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): October 22, 1997
Commission File Number 0-12788
CASEY'S GENERAL STORES, INC.
(Exact name of registrant as specified in its charter)
IOWA 42-0935283
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
ONE CONVENIENCE BLVD., ANKENY, IOWA
(Address of principal executive offices)
50021
(Zip Code)
(515) 965-6100
(Registrant's telephone number, including area code)
NONE
(Former name, former address
if changed since last report)
<PAGE>
Item 5. OTHER EVENTS.
On October 22, 1997, the Board of Directors (the "Board") of Casey's
General Stores, Inc. (the "Company"), acting on a recommendation of its
Compensation Committee, approved of several changes to the employment and
retirement arrangements with the Company's four executive officers (Messrs.
Lamberti, Lamb, Shull and Harmon) (each an "Officer" and together, the
"Officers"). The Board's actions included the approval of a Non-Qualified
Supplemental Executive Retirement Plan (the "SERP"), providing by means of a
plan for the payment of retirement benefits to the Officers at substantially the
same benefit levels and under substantially the same terms and conditions as
such benefits were payable under the Officers' most recent employment contracts,
and a Non-Qualified Supplemental Executive Retirement Plan Trust Agreement (the
"Trust Agreement") with UMB Bank, n.a., intended to secure the payment
obligations of the Company under the SERP following a change of control or a
potential change of control of the Company.
The SERP is an unfunded plan and a non-qualified deferred compensation
plan under the Internal Revenue Code of 1986 (the "Code"). The SERP provides for
the payment of annual retirement benefits to the Officers, commencing on the
first day of the calendar year immediately following the calendar year in which
the Officer's Retirement Date occurs (the "Benefit Date") and continuing until
the Officer's death. For this purpose, the Retirement Date of an Officer is
deemed to be the earlier of the first day of the month immediately following the
month during which the Officer (i) voluntarily terminates his employment with
the Company after attaining his Early Retirement Age (defined to mean age 59 in
the case of Messrs. Lamberti and Lamb, age 58 in the case of Mr. Shull and age
55 in the case of Mr. Harmon) or (ii) attains age 65. Following the Officer's
death the payments would continue to be made to his surviving spouse, if any,
until the earlier of the expiration of the period ending on the twentieth (20th)
anniversary of the Benefit Date or the death of the Officer's spouse.
In the case of Messrs. Lamberti and Lamb, the amount of the annual
retirement benefit payable under the SERP will be the sum of one-half of such
Officer's salary for the year during which his retirement occurs. In the case of
Mr. Shull, the amount of the annual retirement benefit would be one-third of his
salary for the year during which he attains age 58 plus an additional amount
equal to 2.4% of his salary for each additional full year of his employment by
the Company thereafter until he reaches age 65. In the case of Mr. Harmon, the
amount of the annual retirement benefit would be one-fourth of his salary for
the year during which he attains age 55 plus an additional amount equal to 5.0%
of his salary for each full additional year of his employment by the Company
thereafter until he reaches age 60.
The SERP provides that if an Officer's employment by the Company
terminates
<PAGE>
before he reaches his Early Retirement Age, whether with or without cause, or if
an Officer's employment by the Company is terminated for cause, no benefits
shall be payable to the Officer under the SERP. At the present time, therefore,
Messrs. Lamberti and Lamb (who currently are age 60 and age 61, respectively)
each are eligible to receive retirement benefits under the SERP upon a voluntary
termination of his employment. Messrs. Shull and Harmon (who currently are age
54 and age 43, respectively) will not be eligible to receive retirement benefits
under the SERP unless and until they reach their respective Early Retirement
Ages and thereafter voluntarily terminate their employment with the Company.
The Trust Agreement is intended to create a grantor trust (or "rabbi
trust") (the "Trust") within the meaning of Section 671 of the Code, and is not
intended to qualify under Section 401(a) of the Code. Following a change of
control or a potential change of control (as defined in the Trust Agreement),
the Company is required by the SERP and the Trust Agreement to make a
contribution to the Trust equal in amount to the maximum amount that may become
payable to the Officers under the SERP (calculated under the Officer's current
salaries to be $9.8 million). The maximum amount payable under the SERP is to be
calculated by a firm of independent public accountants or consulting actuaries
of recognized national standing as the Trustee (UMB Bank, n.a.) shall select
(the "Consulting Firm"). The Company's contribution to the Trust is to be made
in cash or pursuant to an irrevocable and unconditional letter of credit
established by the Company for that purpose.
