UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 3, 2003
Ag Services of America, Inc.
(Exact name of Registrant as specified in its charter)
Iowa 000-19320 42-1264455
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation or Number) Identification No.)
organization)
1309 Technology Parkway
Cedar Falls, IA 50613
(Address of principal executive offices) (Zip code)
(319) 277-0261
(Registrant's telephone number, including area code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
ITEM 5. OTHER EVENTS
On October 31, 2003, Ag Services of America, Inc. (the "Company")
entered into an agreement and plan of reorganization and a related
agreement and plan of merger, which we refer to collectively as the
merger agreement (the "Merger Agreement"), with Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Rabobank Nederland ("Rabobank") and a
subsidiary of Rabobank, pursuant to which the Company will become a
wholly-owned subsidiary of Rabobank. Upon completion of the merger
(the "Merger"), shareholders of the Company will be entitled to receive
$8.50 in cash for each share of Ag Services common stock that they own.
On November 14, 2003, the Company filed a preliminary proxy statement
(the "Preliminary Proxy Statement") with the United States Securities and
Exchange Commission relating to a special meeting (the "Special Meeting")
of the Company's shareholders, to be held on Tuesday, December 30, 2003,
at 9:00 A.M., Central Standard Time, to vote on a proposal to approve
the Merger Agreement. A copy of the Merger Agreement is attached as
Annex A to the Preliminary Proxy Statement and is incorporated by reference
herein. As discussed in the Preliminary Proxy Statement, completion of
the Merger is subject to approval by the shareholders of the Company at
the Special Meeting and to Dutch Central Bank approval.
Kevin Schipper, Chief Executive Officer and a director of the Company,
and Shawn Smeins, Chief Operating Officer of the Company, currently have
employment agreements with the Company. As discussed in the Preliminary
Proxy Statement, as a condition to Rabobank's execution of the Merger
Agreement, the Company entered into new employment agreements (the
"Employment Agreements") with Messrs. Schipper and Smeins. Pending the
Merger, these new Employment Agreements have no effect on the terms of
the existing employment agreements except that Messrs. Schipper and Smeins
agreed to remain in their current positions until the Merger is completed
and agreed to waive all payments that would otherwise be owed to them in
connection with the Merger. Once the Merger is completed, the existing
employment agreements will be terminated and replaced by the new Employment
Agreements. The terms of the new Employment Agreements are described in
the Preliminary Proxy Statement.
Henry C. Jungling, President and a director of the Company, and
Gaylen D. Miller, Chairman of the Board of Directors of the Company,
currently have employment agreements with the Company. As discussed
in the Preliminary Proxy Statement, as a condition to Rabobank's execution
of the Merger Agreement, the Company entered into consultancy and
non-competition agreements (the "Consultancy and Non-Competition
Agreements") with Messrs. Jungling and Miller. Pending the Merger,
these new agreements have no effect on the terms of the existing
employment agreements except that Messrs. Jungling and Miller agreed
to remain in their current positions until the Merger is completed and
agreed to waive all payments that would otherwise be owed to them in
connection with the Merger. Once the Merger is completed, the existing
employment agreements will be terminated and replaced by the Consultancy
and Non-Competition Agreements. The terms of the Consultancy and
Non-Competition Agreements are described in the Preliminary Proxy
Statement.
Attached hereto as exhibits 99.3 and 99.4 are the new Employment
Agreements. Attached hereto as exhibits 99.5 and 99.6 are the
Consultancy and Non-Competition Agreements.
ITEM 7. FINANCIAL STATEMENTS, PRO-FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits.
Exhibit
Number Description of Document
------ -----------------------
99.1 Agreement and Plan of Reorganization, dated as of October 31,
2003, by and among Ag Services of America, Inc., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Rabobank Nederland, and Utrecht-America
Acquisition Corp. II (incorporated by reference to Annex A to the
preliminary proxy statement on Schedule 14A filed by Ag Services of
America, Inc. with the United States Securities and Exchange Commission
on November 14, 2003).
99.2 Agreement and Plan of Merger, dated as of October 31, 2003,
by and between Ag Services of America, Inc., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Rabobank Nederland, and Utrecht-America
Acquisition Corp. II (incorporated by reference to Annex A to the
preliminary proxy statement on Schedule 14A filed by Ag Services of
America, Inc. with the United States Securities and Exchange Commission
on November 14, 2003).
99.3 Employment Agreement, made as of October 31, 2003, by and
between Ag Services of America, Inc. and Kevin Schipper.
99.4 Employment Agreement, made as of October 31, 2003, by and
between Ag Services of America, Inc. and Shawn Smeins.
99.5 Consultancy and Noncompetition Agreement, made as of October
31, 2003, by and between Ag Services of America, Inc. and Henry C.
Jungling.
99.6 Consultancy and Noncompetition Agreement, made as of October
31, 2003, by and between Ag Services of America, Inc. and Gaylen D. Miller.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
AG SERVICES OF AMERICA, INC.
Dated: November 21, 2003 By:
_______________________________
John T. Roth
Vice President Finance
INDEX TO EXHIBITS
Exhibit
Number Description of Document
------ -----------------------
99.1 Agreement and Plan of Reorganization, dated as of October 31,
2003, by and among Ag Services of America, Inc., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Rabobank Nederland, and Utrecht-America
Acquisition Corp. II (incorporated by reference to Annex A to the
preliminary proxy statement on Schedule 14A filed by Ag Services of
America, Inc. with the United States Securities and Exchange Commission
on November 14, 2003).
99.2 Agreement and Plan of Merger, dated as of October 31, 2003,
by and between Ag Services of America, Inc., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Rabobank Nederland, and Utrecht-America
Acquisition Corp. II (incorporated by reference to Annex A to the
preliminary proxy statement on Schedule 14A filed by Ag Services of
America, Inc. with the United States Securities and Exchange Commission
on November 14, 2003).
99.3 Employment Agreement, made as of October 31, 2003, by and
between Ag Services of America, Inc. and Kevin Schipper.
99.4 Employment Agreement, made as of October 31, 2003, by and
between Ag Services of America, Inc. and Shawn Smeins.
99.5 Consultancy and Noncompetition Agreement, made as of October
31, 2003, by and between Ag Services of America, Inc. and Henry C. Jungling.
99.6 Consultancy and Noncompetition Agreement, made as of October
31, 2003, by and between Ag Services of America, Inc. and Gaylen D. Miller.
EXHIBIT 99.3
EMPLOYMENT AGREEMENT
This Employment Agreement, made as of the 31st day of October, 2003,
by and between Ag Services of America, Inc., an Iowa corporation (the
"Company"), and Kevin Schipper (the "Employee").
WITNESSETH:
WHEREAS, upon the terms and subject to the conditions set forth in
the Agreement and Plan of Reorganization, dated as of the date hereof,
by and between Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
Rabobank Nederland ("Parent"), a cooperative bank organized under the
laws of The Netherlands, and Company (the "Reorganization Agreement"),
an indirectly wholly owned subsidiary of Parent will merge into Company,
with Company surviving as an indirectly wholly owned subsidiary of Parent
(the "Merger"); and
WHEREAS, Company desires to continue, and Employee desires to enter
into this Agreement to provide for, Company's continued employment of
Employee up to and following the date of the consummation of the Merger
pursuant to the Reorganization Agreement (the "Effective Time") upon the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the adequacy and sufficiency of which are
hereby acknowledged, Company and Employee agree as follows:
1. Employment. Company shall continue to employ the Employee and to
name Employee as Chief Executive Officer of the Company, and Employee
hereby accepts such continued employment by Company and to such appointment
as Chief Executive Officer upon the terms and conditions herein set forth.
The place of employment shall be at Company's principal offices, 1309
Technology Parkway, Cedar Falls, Iowa 50613, or at such other location as
Company may designate. Notwithstanding any provision of this Agreement
to the contrary, this Agreement and the employment of Employee by Company
as set forth herein is contingent upon the consummation of the Merger and
the occurrence of the Effective Time. In the event that the Effective
Time of the Merger does not occur on or before February 29, 2004, this
Agreement shall be null and void and shall have no further effect.
2. Term. Employee's term of employment with Company under this
Agreement shall commence as of the Effective Time and, subject to the
provisions of Paragraph 5 below, shall continue until December 31, 2005
(the "Employment Period"). Company agrees to review with Employee not
later than three months prior to the end of the Employment Period its
intention regarding Employee's employment with Company at the end of the
Employment Period. If Employee's employment has not otherwise terminated
prior to December 31, 2005 and if Company shall not employ Employee after
December 31, 2005, Employee shall be entitled, as his sole severance
hereunder, (a) to receive payments from Company during the year ending
December 31, 2006 equal to his Annual Base Salary (as defined in, and with
such payments to be determined and made by Company at the same time and
in the same manner as provided in, Paragraph 4(a)) and (b) to be covered
at Company's expense during the year ending December 31, 2006 under such
life, health and accident insurance coverage to which he was entitled as
of immediately prior to December 31, 2005 pursuant to Paragraph 4(c).
3. Duties.
(a) Employee shall have such duties and responsibilities during the
Employment Period as are set forth in the Statement of Position and Duties
attached hereto as Exhibit A and incorporated herein by reference. Company,
in its sole discretion, may amend the Statement of Position and Duties at
any time and any such amendment shall take effect on the date on which
notice of the amendment is given to Employee. Employee shall report
directly to the Board of Directors of Company.
(b) Employee shall faithfully, with the utmost loyalty, and to the
best of his ability perform his duties and responsibilities under this
Agreement and those duties and responsibilities assigned to him.
Notwithstanding the foregoing, Employee may engage in charitable, civic,
or community activities, provided that such activities do not interfere
with the performance of Employee's duties hereunder.
(c) If during the Employment Period, Employee is required to
perform the duties described in this Section 3 at any location outside
the State of Iowa and Company requests that Employee transfer to a
different location, Company agrees to reimburse Employee for all
reasonable costs incurred in relocation to the new location.
4. Compensation.
(a) Annual Base Salary. During the Employment Period, Company shall
pay to Employee an annual base salary at the rate of $200,000 per year
("Annual Base Salary"). Employee's Annual Base Salary shall be payable
twice monthly in arrears on the last working day on or before the 15th
of each month and on the last working day of each month in accordance
with Company's regular payroll practices. All payments of Annual Base
Salary and all other payments under this Agreement shall be in United
States currency.
(b) Bonus Compensation. Company shall consider Employee for bonus
compensation for each calendar year during the Employment Period based on
goals agreed in advance that include, but are not limited to, net financial
results of Company and total loan origination and delinquencies. The
terms, conditions and criteria for, and amount of, any such bonus
compensation, as well as the dates on which any such bonus compensation
may be paid with respect to services performed by Employee during calendar
years 2004 and 2005, are further set forth on Exhibit B and incorporated
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herein by reference. Other than as described on Exhibit B, this Agreement
creates no contractual right or other entitlement to bonus compensation.
(c) Employee Benefits and Perquisites. Subject to the terms and
conditions of Company's plans and policies, during the Employment Period,
Employee shall be entitled to participate in all retirement, health and
welfare plans provided by Company, and applicable to the other peer
executives of Company, provided that such benefits shall include at least
life, health and accident insurance coverage and the use of an automobile,
in each case as and to the extent substantially comparable to that to
which he was entitled as of the date of this Agreement under the Existing
Agreement (as defined in Paragraph 17, below).
(d) Expense Reimbursement. During the Employment Period, Company
shall reimburse Employee for all normal and proper business expenses
incurred by him in connection with the business of Company and the
performance of his duties and responsibilities under this Agreement in
accordance with Company's policies and procedures regarding reimbursement
of expenses.
(e) Right to Change Plans. Nothing in this Agreement shall be
construed to limit, condition, or otherwise encumber the right of Company
to amend, discontinue, terminate, substitute, or maintain any benefit
plan, program, policy or perquisite, including, but not limited to, the
benefits and other perquisites set forth in Paragraph 4(c).
(d Withholding. All payments made pursuant to this Paragraph 4
shall be subject to such withholding tax as may be required by Federal,
State, and local governments.
