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Search Employment Agreement by:
Exhibit 10(q)
EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the “Agreement”) is made as of the 1st day of
May, 2006 by and between BARRIER SYSTEMS, INC., a California corporation, with
its principal place of business located at 180 River Road, Rio Vista,
California 94571 (the “Company”) and Owen Denman, an individual,
residing at 9528 Crystal Bay Ln, Elk Grove, CA (the “Executive”),
and, contingent upon the closing of the transactions contemplated by the Merger
Agreement (as defined below) and as of the Closing Date (as defined in the
Merger Agreement), shall supersede all prior employment, consulting and
compensation agreements or arrangements, if any, between the Executive and the
Company or any of its affiliates (including, without limitation, that certain
Memorandum, dated February 17, 2004, from Chris Sanders to John Duckett
and Executive regarding incentive compensation).
WITNESSETH:
WHEREAS, Lindsay
Manufacturing Co., a Delaware corporation (“Lindsay”), is in the
process of acquiring the stock of the Company pursuant to an Agreement and Plan
of Merger, of even date herewith (the “Merger Agreement”), by and
among the Company, Lindsay, Merger Sub (as defined in the Merger Agreement) and
the Shareholder Representative (as defined in the Merger Agreement);
WHEREAS, the Executive has
been employed by the Company, and the Company and Lindsay wish for Executive to
serve as the President of the Company for the period provided in this
Agreement; and WHEREAS, in order to induce Lindsay to enter into the Merger
Agreement and in recognition of the consideration to be received by the
Executive in connection with the transactions contemplated thereby, the
Executive is willing to serve in such capacity in the employ of the Company for
such period upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual promises and agreements
hereinafter set forth, the Company and the Executive agree as follows:
ARTICLE I
EMPLOYMENT AND DUTIES
SECTION
1.1.
Position and
Responsibilities. The Company hereby
employs the Executive to render full-time exclusive services (as defined in
Section Error! Reference source not found. hereof) to the Company during
the Term (as hereinafter defined) as the President of the Company, subject to
the direction of the President of Lindsay (the “President”), or
such other person as the President or the Board of Directors of Lindsay (the
“Board”) may designate from time to time (the President or such
other person so designated, the “Supervisor”). In such capacity and
subject to such direction, the Executive shall (i) devote his full
professional time and attention, best efforts, energy and skills to the
services required of him as an employee of the Company, except for paid time
off taken in accordance with the Company’s policies and practices, and
subject to the Company’s policies pertaining to reasonable periods of
absence due to sickness, personal injury or other disability; (ii) use his
best efforts to promote the interests of the Company; (iii) comply with
all applicable governmental laws, rules and regulations and with all of the
Company’s or Lindsay’s policies, rules and/or regulations
applicable to the employees of the Company, including, without limitation, the Code
of Conduct of Lindsay attached as Exhibit A hereto; and (iv)
discharge his responsibilities in a diligent and faithful manner, consistent
with sound business practices and in accordance with the Supervisor’s
directives.
SECTION
1.2.
Acceptance. The Executive hereby accepts such employment and
agrees to render the services described above in the manner described above.
SECTION
1.3.
Exclusive Service. It is understood and agreed that the Executive may
not engage in other business activities during the Term, whether or not for
profit or other pecuniary advantage; provided, however, that the Executive may
make financial investments which do not involve his active participation and
may engage in other activities such as
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participation in charitable,
educational, religious, civic and similar type organizations and similar types
of activities and, with the consent of the President, may serve as an outside
director on the board of directors of other corporations which are not
affiliates or competitors of the Company or Lindsay or any of their affiliates,
all to the extent that such activities do not hinder or interfere with the
performance of his duties under this Agreement or conflict with the policies of
the Company and Lindsay concerning conflicts of interest or with the businesses
of Lindsay, the Company or any of their affiliates in any material way.
ARTICLE II
TERM
SECTION
2.1.
Term. Contingent upon the closing of the transactions
contemplated by the Merger Agreement, and beginning on the Closing Date (as
defined in the Merger Agreement), the Executive will be employed by the Company
for a period of three years, unless his employment is terminated at an earlier
date in accordance with ARTICLE IV (the “Term”). Those obligations
which by their terms survive the termination of this Agreement shall not be
extinguished by the expiration of the Term or the termination of this
Agreement.