The Trustee is required to perform all accounting functions related to
the Trust and to invest the Trust assets. The Consulting Firm is required to
establish and maintain a memorandum account for each Officer and to calculate
the amount due to each Officer under the SERP and to credit the Officer's
accounts with all payments made. The Trustee is directed to make payments to the
Officers from the Trust assets in accordance with the instructions of the
Consulting Firm. The Trust assets are at all times subject to claims of general
creditors of the Company, and no payments from the Trust may be made in the
event the Company is insolvent.
At its meeting on October 22, 1997, the Board also approved of Amended
and Restated Employment Agreements (together, the "Employment Agreements") with
each of the Officers, continuing their employment under the same terms and
conditions approved by the Board on March 2, 1992 (in the case of Messrs.
Lamberti, Lamb and Shull) and July 19, 1994 (in the case of Mr. Harmon), and as
amended by the Board on December 9, 1996, but modifying each Officer's agreement
(i) to eliminate those provisions providing for the payment of retirement
benefits to the Officer under the agreement, (ii) to add an "alternative excise
tax cap" provision limiting the payments or benefits to be received by an
Officer whose employment is terminated following a change of control to an
amount equal to 2.99 times the Officer's "base amount" determined in
<PAGE>
accordance with Section 280G of the Code and any temporary or final regulations
promulgated under that Section, (iii) to add a provision permitting the Company
to defer the payment of any portion of an Officer's severance payment that would
not be deductible by the Company in the taxable year in which the payment is due
by virtue of the "reasonable compensation" limitations of Section 162(m) of the
Code to a date sixteen months following the date of termination and (iv) to make
other conforming and editorial changes.
Attached hereto as Exhibits 10.30, 10.31, 10.21(a), 10.22(a), 10.23(a)
and 10.24(a) and incorporated herein by reference are copies of the SERP, Trust
Agreement and the Employment Agreements. The foregoing description is qualified
in its entirety by reference to the full text of said documents.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
CASEY'S GENERAL STORES, INC.
Date: November 6, 1997 By: /s/ Douglas K. Shull
----------------------
Douglas K. Shull
Treasurer and Chief Financial Officer
<PAGE>
EXHIBITS
EXHIBIT DESCRIPTION PAGE
10.30 Non-Qualified Supplemental
Executive Retirement Plan
10.31 Non-Qualified Supplemental
Executive Retirement Plan
Trust Agreement with
UMB Bank, n.a.
10.21(a) Amended and Restated
Employment Agreement
with Donald F. Lamberti
10.22(a) Amended and Restated
Employment Agreement
with Ronald M. Lamb
10.23(a) Amended and Restated
Employment Agreement
with Douglas K. Shull
10.24(a) Amended and Restated
Employment Agreement
with John G. Harmon
Exhibit 10.30
CASEY'S GENERAL STORES, INC.
NON-QUALIFIED SUPPLEMENTAL
EXECUTIVE RETIREMENT PLAN
<PAGE>
TABLE OF CONTENTS
INTRODUCTION Page
ARTICLE I DEFINITIONS 1
ARTICLE II PARTICIPATION 3
ARTICLE III CONTRIBUTIONS 4
3.01 Company Contributions 4
3.02 Participant Contributions 4
ARTICLE IV BENEFITS 5
4.01 Retirement Benefits 5
4.02 Limitations upon Payment of Benefits 5
ARTICLE V CONTRIBUTION TO TRUST UPON
A CHANGE OF CONTROL 7
ARTICLE VI GENERAL PROVISIONS 8
6.01 Amendment 8
6.02 Employment Status 8
6.03 Rights to Plan Assets 8
6.04 Nonalienation of Benefits 8
6.05 Construction 8
6.06 Legal Actions 9
6.07 Word Usage 9
<PAGE>
INTRODUCTION
Casey's General Stores, Inc. (the "Company") is establishing this
"Nonqualified Supplemental Executive Retirement Plan" which has been designed
as, and is intended to be, an unfunded plan for purposes of the Employee
Retirement Income Security Act of 1974, as amended, and a nonqualified deferred
compensation plan under the Internal Revenue Code of 1986, as amended. The
Company agrees to operate the Plan according to the terms, provisions and
conditions set forth in this plan instrument.
