EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of this 19th day of October, 1998, between Top
Air Manufacturing, Inc., an Iowa Corporation (the "Company" or "Employer"), and
Xxxxxx X. Xxxxxxxx ("Employee").
WITNESSETH:
WHEREAS, Employer represents that it wishes to employ said Employee
under any and all terms set forth in this Agreement; and
WHEREAS, Employee represents and is willing to work diligently for said
Employer under any and all terms set forth in this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants of the parties
hereto, it is agreed as follows:
1. Employment. The Company hereby employs Employee, as Chief Accounting
Officer of the Company, and Employee accepts such employment by the Company upon
the terms and conditions set forth in this Agreement, for the period beginning
on the date of this Agreement, and ending upon termination pursuant to paragraph
5 hereof (the "Employment Period").
2. Compensation. During the Employment Period, the Company will
compensate Employee as follows:
(a) Employee shall receive an initial annual fixed salary of
$70,000.00, payable in bi-weekly installments of $2,692.31. The Board
of Directors may, by appropriate Board action, adjust Employees fixed
annual salary under this agreement at any time during the term of this
agreement.
(b) Employee shall be entitled to receive employee benefits
including, but not limited to, medical insurance, life insurance,
disability insurance and pension benefits or similar plans or programs
now existing or hereafter established to the extent that he is eligible
under the general provisions of the applicable plans, provided however,
that the Board may increase or decrease these benefits as long as
Employee is not discriminated against.
3. Services. Employee agrees that during his period of employment he
will serve Employer on a full-time basis faithfully, diligently, confidently and
to the best of his ability, and shall perform all duties incident to the office
he holds pursuant to paragraph 1 hereof.
4. Extent of Service. Employee shall devote his entire time, attention
and energies to the business of the Employer, and not, during the term of this
Agreement, be engaged in other business activities, whether or not such business
activities are pursued for gain, profit or other pecuniary advantage; but this
shall not be construed as preventing the Employee from investing his assets in
such form or manner as will not require any services on the part of Employee in
the operation of the affairs of the companies in which such investments are
made.
5. Termination. The Employment Period will continue from its effective
date, to wit: October 19, 1998, and shall extend until terminated by Employer or
Employee, pursuant to this section of the Agreement.
(a) Employer may terminate this Agreement, effective on a date
designated in a written notice to Employee upon the occurrence of any
of the following:
(i) Failure or refusal of Employee to perform his duties
and obligations under this Agreement;
(ii) Death of Employee; or
(iii) Disability of Employee, defined as an inability to
perform his work for 45 consecutive days, or for 90 days
within any 12-month period; or
(iv) The commission by Employee of any felony or any
other act constituting fraud, embezzlement or misappropriation
of funds (civil or criminal).
In the event of a termination pursuant to this paragraph 5(a), compensation
shall be paid on a prorated basis through the date of termination, subject to
any rights of offset of Employer.
(b) Employer may terminate this Agreement for any reason not
specified in paragraph 5(a) hereof, effective with ninety (90) days
written notice to Employee. In the event of a termination pursuant to
this paragraph 5(b), Employee's compensation shall be paid on a
prorated basis through the effective date of termination, subject to
any rights of offset of the Employer.
(c) Employee may terminate this Agreement upon thirty (30)
days' prior written notice. In the event of a termination pursuant to
this paragraph 5(c), compensation shall be paid on a prorated basis
through the date of termination, subject to any rights of offset of
Employer.
6. Restrictive Covenant - Non-Competition. Employee agrees that on the
termination for any reason whatsoever of his employment with the Employer, other
than in connection with the sale of a controlling interest of the Company's
common stock, he will not, for a period of one (1) year from the date of such
termination, directly or indirectly engage in or own any part of any company
engaged in the design, manufacture or sale of products substantially the same as
those offered by the Employer at the time of the termination, or work, on a
full-time, part-time or consultant basis, for any corporation, partnership, sole
proprietorship or any other legal entity engaged in such business within the
states of Iowa, Illinois, Indiana or Minnesota, nor will he in any way directly
or indirectly, attempt to hire the Employer's employees or take away any of the
Employer's business or customers or destroy, injure or damage the goodwill of
the Employer with its customers.
Employee further agrees that in the event that the Employer, its
successors or assigns, shall bring any action for the enforcement of any or all
provisions of this covenant not to compete, and if the Court shall find on the
basis of the evidence introduced in said action that this paragraph 6 is
unreasonable then the Court shall make a finding as to what is reasonable and
shall enforce this Agreement by judgment or decree to the extent of such
finding.
In the event that a controlling interest in the Company's common stock
is sold to any person or entity during the Employment Period, and the Employee
is not offered employment in a similar position as described in paragraph 1,
this restrictive covenant shall not apply.
7. Disclosure of Information. Employee recognizes and acknowledges that
the financial or other affairs of the Employer, as they may exist from time to
time, are valuable, special and unique assets of the Employer, and Employee
agrees that he shall not, during or after the term of his employment, disclose
financial or other affairs of the Employer or any portion thereof to any person,
firm, corporation, association or other entity for any reason or purpose
whatsoever except for any bona fide Employer business purpose designated and
approved by the Board.