5. Termination.
(a) Notice of Termination for Breach or Misconduct. Company may
elect to terminate the employment of Employee in the event that during
the Employment Period there should occur any of the following: (a) an
event constituting "Misconduct" (as defined herein) by Employee; or (b)
the material breach by Employee of any covenant or provision of this
Agreement. "Misconduct" shall mean (i) a material breach or willful
neglect by Employee of the duties and responsibilities of Employee under
this Agreement or any breach by Employee of any material term of this
Agreement, (ii) the engaging by Employee in conduct that is demonstrably
and materially injurious to the business, reputation, character, or
community standing of Company, Parent, or its affiliates, (iii) the
engaging by Employee in dishonest, fraudulent, or unethical conduct or
in other conduct involving serious moral turpitude to the extent that
in the reasonable judgment of the Board of Directors of Company,
Employee's reputation and credibility no longer conform to the standards
expected of Company's Employees, (iv) Employee's commission, admission,
confession, or plea bargain to or conviction in a court of law of any
crime or offense involving fraud or misuse or misappropriation of money
or other property, (v) Employee's commission, admission, confession, or
plea bargain to or conviction in a court of law of any felony, or (vi)
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a material violation of any statutory or common law duty to Company,
including, but not limited to, the duty of loyalty. In the event Company
exercises the election to terminate the employment of Employee pursuant
to this Paragraph 5(a), the termination shall be effective upon notice
to Employee of such termination, and Employee shall be entitled to
receive any pro rata accrued but unpaid amounts under Paragraph 4(a) and
any expense reimbursement owing under Paragraph 4(d) through the effective
time of such termination, but shall not be entitled to receive any other
amount under this Agreement.
(b) Death. In the event of the death of Employee during the
Employment Period, this Agreement shall be deemed immediately terminated
and his designated beneficiaries shall be entitled to receive any pro
rata accrued and unpaid amounts under Paragraphs 4(a) and (b) and any
expense reimbursement owing under Paragraph 4(d) through the effective
time of such termination. The accrued amount due Employee under
Paragraph 4(b) shall be determined by multiplying the bonus amount that
would have been due Employee had he remained employed by Company during
the entire calendar year in which his termination occurs by a fraction,
the numerator of which is the number of full calendar months Employee
was employed by Company during such calendar year and the denominator
of which is 12.
(c) Resignation. In the event Employee voluntarily terminates
his employment with Company during the Employment Period, other than
pursuant to Paragraph 5(d), this Agreement shall terminate effective
upon such termination, and Employee shall be entitled to receive any
pro rata accrued but unpaid amounts under Paragraph 4(a) and any expense
reimbursement owing under Paragraph 4(d) through the effective time of
such termination but shall not be entitled to receive any other amount
under this Agreement.
(d) Certain Employee Terminations. Notwithstanding any provision
in this Agreement that may appear to be the contrary, Employee shall have
the right to terminate his employment hereunder during the Employment
Period upon or after (i) the occurrence of a Change in Control (as defined
below) or (ii) a Diminution in Responsibility (as defined below) with
respect to Employee or (iii) the Company's designation, before the date
that is 540 days after the Effective Time, of the place of Employee's
employment at a location other than Cedar Falls, Iowa without Employee's
written consent. For purposes of this clause (d), the term "Change in
Control" shall be defined to mean the acquisition, in a single
transaction or in any series of transactions, by any person (other than
Parent or any subsidiary or other affiliate of Parent), directly or
indirectly, of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934) of 50% or more
of the combined voting power of the then outstanding voting securities
of Company without Employee's written consent. For purposes of this
definition, the term "person" shall mean an individual or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization or any other form of entity
not listed. For purposes of this clause (d), the term "Diminution of
Responsibility" shall be defined to mean any of the following events
with respect to Employee: (1) Employee, without his written consent, is
not elected or re-elected to or is removed from an office or position
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at least equal to that which Employee held in connection with his
employment immediately prior to such change of status; or (2) a material
change in the nature or scope of the authorities, powers, functions,
duties, titles or responsibilities attached to Employee's position of
employment without Employee's written consent as a result of which change
Employee's position shall be or become of less dignity, responsibility,
importance or scope.
(e) Severance. If (x) Company terminates Employee's employment
during the Employment Period for any reason other than (i) Employee's
death, (ii) Employee's total disability, (iii) the occurrence of an
event constituting Misconduct, or (iv) the material breach by Employee
of any covenant or provision of this Agreement, or (y) Employee shall
terminate his employment hereunder pursuant to Paragraph 5(d), this
Agreement shall terminate effective upon such termination, and Employee
shall be entitled to continue to receive his Annual Base Salary (such
payments to be determined and made by Company at the same time and in
the same manner as provided in Paragraph 4(a)) and to be covered, at
Company's expense, under such life, health and accident insurance
coverage to which he was entitled as of the effective time of such
termination pursuant to Paragraph 4(c), in each case of such payment
and coverage for the remainder of the Employment Period or for one year
after the date of such termination, whichever period is longer, and
Employee shall also be entitled to receive his accrued but unpaid bonus
payment pursuant to Paragraph 4(b) (as calculated pursuant to Paragraph
5(b)) and any expense reimbursement owing under Paragraph 4(d), in both
cases through the effective time of such termination, but shall not be
entitled to receive any other amount or benefit under this Agreement.
(f) Involuntary Termination. Notwithstanding anything to the
contrary herein or otherwise, Company may terminate Employee's employment
at any time upon written notice to Employee.
6. Restrictive Covenant.
(a) During the Employment Period and for two (2) years thereafter,
Employee shall not, within the trade area now or hereafter served by
Company, associate with or engage in or contribute Employee's knowledge
to, in any capacity whatsoever, whether as a promoter, owner, officer,
director, employee, partner, lessee, lessor, lender, agent, consultant,
advisor, broker, commission salesman or otherwise, any business that is
in competition with the business of Company, except for passive
investments in publicly held companies over which Employee does not
exercise any controlling influence.
(b) Further, Employee shall not, for a period of two (2) years after
the termination of his employment hereunder, in any manner, directly or
indirectly, contact or solicit any of the then existing dealers, sources
of supply or customers of Company (including but not limited to, any
officer, director, employee, agent or affiliate of a dealer, source of
supply or customer) with respect to the business of Company or employ
(or contact or solicit for the purpose of seeking to employ) any then
existing employee, agent or representative of Company. Without limitation
of the foregoing, during the Employment Period and for a period of two
(2) years after the termination of his employment hereunder, Employee
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will not directly or indirectly divert or attempt to divert from Company
any business in which Company has been actively engaged during the
Employment Period, nor interfere with the relationships of Company with
dealers, sources of supply or customers, nor, except as required by law,
will Employee interfere with the relationship of Company and any of its
employees, agents or representatives.
(c) For purposes of this Paragraph 6, the business of Company
shall mean and include the products, processes, services and developments
described as part of the business of the Company as described the
Company's Annual Report on Form 10-K for the year ended February 28,
2003, as filed with the Securities and Exchange Commission (the "SEC")
or in any subsequent report filed with the SEC prior to the Effective
Time, including, without limitation, E-Commerce activities, the
marketing, distribution and/or sale of agricultural inputs (such as
seed, chemicals and fertilizer) to farmers in conjunction with the
extension of credit by Company to such farmers and the extension of
credit to farmers, as such business may expand or develop during the
Employment Period.
(d) Employee acknowledges that covenants contained in this
Paragraph 6 are reasonable in scope, area and duration and are
necessary in furtherance of the legitimate interests of Company.
Employee represents and warrants that he has available to him
sufficient other means of support and that observance of the
covenants contained in this Paragraph 6 will not deprive him of
his ability to earn a livelihood or to support his dependents.
7. Nondisclosure.
(a) Employee recognizes and acknowledges that Company has developed
and continues to develop and use commercially valuable proprietary
technical and non-technical information that is vital to the success
of Company's business, and furthermore, that Company utilizes trade
secrets in formulating, promoting, financing and selling its products
that are entitled to protection from disclosure. Employee further
acknowledges that as a result of his employment by Company he may
develop, obtain or learn about certain confidential information and
trade secrets that are the property of Company. Employee hereby
covenants and agrees to use his best efforts and the utmost diligence
to guard and protect all such Confidential Information or Trade
Secrets (as defined below), and that he will not, without the prior
written consent of Company, during the Employment Period or any time
thereafter, use for himself or others, or disclose or permit to be
disclosed to any third party by any method whatsoever, any of such
Confidential Information or Trade Secrets of Company, provided that the
foregoing shall not apply to information that Employee is required to
disclose to or by any governmental or judicial authority, provided,
however, if Employee should be required in the course of judicial or
administrative proceedings to disclose any information, Employee shall
give Company prompt written notice thereof so that Company may seek an
appropriate protective order and/or waive in writing compliance with
the nondisclosure provisions of this Agreement. If, in the absence of
a protective order or the receipt of a waiver by Company, Employee is,
nonetheless, in the written opinion of his counsel, compelled to disclose
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information to a court or tribunal or otherwise stand liable for contempt
or suffer other serious censure or penalty, Employee may disclose such
information to such court or tribunal without liability to any other
party hereto or benefiting from this Agreement.
(b) For purposes of this Paragraph 8, "Confidential Information or
Trade Secrets" shall mean and include, but not be limited to, any and all
records, notes, memoranda, data, ideas, processes, methods, devices,
programs, computer software, writings, research, personnel information,
customer information, financial information, plans, or any information of
whatever nature, in the possession or control of Company that has not or
have not been published or disclosed to the general public or that gives
to Company an opportunity to obtain an advantage over competitors who do
not know of or use it. For purposes of this Paragraph, and without
limitation, "Confidential Information or Trade Secrets" does not include
information that: (a) Employee knew through no wrongful act of Employee
before Company or its clients disclosed the information to Employee; (b)
has become publicly known through no wrongful act of Employee; or (c)
Employee learned from a third party who had the right to disclose the
information to Employee. Employee further agrees that if his employment
hereunder is terminated for any reason, he will leave with Company and
will not take originals or copies of all records, papers, programs,
computer software and documents and all matter of whatever nature that
bears or contains Confidential Information or Trade Secrets of Company.
Employee agrees promptly to reduce to writing and to disclose and assign,
and hereby does assign, to Company, its successors, assigns and nominees,
all inventions, discoveries, improvements, copyrightable material,
trademarks, programs, computer software and ideas concerning the same,
capable of use in connection with the business of Company, which Employee
may make or conceive, either solely or jointly with others, during the
period of his employment by Company or its successors.
(c) Employee agrees, without charge to Company but at Company's
expense, to execute, acknowledge and deliver to Company all such papers,
including applications for patents, applications for copyright and
trademark registrations, and assignments thereof, as may be necessary,
and at all times to assist Company, its successors, assigns and nominees
in every proper way to patent or register said programs, computer
software, ideas, inventions, discoveries, improvements, copyrightable
material or trademarks in any and all countries and to vest title thereto
in Company, its successors, assigns or nominees.
(d) Employee will promptly report to Company all such discoveries,
inventions, or improvements of whatsoever nature conceived or made by him
at any time he was employed by Company. All such discoveries, inventions
and improvements that are applicable in any way to Company's business
shall be the sole and exclusive property of Company.
The covenants set forth in this Paragraph 7 that are made by Employee
are in consideration of the employment, or continuing employment of, and
the compensation paid to, Employee during his employment by Company.
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8. Additional Remedies. Employee recognizes that irreparable injury
will result to Company and to its business and properties in the event of
any breach by Employee of any of the provisions of Paragraphs 6 and 7 of
this Agreement or either of them, and that Employee's continued employment
is predicated on the commitments undertaken by him pursuant to said
Paragraphs. In the event of any breach of any of Employee's commitments
pursuant to Paragraphs 6 and 7 or either of them, Company shall be entitled,
in addition to any other remedies and damages available, to injunctive
relief to restrain the violation of such commitments by Employee or by any
person or persons acting for or with Employee in any capacity whatsoever.
If any restriction contained in Paragraphs 6 and 7 shall be deemed to be
invalid or unenforceable by reason of extent, duration or geographic scope
thereof, then the extent, duration and geographic scope of such restriction
shall be deemed to be reduced only to the fullest extent, duration and
geographic scope permitted by law and enforceable.
9. Survival. The provisions of Paragraphs 6, 7 and 8 and this
Paragraph 9 shall survive and continue in full force and effect in
accordance with their respective terms, notwithstanding any termination
of the Employment Period or Employee's termination of employment from
Company or the termination of this Agreement, and they shall be not be
limited or discharged by an alleged breach or misconduct on the part
of Company.
