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AGREEMENT
THIS AGREEMENT is effective as of the 1st day of December, 1999,
between Xxxx X. Xxxxxx ("XXXXXX") and Xxxxxxx Manufacturing Co., a Delaware
corporation ("LINDSAY").
WHEREAS, XXXXXX, who currently serves as Chairman, President and Chief
Executive Officer of LINDSAY, has elected to retire early in order to pursue
other interests; and
WHEREAS, LINDSAY desires to obtain assurances that XXXXXX will remain
an employee of LINDSAY for a period of time on the terms set forth herein and
that he will not accept any position or engage in any activity which is directly
competitive in the irrigation business with the products, processes or business
of LINDSAY for a period of time thereafter; and
WHEREAS, XXXXXX is willing to accept such continued employment and to
agree not to enter into competition with LINDSAY for the compensation and upon
the terms set forth herein; and
WHEREAS, each party is willing to grant a release of claims which it
may have against the other party pursuant to the terms of the releases set forth
herein;
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT AND TERM. Upon the terms set out in this Agreement,
LINDSAY agrees to employ XXXXXX, and XXXXXX agrees to be so employed by LINDSAY,
in accordance with the following terms:
A. FULL-TIME EMPLOYMENT. XXXXXX will remain a full-time employee of
LINDSAY and will continue to serve as President and Chief Executive Officer
until the Annual Meeting of Stockholders on January 25, 2000 and thereafter
until his successor (including any interim successor) is selected by the Board
of Directors and assumes office or until August 31, 2000, whichever is sooner.
XXXXXX will not be nominated for re-election as a Director of LINDSAY and will
cease to serve as Chairman of the Board at the next Annual Meeting of
Stockholders of LINDSAY. Thereafter, XXXXXX shall report to the Chairman of the
Board and to the Board.
While he remains a full-time employee of LINDSAY and continues to
serve as President and Chief Executive Officer:
x. Xxxxxx agrees to devote his best efforts to such employment.
His duties shall be rendered at Lindsay, Nebraska, and at such
other place or places agreeable to XXXXXX within or without
the State of Nebraska, as
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LINDSAY shall in good faith require or as the interest, needs,
business or opportunities of LINDSAY shall require.
ii. XXXXXX shall devote his normal and regular business time,
attention, knowledge and skill to the business and interests
of LINDSAY, and LINDSAY shall be entitled to all of the
benefits, profits or other issues arising from or incident to
all work, services and advice of XXXXXX performed for LINDSAY.
iii. XXXXXX shall have the right to devote such amounts of his time
which are not required for the full and faithful performance
of his duties hereunder to any outside activities and
businesses which are not then being engaged in by LINDSAY and
which shall not otherwise interfere with the performance of
his duties hereunder.
iv. Absent prior approval from the Board of Directors, XXXXXX:
(a) shall not knowingly make investments in businesses which
do business with or which are competitive with LINDSAY, and
(b) shall not knowingly engage in any activity which
constitutes a conflict of interest with his employment at
LINDSAY.
Effective when he ceases to serve as President and Chief Executive
Officer, XXXXXX shall automatically without further action on his part be deemed
to resign from all other positions of responsibility and authority, whether as
an officer, director, manager, trustee, administrator or otherwise, at LINDSAY
or any of its subsidiaries and affiliates. To the extent necessary, XXXXXX
agrees upon LINDSAY's request to execute any and all documents as may be
necessary or desirable to confirm his resignation from such positions.
B. CONSULTING PERIOD. XXXXXX will remain an employee of LINDSAY
in a consulting capacity for a period (the "Consulting Period") commencing when
he ceases to serve as President and Chief Executive Officer under Paragraph 1A
above and ending on August 31, 2002. During this Consulting Period, XXXXXX
agrees to be available on a full-time basis during the first month after he
ceases to serve as President and Chief Executive Officer. Thereafter, XXXXXX
agrees to be available, upon reasonable notice and at reasonable times which
shall be mutually agreed upon by the parties, to consult with and assist LINDSAY
for (i) up to a maximum of 160 hours during the balance of the first year of the
Consulting Period and (ii) up to a maximum of 160 hours during the remainder of
the Consulting Period. For this purpose any service or travel for LINDSAY shall
be counted based on the actual hours expended; provided that any such service or
travel on a given day shall be deemed to be not less than one hour or more than
eight hours, regardless of the actual time spent by XXXXXX during such day.
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During the Consulting Period, XXXXXX shall assist LINDSAY to
maintain good relationships with its dealers, customers, suppliers and employees
and shall provide such other consulting and assistance consistent with XXXXXX'x
experience as may be requested by the Chief Executive Officer or the Chairman of
the Board. In addition, XXXXXX shall assist LINDSAY and cooperate in preparing
for any and all litigation, arbitration proceedings, investigations and other
legal proceedings (collectively, "Legal Proceedings") relating to matters which
occurred during his tenure with LINDSAY and as to which XXXXXXX xxx reasonably
request his assistance. Without limiting the generality of the foregoing, XXXXXX
shall (i) make himself available at such times as may reasonably be requested
for depositions in connection with any Legal Proceedings, (ii) make himself
available to testify in any Legal Proceedings, and (iii) assist LINDSAY in
preparing responses to requests for written discovery in any Legal Proceedings.
XXXXXX shall have the right to accept other full-time employment or
engage in other activities beginning at any time after the first month of the
Consulting Period, provided that such other employment or activities shall not
excuse XXXXXX from his obligations to provide consulting services and assistance
to LINDSAY in accordance with the provisions of this Paragraph 1B and shall not
result in a breach of the non-competition provisions of Paragraph 4 below.
Absent prior approval from the Board of Directors, XXXXXX shall not knowingly
engage in any activity which constitutes a conflict of interest with his
services as a consultant to LINDSAY.
