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Exhibit 10
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 2nd day of January, 1995 by and between
American Maize-Products Company (the "Company"), a Maine corporation with
offices at 250 Harbor Drive, Stamford, CT 06902 and Frederick M. Ash (the
"Executive"), a natural person residing at 928 Elm Street, Flossmoor, IL 60422.
W I T N E S S E T H
WHEREAS, the Executive is presently employed as President,
Ingredients Division of the Company; and
WHEREAS, the Company desires to continue to employ the Executive as
President, Ingredients Division of the Company; and
WHEREAS, the Executive desires to continue to be employed by the
Company in such capacities.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Term. The Company hereby offers to continue to employ the
Executive as President, Ingredients Division of the Company, and the Executive
hereby accepts such employment. This Agreement shall be effective as of the date
hereof and shall continue to be effective for the period ending on the
"Expiration Date" (such period being hereinafter referred to as the "Term"). The
"Expiration Date" shall initially be December 31, 1997, but effective as of
December 31, 1995 and as of each December 31 thereafter, the Term shall
automatically be extended one additional year and the Expiration Date will be
adjusted accordingly, unless, not later than the preceding July 1 of such year,
the Chief Executive Officer on behalf of the Company or the Executive shall have
given notice to the other that the Term shall not be so extended. The period
measured from the date hereof through the Expiration Date (as applicable from
time to time), determined without regard to termination of the Executive's
employment hereunder on any earlier date, is hereinafter referred to as the
"Period of Service."
2. Services and Duties. While he is employed during the Term, the
Executive agrees to serve the Company as President, Ingredients Division. In
such capacity, Executive shall perform all reasonable acts customarily
associated with such position.
3. Compensation and Benefits. While employed by the Company, during
the Term, the Executive shall receive the following compensation and benefits:
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(a) Base salary in the amount of Two Hundred Thousand Dollars
($200,000) per annum, payable in semi-monthly installments and subject to
such deductions as required by law, due in respect of the various employee
benefit plans in which the Executive participates or as otherwise agreed by
the Executive. Executive's base salary will be reviewed annually by the
Compensation Committee of the Board of Directors for possible increases
based upon Executive's performance.
(b) Annual incentive compensation based on individual and company
performance targets to be mutually agreed upon each year by the parties.
The amount of the annual incentive compensation payable will be determined
under the Company's management incentive plan (or any successor plan) in
effect from time to time, it being understood that the annual incentive
compensation "target" rate under the current plan shall be forty percent
(40%) of Executive's annual base salary.
(c) Benefit programs made available from time to time by the Company
to executives and/or other salaried employees, including but not limited to
the Company's retirement plans; 401(k) plan; executive life insurance
program; medical and dental plan; short-term and long-term disability
coverage; vacation and holidays.
(d) Stock options, restricted stock awards and/or stock appreciation
rights or any similar equity incentive rights as determined by the
Compensation Committee of the Board of Directors of the Company.
4. Business Expense Reimbursement. While employed by the Company,
during the Term, Executive shall be entitled to reimbursement for all reasonable
and necessary out-of-pocket expenses incurred by him in performing services
hereunder, subject to appropriate documentation.
5. Termination of Employment.
(a) Death or Disability. Executive's employment shall terminate upon
his death or "disability," as hereinafter defined. For purposes of this
Agreement, the Executive shall be deemed to have terminated employment as a
result of a "disability" if (1) for medical reasons he is unable to perform his
material duties to the Company for a total of six (6) months, whether or not
consecutive, in any twelve (12) month period and (2) subject to applicable law,
the Company terminates the Executive's employment as a result of such
"disability" by written notice. The initial determination of the "medical
reasons" shall be made by a physician chosen by the Company whereby the
Executive shall submit to a reasonable medical examination. If the Executive
shall dispute such initial determination, the Executive shall submit to a
reasonable medical examination by a physician chosen by the Executive. If the
Executive shall continue to dispute the initial determination, the final
determination shall be made by majority vote of three physicians, one the
Executive's chosen physician, one the Company's chosen physician, and one
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chosen by such two physicians. Such final determination will be final and
binding for all purposes hereunder.
(b) Termination for "Cause". The Company may terminate the
Executive's employment for "cause." For purposes of this Agreement, the
Executive's employment shall be considered to have been terminated for "cause"
if such termination occurs on account of:
(i) the Executive's conviction by a court of competent jurisdiction
of any crime constituting a felony under the laws of the United States or
one of its political subdivisions (or the Executive's plea of guilty or no
lo contendere to a charge of any such crime); and
(ii) the Executive engaging in willful misconduct in the performance
of his material duties to the Company resulting in demonstrable economic
harm to the Company.
