EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement"), dated January 15, 1997, between Top
Air Manufacturing, Inc., an Iowa corporation (the "Company"), and Xxxxxxxx X.
Xxxxxxx, Xx. ("Employee").
WITNESSETH:
WHEREAS, Employee has great expertise in the Company's business;
WHEREAS, Employee's use of such expertise in competition with the
Company would have an extremely detrimental effect on the Company and Employee;
WHEREAS, the Company desires to obtain the services of Employee, as its
employee; and
WHEREAS, in consideration of Employee's agreement to provide such
services to company, Company has agreed to assure to Employee at least three (3)
full years of retention in such capacity.
NOW, THEREFORE, the parties hereto agree as follows:
1. Recitals. Each of the above recitals is incorporated herein and made
a part hereof.
2. Employment. The Company employs Employee, as Chief Financial Officer
of Company, and Employee accepts such employment by the Company upon the terms
and conditions set forth in this Agreement, for the period beginning on the date
of this Agreement and ending upon termination pursuant to paragraph 5 hereof
(the "Employment Period"), to perform such duties as are customarily performed
by the Chief Financial Officer. In connection herewith, no later than January
22, 1997, Employee shall be elected by the board of directors of the Company to
the position of Chief Financial Officer of the Company.
3. Compensation. During the Employment Period, the Company will pay
Employee base compensation at the rate of $75,000 per annum which may be
increased, but not decreased, by the Company in accordance with its customary
salary review and adjustment policies. In addition, Employee shall be entitled
to (i) receive during the Employment Period bonus compensation (whether payable
in cash, options to acquire common stock of the Company or common stock of the
Company) in accordance with the Company's bonus policy; provided, however, that
any bonus compensation payable in cash to Employee shall be at the discretion of
the Company, taking into account Employee's higher base compensation relative to
other officers of the Company; (ii) participate in any and all life insurance,
disability insurance, and other employee benefit plans which are made available
during the Employment Period to executives of the Company of the Employee's
rank; and (iii) reimbursement for all expenses reasonably incurred by him on
behalf of the Company including travel, accommodations and the costs of
maintaining an office at 0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx (the
"Office"). The Employee shall be entitled to vacation (taken consecutively or in
segments), aggregating three (3) weeks each calendar year during the Employment
Period. In the event Employee's site of employment is relocated to Cedar Falls,
Iowa or other site more than 50 miles from the Office, the Company shall pay
reasonable relocation costs incurred in connection with such move as determined
in good faith by the parties.
4. Services. During the Employment Period, Employee shall devote his
best efforts and time and attention to the business affairs of the Company in
his capacity as Chief Financial Officer. At the Company's discretion, Employee
shall be allowed to work with Xx. Xxxxx X. Xxxxxx ("Xxxxxx") on other business
opportunities to the extent said activities do not interfere with Employee's
obligations to Company hereunder.
5. Termination.
A. The Employment Period will continue from the date hereof through and
during the period ending on the third anniversary of the date hereof, unless
terminated earlier by (a) Employee's death or permanent disability; (b) the
Company, for cause; or (c) by Employee following reduction in his
responsibilities or diminution of his duties in a manner inconsistent with the
position of chief financial officer. For purpose of this Section 5, "cause"
shall mean (i) gross inattention or neglect to duty or any other willful,
reckless or grossly negligent act (or omission to act) by Employee, which
materially injures the Company, and (ii) the commission by Employee of a felony
or other crime involving moral turpitude or the commission by Employee of an act
of financial dishonesty against the Company. Except in the case of death or
permanent disability, termination will not be effective until 3 days after the
Company has given written notice to Employee of such termination.
B. In the event Employee is terminated by the Company without cause
prior to the expiration of the Employment Period or Employee is terminated
pursuant to Section 5.A(c) hereof, Employee's obligations hereunder shall cease
and all compensation and other benefits which would have been received by
Employee following the date of termination and prior to the end of the
Employment Period shall become immediately due and payable.
C. In the event the Employment Period is terminated by the Company for
cause, by the Employee for any reason other than pursuant to Section 5.A(c)
hereof or pursuant to Section 5.A(a) hereof, Employee shall forfeit all unearned
compensation remaining hereunder.