Any funds accumulated for purposes of providing benefits under the Plan
are fully available to satisfy the claims of the Company's creditors.
Participants have no greater rights with regard to such funds than any other
general creditor of the Company.
<PAGE>
ARTICLE I
DEFINITIONS
"Benefit Date" means, for a Participant, the first day of the calendar
year immediately following the calendar year in which his Retirement Date shall
occur, upon which an amount of benefit shall be payable to him under this Plan.
"Company" means Casey's General Stores, Inc., an Iowa corporation
located in Ankeny, Iowa.
"Contribution(s)" means the Company's Contributions as set out in
Article III hereof.
"Deemed Termination Date" means, for a Participant, the first day of
the calendar year immediately following the calendar year during which, in the
case of Lamberti, Lamb or Shull, he shall attain the age of 58 and, in the case
of Harmon, he shall attain the age of 55.
"Early Retirement Age" means, for a Participant, in the case of
Lamberti or Lamb the age of 59 years, in the case of Shull the age of 58 years
and in the case of Harmon the age of 55 years.
"Effective Date" means the date as of which the Company's Board of
Directors shall adopt and approve this Plan.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Investment Fund" means the total assets held under the Trust for the
purpose of providing benefits for Participants. These funds result from
Contributions made solely by the Company under the Plan. The Investment Fund is
not held for the exclusive benefit of Participants or their spouses.
"Life Expectancy" means the remaining life expectancy of a Participant
determined in accordance with Section 20.2031 of the Federal Income Tax
Regulations (or any proposed regulations) as amended from time to time.
"Participant" means each of the following senior executive officers of the
Company: Donald F. Lamberti ("Lamberti"), Ronald M. Lamb ("Lamb"), Douglas K.
Shull ("Shull") and John G. Harmon ("Harmon") (who are collectively referred to
herein as the "Participants"). Each of the Participants shall remain a
Participant under the Plan
<PAGE>
until he shall have received all benefits payable to the Participant or his
spouse under this Plan or the Trust.
"Plan" means the nonqualified supplemental executive retirement plan of
the Company set forth in this document, including any later amendments to it.
"Plan Administrator" means the person or persons who administer the
Plan. The Plan Administrator is the Company.
"Plan Year" means a twelve (12) consecutive month period ending on
every December 31.
"Retirement Date" means the earlier of:
a. the first day of the month immediately following the month during which
the Participant shall voluntarily terminate his employment with the Company
after he shall attain his Early Retirement Age; or
b. the first day of the month immediately following the month during which
the Participant shall attain the age 65.
"Salary" means the Participant's salary determined in accordance with
his employment agreement with the Company in effect from time to time.
"Trust" means the separate Trust created under that certain "Casey's
General Stores, Inc. Non-Qualified Supplemental Executive Retirement Plan Trust
Agreement," dated October 24, 1997, between the Company, as the grantor, and UMB
Bank, n.a., as the Trustee, for the purpose of investment of Contributions made
under the Plan. Any funds so held under the Trust are available to the general
creditors of the Company.
"Trustee" means UMB Bank, n.a., chosen by the Company to act as Trustee
under the Trust.
ARTICLE II
PARTICIPATION
Each Participant shall begin active participation in the Plan on the
Effective Date.
ARTICLE III
<PAGE>
CONTRIBUTIONS
Section 3.01. COMPANY CONTRIBUTIONS. Except as otherwise required under
Article V hereof, the Company shall make such Contributions to the Trust as the
Board of Directors of the Company shall deem appropriate from time to time. All
Contributions shall be forwarded by the Company to the Trustee to be held,
invested and administered as the Investment Fund under the terms and conditions
of the Trust. The investment of Contributions is governed by the provisions of
the Trust.
