or Disability (as
defined below), then: (i) the Company shall pay to Employee or his
beneficiary or his estate, as the case may be, Employee’s Salary through the
Termination Date, (ii) the Company shall pay any unpaid expense reimbursement
that might have accrued prior to the Termination Date; and (iii) any
securities held in the name of Employee, or any portion thereof, may be
exercised to the extent Employee was entitled to do so as of the Termination
Date in accordance with the terms of the applicable grant agreements and plan
document(s) governing such securities.


	
 

	
 

	
 


	
 

	
          8.2 If
Employee’s employment with the Company is terminated during the Term by the
Company for any reason other than for Cause or by the Employee for Good
Reason, then: (i) the Company shall pay Employee’s Salary through the
Termination Date, (ii) the Company shall pay any unpaid expense reimbursement
that might have accrued prior to the Termination Date, (iii) subject to Section
8.7, any securities held in the name of Employee, or any portion thereof,
shall vest or may be exercised by Employee during the six-month period
immediately following the Termination Date as though Employee was entitled to
do so as of the Termination Date in accordance with the terms of the
applicable grant agreements and plan document(s) governing such securities,
(iv) subject to Section 8.7 and only if the Termination Date occurs
before a Change in Control (as defined in the Company’s 2011 Equity Incentive
Plan) or if the Termination Date occurs after the one (1) year anniversary of
such Change in Control, the Company shall pay Employee an amount equal to two
times Employee’s annualized Salary as of the Termination Date, payable in 24
substantially equal monthly installments on or about the 15th day of each of
the 24 months immediately following the Termination Date; provided, however,
that any installments that otherwise would be payable between the Termination
Date and the 60th day after the Termination Date shall be delayed until the
15th day of the calendar month that is more than 60 days after the
Termination Date and included with the installment payable on such date, (v)
subject to Section 8.7 and only if the Termination Date occurs before
a Change in Control (as defined in the Company’s 2011 Equity Incentive Plan)
or if the Termination Date occurs after the one (1) year anniversary of such
Change in Control, the Company shall pay Employee an amount equal to two
times Employee’s target Short Term Incentive award made pursuant to Section
3.2, less applicable withholdings, payable in 24 substantially equal
monthly installments on or about the 15th day of each of the 24 months
immediately following the Termination Date; provided, however, that any
installments that otherwise would be payable between the Termination Date and
the 60th day after the Termination Date shall be delayed until the 15th day
of the calendar month that is more than 60 days after the Termination Date and
included with the installment payable on such date, and (vi) subject to Section
8.7, if Employee is eligible for and takes all steps necessary to
continue Employee’s and Employee’s Family’s group health and dental insurance
coverage with the Company following the Termination Date (including
completing and returning the forms necessary to elect COBRA coverage), the
Company will (a) pay for the portion of the premium costs for such coverage
that the Company would pay if Employee had remained employed by the Company,
at the same level of coverage that was in effect as of the Termination Date,
through the earliest of: (1) the 18-month month anniversary of the
Termination Date, (2) the date Employee becomes eligible for group health and
dental insurance coverage from any other employer, or (3) the date Employee
is no longer eligible to continue Employee’s and Employee’s Family’s group
health and dental insurance coverage with the Company under applicable law,
and (b) pay Employee an amount equal to the Company’s portion of the first
month COBRA premium costs for such coverage identified in Section
8.2(vi)(a) multiplied by six (6), payable in a lump sum on the Company’s
first payroll that is more than 60 days after the Termination Date. 





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          8.3 Termination
of Employee for “Cause” shall mean any of the following
acts by Employee:


	
 

	
 

	
 


	
 

	
 

	
          (i) an
intentional act of fraud, embezzlement, theft or any other material violation
of law:


	
 

	
 

	
 


	
 

	
 

	
          (ii)
intentional damage to the Company’s assets;


	
 

	
 

	
 


	
 

	
 

	
          (iii) the
willful and continued failure to substantially perform required duties for
the Company (other than as a result of incapacity due to physical or mental
illness); or


	
 

	
 

	
 


	
 

	
 

	
          (iv)
willful conduct that is demonstrably and materially injurious to the Company,
monetarily or otherwise.