8. Ownership of Inventions. Employee promises and agrees that he will
disclose fully and reveal promptly to Employer any and all inventions,
discoveries, processes, methods, designs, products and know-how, which Employee
may invent, discover, acquire or develop, either alone or in conjunction with
others, during Employee's employment by Employer (hereinafter collectively
referred to as "Discoveries"), where said Discoveries (i) relate to, or in any
way pertain to or are connected with the business of Employer, or (ii) were
developed at Employer's expense or on its premises, or (iii) resulted directly
or indirectly from such employment by Employer, or relate to articles or
products made, sold, used or bought by Employer, or (iv) were being considered
for design, development, sale, purchase or use by Employer during such
employment by Employer, and Employee further promises and agrees that said
Discoveries shall be the sole and exclusive property of Employer; and Employee,
whenever requested to do so by Employer, and without further compensation or
consideration shall properly execute any and all applications, assignments and
other instruments which Employer shall deem necessary in order to (a) apply for
and obtain, in the name of Employer, a patent, trademark or copyright for said
Discoveries, and (b) assign and convey to Employer the sole and exclusive right,
title and interest in and to said Discoveries, and any applications, patents,
trademarks or copyrights thereon.
Employee hereby warrants, represents and confirms that he neither holds
nor has any interest in any patent, patent right, patent application, trademark,
trademark application, license agreement or copyright related in any way to the
business of Employer; and Employee further agrees that any future application
for any patent, patent right, trademark or copyright for any of said Discoveries
shall be made in the name of Employer.
Employee agrees that, in the event that subsequent to his employment,
his assistance is needed to secure, defend, or enforce any patent, trademark or
copyright, Employee will provide any such assistance and Employer will pay
reasonable compensation for his time at a rate to be negotiated.
Employee acknowledges that the restrictions contained in this paragraph
8 are reasonable and necessary in order to protect Employer's legitimate
business interests and any violation thereof would result in irreparable injury
to Employer. Employee further acknowledges and agrees that, in the event of any
violation hereof, Employer shall be authorized and entitled to seek, from any
court of competent jurisdiction, (i) preliminary and permanent injunctive
relief; (ii) an equitable accounting of all profits or benefits arising out of
the violation; and (iii) damages arising from the breach. Such rights or
remedies shall be cumulative and in addition to any other rights or remedies to
which Employer may be entitled. The prevailing party in any such lawsuit shall
further be entitled to recover his reasonable attorneys' fees, court costs and
expenses.
9. Disclosure of Trade Secrets. Employee further recognizes and
acknowledges that the secret processes, procedures, list of customers, bidding
methods, all discoveries and inventions, together with all knowledge and
information which the Employee shall acquire during the term of this agreement
affecting the business of the Employer, are valuable, special and unique assets
of the employer, and Employee agrees that he shall not, during or after the term
of his employment, disclose said secret processes, procedures, list of
customers, bidding methods, any discoveries and inventions, together with any
knowledge and information which the Employee shall acquire during the term of
this Agreement affecting the business of the Employer, to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever
except for any bona fide Employer business purpose designated and approved by
the Board. The Employee further agrees not to divulge or publish or authorize
anyone else to divulge or publish during or after the term of this Agreement
knowledge of said secret processes, procedures, list of customers, bidding
methods, discoveries or inventions or any other confidential information
acquired in the course of his employment concerning the Employer's business.
10. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law. The parties agree that (i) the provisions of this Agreement shall be
severable in the event that any of the provisions hereof are for any reason
whatsoever invalid, void or otherwise unenforceable, (ii) such invalid, void or
otherwise unenforceable provisions shall be automatically replaced by other
provisions which are as similar as possible in terms to such invalid, void or
otherwise unenforceable provisions but are valid and enforceable and (iii) the
remaining provisions shall remain enforceable to the fullest extent permitted by
law.
11. Complete Agreement. This instrument constitutes the entire
Agreement of the parties and supersedes and replaces any prior agreements,
whether written or oral, relating to the employment relationship of Employer and
Employee. It may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
12. Remedies. Each of the parties to this Agreement will be entitled to
enforce such party's rights under this Agreement specifically, and to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in such party's favor. Company acknowledges
and agrees that Employee relies on the agreement, employment, compensation and
benefits provided for herein and that all of same are material inducement to and
consideration for Employee's execution of this agreement.
13. Waiver of Breach. The failure of either party to insist, in any one
or more instances, upon performance of the terms and conditions of this
Agreement shall not be construed as a waiver or a relinquishment of any right
granted hereunder or of the future performance of any such term, covenant or
condition.
14. Applicable Law. This Agreement and the validity of this provision
shall be construed under the laws of the State of Iowa.
15. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Employee and the Company, and
their respective successors and assigns. Neither party may assign such party's
rights or delegate such party's obligations hereunder without the prior written
consent of the other party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
Top Air Manufacturing, Inc.
BY: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, President & CEO
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, "Employee"