10. Successors and Assigns. This Agreement may be assigned or
transferred to, and shall be binding upon and shall inure to the benefit
of, any successor, subsidiary or affiliate of Company, and any such
successor, subsidiary or affiliate shall be deemed substituted for all
purposes for the "Company" under the terms of this Agreement. As used
in this Agreement, the term "successor" shall mean any person, firm,
corporation, or business entity that at any time, whether by merger,
purchase, or otherwise, acquires all or substantially all of the assets,
stock or business of Company. Employee acknowledges that Company or
its parent (including Parent) has the right to sell, assign or otherwise
transfer any portion or substantially all or all of the capital stock,
assets or business of Company and that any such sale, assignment, or
transfer shall not be deemed to be a termination of the employment of
Employee. Employee acknowledges that the services to be rendered by
him pursuant to this Agreement are unique and personal, and Employee
therefore may not assign any obligations or responsibilities he has
under this Agreement.
11. Amendment and Waiver. This Agreement may be modified, or any
right or condition hereunder waived, only by instrument signed by the
party against whom such amendment or waiver is sought to be enforced.
No waiver by any party to this Agreement or any breach of any of the
covenants, agreements, or undertakings contained in this Agreement shall
be construed as a waiver of any succeeding breach of the same or of any
other covenant, agreement, or undertaking, nor shall any such waiver
affect the right of any party to this Agreement to require the strict
performance thereof on a subsequent occasion.
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12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and both
of which together shall constitute one and the same instrument.
13. Severability. If any clause, phrase, provision or portion
of this Agreement or the application thereof to any person or
circumstance shall be invalid or unenforceable under any applicable
law, such event shall not affect or render invalid or unenforceable
the remainder of this Agreement and shall not affect the application
of any clause, provision, or portion hereof to other persons or
circumstances.
14. Benefit. The provisions of this Agreement shall be binding
upon and inure to the benefit of Company, Parent and their respective
successors and assigns, and shall be binding upon Employee, his heirs,
personal representatives and successors, including, without limitation,
Employee's estate and the executors, administrators, or trustees of
such estate. Except as specifically set for the herein, nothing in this
Agreement is intended to confer upon any party, except Company, Parent
(it being expressly acknowledged and agreed by the parties hereto that
Parent is a party in interest and a third party beneficiary of
Employee's agreements and obligations herein), Employee and their
respective successors, assigns and legal representatives, any rights,
remedies, obligations or liabilities.
15. Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Iowa without regard to
principles of conflicts of law.
16. Notices. All notices, requests, demands and other
communications in connection with this Agreement shall be made in
writing and shall be deemed to have been given when delivered by hand
or 48 hours after mailing at any general or branch United States Post
Office, by registered or certified mail, postage prepaid, addressed as
follows, or to such other address as shall have been designated in
writing by the addressee:
(a) If to Company:
Rabobank International
245 Park Avenue
New York, NY 10167-0062
Attention: General Counsel
(b) If to Employee:
Kevin Schipper
c/o Company at the address set forth above.
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16. Headings. The paragraph headings appearing in this Agreement
are for purposes of easy reference and shall not be considered part of
this Agreement or in any way modify, amend or affects its provisions.
17. Entire Agreement; Amendment of Existing Agreement.
(a) This Agreement sets forth the entire understanding of the parties
and supersedes all prior agreements, arrangements, and communications,
whether oral or written, pertaining to the subject matter hereof.
(b) Notwithstanding the foregoing, however, the execution of this
Agreement is not intended to have any effect on the validity or
enforceability of that certain Employment and Noncompetition Agreement
effective as of July 1, 2000, by and between Employee and Company (as
amended to the date hereof, the "Existing Agreement"), except as follows
(and the Existing Agreement is hereby amended so to provide):
(i) from the date hereof to the earlier of (x) the Effective
Time and (y) the date that the Reorganization Agreement is terminated
in accordance with Section 6.1 thereof, Company shall not terminate
Employee's employment pursuant to Section 5(c) of the Existing
Agreement without the written consent of Parent, and any such
termination without such consent shall be null and void and
Employee shall not be entitled to any payment under the Existing
Agreement or otherwise by reason thereof;
(ii) from the date hereof to (and including) the earlier of (x)
the Effective Time and (y) the date that the Reorganization Agreement
is terminated in accordance with Section 6.1 thereof, all rights of
Employee under Section 6 of the Existing Agreement shall be suspended,
it being expressly understood and agreed by Employee and Company that
neither the transactions contemplated by the Reorganization Agreement
(including, without limitation, the Merger, the acquisition, direct
or indirect, of all of the outstanding voting securities of Company
by Parent or an affiliate of Parent and any changes in the
constitution of the Company's board of directors in any way related
thereto), nor the employment of Employee as hereby contemplated
(including, without limitation, the termination of Employee in any of
the positions and offices he may have held under the Existing
Agreement and any change in the nature or scope of the authorities,
powers, functions, duties, titles or responsibilities attached to
such positions and offices), shall constitute a "Change of Control"
or "Diminution of Responsibility" as used in Section 6 of the
Existing Agreement or otherwise give Employee any right to, or
basis for, any payments under Section 6 of the Existing Agreement,
all of which rights and bases are hereby waived and released by
Employee; and
(iii) as of the Effective Time of the Merger, the Existing
Agreement shall, without further action or notice, be terminated
and of no further force and effect (including, without limitation,
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any rights of Employee under Section 6 of the Existing Agreement),
except only that Company shall remain obligated to pay Employee
the amounts that would have been payable to Employee pursuant to
Section 5(b) of the Existing Agreement as if such termination of
the Existing Agreement at the Effective Time had been a termination
of Employee's employment pursuant to such Section 5(b).
(c) Furthermore, Executive, for and on behalf of himself and his
beneficiaries, executors, administrators, assigns, covenants not to sue
Company, Parent or any of its affiliates on any claim in connection with
the Existing Agreement, except only a claim for the remaining payment
obligation of the Company described in clause (b)(iii) of this Paragraph
17. This Agreement shall not be modified or amended except by written
agreement of Company and Employee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first set forth above:
AG SERVICES OF AMERICA, INC.
By: /s/ Henry C. Jungling
Name: Henry C. Jungling
Title: President
__/s/ KEVIN SCHIPPER_______
Kevin Schipper
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EXHIBIT A
STATEMENT OF POSITION AND DUTIES
Chief Executive Officer
Direct and oversee activities of the organization including client
development and management, business planning and execution, investment
management, marketing strategies, employee development and evaluation.
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EXHIBIT B
BONUS COMPENSATION
In accordance with Paragraph 4(b) ("Bonus Compensation") of this Agreement,
set forth below are the bonus performance criteria which must be met in
order for the Employee to be entitled to a bonus under Paragraph 4(b) of
this Agreement for the calendar years 2004 and 2005.
Performance Year 2004
Bonus Compensation for the 2004 Performance Year shall be based upon the
Company's earnings before taxes for the year ending December 31, 2004 as
follows:
If the Employee achieves 90% of the stated financial target as set forth
in the Business Plan (Exhibit C) for 2004, Employee shall be entitled to
$100,000 in Bonus Compensation. For each increment of 1% between 90% of
the financial target and 100% of the financial target, Employee shall be
entitled to an additional $10,000. If more than 100% of the financial
target is achieved, Company will consider whether Employee is entitled
to Bonus Compensation in excess of $200,000.
If the Employee is entitled to a bonus for the 2004 Performance Year under
the above criteria, such bonus shall be paid in 2005 in accordance with
the regular bonus payment schedule of Rabobank International.
Notwithstanding the foregoing, in no event shall the Employee's Bonus
Compensation for Performance Year 2004 be less than $75,000.
Performance Year 2005
Bonus Compensation for the 2005 Performance Year shall be based upon the
Company's earnings before taxes for the year ending December 31, 2005 as
follows:
If the Employee achieves 90% of the stated financial target as set forth
in the Business Plan (Exhibit C) for 2005, Employee shall be entitled to
$100,000 in Bonus Compensation. For each increment of 1% between 90% of
the financial target and 100% of the financial target, Employee shall be
entitled to an additional $10,000. If more than 100% of the financial
target is achieved, Company will consider whether Employee is entitled to
Bonus Compensation in excess of $200,000.
If the Employee is entitled to a bonus for the 2005 Performance Year under
the above criteria, such bonus shall be paid in 2006 in accordance with the
regular bonus payment schedule of Rabobank International. Notwithstanding
the foregoing, in no event shall the Employee's Bonus Compensation for
Performance Year 2005 be less than $75,000.
EXHIBIT 99.4
EMPLOYMENT AGREEMENT
This Employment Agreement, made as of the 31st day of October, 2003,
by and between Ag Services of America, Inc., an Iowa corporation (the
"Company"), and Shawn Smeins (the "Employee").
WITNESSETH:
WHEREAS, upon the terms and subject to the conditions set forth in
the Agreement and Plan of Reorganization, dated as of the date hereof, by
and between Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
Rabobank Nederland ("Parent"), a cooperative bank organized under the
laws of The Netherlands, and Company (the "Reorganization Agreement"),
an indirectly wholly owned subsidiary of Parent will merge into Company,
with Company surviving as an indirectly wholly owned subsidiary of
Parent (the "Merger"); and
WHEREAS, Company desires to continue, and Employee desires to enter
into this Agreement to provide for, Company's continued employment of
Employee up to and following the date of the consummation of the Merger
pursuant to the Reorganization Agreement (the "Effective Time") upon the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the adequacy and sufficiency of which are
hereby acknowledged, Company and Employee agree as follows:
1. Employment. Company shall continue to employ the Employee and
to name Employee as Chief Operating Officer of the Company, and Employee
hereby accepts such continued employment by Company and to such
appointment as Chief Operating Officer upon the terms and conditions
herein set forth. The place of employment shall be at Company's
principal offices, 1309 Technology Parkway, Cedar Falls, Iowa 50613, or
at such other location as Company may designate. Notwithstanding any
provision of this Agreement to the contrary, this Agreement and the
employment of Employee by Company as set forth herein is contingent upon
the consummation of the Merger and the occurrence of the Effective Time.
In the event that the Effective Time of the Merger does not occur on or
before February 29, 2004, this Agreement shall be null and void and
shall have no further effect.
2. Term. Employee's term of employment with Company under this
Agreement shall commence as of the Effective Time and, subject to the
provisions of Paragraph 5 below, shall continue until December 31, 2005
(the "Employment Period"). Company agrees to review with Employee not
later than three months prior to the end of the Employment Period its
intention regarding Employee's employment with Company at the end of the
Employment Period. If Employee's employment has not otherwise
terminated prior to December 31, 2005 and if Company shall not employ
Employee after December 31, 2005, Employee shall be entitled, as his
sole severance hereunder, (a) to receive payments from Company during
the year ending December 31, 2006 equal to his Annual Base Salary (as
defined in, and with such payments to be determined and made by
Company at the same time and in the same manner as provided in,
Paragraph 4(a)) and (b) to be covered at Company's expense during
the year ending December 31, 2006 under such life, health and accident
insurance coverage to which he was entitled as of immediately prior
to December 31, 2005 pursuant to Paragraph 4(c).
3. Duties.
(a) Employee shall have such duties and responsibilities during
the Employment Period as are set forth in the Statement of Position
and Duties attached hereto as Exhibit A and incorporated herein by
reference. Company, in its sole discretion, may amend the Statement
of Position and Duties at any time and any such amendment shall take
effect on the date on which notice of the amendment is given to
Employee. Employee shall report directly to the Chief Executive
Officer of Company.
(b) Employee shall faithfully, with the utmost loyalty, and to
the best of his ability perform his duties and responsibilities under
this Agreement and those duties and responsibilities assigned to him.
Notwithstanding the foregoing, Employee may engage in charitable,
civic, or community activities, provided that such activities do not
interfere with the performance of Employee's duties hereunder.
(c) If during the Employment Period, Employee is required to
perform the duties described in this Section 3 at any location outside
the State of Iowa and Company requests that Employee transfer to a
different location, Company agrees to reimburse Employee for all
reasonable costs incurred in relocation to the new location.
4. Compensation.
(a) Annual Base Salary. During the Employment Period, Company
shall pay to Employee an annual base salary at the rate of $150,000 per
year ("Annual Base Salary"). Employee's Annual Base Salary shall be
payable twice monthly in arrears on the last working day on or before
the 15th of each month and on the last working day of each month in
accordance with Company's regular payroll practices. All payments of
Annual Base Salary and all other payments under this Agreement shall
be in United States currency.