2. COMPENSATION THROUGH AUGUST 31, 2000. As compensation for the
services to be rendered by XXXXXX, XXXXXXX agrees to provide XXXXXX with the
following through August 31, 2000:
A. SALARY. XXXXXX shall continue to receive salary at the annual
rate of $367,047.
B. OTHER BENEFITS. XXXXXX shall also be entitled to receive the
fringe benefits and to participate in the benefit programs of LINDSAY which are
listed below:
- Vacation
- Life Insurance
- Long Term Disability Insurance
- Club Dues
- Company Automobile
- Annual Physical and Medical Check Up
- Medical Insurance
- Financial and accounting assistance up to $5,000 annually
- Profit Sharing
- Directors and Officers Liability Insurance
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Notwithstanding the foregoing, after XXXXXX ceases to serve as President and
Chief Executive Officer, he will no longer participate in LINDSAY's group
medical or dental insurance coverage, but LINDSAY will use reasonable efforts to
assist XXXXXX to obtain individual medical and dental insurance coverage for
XXXXXX and his spouse which is generally comparable to LINDSAY's group medical
and dental insurance coverage. At his option, XXXXXX may cease to participate in
LINDSAY's group medical and dental insurance coverage and obtain such individual
medical and dental insurance coverage while he continues to serve as President
and Chief Executive Officer. LINDSAY agrees to reimburse XXXXXX up to an
aggregate limit (which includes any gross-up payments to cover taxes) of $25,000
for each full calendar year (or a pro-rated amount for a partial year) for
premiums paid by XXXXXX for such individual medical and dental insurance
coverage for XXXXXX and his spouse and for the cost of an annual physical and
medical check-up for XXXXXX (grossed-up for any federal and state taxes which
are payable by XXXXXX on such reimbursements). Further, XXXXXX shall only be
eligible to make or receive contributions under LINDSAY's Profit Sharing Plan to
the extent permitted under the terms thereof.
XXXXXX shall no longer be eligible to participate in the Salaried
Severance program or to accrue additional benefits under the Supplemental
Retirement Plan, except as contemplated by Paragraph 5E below. He shall not be
eligible to earn any bonuses or supplemental compensation or to receive any new
awards or grants of stock options or restricted stock, but shall only be
entitled to receive the benefits which are listed above.
3. COMPENSATION FROM SEPTEMBER 1, 2000 THROUGH AUGUST 31, 2002. As
compensation for the consulting services and assistance to be rendered by XXXXXX
as an employee from September 1, 2000 through August 31, 2002, LINDSAY agrees to
pay XXXXXX a salary at the annual rate of $367,047. XXXXXX will be entitled to
receive his full salary irrespective of whether LINDSAY elects to utilize his
services for the maximum time permitted under Paragraph 1B. LINDSAY will use
reasonable efforts to assist XXXXXX to obtain or maintain individual medical and
dental insurance coverage for XXXXXX and his spouse which is generally
comparable to LINDSAY's group medical and dental insurance coverage. LINDSAY
agrees to reimburse XXXXXX during the Consulting Period up to an aggregate limit
(which includes any gross-up payments to cover taxes) of $25,000 for each full
calendar year (or a pro-rated amount for a partial year) for premiums paid by
XXXXXX for such individual medical and dental insurance coverage for XXXXXX and
his spouse and for the cost of an annual physical and medical check-up for
XXXXXX (grossed-up for any federal and state taxes which are payable by XXXXXX
on such reimbursements), provided that such reimbursements for medical and
dental insurance coverage and an annual physical and medical check-up will
terminate if he becomes eligible to obtain medical insurance coverage as a
result of other full-time employment. In addition, LINDSAY will continue to
provide $250,000 of life insurance coverage for XXXXXX, so long as such coverage
is provided for senior executives of LINDSAY, which will terminate if he becomes
eligible to obtain life insurance coverage as a result of other full-time
employment. XXXXXX will not be eligible for any other benefits, other than
eligibility to make or receive
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contributions under LINDSAY's Profit Sharing Plan to the extent permitted under
the terms thereof.
4. NON-COMPETITION; COMPENSATION. During the Consulting Period and for
a period (the "Non-Competition Period") of four (4) years after the end of the
Consulting Period, XXXXXX will not engage in, work for (directly or indirectly)
or contribute his knowledge to any person or entity, company or work which is
directly competitive in the irrigation business with the products, processes or
business of LINDSAY.
During the four-year Non-Competition Period, XXXXXX shall be
entitled to receive non-competition payments at an annual rate of $367,047 from
September 1, 2002 through August 31, 2004 and $115,000 from September 1, 2004
through August 31, 2006, which shall be payable on a monthly basis at the end of
each month during the Non-Competition Period. LINDSAY will use reasonable
efforts to assist XXXXXX to maintain individual medical and dental insurance
coverage for XXXXXX and his spouse which is generally comparable to LINDSAY's
group medical and dental insurance coverage. LINDSAY agrees to reimburse XXXXXX
during the Non-Competition Period up to an aggregate limit (which includes any
gross-up payments to cover taxes) of $25,000 for each full calendar year (or a
pro-rated amount for a partial year) for premiums paid by XXXXXX for such
individual medical and dental insurance coverage for XXXXXX and his spouse and
for the cost of an annual physical and medical check-up for XXXXXX (grossed-up
for any federal and state taxes which are payable by XXXXXX on such
reimbursements), provided that such reimbursements for medical and dental
insurance coverage and an annual physical and medical check-up will terminate if
he becomes eligible to obtain medical insurance coverage as a result of other
full-time employment. In addition, LINDSAY will continue to provide $250,000 of
life insurance coverage for XXXXXX, so long as such coverage is provided for
senior executives of LINDSAY, which will terminate if he becomes eligible to
obtain life insurance coverage as a result of other full-time employment. XXXXXX
will not be eligible to receive any other benefits during the Non-Competition
Period.