	
 

	
 

	
 


	
 

	
          8.4 “Disability”
hereunder shall mean the inability of Employee to perform on a full-time
basis the duties and responsibilities of his employment with the Company by
reason of his illness or other physical or mental impairment or condition, if
such inability continues for an uninterrupted period of 180 days or more
during any 360-day period. A period of inability shall be “uninterrupted”
unless and until Employee returns to full-time work, with or without an
accommodation, for a continuous period of at least thirty (30) days.


	
 

	
 

	
 


	
 

	
          8.5 “Good
Reason” hereunder shall mean the occurrence of any of the
following during the Term without Employee’s consent: (i) a material reduction
in Employee’s duties that is inconsistent with Employee’s position as Chief
Executive Officer of Company or a change in Employee’s reporting relationship
such that Employee no longer reports directly to the Board of Directors; (ii)
Employee is no longer the Chief Executive Officer of Company; (iii) any
material reduction in Employee’s annual base salary or bonus compensation
(other than in connection with a general decrease in the salary or bonuses
for other employees of Company); (iv) material breach by Company of any of
its obligations hereunder; or (v) a requirement by Company that Employee
relocate Company’s principal office to a facility more than fifty (50) miles
from Company’s principal office as of the Effective Date; provided, however
that Employee must provide written
notice to the Company that Good Reason exists within fifteen (15) days of the
occurrence of the circumstances giving rise to Good Reason, the Company must
fail to cure such circumstances within thirty (30) days after its receipt of
such notice from Employee and the Company engaging in good faith negotiations
with Employee to resolve the alleged Good Reason circumstances or to confirm
with Employee that the facts Employee has identified support a Good Reason
resignation, and Employee must resign no later than ninety (90) days after
expiration of the Company’s 30-day cure period in order for Employee’s
resignation to be for Good Reason.





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          8.6 In
the event of termination of Employee’s employment, the sole obligation of the
Company shall be its obligation to make the payments called for by Section
8.1 or Section 8.2 hereof, as the case may be, and the Company
shall have no other obligation to Employee or to his beneficiary or his
estate, except for compensation earned for services performed through the
Termination Date or as otherwise provided by law, under the terms of any
other applicable agreement between Employee and the Company or under the
terms of any employee benefit plans or programs then maintained by the Company
in which Employee participates. 


	
 

	
 


	
 

	
          8.7
Notwithstanding the foregoing provisions of this Section 8, the Company shall
not be obligated to provide the consideration under Section 8.2(iii),
8.2(iv), 8.2(v) or 8.2(vi) hereof unless Employee shall have signed a
release of claims in favor of the Company in a form to be prescribed by the
Company, all applicable consideration periods and rescission periods provided
by law shall have expired and Employee is in strict compliance with the terms
of this Agreement as of the dates of the payments.








          9.
Rights Upon a Change in Control.
If a Change in Control (as defined in the Company’s 2011 Equity Incentive Plan)
occurs during the Term, then, subject to Employee signing and not rescinding a
release of claims in favor of the Company in a form to be prescribed by the
Company, the Company shall pay Employee an amount equal to (i) two times
Employee’s annualized Salary as of the Change in Control and (ii) two times
Employee’s target Short Term Incentive award made pursuant to Section 3.2,
less applicable withholdings, payable in a lump sum no later than 75 days after
the Change in Control occurs. For avoidance of doubt, if a Change in Control
(as defined in the Company’s 2011 Equity Incentive Plan) occurs during the
Term, then Employee will not be eligible to receive the severance pay described
in Section 8.2(iv) and Section 8.2(v) unless the Termination Date
occurs during the Term and after the one (1) year anniversary of such Change in
Control.