(b) Bonus Compensation. Company shall consider Employee for
bonus compensation for each calendar year during the Employment Period
based on goals agreed in advance that include, but are not limited to,
net financial results of Company and total loan origination and
delinquencies. The terms, conditions and criteria for, and amount of,
any such bonus compensation, as well as the dates on which any such
bonus compensation may be paid with respect to services performed by
Employee during calendar years 2004 and 2005, are further set forth
on Exhibit B and incorporated herein by reference. Other than as
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described on Exhibit B, this Agreement creates no contractual right or
other entitlement to bonus compensation.
(c) Employee Benefits and Perquisites. Subject to the terms and
conditions of Company's plans and policies, during the Employment Period,
Employee shall be entitled to participate in all retirement, health and
welfare plans provided by Company, and applicable to the other peer
executives of Company, provided that such benefits shall include at least
life, health and accident insurance coverage and the use of an automobile,
in each case as and to the extent substantially comparable to that to
which he was entitled as of the date of this Agreement under the Existing
Agreement (as defined in Paragraph 17, below).
(d) Expense Reimbursement. During the Employment Period, Company
shall reimburse Employee for all normal and proper business expenses
incurred by him in connection with the business of Company and the
performance of his duties and responsibilities under this Agreement in
accordance with Company's policies and procedures regarding reimbursement
of expenses.
(e) Right to Change Plans. Nothing in this Agreement shall be
construed to limit, condition, or otherwise encumber the right of
Company to amend, discontinue, terminate, substitute, or maintain any
benefit plan, program, policy or perquisite, including, but not limited
to, the benefits and other perquisites set forth in Paragraph 4(c).
(d) Withholding. All payments made pursuant to this Paragraph 4
shall be subject to such withholding tax as may be required by Federal,
State, and local governments.
5. Termination.
(a) Notice of Termination for Breach or Misconduct. Company may
elect to terminate the employment of Employee in the event that during the
Employment Period there should occur any of the following: (a) an event
constituting "Misconduct" (as defined herein) by Employee; or (b) the
material breach by Employee of any covenant or provision of this Agreement.
"Misconduct" shall mean (i) a material breach or willful neglect by
Employee of the duties and responsibilities of Employee under this
Agreement or any breach by Employee of any material term of this
Agreement, (ii) the engaging by Employee in conduct that is demonstrably
and materially injurious to the business, reputation, character, or
community standing of Company, Parent, or its affiliates, (iii) the
engaging by Employee in dishonest, fraudulent, or unethical conduct or
in other conduct involving serious moral turpitude to the extent that
in the reasonable judgment of the Board of Directors of Company,
Employee's reputation and credibility no longer conform to the standards
expected of Company's Employees, (iv) Employee's commission, admission,
confession, or plea bargain to or conviction in a court of law of any
crime or offense involving fraud or misuse or misappropriation of money
or other property, (v) Employee's commission, admission, confession, or
plea bargain to or conviction in a court of law of any felony, or (vi)
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a material violation of any statutory or common law duty to Company,
including, but not limited to, the duty of loyalty. In the event
Company exercises the election to terminate the employment of Employee
pursuant to this Paragraph 5(a), the termination shall be effective
upon notice to Employee of such termination, and Employee shall be
entitled to receive any pro rata accrued but unpaid amounts under
Paragraph 4(a) and any expense reimbursement owing under Paragraph 4(d)
through the effective time of such termination, but shall not be
entitled to receive any other amount under this Agreement.
(b) Death. In the event of the death of Employee during the
Employment Period, this Agreement shall be deemed immediately
terminated and his designated beneficiaries shall be entitled to receive
any pro rata accrued and unpaid amounts under Paragraphs 4(a) and (b)
and any expense reimbursement owing under Paragraph 4(d) through the
effective time of such termination. The accrued amount due Employee
under Paragraph 4(b) shall be determined by multiplying the bonus amount
that would have been due Employee had he remained employed by Company
during the entire calendar year in which his termination occurs by a
fraction, the numerator of which is the number of full calendar months
Employee was employed by Company during such calendar year and the
denominator of which is 12.
(c) Resignation. In the event Employee voluntarily terminates
his employment with Company during the Employment Period, other than
pursuant to Paragraph 5(d), this Agreement shall terminate effective
upon such termination, and Employee shall be entitled to receive any
pro rata accrued but unpaid amounts under Paragraph 4(a) and any expense
reimbursement owing under Paragraph 4(d) through the effective time of
such termination but shall not be entitled to receive any other amount
under this Agreement.
(d) Certain Employee Terminations. Notwithstanding any provision
in this Agreement that may appear to be the contrary, Employee shall
have the right to terminate his employment hereunder during the Employment
Period upon or after (i) the occurrence of a Change in Control (as
defined below) or (ii) a Diminution in Responsibility (as defined below)
with respect to Employee or (iii) the Company's designation, before
the date that is 540 days after the Effective Time, of the place of
Employee's employment at a location other than Cedar Falls, Iowa
without Employee's written consent. For purposes of this clause (d),
the term "Change in Control" shall be defined to mean the acquisition,
in a single transaction or in any series of transactions, by any person
(other than Parent or any subsidiary or other affiliate of Parent),
directly or indirectly, of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Securities Exchange Act of 1934) of
50% or more of the combined voting power of the then outstanding
voting securities of Company without Employee's written consent. For
purposes of this definition, the term "person" shall mean an individual
or a corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any
other form of entity not listed. For purposes of this clause (d), the
term "Diminution of Responsibility" shall be defined to mean any of
the following events with respect to Employee: (1) Employee, without
his written consent, is not elected or re-elected to or is removed from
an office or position at least equal to that which Employee held in
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connection with his employment immediately prior to such change of
status; or (2) a material change in the nature or scope of the
authorities, powers, functions, duties, titles or responsibilities
attached to Employee's position of employment without Employee's written
consent as a result of which change Employee's position shall be or
become of less dignity, responsibility, importance or scope.
(e) Severance. If (x) Company terminates Employee's employment
during the Employment Period for any reason other than (i) Employee's
death, (ii) Employee's total disability, (iii) the occurrence of an
event constituting Misconduct, or (iv) the material breach by Employee
of any covenant or provision of this Agreement, or (y) Employee shall
terminate his employment hereunder pursuant to Paragraph 5(d), this
Agreement shall terminate effective upon such termination, and Employee
shall be entitled to continue to receive his Annual Base Salary (such
payments to be determined and made by Company at the same time and in
the same manner as provided in Paragraph 4(a)) and to be covered under
such life, health and accident insurance coverage to which he was
entitled as of the effective time of such termination pursuant to
Paragraph 4(c), in each case of such payment and coverage for the
remainder of the Employment Period or for one year after the date of
such termination, whichever period is longer, and Employee shall also
be entitled to receive his accrued but unpaid bonus payment pursuant
to Paragraph 4(b) (as calculated pursuant to Paragraph 5(b)) and any
expense reimbursement owing under Paragraph 4(d), in both cases
through the effective time of such termination, but shall not be
entitled to receive any other amount or benefit under this Agreement.
(f) Involuntary Termination. Notwithstanding anything to the
contrary herein or otherwise, Company may terminate Employee's
employment at any time upon written notice to Employee.
6. Restrictive Covenant.
(a) During the Employment Period and for two (2) years thereafter,
Employee shall not, within the trade area now or hereafter served by
Company, associate with or engage in or contribute Employee's knowledge
to, in any capacity whatsoever, whether as a promoter, owner, officer,
director, employee, partner, lessee, lessor, lender, agent, consultant,
advisor, broker, commission salesman or otherwise, any business that
is in competition with the business of Company, except for passive
investments in publicly held companies over which Employee does not
exercise any controlling influence.
(b) Further, Employee shall not, for a period of two (2) years
after the termination of his employment hereunder, in any manner,
directly or indirectly, contact or solicit any of the then existing
dealers, sources of supply or customers of Company (including but not
limited to, any officer, director, employee, agent or affiliate of a
dealer, source of supply or customer) with respect to the business
of Company or employ (or contact or solicit for the purpose of
seeking to employ) any then existing employee, agent or representative
of Company. Without limitation of the foregoing, during the Employment
Period and for a period of two (2) years after the termination of his
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employment hereunder, Employee will not directly or indirectly divert
or attempt to divert from Company any business in which Company has
been actively engaged during the Employment Period, nor interfere
with the relationships of Company with dealers, sources of supply
or customers, nor, except as required by law, will Employee interfere
with the relationship of Company and any of its employees, agents or
representatives.
(c) For purposes of this Paragraph 6, the business of Company
shall mean and include the products, processes, services and developments
described as part of the business of the Company as described the
Company's Annual Report on Form 10-K for the year ended February 28,
2003, as filed with the Securities and Exchange Commission (the "SEC")
or in any subsequent report filed with the SEC prior to the Effective
Time, including, without limitation, E-Commerce activities, the
marketing, distribution and/or sale of agricultural inputs (such as
seed, chemicals and fertilizer) to farmers in conjunction with the
extension of credit by Company to such farmers and the extension of
credit to farmers, as such business may expand or develop during the
Employment Period.
(d) Employee acknowledges that covenants contained in this
Paragraph 6 are reasonable in scope, area and duration and are necessary
in furtherance of the legitimate interests of Company. Employee
represents and warrants that he has available to him sufficient other
means of support and that observance of the covenants contained in this
Paragraph 6 will not deprive him of his ability to earn a livelihood or
to support his dependents.
7. Nondisclosure.
(a) Employee recognizes and acknowledges that Company has developed
and continues to develop and use commercially valuable proprietary
technical and non-technical information that is vital to the success of
Company's business, and furthermore, that Company utilizes trade secrets
in formulating, promoting, financing and selling its products that are
entitled to protection from disclosure. Employee further acknowledges
that as a result of his employment by Company he may develop, obtain
or learn about certain confidential information and trade secrets that
are the property of Company. Employee hereby covenants and agrees to
use his best efforts and the utmost diligence to guard and protect all
such Confidential Information or Trade Secrets (as defined below), and
that he will not, without the prior written consent of Company, during
the Employment Period or any time thereafter, use for himself or others,
or disclose or permit to be disclosed to any third party by any method
whatsoever, any of such Confidential Information or Trade Secrets of
Company, provided that the foregoing shall not apply to information
that Employee is required to disclose to or by any governmental or
judicial authority, provided, however, if Employee should be required
in the course of judicial or administrative proceedings to disclose
any information, Employee shall give Company prompt written notice
thereof so that Company may seek an appropriate protective order
and/or waive in writing compliance with the nondisclosure provisions
of this Agreement. If, in the absence of a protective order or the
receipt of a waiver by Company, Employee is, nonetheless, in the
written opinion of his counsel, compelled to disclose information
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to a court or tribunal or otherwise stand liable for contempt or
suffer other serious censure or penalty, Employee may disclose such
information to such court or tribunal without liability to any other
party hereto or benefiting from this Agreement.
(b) For purposes of this Paragraph 8, "Confidential Information or
Trade Secrets" shall mean and include, but not be limited to, any and
all records, notes, memoranda, data, ideas, processes, methods, devices,
programs, computer software, writings, research, personnel information,
customer information, financial information, plans, or any information
of whatever nature, in the possession or control of Company that has
not or have not been published or disclosed to the general public or
that gives to Company an opportunity to obtain an advantage over
competitors who do not know of or use it. For purposes of this
Paragraph, and without limitation, "Confidential Information or Trade
Secrets" does not include information that: (a) Employee knew through
no wrongful act of Employee before Company or its clients disclosed
the information to Employee; (b) has become publicly known through no
wrongful act of Employee; or (c) Employee learned from a third party
who had the right to disclose the information to Employee. Employee
further agrees that if his employment hereunder is terminated for any
reason, he will leave with Company and will not take originals or
copies of all records, papers, programs, computer software and
documents and all matter of whatever nature that bears or contains
Confidential Information or Trade Secrets of Company. Employee
agrees promptly to reduce to writing and to disclose and assign, and
hereby does assign, to Company, its successors, assigns and nominees,
all inventions, discoveries, improvements, copyrightable material,
trademarks, programs, computer software and ideas concerning the
same, capable of use in connection with the business of Company,
which Employee may make or conceive, either solely or jointly with
others, during the period of his employment by Company or its
successors.
