EXHIBIT 10.2
RESTATED EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") restates an agreement originally
entered into on the 1st day of January, 1994 and is being adopted on the 19th
day of May, 2000 to reflect the original intentions of the parties as to
deferred compensation effective as of the time the original agreement was
entered into,
BY AND BETWEEN WESTERN FEED XXXXX, INC.
a Kansas corporation,
hereinafter called
"Corporation"
AND XXXX X. XXXXXXXX,
an individual,
hereinafter called
"Xxxxxxxx"
WITNESSETH:
1. Employment. Corporation hereby employs Xxxxxxxx as its President and
Chairman of the Board, and Xxxxxxxx hereby accepts employment, upon the terms
and conditions hereafter set forth.
2. Term. The initial term this Agreement shall commence on January 1, 1994
(the "Commencement Date") and shall continue in full force and effect for a
period of five (5) years thereafter, unless terminated earlier in accordance
with the terms hereof. Upon the expiration of the initial term, this
Agreement shall be automatically extended and renewed on a year to year
basis, unless either party terminates this Agreement, during any renewal
term, by giving to the other party at least thirty (30) days' prior written
notice.
3. Duties. During the term of this Agreement, Xxxxxxxx shall serve as
President of Corporation and Chairman of the Board. Xxxxxxxx shall devote
his full time and efforts to the business and affairs of Corporation and
shall perform such services for Corporation as are normally associated with
the duties of a President and Chairman of the Board.
4. Base Compensation.
(a) Corporation shall pay to Xxxxxxxx as base compensation for his
services during the period through 2005 the following amounts:
1994 $ 90,000.00
1995 $ 94,500.00
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1996 $ 99,225.00
1997 $104,186.25
1998 $109,395.56
1999 $114,865.34
2000 $120,608.61
2001 $126,639.04
2002 $132,970.99
2003 $139,619.54
2004 $146,600.52
2005 $153,930.55
payable at least monthly pursuant to Corporation's established payroll
policies. Should this Agreement be renewed pursuant to Paragraph 2, the
base compensation shall increase at a level of 5% per annum.
(b) The Corporation has heretofore requested that Raybourn defer
receipt of portions of his agreed compensation on which it began to pay
annual interest at the rate of 8% beginning with interest for the year 1999.
The amount due Xxxxxxxx as of the end of 1999 (exclusive of interest) was
$296,967.36:
Deferred amounts for years after 1999 are determined by Xxxxxxxx and
the Corporation before the beginning of the year in which the relevant
compensation is earned. Xxxxxxxx'x rights to deferred amounts shall be
those of a general creditor and shall not be secured or evidenced by any
form of negotiable instrument. All deferred amounts shall be paid Xxxxxxxx
immediately upon termination of his employment with the Corporation. In the
event of Xxxxxxxx'x death unpaid amounts shall be paid to his wife if
surviving or to his estate. In the event Xxxxxxxx experiences an unforeseen
financial emergency arising from illness, financial loss or other unforeseen
circumstances, he shall be entitled to receive the balance due him immediately.
5. Stock Options. In addition to the base compensation provided in
Paragraph 4 above, Corporation granted Xxxxxxxx the option to acquire 170,000
shares of Western Feed Xxxxx, Inc. common stock at a price of $.75 per share
in 1994. This option expired unexercised.
6. Grant of Put Options. Xxxxxxxx'x right to put shares of stock to the
Corporation never became operative.
7. Survival. The provisions, options, representations and warranties of
this Agreement shall survive and remain in full force and effect after the
termination or expiration of this Agreement.
8. Benefits. Corporation shall make available to Xxxxxxxx such health
and dental insurance, life insurance, vacation, and other benefits sponsored
by Corporation from time to time upon the same terms and conditions as such
benefits are made available to other executive employees of Corporation.
9. Expenses. Xxxxxxxx is authorized to incur reasonable expenses in
accordance with the policies established by the Board of Directors of
Corporation from time to time for promoting and conducting the business and
affairs of Corporation, including expenses for travel, lodging, meals, and
entertainment. Corporation will reimburse Xxxxxxxx for all such expenses
upon the presentation by Xxxxxxxx, from time to time, of an itemized account
of such expenditures.
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10. Covenant Not to Compete. By the execution hereof, Xxxxxxxx agrees
that during the term hereof and for a period of two (2) years following the
termination of this Agreement for any reason, that he will not, directly or
indirectly, own, have a proprietary interest of any kind in, be employed by,
or serve as a consultant to, or in any other capacity for, or establish any
business relationship with any firm, individual, partnership, corporation,
limited liability company, or other entity whatsoever, of whatever nature,
which shall in any means or manner be engaged in the same or similar business
of Corporation in the State of Kansas or in the State of Oklahoma.