(c) Termination for "Good Reason". The Executive may terminate his
employment for "good reason." For purposes of this Agreement, "good reason"
means the occurrence of one of the following:
(i) the Executive suffers any diminution in his position, title,
reporting relationship, responsibilities or authority; or
(ii) the Executive is assigned additional responsibilities without
appropriate remuneration or that unreasonably increase his work load; or
(iii) the adverse and substantial alteration of the nature and
quality of the secretarial and administrative support provided to the
Executive; or
(iv) the Executive suffers a decrease in his level of compensation
because of one or more of the following:
(A) the Executive's then-current level of base salary as
described in Section 3(a) is reduced; or
(B) with respect to any fiscal year of the Company, the Company
fails to provide the Executive with annual incentive compensation
which is based on terms and conditions (including, but not limited
to, the targeted percentage of annual base salary payable)
comparable to those described in Section 3(b); or
(C) the Executive suffers a significant reduction in employee
benefit coverages (including but not limited to those programs and
arrangements described in Section 3(c)) that are provided to the
Executive; or
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(v) without the Executive's prior written consent, the Executive's
office location is relocated by more than twenty-five (25) miles from the
existing location; provided, that, such relocation increases the distance
from the Executive's principal residence to such office.
6. Consequences of Termination of Employment.
(a) Without "Cause" or for "Good Reason". In the event that the
Company terminates the Executive's employment without "cause" or the Executive
terminates his employment for "good reason" and subject to the conditions set
forth below, the Company shall provide the following payments and benefits (each
of which shall be calculated without regard to any reduction or change that
constitutes "good reason") to the Executive for the Period of Service:
(i) The Company shall continue to pay to Executive the semi-monthly
base salary amounts under Section 3(a).
(ii) The Company shall continue to make incentive compensation
payments to the Executive under Section 3(b) in the amounts equivalent to
his "targeted" incentive compensation under the management incentive plan
in effect at the time of his termination.
(iii) To the extent provided below in Sections A, B and C, the
Executive shall continue to participate in the Company benefit programs
(including without limitation the Company's retirement plans; 401(k) plan;
executive life insurance program; medical and dental plan; short-term and
long-term disability coverage; accident insurance coverage; Section 125
cafeteria plan) under Section 3(c) as described herein.
A. Welfare Benefits. All employee welfare benefit coverage
shall apply to the Executive and any of his dependents who would have been
eligible for coverage if the Executive had continued to be employed by the
Company for the remaining Period of Service. The Executive shall be
required to make all employee contributions due in respect of the benefit
coverage on the same basis as active employees of the Company. At the
expiration of the Period of Service, the Executive shall be treated as a
then terminating employee of the Company with respect to the right to elect
continued medical and dental coverages in accordance with Section 4980B of
the Internal Revenue Code of 1986, as amended (the "Code"), or any
successor provision thereto and with respect to any similar welfare benefit
continuation rights. The Executive shall receive age and service credit
during the Period of Service for purposes of retiree medical coverage.
B. Retirement Plan Benefits. The Executive shall continue
active participation under the Company's tax-qualified and supplemental
defined
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benefit plans or any other tax qualified or supplemental defined benefit
plan of the Company or an affiliate in which the Executive actively
participates at the time of his termination of employment ("Retirement
Plans"), until the expiration of the Period of Service. The calculation of
Employee's pension benefit under the Retirement Plans shall include credit
for the amounts paid under Sections 6(a)(i) and 6(a)(ii) and the duration
of such payments for purpose of determining length of service and age, and
amounts equivalent to the resulting benefit shall be paid out of a
non-qualified plan to the extent necessary to preserve the tax-qualified
status of any defined benefit plans intending to be tax qualified. The
Company shall take all necessary action to effectuate the foregoing
including amending the supplemental plan.
C. 401(k) Plan Benefits. The Executive shall continue active
participation under the Company's 401(k) Plan, or any other tax qualified
(or supplemental, if applicable) defined contribution plan of the Company
or an affiliate in which the Executive actively participates at the time of
his termination of employment ("401(k) Plans") until the expiration of the
Period of Service. To the extent necessary to preserve tax-qualified status
of any defined contribution plan intended to be qualified, the Executive
may instead receive a lump-sum cash payment promptly following his
termination of employment equal to the aggregate employer contributions
that would have been made on behalf of the Executive under the 401(k) Plans
until the expiration of the Period of Service, assuming he had elected to
make the maximum contributions under the 401(k) Plan that is subject to
employer contributions.
(iv) Stock options which have been awarded to Executive prior to his
termination shall become immediately fully vested and exercisable and shall
remain exercisable until the earlier of their expiration date or the third
anniversary of termination of his employment and the Company hereby agrees
that all actions and consents that are required to be taken or obtained in
order to effectuate the foregoing shall be so taken or obtained.
In addition, the Company shall pay to the Executive any portion of
accrued but unpaid base salary, incentive compensation payments, stock option
and equity incentive rights and employee benefits to which the Executive is
entitled up until the date of the Executive's termination of employment.
(b) Any Other Termination of Employment. In the event of termination
by the Company of the Executive's employment for "cause" under Section 5(b),
termination of employment by the Executive other than for "good reason,"
termination of the Executive's employment due to death or disability or any
other termination of the Executive's employment other than as described in
Section 6(a), the Executive shall be entitled to his (i) accrued base salary
through the date of termination, (ii) incentive compensation bonus which has
been accrued but not yet paid, for any completed fiscal year of the Company
ending prior to termination of employment, and (iii) employee
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benefits (in accordance with the terms of the applicable payroll practices and
benefit programs).