Notwithstanding any other provision of this Agreement to the
contrary, if XXXXXX commits a breach of the non-competition provisions of this
Paragraph 4 at any time, XXXXXX shall not thereafter be entitled to receive any
further payments or benefits during the Consulting Period or the Non-Competition
Period under Paragraphs 3 or 4 of this Agreement.
5. OTHER FINANCIAL TERMS.
A. BONUS FOR FISCAL YEAR 1999. XXXXXX has earned the maximum
annual bonus for fiscal year 1999 of $200,000. This amount will be paid to
XXXXXX immediately following execution of this Agreement.
B. SUPPLEMENTAL COMPENSATION FOR FISCAL YEAR 1998. XXXXXX is
entitled to receive the deferred supplemental compensation earned for fiscal
year 1998 of
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$200,000 (plus interest thereon at 6.50% per annum until paid). This amount will
be paid to XXXXXX immediately following execution of this Agreement.
C. SUPPLEMENTAL COMPENSATION FOR FISCAL YEAR 1999. XXXXXX has
earned supplemental compensation for fiscal year 1999 in the amount of $200,000.
This amount (plus interest thereon at 5.28% per annum computed in accordance
with the past practice of LINDSAY) will be vested and paid to XXXXXX on
September 1, 2000, if he continues to be employed by LINDSAY (including as a
consultant) at that time.
D. RESTRICTED STOCK. XXXXXX has earned 50,625 shares of
performance-based restricted stock for fiscal year 1999. All restricted stock
which has previously been awarded to XXXXXX will continue to vest while XXXXXX
continues to be employed with LINDSAY (including as a consultant). XXXXXX will
not be eligible to earn any new restricted stock awards. XXXXXX has a total of
121,500 shares of restricted stock (including the performance-based grant of
50,625 shares for fiscal year 1999) which are not yet vested, of which one-half
(60,750 shares) will vest in 2000 (10,125 shares in June and 50,625 shares in
September) and the other one-half (60,750 shares) will vest in 2001 (10,125
shares in June and 50,625 shares in September). All shares of restricted stock
held by XXXXXX will fully vest upon a "Change in Control," as such term is
defined in the Lindsay Manufacturing Co. Supplemental Retirement Plan.
E. SUPPLEMENTAL RETIREMENT PLAN. XXXXXX shall receive an early
retirement benefit under the Supplemental Retirement Plan in the amount of
$16,989.58 per month commencing on January 1, 2001, which shall be paid to
XXXXXX in monthly installments until his death. After XXXXXX'x death, his
surviving spouse, if any, shall receive a survivor benefit of $8,494.79 per
month commencing on the later of the first day of the month following XXXXXX'x
death or January 1, 2001, which shall be paid in monthly installments during the
lifetime of XXXXXX'x surviving spouse, unless XXXXXX'x surviving spouse is more
than ten years younger than XXXXXX, in which case his surviving spouse shall
receive monthly retirement benefits for a maximum of 15 years. If a "Change in
Control" (as defined in the Supplemental Retirement Plan) occurs, XXXXXX or his
surviving spouse may elect, within a 30-day period following the Change in
Control, to receive a lump sum benefit equal to the actuarial equivalent of the
remaining monthly benefits due, based upon mortality and interest rate
assumptions which are determined by the actuary for the Supplemental Retirement
Plan and apply to all participants in the Supplemental Retirement Plan. The
foregoing benefits shall be payable in lieu of any other benefits under the
Lindsay Manufacturing Co. Supplemental Retirement Plan and notwithstanding any
provisions contained therein to the contrary, including, without limitation, any
provisions for a greater supplemental retirement benefit or survivor benefit due
to inclusion of severance benefits or consulting or non-competition payments as
compensation or resulting from a Change of Control of LINDSAY. XXXXXX hereby
releases all claims to any other benefits under the Lindsay Manufacturing Co.
Supplemental Retirement Plan, except as set forth in this Paragraph 5E.
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F. SPLIT-DOLLAR LIFE INSURANCE POLICIES. XXXXXX and XXXXXXX are
parties to split-dollar life insurance policies which are owned by XXXXXX and
collaterally assigned to LINDSAY which are identified on Exhibit A to this
Agreement. LINDSAY agrees to make additional premium payments on these policies
(approximately $100,000), as set forth on Exhibit X. XXXXXXX shall be entitled
to recover the total premiums which it has paid on each insurance policy from
the death benefits which are payable under the policy upon XXXXXX'x death or
from the cash surrender value upon any surrender of the policy. Neither LINDSAY,
XXXXXX nor any other owner of any of the insurance policies listed on Exhibit A
may make withdrawals or loans from the policies. XXXXXX will provide a
collateral assignment to LINDSAY from the owner of each insurance policy listed
on Exhibit A, substantially in the form of the collateral assignment for the
Security Life of Denver insurance policies or other form of collateral
assignment which is reasonably acceptable to LINDSAY. In addition, LINDSAY,
XXXXXX and the owner of each insurance policy listed on Exhibit A shall execute
a Memorandum of Understanding in the form attached as part of Exhibit A
confirming the death benefit which will be payable to LINDSAY under each such
insurance policy and the restriction on any withdrawals or loans under each such
insurance policy. If XXXXXX is unable to provide LINDSAY with such collateral
assignment executed by the owner and such a Memorandum of Understanding executed
by XXXXXX and the owner for any insurance policy listed on Exhibit A prior to
commencement of the Consulting Period, XXXXXXX xxx withhold from payments
pursuant to Paragraphs 3 and 4 above amounts up to the total premiums which it
has paid on such insurance policy, whereupon LINDSAY shall release all rights to
any death benefit or other interest in such insurance policy and shall not be
obligated to make any further premium payments on such insurance policy. XXXXXX
will use reasonable efforts to obtain written confirmation acknowledging receipt
of a copy of the Memorandum of Understanding from the insurance company which
issued each insurance policy listed on Exhibit A and confirming that no
withdrawals or loans have been made under each insurance policy.