6. Health Insurance. Notwithstanding Section 3(ii) hereof, for so long
as Employee is employed by the Company, the Company will provide to Employee,
his wife and children, health insurance substantially comparable to that
currently provided for other executive officers of the Company. In the event
such insurance is not available through the Company, then Company shall pay
Employee the cost of comparable insurance through another carrier.
7. Notices. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, sent by overnight courier
(e.g., Federal Express) or mailed by first class mail, to the recipient at the
address below indicated:
To the Company: Top Air Manufacturing, Inc.
000 Xxxxxxxx Xxxx Xxxx
Xxxxx Xxxxx, Xxxx 00000
To Employee: Xxxxxxxx X. Xxxxxxx, Xx.
0000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered,
sent or mailed.
8. Non-competition and Solicitation Agreement. For and during the
period of eighteen (18) months after the termination of the Employment Period,
Employee will not, directly or indirectly, individually or as partner, agent,
employee of any other person or entity, or otherwise, solicit Company's
customers located in the Region (as defined below) nor will he compete in the
Region with the business of the Company, in the manufacture or sale of any
product previously or currently manufactured or sold by Top Air Manufacturing,
Inc. (or any product substantially similar thereto). For purposes of this
Agreement, the Region is defined to be the states of North Dakota, South Dakota,
Nebraska, Kansas, Oklahoma, Minnesota, Iowa, Missouri, Wisconsin, Illinois,
Michigan, Indiana and Ohio. Notwithstanding anything herein to the contrary,
Employee shall not be subject to the terms and provisions of this Section 8 in
the event (i) Employee is terminated without cause pursuant to Section 5(A)(c);
or (ii) following the expiration of the Employment Period, Employee is not
offered employment on substantially the same terms as that offered to the other
executive officers of the Company.
9. Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law. The parties agree that (i) the provisions of this Agreement shall be
severable in the event that any of the provisions hereof are for any reason
whatsoever invalid, void or otherwise unenforceable, (ii) such invalid, void or
otherwise unenforceable provisions shall be automatically replaced by other
provisions which are as similar as possible in terms to such invalid, void or
otherwise unenforceable provisions but are valid and enforceable and (iii) the
remaining provisions shall remain enforceable to the fullest extent permitted by
law.
10. Complete Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
11. Counterparts. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
12. Governing Law. All questions concerning the construction, validity
and interpretation of the Agreement will be governed by the internal law, and
not the law of conflicts, of the State of Iowa.
13. Remedies. Each of the parties to this Agreement will be entitled to
enforce such party's rights under this Agreement specifically, and to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in such party's favor.
14. Amendments and Waivers; Third Party Beneficiaries. Any provision of
this Agreement may be amended or waived only with the prior written consent of
the Company and Employee. The failure of either party to insist, in any one or
more instances, upon performance of the terms and conditions of this Agreement
shall not be construed as a waiver or a relinquishment of any right granted
hereunder or of the future performance of any such term, covenant or condition.
15. Attorney fees and litigation venue. Any dispute regarding the terms
of this agreement shall be resolved in:
(a) Blackhawk County, Iowa, if relief is sought against Company
(although enforcement of such an award may be had in Xxxx
County, Illinois, as Employee may elect); and
(b) Bureau County, Illinois, if relief is sought against Employee,
and the prevailing party shall be entitled to recover from the other party all
such prevailing party's reasonable attorney fees and costs incurred in
connection therewith. All disputes shall be submitted to arbitration, in
accordance with the laws of Iowa, according to the Rules of the American
Arbitration Association and arbitrated under the auspices thereof.
16. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Employee and the Company, and
their respective successors and assigns. Neither party may assign such party's
rights or delegate such party's obligations hereunder without the prior written
consent of the other party.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
TOP AIR MANUFACTURING, INC.
By: /s/ Xxxxxx X. Xxxx
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Its: President
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/s/ Xxxxxxxx X. Xxxxxxx, Xx.
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XXXXXXXX X. XXXXXXX, XX.