7. Excise Tax Gross-Up Payment. Notwithstanding anything in this
Agreement to the contrary, in the event it shall be determined that any payment
or distribution by the Company or any other person or entity to or for the
benefit of the Executive is a "parachute payment" (within the meaning of Section
280G(b) (2) of the Code), whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise in connection
with, or arising out of, his employment with the Company or a change in
ownership or effective control of the Company or a substantial portion of its
assets (a "Payment"), and would be subject to the excise tax imposed by Section
4999 of the Code (the "Excise Tax"), concurrent with the making of such Payment,
the Company shall pay to the Executive an additional payment (the "Gross-Up
Payment") in an amount such that the net amount retained by the Executive, after
deduction of any Excise Tax on such Payment and any federal, state or local
income tax and Excise Tax on the Gross-Up Payment shall equal the amount of such
Payment.
8. No Obligation to Mitigate. It is further agreed that the
Executive shall be under no obligation to minimize or mitigate damages by
seeking other employment, and the obtaining of any such other employment shall
in no event effect any reduction of the Company's obligation to make the
payments and provide the benefit coverages required under this Agreement. In
addition, the Company's obligation to make the payments and provide the benefits
required under this Agreement shall not be affected by any circumstances,
including, without limitation, any set-off, counterclaim, recoupment, defense or
other rights which the Company may have against the Executive.
9. Confidential Information. The Executive shall not during the
period of his employment or at any time thereafter disclose or communicate to
any unauthorized person, firm or corporation, or use for his own purposes, trade
secrets, confidential commercial information, or any other information,
knowledge or data of the Company or any of its affiliates which is not generally
known to the public and shall use his best efforts to prevent the publication or
disclosure by any person of any such secret, information, knowledge or data. All
documents and objects made, compiled, received, held or used by the Executive
while employed by the Company in connection with the business of the Company
shall be and remain the Company's property and shall be delivered by the
Executive to the Company upon the termination of the Executive's employment or
at any earlier time requested by the Company.
10. Non-Assignment; Successors. This Agreement and all rights
hereunder are personal to the Executive and shall not be assignable; provided,
however, all of the Executive's rights to compensation following his death shall
inure to the benefit of his heirs, estate, personal representatives or designees
or other legal representatives as the case may be. Any person, firm or
corporation (including, if applicable, any ultimate parent entity thereof)
succeeding to the business of the Company by merger, purchase, consolidation or
otherwise shall assume by contract or operation of law all obligations of the
Company hereunder.
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11. Severability. The invalidity or unenforceability of any
provision of this Agreement shall in no way affect the validity or
enforceability of any other provision.
12. Entire Agreement. This Agreement constitutes the entire
agreement among the parties respecting the subject matter hereof and supersedes
any prior agreements respecting the subject matter hereof. No amendment to this
Agreement shall be deemed valid unless in writing and signed by the parties, and
no discharge of the terms of this Agreement shall be deemed valid unless by full
performance by the parties or by a writing signed by the parties. No waiver by a
party of any provisions or conditions of this Agreement shall be deemed a waiver
of similar or dissimilar provisions and conditions at the same time or any prior
or subsequent time.
13. Notice. Any notice required or permitted to be given by this
Agreement shall be effective only if in writing, delivered personally against
receipt therefor or mailed by certified or registered mail, return receipt
requested, to the parties at the addresses hereinafter set forth, or at such
other places that either party may designate by notice to the other.
Notice to the Company shall be addressed to:
American Maize-Products Company
250 Harbor Drive
Stamford, CT 06902
Notice to the Executive shall be addressed to him at the executive
offices of the Company, with a copy to him at his home address at:
928 Elm Street
Flossmoor, IL 60422
Such notice shall be deemed effectively given on the date personally
delivered or five (5) days after the same has been deposited in a post box under
the exclusive control of the United States Postal Service.
14. Governing Law. This Agreement shall be construed, interpreted
and enforced according to the laws of the State of Connecticut and the parties
submit to the jurisdiction of the courts of the State of Connecticut for the
purpose of any actions or proceedings which may arise with respect to this
Agreement.
15. Legal Expenses. The Company shall bear the expense of the
Executive of any dispute or controversy arising under or in connection with this
Agreement (including reasonable attorneys' fees and expert fees). In no event
shall the Executive be required to reimburse the Company for any of the costs or
expenses relating to any proceeding, including any enforcement proceeding of
this Agreement.
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16. Captions and Headings. Captions and paragraph headings are for
convenience only, are not a part of this Agreement and shall not be used to
construe any provision of this Agreement.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one Agreement. It shall not be necessary
that any counterpart be signed by the parties hereto so long as each such party
shall have executed a counterpart.
IN WITNESS WHEREOF, the parties have executed these presents as of
the day and year first above written.
AMERICAN MAIZE-PRODUCTS COMPANY
By: /s/ Patric J. McLaughlin
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Patric J. McLaughlin
President and Chief Executive Officer
/s/ Frederick M. Ash
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Frederick M. Ash, Executive
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