G. SUPPLEMENTAL DISABILITY INSURANCE POLICY. LINDSAY will cease
to pay premiums on XXXXXX'x supplemental disability insurance policy after
XXXXXX ceases to be President and Chief Executive Officer, and XXXXXX will
retain ownership of this disability insurance policy.
H. AGREEMENT REGARDING HOME. The agreement relating to XXXXXX'x
home dated February 7, 1997 is hereby terminated and shall have no further force
or effect. XXXXXX hereby releases all claims against LINDSAY under such
agreement.
I. STOCK OPTIONS. XXXXXX'x existing stock options will remain
outstanding (subject to their original expiration dates) while he continues in
employment with LINDSAY (including as a consultant). XXXXXX will not be eligible
to receive any new stock option grants.
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6. REMOVAL AS PRESIDENT AND CEO FOR CAUSE.
A. DEFINITION OF CAUSE. XXXXXXX xxx remove XXXXXX as President
and Chief Executive Officer for cause if after the effective date of this
Agreement:
i. he commits a breach of his fiduciary duty of loyalty to
LINDSAY; or
ii. he commits acts or omissions regarding LINDSAY's business and
which are not in good faith or which involve intentional
misconduct, dishonesty, or a knowing violation of the law; or
iii. he engages in any transaction involving LINDSAY from which he
gains an improper personal benefit, which is not agreed to by
the Board of Directors of LINDSAY in advance of the
transaction; or
iv. he refuses to perform or neglects any of his material duties
under this Agreement; or
v. he breaches the provisions of this Agreement.
B. PROCEDURE. Prior to such removal for cause, LINDSAY shall
notify XXXXXX in writing of its intent to remove him as President and Chief
Executive Officer for cause, shall state the effective date of removal, shall
state the reason and give grounds therefor, and shall give XXXXXX five (5)
working days after receipt of such notice to explain his conduct to LINDSAY's
reasonable satisfaction, whereupon the removal for cause shall be final.
C. CONSEQUENCES OF REMOVAL FOR CAUSE. If XXXXXX is removed as
President and Chief Executive Officer for cause, he shall not be entitled to any
further compensation or benefits pursuant to Paragraph 2A, and the Consulting
Period shall commence immediately upon such removal.
7. TERMINATION OF EMPLOYMENT.
A. CONSULTING AND NON-COMPETITION PAYMENTS. XXXXXX (or his
beneficiary) will continue to be entitled to receive any remaining consulting
and non-competition payments when they otherwise would have been paid pursuant
to Paragraphs 2 and 3 of this Agreement following termination of his employment
(including as a consultant) initiated by LINDSAY for any reason (either with or
without cause) or due to XXXXXX'x death or total and permanent disability, for
so long as XXXXXX complies (or prior to his death had complied) with the
non-competition restrictions of Paragraph 4 of this Agreement. XXXXXX will
forfeit any remaining consulting and non-competition payments under Paragraphs 2
and 3 if he voluntarily terminates employment or violates the non-competition
restrictions of Paragraph 4 of this Agreement.
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B. SUPPLEMENTAL COMPENSATION. Any supplemental compensation
described in Paragraph 5C which has not yet vested will become fully vested and
be immediately paid to XXXXXX if his employment (including as a consultant) is
terminated by LINDSAY without cause (as defined in Paragraph 6A) or due to
XXXXXX'x death or total and permanent disability, but any supplemental
compensation which is not yet vested shall be forfeited if XXXXXX is removed as
President and Chief Executive Officer for cause pursuant to Paragraph 6 or
violates the non-competition restrictions of Paragraph 4.
C. RESTRICTED STOCK. Any restricted stock held by XXXXXX which
has not yet vested will become fully vested and shall be free of restrictions
and freely transferable if his employment (including as a consultant) is
terminated by LINDSAY without cause (as defined in Paragraph 6A) or due to
XXXXXX'x death or total and permanent disability, but any restricted stock which
is not yet vested shall be forfeited if XXXXXX is removed as President and Chief
Executive Officer for cause pursuant to Paragraph 6 or violates the
non-competition restrictions of Paragraph 4.
8. BUSINESS OPPORTUNITIES. While he is employed by LINDSAY, XXXXXX
will make full and prompt written disclosure to LINDSAY of any business
opportunity of which he becomes aware and which relates to the business of
LINDSAY or any of its subsidiaries or affiliates.
9. INVENTIONS.
A. An "Invention" means any new or useful art, discovery,
contribution, finding, or improvement whether or not patentable, and all related
know-how.
B. "Copyright Works" are materials for which copyright protection
may be obtained, including but not limited to: literary works, computer
programs, artistic works, (including designs, graphs, drawings, blueprints and
other works), recordings, photographs, slides, motion pictures, and audio-visual
works.
C. Upon conception, all Inventions and Copyright Works described
herein shall become the property of LINDSAY whether or not patent or copyright
applications are filed on the subject matter of the conception. XXXXXX will
communicate to LINDSAY promptly and fully all Inventions, or suggestions
(whether or not patentable), and all Copyright Works made or conceived by XXXXXX
(whether made or conceived solely by XXXXXX or jointly with others) during the
period of XXXXXX'x employment with LINDSAY or in the two years following
cessation of employment: (a) which correspond to the business, work or
investigations of LINDSAY at the time of conception, or (b) which result from or
are suggested by any work which XXXXXX has done or may do for or on behalf of
LINDSAY, or (c) which are developed, tested, improved or investigated either in
part or entirely on time for which XXXXXX was paid by LINDSAY or using any
resources of LINDSAY.
