FOURTH RESTATED EMPLOYMENT AGREEMENT
THIS FOURTH 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 (the
"Company"), and Xxxxx X. Xxxxx, a resident of Chesterfield, Missouri (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
Third Restated Employment Agreement dated as of the 1st day of November 1995 by
and between the Company and Employee; and
WHEREAS, Employee possesses significant business and management
experience relative to the operations of the Company and its subsidiaries; and
WHEREAS, the Company and Employee desire to restate the terms of
Employee's employment in order to promote Employee to the positions of Chief
Executive Officer and President 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 10
below, Employee shall be employed by the Company through October 31, 2001.
2. Position.
(a) Employee shall be employed by the Company to serve as
Chief Executive Officer and President of the Company. In carrying out such
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 from time to time.
(b) During the term of his employment hereunder, Employee will
devote his business time (to the extent required by the Company) and best
efforts to the performance of his duties hereunder and will 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.
3. Salary. Commencing November 1, 1996 continuing through the
term of this Agreement the Company shall pay Employee at least $195,000 per
year. Salary shall be payable in installments in accordance with the Company's
normal payroll schedule for executives and shall be subject to the provisions
of Section 10 below.
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4. Performance Bonus. At the end of each fiscal year during the term of
this Agreement, Employee may be granted a cash bonus of up to 120% of Employee's
salary, as recommended by the Compensation Committee and approved by the Board.
In addition, the Board may establish a performance-based stock bonus program for
Employee. Any such bonuses shall be payable within 90 days of the end of the
Company's fiscal year. 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. Employee Benefits. Employee shall be entitled to participate in any
qualified pension plan, qualified profit-sharing plan, group term life insurance
plan, employee stock option plan, health care plan, and any other employee
benefit plan that may be established by the Company, subject to and in
accordance with the terms and conditions of any such plan. The Company shall
reimburse directly to Employee that portion of his, and his covered dependents',
expenses actually incurred but not reimbursed under the Company's health
insurance plan. In addition, the Company shall provide to Employee a car
allowance of $1,000 a month.
6. 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.
7. Vacation. Employee shall be entitled to not less than five weeks of
paid vacation during each fiscal year, and shall be allowed to carry forward to
the next fiscal year a maximum of five unused vacation days. Such vacation shall
be taken in such segments, and at such times, as may be mutually agreed upon by
Employee and the Company.
8. 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.
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9. 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 on
October 31, 2001 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, provided that in order to enforce the
restrictions contained in this Section 9(a) following the expiration of this
Agreement according to its terms on October 31, 2001, the Company must pay the
Employee 150% of his salary during the one year period following such expiration
and notify the Employee no later than June 30, 2001 of its intent to enforce
such restrictions and make such payments.
(b) Remedies. Further, it is expressly understood and agreed
that, although Employee and the Company consider the restrictions contained in
this Section 9 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.
10. Termination of Employment.
(a) For Just Cause by the Company Employee's employment
hereunder may be terminated by the Board for "Just Cause". For purposes of this
Agreement, "Just Cause" shall mean (i) dishonesty in the performance of
Employee's duties hereunder, (ii) an act or acts on Employee's part constituting
a felony under the laws of the United States or any state thereof, or (iii) a
breach of the covenants of Sections 8 or 9 hereof. If Employee is terminated for
Just Cause, he shall be entitled to receive his salary through the date of
termination. All other benefits due Employee following Employee's termination of
employment pursuant to this Section 10(a) shall be determined in accordance with
the plans, policies and practices of the Company. If Employee is terminated for
Just Cause, it shall be without prejudice to any other remedy or right to which
the Company may be entitled at law, in equity, or pursuant to this Agreement.
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(b) Disability or Death. Employee's employment hereunder shall
terminate upon his death or if Employee becomes physically or mentally
incapacitated such that he is unable for a period of six consecutive months or
for an aggregate six months in any twenty-four consecutive month period to
perform his duties (such incapacity is hereinafter referred to as "Disability").
Any questions regarding the existence of Employee's Disability as to which
Employee and the Company cannot agree shall be determined in writing by a
qualified independent physician mutually acceptable to Employee and the Company.
If Employee and the Company cannot agree on a qualified independent physician,
each shall appoint such a physician and those two physicians shall select a
third who shall make such determination in writing. The determination of
Disability made in writing to the Company and Employee shall be final and
conclusive for all purposes of the Agreement. Upon termination of Employee's
employment hereunder for Disability, Employee shall receive his salary through
the date on which Employee is first eligible to receive payment of disability
benefits in lieu of salary under the Company's employee benefit plans as then in
effect. In the event that Employee dies prior to the expiration of the term of
this Agreement, any compensation that may be due to him from the Company
pursuant to this Agreement as of the date of such death, shall be paid by the
Company to the personal representative of the Employee's estate or to any person
or persons as may be designated by applicable law. All other benefits due
Employee following Employee's termination for Disability or death shall be
determined in accordance with the plans, policies and practices of the Company.
(c) Without Just Cause by the Company. If Employee's
employment is terminated by the Company without Just Cause, Employee shall be
paid his salary through October 31, 1999 and shall be paid $10,000 per month for
a period of 24 months commencing on (i) November 1, 1999, in the event that such
termination occurs on or before October 31, 1999, or (ii) the date of such
termination, in the event that such termination occurs after such date;
provided, however, that the Company shall not be required to pay Employee
$10,000 per month following the commencement of other full-time employment by
Employee. In addition, Employee shall be entitled Employee Benefits as provided
in Section 5 hereof for the period during which he is entitled to payments under
this Section 10(c).
(d) Change of Control of the Company. If Employee's employment
is terminated as a result of a "Change of Control," Employee shall be entitled
to the payments and other benefits set forth in Section 10(c) of this Agreement.
For purposes of this Agreement, "Change of Control" shall mean (i) the
approval of any consolidation or merger of the Company in which the Company is
not the continuing or surviving Company or pursuant to which shares of the
capital stock of the Company would be converted into cash, securities or other
property, (ii) the approval of any sale, lease or other transfer of all, or
substantially all, of the assets of the Company, (iii) the approval of any plan
or proposal for the liquidation or dissolution of the Company, or (iv) the sale
or transfer of 50% or more of the beneficial ownership of the outstanding voting
securities of the Company.
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(e) Termination by Employee. If Employee terminates his
employment with the Company for any reason, he shall be entitled to receive his
salary and the same health and dental coverage and reimbursement benefits
described in Section 5 hereof for a period of one year following such
termination.
(f) Notice of Termination. 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 Section 11(g)
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of employment under the provision so
indicated.
(g) Arbitration. In the event of a dispute respecting any
matters contained within this Section 10, Employee and the Company hereby agree
to submit such dispute to binding arbitration in accordance with the rules and
procedures of the American Arbitration Association. Each party shall pay its own
costs in connection with such arbitration.
11. 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.
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(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.
(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 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
By:
Its:
XXXXX X. XXXXX