          10.
Notices. Any notice required or permitted under
this Agreement shall be personally delivered or sent by recognized overnight
courier or by certified mail, return receipt requested, postage prepaid, and
shall be effective when received (if personally delivered or sent by recognized
overnight courier) or on the third day after mailing (if sent by certified
mail, return receipt requested, postage prepaid) to Employee at the address
indicated on the signature page of this Agreement and to the Company at its
headquarters or principal place of business. Either party may designate a
different person to whom notices should be sent at any time by notifying the
other party in writing in accordance with this Agreement.


          11. Survival of Certain Provisions. Those provisions
of this Agreement which by their terms extend beyond the termination or
non-renewal of this Agreement (including all representations, warranties, and
covenants of the parties) shall remain in full force and effect and survive
such termination or non-renewal.


          12. Severability. Each provision of this Agreement
shall be considered severable such that if any one provision or clause
conflicts with existing or future applicable law, or may not be given full
effect because of such law, this shall not affect any other provision which can
be given effect without the conflicting provision or clause.


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          13.
Entire Agreement. This Agreement contains the
entire agreement and understanding between the parties, and supersede all prior
agreements and understandings relating to the subject matter hereof, including
without limitation the Prior Agreement. There are no understandings,
conditions, representations or warranties of any kind between the parties
except as expressly set forth herein.


          14.
Assignability. Employee may not assign this
Agreement to any third party for whatever purpose without the express written
consent of the Company. The Company may not assign this Agreement to any third
party without the express written consent of Employee except by operation of
law, or through merger, liquidation, recapitalization or sale of all or
substantially all of the assets of the Company, provided that the Company may
assign this Agreement at any time to an affiliate of the Company. The
provisions of this Agreement shall inure to the benefit of and be binding upon
the parties and their respective representatives, successors, and assigns. Any
third party to which the Company assigns this Agreement by operation of law, or
through merger, liquidation, recapitalization or sale of all or substantially
all of the assets of the Company, or because such third party is an affiliate
of the Company, shall thereafter be deemed the “Company” for the purposes of
this Agreement. 


          15.
Headings. The headings of the paragraphs and
sections of this Agreement are inserted solely for the convenience of
reference. They shall in no way define, limit, extend, or aid in the
construction of the scope, extent, or intent of this Agreement.


          16.
Waiver. The failure of a party to enforce the
provisions of this Agreement shall not be construed as a waiver of any
provision or the right of such party thereafter to enforce each and every
provision of this Agreement.


          17.
Amendments. No amendments of this Agreement
shall be binding upon the Company or Employee unless made in writing, signed by
the parties hereto, and delivered to the parties at the addresses provided
herein.


          18.
Governing Law. This Agreement shall be governed
by and construed under the internal laws of the State of Minnesota, without
regard to the principles of comity and/or the applicable conflicts of laws of
any state that would result in the application of any laws other than the State
of Minnesota.


          19. Jurisdiction. This Agreement,
including the documents, instruments and agreements to be executed and/or
delivered by the parties pursuant hereto, shall be construed, governed by and
enforced in accordance with the internal laws of the State of Minnesota, without
giving effect to the principles of comity or conflicts of laws thereof.
Employee and the Company agree and consent that any legal action, suit or
proceeding seeking to enforce any provision of this Agreement shall be
instituted and adjudicated solely and exclusively in any court of general
jurisdiction in Minnesota, or in the United States District Court having
jurisdiction in Minnesota and Employee and the Company agree that venue will be
proper in such courts and waive any objection which they may have now or
hereafter to the venue of any such suit, action or proceeding in such courts,
and each hereby irrevocably consents and agrees to the jurisdiction of said
courts in any such suit, action or proceeding. Employee and the Company further
agree to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in said courts, and also agree
that service of process or notice upon them shall be deemed in every respect
effective service of process or notice upon them, in any suit, action,
proceeding, if given or made (i) according to applicable law, (ii) by a person
over the age of eighteen (18) who personally served such notice or service of
process on Employee or the Company, as the case may be, or (iii) by certified
mail, return receipt requested, mailed to employee or the Company, as the case
may be, at their respective addresses set forth in this Agreement.


