THIRD RESTATED EMPLOYMENT AGREEMENT
THIS THIRD RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made and
entered into by and between Agri-Nutrition Group Limited, a Delaware corporation
having its principal place of business in Maryland Heights, Missouri
(hereinafter the "Company"), and X. X. Xxxxx, Xx., a resident of Tiger, Georgia
(hereinafter the "Employee"), as of the 1st day of November 1996.
R E C I T A L S
WHEREAS, Employee is employed by the Company under the terms of the
Second Restated Employment Agreement dated as of the 1st day of November 1995 by
and between the Company and Employee; and
WHEREAS, the Company and Employee desire to restate the terms of
Employee's employment agreement in order to reflect Employee's resignation as
President and Chief Executive Officer and appointment as Vice President -
Development of the Company;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties to this Agreement,
the parties agree as follows:
1. Term of Employment. Subject to the provisions of Section 9
below, Employee shall be employed by the Company as Vice President - Development
of the Company through October 31, 1999.
2. Position.
(a) Employee shall be employed by the Company to serve as Vice
President Development of the Company. In carrying out his responsibilities,
Employee shall have such authority or limitations on such authority as is
provided in the By-Laws of the Company, as is customary under Delaware law, and
as may be established by the Board of Directors of the Company from time to
time.
(b) During the term of his employment hereunder, Employee
shall devote that portion of his business time as the parties determine in good
faith is required in order for Employee to fulfill his responsibilities as Vice
President - Development of the Company. Employee shall use his best efforts with
respect to the performance of services hereunder and shall not engage in any
other business, profession, or occupation for compensation or otherwise that
would conflict with the rendition of such services without the prior written
consent of the Board of Directors.
3. Salary.
The Company shall pay Employee an annual salary of $10,000
during the term of this Agreement, $3,000 of which shall be payable in cash and
$7,000 of which shall be
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payable in shares of the Company's common stock. Employee's entire salary for a
given year ending October 31 shall be paid on or before January 31 of such year.
(For example, Employee's salary for the year ending October 31, 1997 shall be
paid on or before January 31, 1997.) The stock portion of Employee's salary
shall be valued based upon the closing price of the Company's common stock on
the NASDAQ National Market on the date of grant.
4. Bonuses.
(a) Employee shall be entitled to a bonus of $190,751 in the
event that the Company consummates the acquisition of Xxxxxxx Products Company
prior to October 31, 1997. Employee shall be paid fifty percent of such bonus in
cash. The remaining fifty percent shall be paid with a combination of the
Company's common stock plus cash required to satisfy related tax withholding.
For purposes of determining the number of shares of stock to be granted pursuant
to this Subsection 4(a), such stock shall be valued at $1.5625 per share. Any
payment pursuant to this Subsection 4(a) shall be made within 30 days following
the consummation of such acquisition.
(b) Employee shall be entitled to a cash bonus of $150,000
payable on January 31, 1997.
(c) Any shares of stock issued pursuant to this Section 4
shall be subject to the lock-up agreement by and between Employee and the
Company dated October 12, 1995 (and any amendments thereto) prohibiting Employee
from selling, transferring or otherwise disposing of, more than five percent of
the aggregate number of shares of the Company's stock owned by Employee in any
quarter through January 1, 1998.
5. Reimbursement of Expenses. The Company, in accordance with the rules and
regulations which it may establish from time to time, shall reimburse Employee
for reasonable and necessary business expenses incurred in the performance of
his duties on behalf of the Company or its subsidiaries.
6. Initial Award of Stock Options. As an additional inducement to the
Employee to accept employment with the Company and in order to provide
additional incentive in the form of the opportunity for an ownership position in
the Company, the Company previously granted to Employee options to purchase
558,000 shares of stock of the Company at a price of $.81 per share, exercisable
immediately. If Employee's employment under this Agreement is terminated prior
to exercise of the options provided for herein, Employee shall have three months
following such termination to exercise such options.
The Company agrees to register, at its expense, under the Securities
Act of 1933, as amended, the shares of stock underlying such options at the
request of the Employee so as to permit the Employee to sell such shares
publicly from time to time thereafter through the remaining term of this
Agreement.
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7. Confidentiality. Employee will not at any time (whether during or
after his employment with the Company or its subsidiaries) disclose or use for
his own benefit or purposes or the benefit or purposes of any other person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise other than the Company and any of its
subsidiaries or affiliates, any trade secrets, information, data or other
confidential information relating to customers, development programs, costs,
marketing, trading, investment, sales activities, promotion, credit and
financial data, manufacturing processes, financing methods, plans, or the
business and affairs of the Company generally, or of any subsidiary or affiliate
of the Company, provided that the foregoing shall not apply to information that
is not unique to the Company or that is generally known to the industry or the
public other than as a result of Employee's breach of this covenant. All files
and records relating to the Company compiled by the Employee shall be the
property of the Company and shall be returned to the Company upon termination of
Employment.