ARTICLE III
COMPENSATION
SECTION
3.1.
Basic Salary. The Company shall pay the Executive salary for the
services to be rendered by him during the Term at the rate of $210,000 per
annum, subject to increase on an annual basis in the discretion of the
President or the Board (the “Salary”). The Salary shall be payable
in periodic installments in accordance with the Company’s regular payroll
practices as in effect from time to time.
SECTION
3.2.
Bonus; Equity Incentives. In addition to the Salary:
(a) The
Executive shall be eligible to receive an annual bonus (the
“Bonus”), in the discretion of the Board, based on the performance
of the Company relative to financial objectives, and the performance of the
Executive relative to personal objectives, in each case as such objectives are
set forth in the Company’s annual management incentive plan; provided
that, for purposes of the Executive’s bonus for the fiscal year of the
Company ending August 31, 2006, such objectives are set forth on Exhibit B
hereto. The Executive’s target bonus shall be 35% of the Salary, subject
to change in the discretion of the Board.
(b) The
Executive shall be eligible to receive annual stock options to purchase Lindsay
stock and/or restricted stock units, in either case in the discretion of the
Board or the committee of the Board administering the relevant plan.
SECTION
3.3.
Pro-ration and Payment of
Taxes. All required employment taxes,
withholding and deductions shall be deducted from the Salary and the Bonus. If
the Executive does not work any full year or this Agreement has been terminated
before the end of any year, the Salary shall be pro-rated for the period
actually worked.
SECTION
3.4.
Benefits. The Executive shall be eligible to participate in
and receive the benefits under any deferred compensation plan, health, life,
accident and disability insurance plans or programs and any other employee
benefit or fringe benefit plans or arrangements that the Company makes
available generally to other senior executives of the Company, pursuant to the
provisions of such plans or arrangements as in effect from time to time.
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SECTION
3.5.
Vacations. The Executive will be entitled to vacation and sick
days in accordance with the policies of the Company for its employees
generally, as in effect from time to time. Vacation must be taken by the
Executive at such time or times as reasonable approved by the President.
SECTION
3.6.
Expenses. The Company shall pay or reimburse the Executive for
all reasonable, ordinary and necessary business expenses incurred or paid by
the Executive during the Term in the performance of the Executive’s
services under this Agreement in accordance with the applicable policies and
procedures of the Company as in effect from time to time, upon the presentation
of proper expense statements or such other supporting documentation as the
Company may reasonably require.
ARTICLE IV
TERMINATION OF EMPLOYMENT
SECTION
4.1.
General. The Executive’s employment may be terminated
by the Company during the Term as provided in this Error! Reference source
not found.. Upon termination of employment, the Term shall end and the
Executive shall be paid the pro-rated portion of the Salary accrued but unpaid
to the date of his termination. The Executive’s rights under the
Company’s employee benefit plans shall be determined under the provisions
of such plans and/or applicable law and any payments due under such plans shall
be distributed pursuant to the provisions thereof.
SECTION
4.2.
Death or Disability. The Executive’s employment hereunder shall
terminate automatically as of the date of his death, and the Company may at any
time at its option, exercised by notice to the Executive, terminate his
employment for “disability” (as hereinafter defined). In the event
of termination for death or disability, the Company, subject to the provisions
of Section Error! Reference source not found., shall have no further
obligations or liabilities to the Executive hereunder. For purposes of this
Agreement, the term “disability” means any physical or mental
illness, disability or incapacity which, in the good faith determination of the
Board, prevents the Executive from performing the essential functions of his
position hereunder for a period of not less than ninety consecutive days (or
for shorter periods totaling not less than one hundred and twenty days) during
any period of twelve consecutive months.
SECTION
4.3.
Cause. The Company may, at any time, at its option, exercised by notice to the Executive, terminate his employment for cause when cause exists. In the event of termination for cause, the Company, subject to the provisions of Section Error! Reference source not found., shall have no further obligations or liabilities to the Executive hereunder. For purposes of this agreement, the term “cause” means (i) any conviction of the Executive for a felony o