9






          20. Counterparts and Electronic Signatures.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall constitute one and the
same Agreement.


          21. Taxes and Section 409A. Company may
withhold from any amounts payable under this Agreement such federal, state and
local income and employment taxes as Company shall determine are required to be
withheld pursuant to any applicable law or regulation. Employee shall be solely
responsible for the payment of all taxes due and owing with respect to wages,
benefits, and other compensation provided to him hereunder. This Agreement and
the compensation payable hereunder is intended to satisfy, or be exempt from,
the requirements of Section 409A(a)(2)(3) and (4) of the Code, including
current and future guidance and regulations interpreting such provisions, and
should be interpreted accordingly. Each
payment under this Agreement is intended to be treated as one of a series of
separate payments for purposes of Code Section 409A and Treasury Regulation
§1.409A-2(b)(2)(iii) (or any similar or successor provisions). To the extent
that any payments under Section 8.2(iv) are subject to Code Section 409A and
Employee is a “Specified Employee” (as defined in Section 409A) as of the
Termination Date, such payments to Employee under Section 8.2(iv) may not be
made before the date that is six (6) months after the Termination Date or, if
earlier, the date of Employee’s death. Payments to which Employee would
otherwise be entitled during the first six (6) months following the Termination
Date will be accumulated and paid on the first day of the seventh month
following the Termination Date (or Employee’s death, if earlier). 


          22. Excise Tax. In the event that the benefits provided for in this Agreement or
otherwise payable to Employee (i) constitute “parachute payments” within the
meaning of Section 280G of the Code, and (ii) if the net after-tax
amount of such parachute payment to Employee is less than what the net
after-tax amount to Employee would be if the aggregate payments and benefits
otherwise constituting the parachute payment were limited to three times
Employee’s “base amount” (as defined in Section 280G(b)(3) of the Code) less
$1.00, then the aggregate payments and benefits otherwise constituting the
parachute payment shall be reduced to an amount that shall equal three times
Employee’s base amount, less $1.00. Should such a reduction in payments and
benefits be required, Employee shall be entitled, subject to the following
sentence, to designate those payments and benefits under this Agreement or the
other arrangements that will be reduced or eliminated so as to achieve the
specified reduction in aggregate payments and benefits to Employee and avoid
characterization of such aggregate payments and benefits as a parachute
payment. The Company will provide Employee with all information reasonably
requested by Employee to permit Employee to make such designation. To the
extent that Employee’s ability to make such a designation would cause any of
the payments and benefits to become subject to any additional tax under Code
Section 409A, or if Employee fails to make such a designation within ten
business days of receiving the requested information from the Company, then the
Company shall achieve the necessary reduction in such payments and benefits by
first reducing or eliminating the portion of the payments and benefits that are
payable in cash and then by reducing or eliminating the non-cash portion of the
payments and benefits, in each case in reverse order beginning with payments
and benefits which are to be paid or provided the furthest in time from the
date of the Company’s determination. For purposes of this Section 22, a
net after-tax amount shall be determined by taking into account all applicable
income, excise and employment taxes, whether imposed at the federal, state or
local level, including the excise tax imposed under Section 4999 of the Code.  


[Signature Page Follows]


10






          IN WITNESS
WHEREOF, the parties have executed this Agreement as of the Effective Date
first set forth above. 


	
 

	
 

	
 


	
 

	
DAKOTA PLAINS HOLDINGS, INC.

	
 


	
 

	
 

	
 


	
 

	
/s/ Timothy R. Brady 



	
 


	
 

	
Timothy R. Brady

	
 


	
 

	
Chief
Financial Officer

	
 


	
 

	
 

	
 


	
 

	
EMPLOYEE

	
 


	
 

	
 

	
 


	
 

	
/s/ Craig M. McKenzie



	
 


	
 

	
Craig M. McKenzie

	
 





[Signature Page to Employment Agreement]