8. Non-Competition; Restrictive Covenant.
(a) Restrictions. Employee recognizes and understands that in
performing the responsibilities of his employment, he will occupy a position of
fiduciary trust and confidence pursuant to which he will develop and acquire
experience and knowledge with respect to the Company's business. Employee
further understands and agrees that the Company conducts its business within a
specialized market that is highly competitive and that it would be detrimental
to the Company if the Employee used his knowledge gained with the Company or
information obtained during his employment to compete, directly or indirectly,
with the Company. Therefore, during the term of this Agreement and for a period
of one year following expiration of this Agreement according to its terms or the
termination of employment, Employee shall not as an employee, employer,
consultant, agent, principal, partner, shareholder, officer, director, or in any
other individual or representative capacity, engage or participate in any
business that is in direct competition with the business of the Company or its
subsidiaries within the United States or within any country where the Company's
products are sold.
(b) Remedies. Further, it is expressly understood and agreed
that, although Employee and the Company consider the restrictions contained in
this Section 8 to be reasonable, if a final judicial determination is made by a
court of competent jurisdiction that the time or territory or any other
restriction contained in this Agreement is an unenforceable restriction against
Employee, the provisions of this Agreement shall not be rendered void but shall
be deemed amended to apply as to such maximum time and territory and to such
maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that
any restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such finding shall
not affect the enforceability of any of the other restrictions contained herein.
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9. Termination of Employment.
In the event of termination of Employee's employment hereunder
for any reason by Employee or the Company, Employee shall be entitled to retain
all salary payments pursuant to Section 3 hereof made prior to such termination
(including any payments relating to services to be performed after such
termination), but shall not be entitled to receive any additional salary
payments (including any payments related to services performed prior to such
termination). Such termination shall not extinguish Employee's right to receive
(i) bonus payments to which he would otherwise be entitled pursuant to Section 4
hereof or (ii) reimbursement to which he is entitled as of the date of
termination pursuant to Section 5 hereof. Any purported termination of
employment by the Company or by Employee shall be communicated by written notice
of termination to the other party hereto in accordance with Subsection 10(g)
hereof.
10. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware.
(b) Entire Agreement; Amendments. This Agreement contains the
entire understanding of the parties with respect to the employment of Employee
by the Company and supersedes all prior agreements, understandings and
negotiations, both written and oral, between the parties with respect to the
employment of Employee by the Company and/or its subsidiaries. There are no
restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than those
expressly set forth herein. This Agreement may not be altered, modified, or
amended except by written instrument signed by the parties hereto.
(c) No Waiver. The failure of either party to insist, in one
or more instances, upon the performance of any of the terms, covenants,
agreements or conditions of this Agreement, or to exercise any rights hereunder
shall not be construed as a waiver or relinquishment of such party's right to
insist upon the future performance of such term, covenant, agreement or
condition, or the future exercise of any such right and the obligations of the
other party with respect to such future performance shall continue in full force
and effect.
(d) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions shall not be affected thereby.
(e) Assignment. This Agreement shall not be assignable
by Employee.
(f) Successors; Binding Agreement. This Agreement shall
inure to the benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees of the parties hereto.
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(g) Notice. For the purpose of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when mailed by the United States registered
mail, return receipt required, postage prepaid, addressed to the respective
addressees set forth on the execution page of this Agreement, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt.
(h) Survival. Except as otherwise expressly provided in
Sections 6, 7, 8, and 9, all of the agreements and obligations of the parties
hereto contained herein or in other writing delivered pursuant hereto or in
connection herewith shall terminate and expire, and shall cease to be of any
force and effect, on the date the Employee ceases employment with the Company,
and any and all liability of the parties hereto with respect to such agreements
and obligations shall thereupon be extinguished.
(i) Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. In addition,
facsimile transmission copies of the executed signature page of this Agreement
shall have the same effect as a signed original.
(j) Incorporation of Recitals. The recitals set forth
in the preliminary portion of this Agreement are hereby incorporated in and made
an integral part hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
AGRI-NUTRITION GROUP LIMITED 00000
Xxxxxxxxx Xxxxx, Xxxxx 000 Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
By:
Xxxxx X. Xxxxx
President and Chief Executive Officer
X. X. XXXXX, XX.
Xxxx Xxxxxxxx Xxxx
X.X. Xxx 00
Xxxxx, Xxxxxxx 00000