(c) Employee agrees, without charge to Company but at Company's
expense, to execute, acknowledge and deliver to Company all such papers,
including applications for patents, applications for copyright and
trademark registrations, and assignments thereof, as may be necessary,
and at all times to assist Company, its successors, assigns and nominees
in every proper way to patent or register said programs, computer
software, ideas, inventions, discoveries, improvements, copyrightable
material or trademarks in any and all countries and to vest title thereto
in Company, its successors, assigns or nominees.
(d) Employee will promptly report to Company all such discoveries,
inventions, or improvements of whatsoever nature conceived or made by
him at any time he was employed by Company. All such discoveries,
inventions and improvements that are applicable in any way to Company's
business shall be the sole and exclusive property of Company.
The covenants set forth in this Paragraph 7 that are made by Employee
are in consideration of the employment, or continuing employment of, and
the compensation paid to, Employee during his employment by Company.
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8. Additional Remedies. Employee recognizes that irreparable
injury will result to Company and to its business and properties in the
event of any breach by Employee of any of the provisions of Paragraphs
6 and 7 of this Agreement or either of them, and that Employee's
continued employment is predicated on the commitments undertaken by
him pursuant to said Paragraphs. In the event of any breach of any of
Employee's commitments pursuant to Paragraphs 6 and 7 or either of
them, Company shall be entitled, in addition to any other remedies and
damages available, to injunctive relief to restrain the violation of
such commitments by Employee or by any person or persons acting for or
with Employee in any capacity whatsoever. If any restriction contained
in Paragraphs 6 and 7 shall be deemed to be invalid or unenforceable
by reason of extent, duration or geographic scope thereof, then the
extent, duration and geographic scope of such restriction shall be
deemed to be reduced only to the fullest extent, duration and geographic
scope permitted by law and enforceable.
9. Survival. The provisions of Paragraphs 6, 7 and 8 and this
Paragraph 9 shall survive and continue in full force and effect in
accordance with their respective terms, notwithstanding any termination
of the Employment Period or Employee's termination of employment from
Company or the termination of this Agreement, and they shall be not be
limited or discharged by an alleged breach or misconduct on the part of
Company.
10. Successors and Assigns. This Agreement may be assigned or
transferred to, and shall be binding upon and shall inure to the benefit
of, any successor, subsidiary or affiliate of Company, and any such
successor, subsidiary or affiliate shall be deemed substituted for all
purposes for the "Company" under the terms of this Agreement. As used
in this Agreement, the term "successor" shall mean any person, firm,
corporation, or business entity that at any time, whether by merger,
purchase, or otherwise, acquires all or substantially all of the assets,
stock or business of Company. Employee acknowledges that Company or
its parent (including Parent) has the right to sell, assign or otherwise
transfer any portion or substantially all or all of the capital stock,
assets or business of Company and that any such sale, assignment, or
transfer shall not be deemed to be a termination of the employment of
Employee. Employee acknowledges that the services to be rendered by
him pursuant to this Agreement are unique and personal, and Employee
therefore may not assign any obligations or responsibilities he has
under this Agreement.
11. Amendment and Waiver. This Agreement may be modified, or any
right or condition hereunder waived, only by instrument signed by the
party against whom such amendment or waiver is sought to be enforced.
No waiver by any party to this Agreement or any breach of any of the
covenants, agreements, or undertakings contained in this Agreement
shall be construed as a waiver of any succeeding breach of the same or
of any other covenant, agreement, or undertaking, nor shall any such
waiver affect the right of any party to this Agreement to require the
strict performance thereof on a subsequent occasion.
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12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and both
of which together shall constitute one and the same instrument.
13. Severability. If any clause, phrase, provision or portion of
this Agreement or the application thereof to any person or circumstance
shall be invalid or unenforceable under any applicable law, such event
shall not affect or render invalid or unenforceable the remainder of this
Agreement and shall not affect the application of any clause, provision,
or portion hereof to other persons or circumstances.
14. Benefit. The provisions of this Agreement shall be binding
upon and inure to the benefit of Company, Parent and their respective
successors and assigns, and shall be binding upon Employee, his heirs,
personal representatives and successors, including, without limitation,
Employee's estate and the executors, administrators, or trustees of
such estate. Except as specifically set for the herein, nothing in
this Agreement is intended to confer upon any party, except Company,
Parent (it being expressly acknowledged and agreed by the parties
hereto that Parent is a party in interest and a third party
beneficiary of Employee's agreements and obligations herein), Employee
and their respective successors, assigns and legal representatives,
any rights, remedies, obligations or liabilities.
15. Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Iowa without regard to
principles of conflicts of law.
16. Notices. All notices, requests, demands and other
communications in connection with this Agreement shall be made in
writing and shall be deemed to have been given when delivered by hand
or 48 hours after mailing at any general or branch United States Post
Office, by registered or certified mail, postage prepaid, addressed
as follows, or to such other address as shall have been designated in
writing by the addressee:
(a) If to Company:
Rabobank International
245 Park Avenue
New York, NY 10167-0062
Attention: General Counsel
(b) If to Employee:
Shawn Smeins
c/o Company at the address set forth above.
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16. Headings. The paragraph headings appearing in this Agreement
are for purposes of easy reference and shall not be considered part of
this Agreement or in any way modify, amend or affects its provisions.
17. Entire Agreement; Amendment of Existing Agreement.
(a) This Agreement sets forth the entire understanding of the
parties and supersedes all prior agreements, arrangements, and
communications, whether oral or written, pertaining to the subject
matter hereof.
(b) Notwithstanding the foregoing, however, the execution of
this Agreement is not intended to have any effect on the validity or
enforceability of that certain Employment and Noncompetition Agreement
effective as of August 7, 2002, by and between Employee and Company
(as amended to the date hereof, the "Existing Agreement"), except as
follows (and the Existing Agreement is hereby amended so to provide):
(i) from the date hereof to the earlier of (x) the Effective
Time and (y) the date that the Reorganization Agreement is terminated
in accordance with Section 6.1 thereof, Company shall not terminate
Employee's employment pursuant to Section 5(c) of the Existing
Agreement without the written consent of Parent, and any such
termination without such consent shall be null and void and Employee
shall not be entitled to any payment under the Existing Agreement or
otherwise by reason thereof;
(ii) from the date hereof to (and including) the earlier of
(x) the Effective Time and (y) the date that the Reorganization
Agreement is terminated in accordance with Section 6.1 thereof, all
rights of Employee under Section 6 of the Existing Agreement shall
be suspended, it being expressly understood and agreed by Employee
and Company that neither the transactions contemplated by the
Reorganization Agreement (including, without limitation, the Merger,
the acquisition, direct or indirect, of all of the outstanding voting
securities of Company by Parent or an affiliate of Parent and any
changes in the constitution of the Company's board of directors in
any way related thereto), nor the employment of Employee as hereby
contemplated (including, without limitation, the termination of
Employee in any of the positions and offices he may have held
under the Existing Agreement and any change in the nature or scope
of the authorities, powers, functions, duties, titles or
responsibilities attached to such positions and offices), shall
constitute a "Change of Control" or "Diminution of Responsibility"
as used in Section 6 of the Existing Agreement or otherwise give
Employee any right to, or basis for, any payments under Section 6 of
the Existing Agreement, all of which rights and bases are hereby
waived and released by Employee; and
(iii) as of the Effective Time of the Merger, the Existing
Agreement shall, without further action or notice, be terminated
and of no further force and effect (including, without limitation,
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any rights of Employee under Section 6 of the Existing Agreement),
except only that Company shall remain obligated to pay Employee
the amounts that would have been payable to Employee pursuant to
Section 5(b) of the Existing Agreement as if such termination of the
Existing Agreement at the Effective Time had been a termination of
Employee's employment pursuant to such Section 5(b).
(c) Furthermore, Executive, for and on behalf of himself and his
beneficiaries, executors, administrators, assigns, covenants not to
sue Company, Parent or any of its affiliates on any claim in
connection with the Existing Agreement, except only a claim for
the remaining payment obligation of the Company described in
clause (b)(iii) of this Paragraph 17. This Agreement shall not
be modified or amended except by written agreement of Company and
Employee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first set forth above:
AG SERVICES OF AMERICA, INC.
By: _/s/ KEVIN SCHIPPER___
Name: Kevin Schipper
Title: Chief Executive Officer
_/s/ SHAWN SMEINS_______
Shawn Smeins
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EXHIBIT A
STATEMENT OF POSITION AND DUTIES
Chief Operating Officer
The Chief Operating Officer directs, administers and coordinates the
activities of the organization in support of policies, goals and
objectives established by the Chief Executive Officer and the Board
of Directors.
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EXHIBIT B
BONUS COMPENSATION
In accordance with Paragraph 4(b) ("Bonus Compensation") of this Agreement,
set forth below are the bonus performance criteria which must be met in
order for the Employee to be entitled to a bonus under Paragraph 4(b) of
this Agreement for the calendar years 2004 and 2005.
Performance Year 2004
Bonus Compensation for the 2004 Performance Year shall be based upon the
Company's earnings before taxes for the year ending December 31, 2004 as
follows:
If the Employee achieves 90% of the stated financial target as set forth
in the Business Plan (Exhibit C) for 2004, Employee shall be entitled to
$40,000 in Bonus Compensation. For each increment of 1% between 90% of
the financial target and 100% of the financial target, Employee shall be
entitled to an additional $2,000. If more than 100% of the financial
target is achieved, Company will consider whether Employee is entitled
to Bonus Compensation in excess of $60,000.
If the Employee is entitled to a bonus for the 2004 Performance Year
under the above criteria, such bonus shall be paid in 2005 in accordance
with the regular bonus payment schedule of Rabobank International.
Notwithstanding the foregoing, in no event shall the Employee's Bonus
Compensation for Performance Year 2004 be less than $30,000.
Performance Year 2005
Bonus Compensation for the 2005 Performance Year shall be based upon the
Company's earnings before taxes for the year ending December 31, 2005
as follows:
If the Employee achieves 90% of the stated financial target as set forth
in the Business Plan (Exhibit C) for 2005, Employee shall be entitled to
$40,000 in Bonus Compensation. For each increment of 1% between 90% of
the financial target and 100% of the financial target, Employee shall be
entitled to an additional $2,000. If more than 100% of the financial
target is achieved, Company will consider whether Employee is entitled
to Bonus Compensation in excess of $60,000.
If the Employee is entitled to a bonus for the 2005 Performance Year under
the above criteria, such bonus shall be paid in 2006 in accordance with the
regular bonus payment schedule of Rabobank International. Notwithstanding
the foregoing, in no event shall the Employee's Bonus Compensation for
Performance Year 2005 be less than $30,000.
EXHIBIT 99.5
CONSULTANCY AND NONCOMPETITION AGREEMENT
This Consultancy and Noncompetition Agreement, made as of the 31st
day of October, 2003, by and between Ag Services of America, Inc., an
Iowa corporation ("Company"), and Henry C. Jungling ("Executive").
WITNESSETH:
WHEREAS, upon the terms and subject to the conditions set forth in
the Agreement and Plan of Reorganization, dated as of the date hereof,
by and between Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
Rabobank Nederland ("Parent"), a cooperative bank organized under the
laws of The Netherlands, and Company (the "Reorganization Agreement"),
an indirectly wholly owned subsidiary of Parent will merge into Company,
with Company surviving as an indirectly wholly owned subsidiary of
Parent (the "Merger"); and
WHEREAS, Company desires to continue, and Executive desires to
enter into this Agreement to provide for, Company's continued employment
of Executive up to the date of the consummation of the Merger pursuant
to the Reorganization Agreement (the "Effective Time"), and to obtain
a commitment from Executive to be available to Company and Parent as
a consultant and not to compete against Company in its markets and not
to solicit or employ Company's employees, in all cases upon the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the adequacy and sufficiency of which are
hereby acknowledged, Company and Executive agree as follows:
1. Service as President; Consultancy.
(a) In recognition of the importance of maintaining the current
leadership of Company through the Effective Time and in light of the
fact that Company will terminate Executive's employment after the
Effective Time, Executive agrees that he shall continue to serve as
President of Company until the earliest of (i) the Effective Time,
(ii) the date that the Reorganization Agreement is terminated in
accordance with Section 6.1 thereof, and (iii) the date that Company
terminates Executive's employment for any reason.