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X. XXXXXX will assign to LINDSAY his entire right, title and
interest in all Inventions and Copyright Works: (a) which relate in any way to
the actual or anticipated business of LINDSAY, or (b) which relate in any way to
the actual or anticipated research or development of LINDSAY, or (c) which is
suggested by or results from any task assigned to XXXXXX on behalf of LINDSAY.
XXXXXX also will execute at any time during or after his employment an
assignment for each such Invention or Copyright Work as XXXXXXX xxx request and
on such documents as XXXXXXX xxx provide. XXXXXX will promptly and fully assist
LINDSAY during and subsequent to XXXXXX'x employment in every lawful way without
reimbursement other than his normal compensation as an employee of LINDSAY and
other than a reasonable payment for time involved in the event his employment
with LINDSAY has terminated, but at the expense of LINDSAY, to obtain for the
benefit of LINDSAY patents, copyrights, mask work protection or other
proprietary rights for Inventions or Copyright Works.
10. CONFIDENTIALITY.
X. XXXXXX will not at any time during or after his employment by
LINDSAY, directly or indirectly, divulge, disclose or communicate to any person,
firm or corporation in any manner whatsoever, other than in the normal course of
performing his duties for LINDSAY, any Confidential Information. While engaged
by LINDSAY, XXXXXX may only use Confidential Information for a purpose which is
necessary to the carrying out of XXXXXX'x duties as an employee or director of
LINDSAY, and XXXXXX may not make use of any Confidential Information of LINDSAY
after he is no longer an employee or director of LINDSAY.
X. XXXXXX agrees that the following shall be considered
Confidential Information: all non-public and internal information, whether
written or otherwise, regarding LINDSAY's business (or business of any
subsidiary or affiliate of LINDSAY), including but not limited to information
regarding customers, customer lists, employees, employee salaries, costs,
prices, earnings, and any financial or cost accounting reports, products,
services, formulae, compositions, machines, equipment, apparatus, systems,
manufacturing procedures, operations, potential acquisitions, new location
plans, prospective and executed contracts and other business arrangements, and
sources of supply.
X. XXXXXX agrees that all such information is a trade secret
owned exclusively by LINDSAY which shall at all times be kept confidential.
X. XXXXXX further agrees that he will, upon termination of his
employment with LINDSAY, return to LINDSAY all books, records, lists and other
written, typed or printed materials, whether furnished by LINDSAY or prepared by
XXXXXX, which contain any Confidential Information, and XXXXXX agrees that he
will neither make nor retain any copies of such materials after termination of
employment.
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11. SOLICITATION OF EMPLOYEES. While he is employed by LINDSAY
(including as a consultant) and during the Non-Competition Period, XXXXXX will
not, directly or indirectly, either as an individual, proprietor, stockholder,
partner, officer, director, employee or otherwise, solicit any officer,
director, employee or other individual:
A. to leave his or her employment or position with LINDSAY,
B. to compete with the business of LINDSAY, or
C. to violate the terms of any employment, non-competition or
similar agreement with LINDSAY.
12. REMEDIES; SURVIVAL OF XXXXXX'X COVENANTS.
A. Without limiting the rights of LINDSAY to pursue all other
legal and equitable rights available to it for any violation of the covenants of
XXXXXX contained herein, it is agreed that: (a) the services to be rendered by
XXXXXX under this Agreement are of a special, unique, unusual and extraordinary
character which gives them a peculiar value, and the loss of such services can
not be reasonably and adequately compensated in damages in an action at law, and
(b) remedies other than injunctive relief can not fully compensate LINDSAY for
violations of Paragraphs 1, 4, 8, 9, 10 and 11 of this Agreement; accordingly,
LINDSAY shall be entitled to injunctive relief to prevent violations of such
paragraphs or continuing violations thereof.
B. All of XXXXXX'x covenants in and obligations under Paragraphs
4, 9, 10 and 11 of this Agreement shall continue in effect notwithstanding any
termination of XXXXXX'x employment, whether by LINDSAY or by XXXXXX, upon
expiration or otherwise, and whether or not pursuant to the terms of this
Agreement.
13. XXXXXX EXPENSES. LINDSAY shall pay XXXXXX'x reasonable airline
fare, hotel bills, and other necessary and proper expenses when traveling on or
otherwise performing LINDSAY's business, provided that XXXXXX furnishes LINDSAY
with appropriate supporting documentation of such expenses in accordance with
LINDSAY's applicable procedures. During the Consulting Period, XXXXXX will only
be reimbursed for reasonable business expenses incurred in connection with
LINDSAY's business which are authorized in advance and approved by LINDSAY's
Chief Executive Officer.