11. Confidentiality. Xxxxxxxx acknowledges and agrees that he has had
and will continue to have access to information, records, files, documents,
lists and data pertaining to operational matters, financial matters,
accounting matters, personnel, purchasing, supply, products, product
specifications, technical data, prices, discounts, customer lists, and other
similar matters with respect to the business, management and operation of
Corporation ("Confidential Information"), and that such Confidential
Information constitutes valuable, special and unique property of Corporation.
Xxxxxxxx agrees that he will note, for any reason or purpose whatsoever,
during or after the term of this Agreement, use or disclose, or cause or
permit the use or disclosure of, any of such Confidential Information to any
party without the express written authorization of Corporation except as may
be necessary in the ordinary course of his employment hereunder. Xxxxxxxx
further agrees that upon the termination of this Agreement, he shall return to
Corporation all tangible personal property of Corporation, including, but not
limited to, all materials which refer to or contain any of the Confidential
Information of Corporation.
12. Remedies. Xxxxxxxx agrees that compliance with the agreements
contained in Paragraph 8 and 9 is necessary to protect the goodwill and
proprietary interest of Corporation and that a breach of any of the
agreements contained in such paragraphs would result in irrevocable
continuing damages for which there will be no adequate remedy at law, and in
the event of any breach of any of such agreements, Corporation shall be
entitled to the issuance by any court of competent jurisdiction of an
injunction in favor of Corporation enjoining such breach or violation of the
covenants or agreements contained therein and such other and further relief,
including damages, as may be proper; provided, that no request for or receipt
of any injunction shall be considered an election of remedy or waiver of any
rights or any other remedy Corporation may have against Xxxxxxxx, either at
law or in equity. To the extent that any provision contained in Paragraphs 8
or 9 is deemed unenforceable by virtue of its scope in terms of Confidential
Information involved, geographical area, business activity prohibited and/or
length of time, but could be enforceable by reducing any or all thereof,
Xxxxxxxx and Corporation agree that the same shall be enforced to the fullest
extent permissible under the laws and public policies applied in the
jurisdiction in which enforcement is sought.
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13. Amendments. This Agreement may not be modified or amended except by
an instrument in writing executed by the party against whom enforcement of
any such modification or amendment is sought.
14. Integration. This Agreement constitutes the entire agreement among
the parties hereto and there have been no other prior agreements,
understandings or arrangements, oral or written, among the parties hereto
with respect to the subject matter hereof.
15. Scope of Agreement. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their heirs, personal representatives,
successors and assigns.
16. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Headings. The headings contained in this Agreement are for
convenience and reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
18. Notices. Any notice, consent, approval, demand or other communication
to be given, made or provided for under this Agreement shall be in writing and
deemed to be fully given by its delivery personally to the person or persons
specified below or by it being sent by registered or certified mail, return
receipt requested, to the following addresses, or to such other address or to
the attention of such other person as any party hereto shall hereafter
specify by written notice to the other party hereto:
If to Xxxxxxxx: Xxxx X. Xxxxxxxx
c/o Western Feed Xxxxx, Inc.
X.X. Xxx 000
Xxxxx Xxxx, Xxxxxx 00000
If to Corporation: Western Feed Xxxxx, Inc.
X.X. Xxx 000
Xxxxx Xxxx, Xxxxxx 00000
19. Governing Law. In all respects, including all matters of construction,
validity and performance, this Agreement and the obligations arising hereunder
shall be governed by, and construed in accordance with, the laws of the State
of Kansas applicable to contracts made and performed in such state.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
WESTERN FEED XXXXX, INC.
______________/s/_____________________
Xxxx X. Xxxxxxxx, President
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ATTEST:
By___________/s/_____________________
X.X. Xxxxxxxx, Secretary
__________________/s/______________
XXXX X. XXXXXXXX
DIRECTORS OF WESTERN FEED XXXXX, INC.
________________/s/__________________
X.X. Xxxxxxxx
_______________/s/___________________
X.X. Xxxxx
______________/s/____________________
Xxx Xxxxxxx
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RESOLUTIONS
RESOLVED, that the Restated Employment Agreement between Corporation and
Xxxx X. Xxxxxxxx presented to this meeting be and the same hereby is adopted
and the President and Secretary or Assistant Secretary of this Corporation
are directed to execute that Agreement on the Corporation's behalf, and
RESOLVED, that the original Employment Agreement between Corporation and
Xxxx X. Xxxxxxxx dated January 1, 1994 together with all amendments, security
interests, mortgages, promissory notes and other documents related thereto
are hereby annulled and declared void from the time they were originally
created.
DIRECTORS OF WESTERN FEED XXXXX, INC.
___________________/s/____________________
Xxx Xxxxxxx
___________________/s/____________________
X.X. Xxxxxxxx
___________________/s/____________________
X.X. Xxxxx
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