(b) During the "Consultancy Period" (as defined below), Executive
will provide consulting services to Company (the "Services"). Such
Services shall be with respect to such matters and be provided at such
times as Company may reasonably request, provided that Executive shall
not be required hereby to provide more than 20 hours of Services per
year and shall not be required to perform any Services that require him
to incur any expenses unless Company shall have approved the incurrence
and reimbursement of such expenses. During the Consultancy Period,
Executive shall not enter into any agreement, understanding or
relationship that would prohibit the performance of the Services by him
or that creates a conflict of interest with regard to the performance
of the Services.
(c) It is anticipated that Executive will continue as a director
of Company after the Effective Time and during the Consultancy Period,
provided that nothing herein shall require Parent to elect Executive as
a director of Company, prevent Parent from removing him as a director
in its sole discretion, with or without cause, or prevent Executive
from resigning as a director after the first anniversary of the Effective
Time. Executive will serve as a director of Company until at least the
first anniversary of the Effective Time if elected as a director of
Company and hereby agrees to serve if so elected.
(d) The "Consultancy Period" shall be the period beginning at
the Effective Time and initially ending on the first anniversary of the
Effective Time. If Company and Executive so agree, on or before such
first anniversary, the period shall be extended to end on the second
anniversary of the Effective Time and the "Consulting Period" shall be
the two-year period ending on such second anniversary.
(e) Notwithstanding any provision of this Agreement to the contrary,
this Agreement and the engagement of Executive as a consultant by Company
as set forth herein is contingent upon the consummation of the Merger
and the occurrence of the Effective Time. In the event that the Effective
Time of the Merger does not occur on or before February 29, 2004, this
Agreement shall be null and void and shall have no further effect.
2. Restrictive Covenant.
(a) For the period (the "Restricted Period") beginning at the
Effective Time and ending on the second anniversary of the Effective
Date, including the Consultancy Period, Executive shall not, within
the trade area now or hereafter served by Company, associate with or
engage in or contribute Executive's knowledge to, in any capacity
whatsoever, whether as a promoter, owner, officer, director, employee,
partner, lessee, lessor, lender, agent, consultant, advisor, broker,
commission salesman or otherwise, any business that is in competition
with the business of Company, except for passive investments in
publicly held companies over which Executive does not exercise any
controlling influence, and provided that Executive shall not hereby be
prevented from investing in, or acquiring, in each case for his personal
account or the personal account of a member of his family, farm assets
in foreclosure sales, and subsequently disposing of such assets.
(b) Further, Executive shall not, during the Restricted Period, in
any manner, directly or indirectly, contact or solicit any of the dealers,
sources of supply or customers of Company existing as of the Effective
Time (including but not limited to, any officer, director, employee,
agent or affiliate of a dealer, source of supply or customer) with respect
to the business of Company or employ (or contact or solicit for the
purpose of seeking to employ) any employee, agent or representative of
Company as of the Effective Time. Without limitation of the foregoing,
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during the Restricted Period, Executive will not directly or indirectly
divert or attempt to divert from Company any business in which Company
has been actively engaged as of the Effective Time or actively engages
during the Consultancy Period, nor interfere with the relationships of
Company with dealers, sources of supply or customers, nor, except as
required by law, will Executive interfere with the relationship of Company
and any of its employees, agents or representatives.
(c) For purposes of this Paragraph 2, the business of Company
shall mean and include the products, processes, services and developments
described as part of the business of the Company as described the
Company's Annual Report on Form 10-K for the year ended February 28,
2003, as filed with the Securities and Exchange Commission (the "SEC")
or in any subsequent report filed with the SEC prior to the Effective
Time, including, without limitation, E-Commerce activities, the
marketing, distribution and/or sale of agricultural inputs (such as
seed, chemicals and fertilizer) to farmers in conjunction with the
extension of credit by Company to such farmers and the extension of
credit to farmers, as such business may expand or develop during the
Consultancy Period.
(d) Executive acknowledges that covenants contained in this
Paragraph 2 are reasonable in scope, area and duration and are necessary
in furtherance of the legitimate interests of Company. Executive
represents and warrants that he has available to him sufficient other
means of support and that observance of the covenants contained in
this Paragraph 6 will not deprive him of his ability to earn a
livelihood or to support his dependents.
3. Nondisclosure.
(a) Executive recognizes and acknowledges that Company has developed
and continues to develop and use commercially valuable proprietary
technical and non-technical information that is vital to the success
of Company's business, and furthermore, that Company utilizes trade
secrets in formulating, promoting, financing and selling its products
that are entitled to protection from disclosure. Executive further
acknowledges that as a result of his employment by Company prior to
the Effective Time and his activities as a consultant or director
during the Consultancy Period, he may have developed, obtained or
learned or may develop, obtain or learn about certain confidential
information and trade secrets that are the property of Company.
Executive hereby covenants and agrees to use his best efforts and the
utmost diligence to guard and protect all such Confidential Information
or Trade Secrets (as defined below), and that he will not, without the
prior written consent of Company, during the Consultancy Period or any
time thereafter, use for himself or others, or disclose or permit to be
disclosed to any third party by any method whatsoever, any of such
Confidential Information or Trade Secrets of Company, provided that
the foregoing shall not apply to information that Executive is
required to disclose to or by any governmental or judicial authority,
provided, however, if Executive should be required in the course of
judicial or administrative proceedings to disclose any information,
Executive shall give Company prompt written notice thereof so that
Company may seek an appropriate protective order and/or waive in
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writing compliance with the nondisclosure provisions of this Agreement.
If, in the absence of a protective order or the receipt of a waiver by
Company, Executive is, nonetheless, in the written opinion of his
counsel, compelled to disclose information to a court or tribunal or
otherwise stand liable for contempt or suffer other serious censure or
penalty, Executive may disclose such information to such court or
tribunal without liability to any other party hereto or benefiting
from this Agreement.
(b) For purposes of this Paragraph 3, "Confidential Information or
Trade Secrets" shall mean and include, but not be limited to, any and all
records, notes, memoranda, data, ideas, processes, methods, devices,
programs, computer software, writings, research, personnel information,
customer information, financial information, plans, or any information
of whatever nature, in the possession or control of Company that has
not or have not been published or disclosed to the general public or
that gives to Company an opportunity to obtain an advantage over
competitors who do not know of or use it. For purposes of this
Paragraph 3, "Confidential Information or Trade Secrets" does not
include information that: (a) Executive knew through no wrongful act
of Executive before Company or its clients disclosed the information
to Executive; (b) has become publicly known through no wrongful act
of Executive; or (c) Executive learned from a third party who had the
right to disclose the information to Executive. Executive further
agrees that upon the termination of his employment as of the Effective
Time and as of the end of the Consultancy Period, he will leave with
Company and will not take originals or copies of all records, papers,
programs, computer software and documents and all matter of whatever
nature that bears or contains Confidential Information or Trade Secrets
of Company.
The covenants set forth in this Paragraph 3 that are made by
Executive are in consideration of the engagement of Executive as a
consultant and the compensation paid to Executive as provided in this
Agreement.
4. Additional Remedies. Executive recognizes that irreparable
injury will result to Company and to its business and properties in the
event of any breach by Executive of any of the provisions of Paragraphs
2 and 3 of this Agreement or either of them, and that Executive's
continued engagement as a consultant is predicated on the commitments
undertaken by him pursuant to said Paragraphs. In the event of any
breach of any of Executive's commitments pursuant to Paragraphs 2 and
3 or either of them, Company shall be entitled, in addition to any
other remedies and damages available, to injunctive relief to restrain
the violation of such commitments by Executive or by any person or
persons acting for or with Executive in any capacity whatsoever.
If any restriction contained in Paragraph 2 or 3 shall be deemed to
be invalid or unenforceable by reason of extent, duration or
geographic scope thereof, then the extent, duration and geographic
scope of such restriction shall be deemed to be reduced only to the
fullest extent, duration and geographic scope permitted by law and
enforceable.
5. Compensation. In consideration of Executive's agreement to
continue to serve as President of Company until the Effective Time,
his services as a consultant as provided in Paragraph 1 hereof, his
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agreements in Paragraph 2 hereof and Executive's other obligations
hereunder:
(a) Company shall, during each year of the Consultancy Period (as
and if it may be extended for up to two years), pay an aggregate of
$175,000 to Executive, payable quarterly in advance during such year
in four equal installments. If the Consultancy Period is not extended
for a second year, to the second anniversary of the Effective Time, but
rather ends on the first anniversary thereof, Company shall, within 30
days after the first anniversary of the Effective Time, pay to Executive
the sum of $300,000 and Executive shall be entitled to no other payment
or benefit under this Agreement from and after such first anniversary.
If the Consultancy Period is extended to the second anniversary of the
Effective Time and if Company and Executive do not agree, prior to such
second anniversary and each in its or his sole discretion, to the terms
of other engagement of Executive by Company for the year after such
second anniversary, Company shall, within 30 days after the second
anniversary of the Effective Time, pay to Executive the sum of $100,000
and Executive shall be entitled to no other payment or benefit under
this Agreement from and after such second anniversary.
(b) In the event of Executive's death during the Consultancy Period,
Company shall pay to his designated beneficiaries the amounts that would
have been payable to Executive pursuant to clause (a) of this Paragraph
5 had Executive continued as a consultant hereunder to the end of the
Consultancy Period in effect at the time of his death and such Consultancy
Period had not been extended (or, in the case of the Consultancy Period
ending on the second anniversary of the Effective Time, the terms of
Executive's further engagement had not been agreed), such amounts to be
payable at the times that they would have been so payable to Executive
pursuant to clause (a) of this Paragraph 5. In the event of Executive's
death, the Consultancy Period shall be deemed for all purposes of this
Agreement (except for purposes of the determination in the next
preceding sentence) to have terminated and Company shall have no
further or other obligation or liability to Executive under this
Agreement or otherwise except only as provided in this clause (b).
(c) Company shall, during the Consultancy Period, continue to
provide to Executive, at the expense of Company, life and accident
insurance coverage and the use of an automobile, in each case as and to
the extent substantially comparable to that to which he was entitled as
of the date of this Agreement under the Existing Agreement (as defined
in Paragraph 15, below). Company shall, during the Consultancy Period
and thereafter until Executive's death, make available to Executive
health insurance coverage substantially comparable to that provided
to Company's employees under Company's group medical plan. During
the Consultancy Period, such health insurance coverage shall be made
available to Executive under Company's group medical plan and at the
same rates that would be payable from time to time by such Executive
for participation under such plan had Executive remained an employee
participating thereunder. After the end of the Consultancy Period,
such health insurance coverage shall be made available to Executive
at a substantially comparable level to that provided to Company's
employees under Company's group medical plan or another arrangement
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selected by Company in its sole discretion, and Executive shall pay
to Company for the total individual/family cost at the group rate of
providing such coverage.
(d) Company shall, during the Consultancy Period, pay or reimburse
Executive for the payment of such out-of-pocket expenses as Executive
may incur in connection with the performance of the Services, provided
that Company, in its sole discretion, shall have approved the incurrence
of such expenses in advance and Executive shall have submitted vouchers
therefor in a form satisfactory to Company.
(e) Should Executive be elected and serve as a director of
Company during the Consultancy Period, he shall not be entitled to any
further compensation for so serving beyond that compensation otherwise
payable pursuant to this Paragraph 5.
6. Survival. The restrictions of Paragraphs 2 and 3 shall survive
and continue in full force and effect in accordance with their respective
terms, notwithstanding any termination of the Consultancy Period or
Executive's service as a consultant hereunder, and they shall be not be
limited or discharged by an alleged breach or misconduct on the part of
Company or Parent.
7. Successors and Assigns. This Agreement may be assigned or
transferred to, and shall be binding upon and shall inure to the benefit
of, any successor, subsidiary or affiliate of Company, and any such
successor, subsidiary or affiliate shall be deemed substituted for all
purposes for the "Company" under the terms of this Agreement. As used
in this Agreement, the term "successor" shall mean any person, firm,
corporation, or business entity that at any time, whether by merger,
purchase, or otherwise, acquires all or substantially all of the assets,
stock or business of Company. Executive acknowledges that Company or
its parent (including Parent) has the right to sell, assign or otherwise
transfer any portion or substantially all or all of the capital stock,
assets or business of Company and that any such sale, assignment, or
transfer shall not be deemed to be a termination of the engagement of
Executive as a consultant. Executive acknowledges that the services
to be rendered by him pursuant to this Agreement are unique and
personal, and Executive therefore may not assign any obligations or
responsibilities he has under this Agreement.