14. RELEASE BY XXXXXX. As a material inducement to LINDSAY to enter
into this Agreement, XXXXXX hereby irrevocably and unconditionally releases,
acquits and forever discharges LINDSAY and each of LINDSAY's past, present and
future owners, stockholders, predecessors, successors, assigns, agents,
directors, officers, employees, representatives, attorneys, divisions,
subsidiaries and affiliates (and all past, present and future owners,
stockholders, predecessors, successors, assigns, agents, directors, officers,
employees, representatives and attorneys of such divisions, subsidiaries and
affiliates), and all persons acting
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by, through, under or in concert with any of them (collectively, the "Company
Releases"), from any and all charges, complaints, claims, liabilities,
obligations, promises, agreements, controversies and expenses (including
attorneys' fees and costs actually incurred) of any nature whatsoever, known or
unknown, suspected or unsuspected, including, but not limited to, any charges,
complaints, claims, liabilities, obligations, controversies and expenses arising
out of alleged violations of any contracts, express or implied, any covenant of
good faith and fair dealing, express or implied, any obligation for
compensation, lost wages, lost benefits or any other expectation of remuneration
or benefit on the part of XXXXXX, including but not limited to intentional or
negligent infliction of emotional distress, or any other tort, or any legal
restrictions on LINDSAY's right to terminate employees, or any federal, state or
other governmental statute, regulation or ordinance (including, without
limitation: (i) Title VII of the Civil Rights Act of 1964 (race, color,
religion, sex and national origin discrimination); (ii) 42 U.S.C. Section 1981
(discrimination); (iii) 29 U.S.C. Section 206(d)(1) (equal pay); (iv) Executive
Order 11246 (race, color, religion, sex and national origin discrimination); (v)
Executive Order 11141 (age discrimination); (vi) Section 503 and Section 504 of
the Rehabilitation Act of 1973 (disability discrimination); (vii) the Employee
Retirement Income Security Act (employee benefits); (viii) the Fair Labor
Standards Act; (ix) the Americans with Disabilities Act (discrimination against
individuals with a disability); (x) the Age Discrimination in Employment Act
(age discrimination); (xi) the Civil Rights Act of 1991; and (xii) any Nebraska
or other state fair employment, discrimination, labor or workers compensation
laws), which XXXXXX now has, owns or holds, or claims to have, own or hold, or
which XXXXXX, at any time heretofore had, owned, or held, or claimed to have,
own or hold, against LINDSAY or any Company Releasee; provided, however, that
the foregoing shall not release LINDSAY or any other Company Releasee from any
(1) obligations under this Agreement (including the obligation to make the
payments provided for herein and to reimburse XXXXXX for business expenses as
provided herein), (2) rights to vested benefits under LINDSAY's Profit Sharing
Plan, or (3) claims arising after the effective date of this Agreement.
15. RELEASE BY LINDSAY. As a material inducement to XXXXXX to enter
into this Agreement, LINDSAY, on its own behalf and on behalf of the
subsidiaries and affiliated entities which it controls, hereby irrevocably and
unconditionally releases, acquits and forever discharges XXXXXX, his personal
and legal representatives, executors, administrators, heirs, distributees,
devisees and legatees (collectively, the "XXXXXX Releasees") from any and all
charges, complaints, claims, liabilities, obligations, promises, agreements,
controversies and expenses (including attorneys' fees and costs actually
incurred) of any nature whatsoever, known or unknown, suspected or unsuspected,
including, but not limited to, any charges, complaints, claims, liabilities,
obligations, controversies and expenses arising out of alleged violations of any
contracts, express or implied, or any covenant of good faith and fair dealing,
express or implied, which LINDSAY or any of such subsidiaries or affiliated
entities now has, owns or holds, or claims to have, own or hold, or which
LINDSAY or any of such subsidiaries or affiliated entities at any time
heretofore had, owned, or held, or claimed to have, own or hold, against XXXXXX
or any other XXXXXX Releasee relating to the performance of XXXXXX'x duties as
an officer, director or employee of LINDSAY or any of its divisions,
subsidiaries or affiliates; provided, however, that the foregoing shall not
release XXXXXX or any XXXXXX Releasee from any
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(1) obligations under this Agreement, (2) claims arising after the effective
date of this Agreement, or (3) unknown claims based on acts of XXXXXX which
occurred prior to the effective date of this Agreement which would constitute a
felony under federal or state laws.
16. TERMINATION OF EMPLOYMENT AGREEMENT. LINDSAY and XXXXXX acknowledge
and agree that, effective as of the effective date of this Agreement, all of
their respective rights and obligations under that certain Employment Agreement
between LINDSAY and XXXXXX dated September 1, 1998 (the "Employment Agreement")
shall be deemed to have terminated and to be of no further force or effect.
17. NO CLAIMS; COVENANT NOT TO XXX. XXXXXX represents and covenants
that (i) he has not filed any complaints, charges or lawsuits, nor commenced any
arbitration or similar proceedings, against LINDSAY or any other Company
Releasee in connection with any claim or potential claim released hereunder,
including any claims under the Employment Agreement, and (ii) he will not do so
at any time hereafter; provided, however, that this Paragraph 17 shall not limit
XXXXXX from commencing appropriate proceedings for the purpose of enforcing any
claims not released hereunder. LINDSAY represents and covenants that (i) neither
it nor any subsidiary or other affiliated entity which it controls has filed any
complaints, charges or lawsuits, nor commenced any arbitration or similar
proceedings against XXXXXX or any other XXXXXX Releasee in connection with any
claim or potential claim released hereunder, including any claims under the
Employment Agreement, and (ii) neither it nor any such subsidiary or affiliated
entity will do so at any time hereafter; provided, however, that this Paragraph
17 shall not limit the Company from commencing appropriate proceedings for the
purpose of enforcing any claims not released hereunder.
18. NON-ADMISSION OF LIABILITY. This Agreement shall not in any way be
construed as an admission by LINDSAY that it or any subsidiary or affiliated
entity has acted wrongfully with respect to XXXXXX or that XXXXXX has any rights
whatsoever against LINDSAY or any other Company Releasee, and LINDSAY
specifically disclaims any liability to or wrongful acts against XXXXXX. This
Agreement shall not in any way be construed as an admission by XXXXXX that he
has acted wrongfully with respect to LINDSAY, or that LINDSAY or any subsidiary
or affiliated entity has any rights whatsoever against Xxxxxx or any other
XXXXXX Releasee, and XXXXXX specifically disclaims any liability to or wrongful
acts against LINDSAY.