8. Amendment and Waiver. This Agreement may be modified, or any
right or condition hereunder waived, only by instrument signed by the
party against whom such amendment or waiver is sought to be enforced.
No waiver by any party to this Agreement or any breach of any of the
covenants, agreements, or undertakings contained in this Agreement shall
be construed as a waiver of any succeeding breach of the same or of any
other covenant, agreement, or undertaking, nor shall any such waiver
affect the right of any party to this Agreement to require the strict
performance thereof on a subsequent occasion.
9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and both
of which together shall constitute one and the same instrument.
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10. Severability. If any clause, phrase, provision or portion of
this Agreement or the application thereof to any person or circumstance
shall be invalid or unenforceable under any applicable law, such event
shall not affect or render invalid or unenforceable the remainder of
this Agreement and shall not affect the application of any clause,
provision, or portion hereof to other persons or circumstances.
11. Benefit. The provisions of this Agreement shall be binding
upon and inure to the benefit of Company, Parent and their respective
successors and assigns, and shall be binding upon Executive, his heirs,
personal representatives and successors, including, without limitation,
Executive's estate and the executors, administrators, or trustees of
such estate. Except as specifically set for the herein, nothing in
this Agreement is intended to confer upon any party, except Company,
Parent (it being expressly acknowledged and agreed by the parties
hereto that Parent is a party in interest and a third party beneficiary
of Executive's agreements and obligations herein), Executive and their
respective successors, assigns and legal representatives, any rights,
remedies, obligations or liabilities.
12. Governing Law. This Agreement shall be construed and
enforced in accordance with the laws of the State of Iowa without
regard to principles of conflicts of law.
13. Notices. All notices, requests, demands and other
communications in connection with this Agreement shall be made in
writing and shall be deemed to have been given when delivered by hand
or 48 hours after mailing at any general or branch United States Post
Office, by registered or certified mail, postage prepaid, addressed
as follows, or to such other address as shall have been designated
in writing by the addressee:
(a) If to Company:
Rabobank International
245 Park Avenue
New York, NY 10167-0062
Attention: General Counsel
(b) If to Executive:
Henry C. Jungling
1112 Glenn Street
Aplington, Iowa 50604
14. Headings. The paragraph headings appearing in this Agreement
are for purposes of easy reference and shall not be considered part of
this Agreement or in any way modify, amend or affects its provisions.
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15. Entire Agreement; Amendment of Existing Agreement.
(a) This Agreement sets forth the entire understanding of the
parties and supersedes all prior agreements, arrangements, and
communications, whether oral or written, pertaining to the subject
matter hereof.
(b) Notwithstanding the foregoing, however, the execution of this
Agreement is not intended to have any effect on the validity or
enforceability of that certain Employment and Noncompetition Agreement
effective as of July 1, 2000, by and between Executive and Company
(as amended to the date hereof, the "Existing Agreement"), except as
follows (and the Existing Agreement is hereby amended so to provide):
(i) from the date hereof to the earlier of (x) the Effective
Time and (y) the date that the Reorganization Agreement is terminated
in accordance with Section 6.1 thereof, Company shall not terminate
Executive's employment pursuant to Section 5(c) of the Existing
Agreement without the written consent of Parent, and any such
termination without such consent shall be null and void and Executive
shall not be entitled to any payment under the Existing Agreement or
otherwise by reason thereof;
(ii) from the date hereof to (and including) the earlier of
(x) the Effective Time and (y) the date that the Reorganization
Agreement is terminated in accordance with Section 6.1 thereof, all
rights of Executive under Section 6 of the Existing Agreement shall be
suspended, it being expressly understood and agreed by Executive and
Company that neither the transactions contemplated by the
Reorganization Agreement (including, without limitation, the Merger,
the acquisition, direct or indirect, of all of the outstanding voting
securities of Company by Parent or an affiliate of Parent and any
changes in the constitution of the Company's board of directors in
any way related thereto), nor the termination of Executive's
employment after the Effective Time as hereby contemplated, shall
constitute a "Change of Control" or "Diminution of Responsibility"
as used in Section 6 of the Existing Agreement or otherwise give
Executive any right to, or basis for, any payments under Section 6 of
the Existing Agreement, all of which rights and bases are hereby
waived and released by Executive; and
(iii) as of the Effective Time of the Merger, the Existing
Agreement shall, without further action or notice, be terminated
and of no further force and effect (including, without limitation,
any rights of Executive under Section 6 of the Existing Agreement),
except only that Company shall remain obligated to pay Executive
the amounts that would have been payable to Executive pursuant to
Section 5(b) of the Existing Agreement as if such termination of
the Existing Agreement at the Effective Time had been a termination
of Executive's employment pursuant to such Section 5(b).
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(c) Furthermore, Executive, for and on behalf of himself and his
beneficiaries, executors, administrators, assigns, covenants not to sue
Company, Parent or any of its affiliates on any claim in connection with
the Existing Agreement, except only a claim for the remaining payment
obligation of the Company described in clause (b)(iii) of this Paragraph
15. This Agreement shall not be modified or amended except by written
agreement of Company and Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first set forth above:
AG SERVICES OF AMERICA, INC.
By: /s/ KEVIN SCHIPPER_______
Name: Kevin Schipper
Title: Chief Executive Officer
_/s/ HENRY C. JUNGLING______
Henry C. Jungling
EXHIBIT 99.6
CONSULTANCY AND NONCOMPETITION AGREEMENT
This Consultancy and Noncompetition Agreement, made as of the 31st
day of October, 2003, by and between Ag Services of America, Inc., an
Iowa corporation ("Company"), and Gaylen D. Miller ("Executive").
WITNESSETH:
WHEREAS, upon the terms and subject to the conditions set forth in
the Agreement and Plan of Reorganization, dated as of the date hereof, by
and between Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., Rabobank
Nederland ("Parent"), a cooperative bank organized under the laws of The
Netherlands, and Company (the "Reorganization Agreement"), an indirectly
wholly owned subsidiary of Parent will merge into Company, with Company
surviving as an indirectly wholly owned subsidiary of Parent (the
"Merger"); and
WHEREAS, Company desires to continue, and Executive desires to enter
into this Agreement to provide for, Company's continued employment of
Executive up to the date of the consummation of the Merger pursuant to
the Reorganization Agreement (the "Effective Time"), and to obtain a
commitment from Executive to be available to Company and Parent as a
consultant and not to compete against Company in its markets and not to
solicit or employ Company's employees, in all cases upon the terms and
subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the adequacy and sufficiency of which are
hereby acknowledged, Company and Executive agree as follows:
1. Service as Chairman of the Board; Consultancy.
(a) In recognition of the importance of maintaining the current
leadership of Company through the Effective Time and in light of the fact
that Company will terminate Executive's employment after the Effective
Time, Executive agrees that he shall continue to serve as Chairman of the
Board of Company until the earliest of (i) the Effective Time, (ii) the
date that the Reorganization Agreement is terminated in accordance with
Section 6.1 thereof, and (iii) the date that Company terminates
Executive's employment for any reason.
(b) During the "Consultancy Period" (as defined below), Executive
will provide consulting services to Company (the "Services"). Such
Services shall be with respect to such matters and be provided at such
times as Company may reasonably request, provided that Executive shall
not be required hereby to provide more than 20 hours of Services per
year and shall not be required to perform any Services that require him
to incur any expenses unless Company shall have approved the incurrence
and reimbursement of such expenses. During the Consultancy Period,
Executive shall not enter into any agreement, understanding or
relationship that would prohibit the performance of the Services by
him or that creates a conflict of interest with regard to the
performance of the Services.
(c) It is anticipated that Executive will continue as a director
of Company after the Effective Time and during the Consultancy Period,
provided that nothing herein shall require Parent to elect Executive as
a director of Company, prevent Parent from removing him as a director
in its sole discretion, with or without cause, or prevent Executive
from resigning as a director after the first anniversary of the
Effective Time. Executive will serve as a director of Company until
at least the first anniversary of the Effective Time if elected as a
director of Company and hereby agrees to serve if so elected.
(d) The "Consultancy Period" shall be the period beginning at
the Effective Time and initially ending on the first anniversary of the
Effective Time. If Company and Executive so agree, on or before such
first anniversary, the period shall be extended to end on the second
anniversary of the Effective Time and the "Consulting Period" shall
be the two-year period ending on such second anniversary.
(e) Notwithstanding any provision of this Agreement to the
contrary, this Agreement and the engagement of Executive as a
consultant by Company as set forth herein is contingent upon the
consummation of the Merger and the occurrence of the Effective Time.
In the event that the Effective Time of the Merger does not occur on or
before February 29, 2004, this Agreement shall be null and void and
shall have no further effect.
2. Restrictive Covenant.
(a) For the period (the "Restricted Period") beginning at the
Effective Time and ending on the second anniversary of the Effective
Date, including the Consultancy Period, Executive shall not, within the
trade area now or hereafter served by Company, associate with or engage
in or contribute Executive's knowledge to, in any capacity whatsoever,
whether as a promoter, owner, officer, director, employee, partner,
lessee, lessor, lender, agent, consultant, advisor, broker, commission
salesman or otherwise, any business that is in competition with the
business of Company, except for passive investments in publicly held
companies over which Executive does not exercise any controlling
influence, and provided that Executive shall not hereby be prevented
from investing in, or acquiring, in each case for his personal account
or the personal account of a member of his family, farm assets in
foreclosure sales, and subsequently disposing of such assets.
(b) Further, Executive shall not, during the Restricted Period,
in any manner, directly or indirectly, contact or solicit any of the
dealers, sources of supply or customers of Company existing as of the
Effective Time (including but not limited to, any officer, director,
employee, agent or affiliate of a dealer, source of supply or customer)
with respect to the business of Company or employ (or contact or solicit
for the purpose of seeking to employ) any employee, agent or
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representative of Company as of the Effective Time. Without limitation
of the foregoing, during the Restricted Period, Executive will not
directly or indirectly divert or attempt to divert from Company any
business in which Company has been actively engaged as of the Effective
Time or actively engages during the Consultancy Period, nor interfere
with the relationships of Company with dealers, sources of supply or
customers, nor, except as required by law, will Executive interfere
with the relationship of Company and any of its employees, agents or
representatives.
(c) For purposes of this Paragraph 2, the business of Company shall
mean and include the products, processes, services and developments
described as part of the business of the Company as described the Company's
Annual Report on Form 10-K for the year ended February 28, 2003, as filed
with the Securities and Exchange Commission (the "SEC") or in any
subsequent report filed with the SEC prior to the Effective Time,
including, without limitation, E-Commerce activities, the marketing,
distribution and/or sale of agricultural inputs (such as seed, chemicals
and fertilizer) to farmers in conjunction with the extension of credit
by Company to such farmers and the extension of credit to farmers, as
such business may expand or develop during the Consultancy Period.
(d) Executive acknowledges that covenants contained in this
Paragraph 2 are reasonable in scope, area and duration and are necessary
in furtherance of the legitimate interests of Company. Executive
represents and warrants that he has available to him sufficient other
means of support and that observance of the covenants contained in
this Paragraph 6 will not deprive him of his ability to earn a
livelihood or to support his dependents.
3. Nondisclosure.
(a) Executive recognizes and acknowledges that Company has
developed and continues to develop and use commercially valuable
proprietary technical and non-technical information that is vital to
the success of Company's business, and furthermore, that Company
utilizes trade secrets in formulating, promoting, financing and selling
its products that are entitled to protection from disclosure. Executive
further acknowledges that as a result of his employment by Company prior
to the Effective Time and his activities as a consultant or director
during the Consultancy Period, he may have developed, obtained or
learned or may develop, obtain or learn about certain confidential
information and trade secrets that are the property of Company. Executive
hereby covenants and agrees to use his best efforts and the utmost
diligence to guard and protect all such Confidential Information or Trade
Secrets (as defined below), and that he will not, without the prior
written consent of Company, during the Consultancy Period or any time
thereafter, use for himself or others, or disclose or permit to be
disclosed to any third party by any method whatsoever, any of such
Confidential Information or Trade Secrets of Company, provided that the
foregoing shall not apply to information that Executive is required to
disclose to or by any governmental or judicial authority, provided,
however, if Executive should be required in the course of judicial or
administrative proceedings to disclose any information, Executive shall
give Company prompt written notice thereof so that Company may seek an
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appropriate protective order and/or waive in writing compliance with the
nondisclosure provisions of this Agreement. If, in the absence of a
protective order or the receipt of a waiver by Company, Executive is,
nonetheless, in the written opinion of his counsel, compelled to disclose
information to a court or tribunal or otherwise stand liable for contempt
or suffer other serious censure or penalty, Executive may disclose such
information to such court or tribunal without liability to any other
party hereto or benefiting from this Agreement.
(b) For purposes of this Paragraph 3, "Confidential Information or
Trade Secrets" shall mean and include, but not be limited to, any and all
records, notes, memoranda, data, ideas, processes, methods, devices,
programs, computer software, writings, research, personnel information,
customer information, financial information, plans, or any information
of whatever nature, in the possession or control of Company that has
not or have not been published or disclosed to the general public or
that gives to Company an opportunity to obtain an advantage over
competitors who do not know of or use it. For purposes of this Paragraph
3, "Confidential Information or Trade Secrets" does not include
information that: (a) Executive knew through no wrongful act of Executive
before Company or its clients disclosed the information to Executive;
(b) has become publicly known through no wrongful act of Executive; or
(c) Executive learned from a third party who had the right to disclose
the information to Executive. Executive further agrees that upon the
termination of his employment as of the Effective Time and as of the end
of the Consultancy Period, he will leave with Company and will not take
originals or copies of all records, papers, programs, computer software
and documents and all matter of whatever nature that bears or contains
Confidential Information or Trade Secrets of Company.
The covenants set forth in this Paragraph 3 that are made by
Executive are in consideration of the engagement of Executive as a
consultant and the compensation paid to Executive as provided in this
Agreement.
4. Additional Remedies. Executive recognizes that irreparable
injury will result to Company and to its business and properties in the
event of any breach by Executive of any of the provisions of Paragraphs
2 and 3 of this Agreement or either of them, and that Executive's
continued engagement as a consultant is predicated on the commitments
undertaken by him pursuant to said Paragraphs. In the event of any
breach of any of Executive's commitments pursuant to Paragraphs 2 and 3
or either of them, Company shall be entitled, in addition to any other
remedies and damages available, to injunctive relief to restrain the
violation of such commitments by Executive or by any person or persons
acting for or with Executive in any capacity whatsoever. If any
restriction contained in Paragraph 2 or 3 shall be deemed to be invalid
or unenforceable by reason of extent, duration or geographic scope
thereof, then the extent, duration and geographic scope of such
restriction shall be deemed to be reduced only to the fullest extent,
duration and geographic scope permitted by law and enforceable.
5. Compensation. In consideration of Executive's agreement to
continue to serve as Chairman of the Board of Company until the Effective
Time, his services as a consultant as provided in Paragraph 1 hereof,
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his agreements in Paragraph 2 hereof and Executive's other obligations
hereunder:
(a) Company shall, during each year of the Consultancy Period (as
and if it may be extended for up to two years), pay an aggregate of
$175,000 to Executive, payable quarterly in advance during such year
in four equal installments. If the Consultancy Period is not extended
for a second year, to the second anniversary of the Effective Time,
but rather ends on the first anniversary thereof, Company shall, within
30 days after the first anniversary of the Effective Time, pay to
Executive the sum of $300,000 and Executive shall be entitled to no
other payment or benefit under this Agreement from and after such first
anniversary. If the Consultancy Period is extended to the second
anniversary of the Effective Time and if Company and Executive do not
agree, prior to such second anniversary and each in its or his sole
discretion, to the terms of other engagement of Executive by Company
for the year after such second anniversary, Company shall, within 30
days after the second anniversary of the Effective Time, pay to
Executive the sum of $100,000 and Executive shall be entitled to no
other payment or benefit under this Agreement from and after such
second anniversary.
(b) In the event of Executive's death during the Consultancy
Period, Company shall pay to his designated beneficiaries the amounts
that would have been payable to Executive pursuant to clause (a) of
this Paragraph 5 had Executive continued as a consultant hereunder to
the end of the Consultancy Period in effect at the time of his death
and such Consultancy Period had not been extended (or, in the case
of the Consultancy Period ending on the second anniversary of the
Effective Time, the terms of Executive's further engagement had not
been agreed), such amounts to be payable at the times that they would
have been so payable to Executive pursuant to clause (a) of this
Paragraph 5. In the event of Executive's death, the Consultancy Period
shall be deemed for all purposes of this Agreement (except for
purposes of the determination in the next preceding sentence) to
have terminated and Company shall have no further or other obligation
or liability to Executive under this Agreement or otherwise except
only as provided in this clause (b).
(c) Company shall, during the Consultancy Period, continue to
provide to Executive, at the expense of Company, life and accident
insurance coverage and the use of an automobile, in each case as and
to the extent substantially comparable to that to which he was entitled
as of the date of this Agreement under the Existing Agreement (as
defined in Paragraph 15, below). Company shall, during the Consultancy
Period and thereafter until Executive's death, make available to
Executive health insurance coverage substantially comparable to that
provided to Company's employees under Company's group medical plan.
During the Consultancy Period, such health insurance coverage shall
be made available to Executive under Company's group medical plan
and at the same rates that would be payable from time to time by such
Executive for participation under such plan had Executive remained
an employee participating thereunder. After the end of the Consultancy
Period, such health insurance coverage shall be made available to
Executive at a substantially comparable level to that provided to
Company's employees under Company's group medical plan or another
arrangement selected by Company in its sole discretion, and Executive
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shall pay to Company for the total individual/family cost at the
group rate of providing such coverage.
(d) Company shall, during the Consultancy Period, pay or reimburse
Executive for the payment of such out-of-pocket expenses as Executive
may incur in connection with the performance of the Services, provided
that Company, in its sole discretion, shall have approved the
incurrence of such expenses in advance and Executive shall have
submitted vouchers therefor in a form satisfactory to Company.
(e) Should Executive be elected and serve as a director of
Company during the Consultancy Period, he shall not be entitled to any
further compensation for so serving beyond that compensation otherwise
payable pursuant to this Paragraph 5.
6. Survival. The restrictions of Paragraphs 2 and 3 shall
survive and continue in full force and effect in accordance with their
respective terms, notwithstanding any termination of the Consultancy
Period or Executive's service as a consultant hereunder, and they
shall be not be limited or discharged by an alleged breach or misconduct
on the part of Company or Parent.
7. Successors and Assigns. This Agreement may be assigned or
transferred to, and shall be binding upon and shall inure to the benefit
of, any successor, subsidiary or affiliate of Company, and any such
successor, subsidiary or affiliate shall be deemed substituted for all
purposes for the "Company" under the terms of this Agreement. As used
in this Agreement, the term "successor" shall mean any person, firm,
corporation, or business entity that at any time, whether by merger,
purchase, or otherwise, acquires all or substantially all of the
assets, stock or business of Company. Executive acknowledges that
Company or its parent (including Parent) has the right to sell, assign
or otherwise transfer any portion or substantially all or all of the
capital stock, assets or business of Company and that any such sale,
assignment, or transfer shall not be deemed to be a termination of the
engagement of Executive as a consultant. Executive acknowledges that
the services to be rendered by him pursuant to this Agreement are
unique and personal, and Executive therefore may not assign any
obligations or responsibilities he has under this Agreement.
8. Amendment and Waiver. This Agreement may be modified, or any
right or condition hereunder waived, only by instrument signed by the
party against whom such amendment or waiver is sought to be enforced.
No waiver by any party to this Agreement or any breach of any of the
covenants, agreements, or undertakings contained in this Agreement
shall be construed as a waiver of any succeeding breach of the same or
of any other covenant, agreement, or undertaking, nor shall any such
waiver affect the right of any party to this Agreement to require the
strict performance thereof on a subsequent occasion.
9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and both
of which together shall constitute one and the same instrument.
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10. Severability. If any clause, phrase, provision or portion of
this Agreement or the application thereof to any person or circumstance
shall be invalid or unenforceable under any applicable law, such event
shall not affect or render invalid or unenforceable the remainder of this
Agreement and shall not affect the application of any clause, provision,
or portion hereof to other persons or circumstances.
11. Benefit. The provisions of this Agreement shall be binding
upon and inure to the benefit of Company, Parent and their respective
successors and assigns, and shall be binding upon Executive, his heirs,
personal representatives and successors, including, without limitation,
Executive's estate and the executors, administrators, or trustees of
such estate. Except as specifically set for the herein, nothing in this
Agreement is intended to confer upon any party, except Company, Parent
(it being expressly acknowledged and agreed by the parties hereto that
Parent is a party in interest and a third party beneficiary of Executive's
agreements and obligations herein), Executive and their respective
successors, assigns and legal representatives, any rights, remedies,
obligations or liabilities.
12. Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Iowa without regard to
principles of conflicts of law.
13. Notices. All notices, requests, demands and other communications
in connection with this Agreement shall be made in writing and shall be
deemed to have been given when delivered by hand or 48 hours after mailing
at any general or branch United States Post Office, by registered or
certified mail, postage prepaid, addressed as follows, or to such other
address as shall have been designated in writing by the addressee:
(a) If to Company:
Rabobank International
245 Park Avenue
New York, NY 10167-0062
Attention: General Counsel
(b) If to Executive:
Gaylen D. Miller
9404 W 27th Street
Cedar Falls, Iowa 50613
14. Headings. The paragraph headings appearing in this Agreement
are for purposes of easy reference and shall not be considered part of
this Agreement or in any way modify, amend or affects its provisions.
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15. Entire Agreement; Amendment of Existing Agreement.
(a) This Agreement sets forth the entire understanding of the parties
and supersedes all prior agreements, arrangements, and communications,
whether oral or written, pertaining to the subject matter hereof.
(b) Notwithstanding the foregoing, however, the execution of this
Agreement is not intended to have any effect on the validity or
enforceability of that certain Employment and Noncompetition Agreement
effective as of July 1, 2000, by and between Executive and Company (as
amended to the date hereof, the "Existing Agreement"), except as follows
(and the Existing Agreement is hereby amended so to provide):
(i) from the date hereof to the earlier of (x) the Effective
Time and (y) the date that the Reorganization Agreement is terminated
in accordance with Section 6.1 thereof, Company shall not terminate
Executive's employment pursuant to Section 5(c) of the Existing
Agreement without the written consent of Parent, and any such
termination without such consent shall be null and void and Executive
shall not be entitled to any payment under the Existing Agreement or
otherwise by reason thereof;
(ii) from the date hereof to (and including) the earlier of (x)
the Effective Time and (y) the date that the Reorganization Agreement
is terminated in accordance with Section 6.1 thereof, all rights of
Executive under Section 6 of the Existing Agreement shall be suspended,
it being expressly understood and agreed by Executive and Company that
neither the transactions contemplated by the Reorganization Agreement
(including, without limitation, the Merger, the acquisition, direct or
indirect, of all of the outstanding voting securities of Company by
Parent or an affiliate of Parent and any changes in the constitution
of the Company's board of directors in any way related thereto), nor
the termination of Executive's employment after the Effective Time as
hereby contemplated, shall constitute a "Change of Control" or
"Diminution of Responsibility" as used in Section 6 of the Existing
Agreement or otherwise give Executive any right to, or basis for, any
payments under Section 6 of the Existing Agreement, all of which
rights and bases are hereby waived and released by Executive; and
(iii) as of the Effective Time of the Merger, the Existing
Agreement shall, without further action or notice, be terminated and
of no further force and effect (including, without limitation, any
rights of Executive under Section 6 of the Existing Agreement), except
only that Company shall remain obligated to pay Executive the amounts
that would have been payable to Executive pursuant to Section 5(b)
of the Existing Agreement as if such termination of the Existing
Agreement at the Effective Time had been a termination of
Executive's employment pursuant to such Section 5(b).
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(c) Furthermore, Executive, for and on behalf of himself and his
beneficiaries, executors, administrators, assigns, covenants not to sue
Company, Parent or any of its affiliates on any claim in connection with
the Existing Agreement, except only a claim for the remaining payment
obligation of the Company described in clause (b)(iii) of this Paragraph
15. This Agreement shall not be modified or amended except by written
agreement of Company and Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first set forth above:
AG SERVICES OF AMERICA, INC.
By: /s/ KEVIN SCHIPPER___
Name: Kevin Schipper
Title: Chief Executive Officer
_/s/ GAYLEN D. MILLER___
Gaylen D. Miller