19. NO CONFIDENTIALITY. XXXXXX acknowledges that LINDSAY intends to
file a copy of this Agreement as an exhibit to a future filing with the
Securities and Exchange Commission. Consequently, XXXXXX acknowledges and agrees
that the contents of this Agreement will be made publicly available and confirms
that he has no expectation of confidentiality with respect to the terms hereof.
20. ARBITRATION OF DISPUTES. All controversies, claims, disputes and
matters in question arising out of or relating to this Agreement or the breach
hereof or to XXXXXX'x
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employment or termination of employment with LINDSAY shall be decided by binding
arbitration conducted in Omaha, Nebraska under the Commercial Arbitration Rules
of the American Arbitration Association (the "AAA") or its successor in effect
at the time a demand for arbitration is made. The arbitration will be conducted
by a single arbitrator chosen pursuant to the Commercial Arbitration Rules of
the AAA then in effect. The decision of the arbitrator shall be conclusive,
final, and binding on the parties hereto and on their respective heirs, legal
representatives, successors, and assigns. The arbitrator shall have no power to
award punitive, exemplary or similar damages to any party. Each party shall pay
for its own attorney's fees and other expenses incurred in connection with any
such dispute or proceeding, and each party shall pay one-half of the
arbitrator's fees and expenses.
21. NOTICES. Notices contemplated by this Agreement shall be in writing
and shall be deemed given when delivered in person or mailed by registered or
certified first class mail, postage prepaid, return receipt requested, to
LINDSAY at Xxxx Xxxxxxx 00, Xxxxxxx, Xxxxxxxx, 00000, Attention: Chairman of the
Compensation Committee, and to XXXXXX at 0000 Xxxxxxx Xxxx Xxxxx, Xxxxxxxx, XX,
00000, or to such other address as the party so notifies to the other.
22. INTEGRATION, AMENDMENT AND MODIFICATION.
A. This Agreement contains the entire Agreement between the
parties hereto with respect to the employment contemplated herein, and
supersedes all prior negotiations and employment agreements, both oral and
written, between the parties relating to XXXXXX'x employment with LINDSAY.
B. This Agreement can be amended, supplemented or modified by the
parties only by an instrument in writing signed by both parties.
C. If, in any action before any court or arbitrator legally
empowered to enforce such covenants, any term, restriction, covenant or promise
contained herein is found to be unreasonable, unlawful or otherwise invalid and
for that reason unenforceable, then such term, restriction, covenant or promise
shall be deemed modified to the extent necessary to make it enforceable by such
court or arbitrator.
23. HEADINGS. The headings in this Agreement are inserted for
convenience or reference only and shall not affect the meaning or interpretation
of this Agreement.
24. GOVERNING LAW. This Agreement shall be construed, interpreted and
enforced according to the laws of the State of Nebraska.
25. COUNTERPARTS. This Agreement may be executed in counterparts which
may be delivered by facsimile, each of which will be deemed an original, and
both of which together shall constitute one and the same Agreement.
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26. INTERPRETIVE MATTERS. This Agreement and any exhibits hereto shall
be construed without regard to the identity of the person who drafted the
various provisions of the same. Each and every provision of this Agreement and
any exhibits hereto shall be construed as though the parties participated
equally in the drafting of the same. Consequently, the parties acknowledge and
agree that any rule of construction that a document is to be construed against
the drafting party shall not be applicable either to this Agreement or any
exhibits hereto.
27. WITHHOLDING. LINDSAY shall withhold from payments made hereunder
federal, state or local taxes to the extent required to comply with applicable
laws.
28. BINDING ON SUCCESSORS. LINDSAY shall have any successor to all or
substantially all of its business and/or its assets expressly assume and agree
to perform this Agreement in the same manner and to the same extent that LINDSAY
would be required to perform if no such succession had taken place. In addition,
LINDSAY shall have the ultimate parent entity of any such successor guaranty
such performance of this Agreement.
29. PUBLIC RELATIONS. LINDSAY agrees to cooperate reasonably with
XXXXXX regarding internal and external media communications concerning XXXXXX'x
early retirement and continuing employment under this Agreement, it being
understood that LINDSAY shall have sole and complete discretion regarding the
timing, content and other aspects of its internal and external media
communications. The initial press release will be substantially in the form of
Exhibit B hereto.
30. NEGOTIATION. XXXXXX acknowledges that (i) he has had an opportunity
to negotiate the terms of this Agreement and to receive advice of counsel with
regard thereto, (ii) he has carefully read and considered this Agreement, (iii)
he fully understands the extent and impact of the provisions of this Agreement,
and (iv) he has executed this Agreement voluntarily and without coercion, undue
influence, threats, or intimidation of any kind or type whatsoever.
31. TIME PERIODS. XXXXXX understands that he has the right to be given
twenty-one (21) days to consider whether or not to execute this Agreement
insofar as any claims released hereby arise under the federal Age Discrimination
in Employment Act and that, if he chooses to execute this Agreement before that
time period expires, he will be deemed to have voluntarily waived and forfeited
such right. XXXXXX also understands that he has up to seven (7) days after
executing this Agreement to rescind this Agreement by notifying LINDSAY of such
recission in writing.
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IN WITNESS WHEREOF, this Agreement is entered into effective as of the
date set forth above.
XXXX X. XXXXXX LINDSAY MANUFACTURING CO.
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------- ---------------------------------
Xxxx X. Xxxxxx Xxxxxx X. Xxxxxxx
Chairman, Compensation Committee
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EXHIBIT A
SPLIT-DOLLAR LIFE INSURANCE POLICIES
Employer: Lindsay Manufacturing Co.
1. Insurance Company: Equitable Variable Life Assurance Co.
Xxx X.X.
Xxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
Agent: Xx. Xxxxxxx X. Xxxxxx
Duhaine Agency
00000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Insured: Xxxx X. Xxxxxx
(Face Amount: $1,000,000)
Policy No. 00-000-000
Premiums Paid to Date by Employer and Portion
of Death Benefit or Cash Surrender Value Payable to Employer: $200,000
Remaining Premiums to Be Paid by Employer: None
-----------
Total Death Benefit or Cash Surrender Value Payable to Employer: $200,000
2. Insurance Company: Security Life of Denver
0000 Xxxxxxxx
Xxxxxx, XX 00000-0000
Agent: Xxx Xxx Xxxxxx
Silverstone Group
00000 Xxxxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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Insured: Xxxx X. Xxxxxx
(Face Amount: $2,000,000)
Policy Nos.: 00-1019465
00-1551958
Premiums Paid to Date by Employer and Portion
of Death Benefit or Cash Surrender Value Payable to Employer: $509,924.26
Remaining Premiums to Be Paid by Employer
(4 annual premiums of $16,647): 66,588
-----------
Total Death Benefit or Cash Surrender Value Payable to Employer: $576,512.26
3. Insurance Company: Northwest Mutual Life Insurance Company
Attn: Xx. Xxxxxxx X. Xxxxx
0000 00xx Xxxxxx
X. X. Xxx 0
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Insured: Xxxx X. Xxxxxx
(Face Amount: $250,000)
Policy No.: 7374536
Premiums Paid to Date by Employer and Portion of
Death Benefit or Cash Surrender Value Payable to Employer: $60,904
Remaining Premiums to Be Paid by Employer (10 annual
premiums of $2,648 and 1 premium of $2,548): 29,078
-----------
Total Death Benefit or Cash Surrender Value Payable to Employer: $89,982
* * * *
It is hereby agreed that this Exhibit A shall be attached as the schedule
to the Split-Dollar Insurance Agreement entered into between LINDSAY and XXXXXX
dated September 1, 1990, and shall be deemed to be incorporated as a part
thereof.
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MEMORANDUM OF UNDERSTANDING
REGARDING SPLIT-DOLLAR INSURANCE POLICIES
The purpose of this Memorandum of Understanding which is entered into as
of December 1, 1999, is to confirm the rights of Lindsay Manufacturing Co.
("Employer") and the owner in the split-dollar life insurance policy(ies)
identified on Schedule I hereto. This will confirm the following:
1. Employer is entitled to recover the amount shown on Exhibit A as "Total
Death Benefit or Cash Surrender Value Payable to Employer," which represents the
total premiums to be paid by Employer, less any payments which have not yet been
paid by Employer.
2. Neither Employer, the owner of the policy(ies) or the insured may make
any withdrawals or loans from the policy(ies).
3. The owner may surrender the policy(ies) at any time, provided Employer
receives an amount equal to the amount shown on Exhibit A as "Total Death
Benefit or Cash Surrender Value Payable to Employer" upon any surrender of the
policy(ies), less any payments which have not yet been paid by Employer.
This Memorandum of Understanding shall be attached to the Split-Dollar
Insurance Agreement entered into between Lindsay Manufacturing Co. (Employer)
and Xxxx X. Xxxxxx (Employee and Insured) dated September 1, 1990, and shall be
deemed to be incorporated as a part thereof. This Memorandum of Understanding
may be executed in counterparts, each of which will be deemed an original, and
all of which together shall constitute one and the same instrument.
EMPLOYER: Lindsay Manufacturing Co.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx, Vice President and Secretary
EMPLOYEE/INSURED: /s/ Xxxx X. Xxxxxx
--------------------------------------
Xxxx X. Xxxxxx
OWNER: By:
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
-------------------------------------------
(Type or Print Name and Address of Owner)
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EXHIBIT B
PRESS RELEASE
For Immediate Release
Lindsay Manufacturing Chairman, President and CEO Xxxx Xxxxxx
Announces Retirement; Director Xxxx Xxxxxxx to Serve as
Chairman; Xxxxxx to Continue as President and CEO Pending Search
December 1, 1999. Lindsay, NE
Lindsay Manufacturing, a leading manufacturer of center pivot and lateral move
irrigation systems, today announced its Chairman, President and CEO, Xxxx X.
Xxxxxx will be retiring from the company by the conclusion of the fiscal year.
Xx. Xxxxxx will serve as Chairman of the Board and a Director until his term
expires at the Company's annual meeting on January 25, 2000. Following the
annual meeting, he will continue serving as President and CEO, and will retire
from those positions at the earlier of the end of Lindsay's current fiscal year
(ending August 31, 2000) or upon the naming of a successor. He will also serve
as a consultant to the Company for two years following his retirement.
At the annual meeting in January, Xx. Xxxx X. Xxxxxxx, a director of the Company
since 1989, will assume the role of Chairman. As Chairman, he will manage the
Board process while Xx. Xxxxxx, pending his retirement, will continue to manage
the Company. Xx. Xxxxxx will report to Xx. Xxxxxxx and the Board, which will
oversee the search for a successor to Xx. Xxxxxx.
"On behalf of the shareholders, the Board and the employees, I wish to thank
Xxxx for his years of fine service to Lindsay. The company has grown
dramatically and Xxxx has made many contributions in product innovation, factory
automation and expanded distribution. Since going public in 1988, under Gary's
leadership as President and CEO, Lindsay's stock has appreciated approximately
tenfold. We are grateful that Xxxx has agreed to serve as a consultant to the
company following his retirement and we wish him well in all of his future
endeavors," stated Xx. Xxxxxxx.
Xx. Xxxxxx commented, "It has been rewarding to be associated with the growth
and success of Lindsay during the last 28 years. Today Lindsay is a global
leader with systems operating in over 85 countries. I have truly enjoyed my
association with employees, dealers, and fellow shareholders, but have decided
at this point in my life I want to spend more time with my family and travel for
pleasure."
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