Section 3.02. PARTICIPANT CONTRIBUTIONS. This Plan does not permit or
require contributions by the Participants.
ARTICLE IV
BENEFITS
Section 4.01. RETIREMENT BENEFITS. Commencing with a Participant's
Benefit Date, the Company shall pay (unless the requisite payment shall have
been made pursuant to the Trust) to the Participant until his death and,
following the Participant's death, to the Participant's surviving spouse, if
any, until the earlier of (i) the expiration of the period ending on the
twentieth (20th) anniversary of the Participant's Benefit Date or (ii) the death
of the Participant's spouse, an annual retirement benefit in equal monthly
installments determined as follows:
a. The amount of the annual retirement benefit payable under
this section for Lamberti (or for his spouse, as the case may be) shall be the
sum equal to one-half (1/2) of his Salary for the Plan Year during which his
Retirement Date shall occur.
b. The amount of the annual retirement benefit payable under
this section for Lamb (or for his spouse, as the case may be) shall be the sum
equal to one-half (1/2) of his Salary for the Plan Year during which his
Retirement Date shall occur.
c. The amount of the annual retirement benefit payable under
this section for Shull (or for his spouse, as the case may be) shall be the sum
equal to one-third (1/3) of his Salary for the Plan Year during which he shall
attain age 58 plus an additional amount equal to 2.4 percent of his Salary for
each additional full year of his employment by the Company during the term
commencing on the first day of the Plan Year during which he shall attain age 59
and ending on the last day of the Plan Year during which he shall attain age 65.
d. The amount of the annual retirement benefit payable
under this
<PAGE>
section for Harmon (or for his spouse, as the case may be) shall be the
sum equal to one-fourth (1/4) of his Salary for the Plan Year during which he
shall attain age 55 plus an additional amount equal to 5.0 percent of his Salary
for each additional full year of his employment by the Company during the term
commencing on the first day of the Plan Year during which he shall attain age 56
and ending on the last day of the Plan Year during which he shall attain age 60.
Section 4.02 LIMITATIONS UPON PAYMENT OF BENEFITS. If a
Participant's employment by the Company shall terminate before he shall attain
his Early Retirement Age whether with or without Cause, or if a Participant's
employment by the Company shall terminate for Cause, such Participant shall not
be entitled to any benefit whatsoever under this Plan or the Trust. For purposes
of this Plan, the term "Cause" shall mean (a) an act or acts of personal
dishonesty taken by a Participant and intended to result in substantial personal
enrichment of the Participant at the expense of the Company, (b) repeated
violations by a Participant of the Participant's obligations under his
Employment Agreement with the Company which demonstrate willful and deliberate
conduct of the Participant and which are not remedied within a reasonable period
of time after receipt of written notice from the Company or (c) the conviction
of a Participant of a felony when his conviction is no longer subject to any
direct judicial appeal.
ARTICLE V
CONTRIBUTION TO TRUST
UPON A CHANGE OF CONTROL
Following a Change of Control or a Potential Change of Control (as
those terms are defined in section 3 of the Trust), the Company shall make a
Contribution to the Trust (in a manner permitted and at the time required under
the Trust) equal to the Maximum Amount Payable less the then fair market value
of all assets of the Trust (the "Excess"). For purposes of this Plan and the
Trust, the term "Maximum Amount Payable" shall mean the sum of the benefit
amounts determined as follows for Lamberti, Lamb, Shull and Harmon,
respectively:
a. For Lamberti, the amount equal to one-half (1/2) of his
Salary for the Plan Year during which a Change of Control (or a Potential Change
of Control, as the case may be) shall occur multiplied times the greater of (i)
a number equal to the number of years of his Life Expectancy or (ii) twenty
(20);
b. For Lamb, the amount equal to one-half (1/2) of his Salary
for the Plan Year during which a Change of Control (or a Potential Change of
Control, as the case may be) shall occur multiplied times the greater of (i) a
number equal to the number
<PAGE>
of years of his Life Expectancy or (ii) twenty (20);
c. In the case of Shull, an amount equal to one-half (1/2) of
his Salary for the Plan Year during which a Change of Control (or a Potential
Change of Control, as the case may be) shall occur multiplied times the greater
of (i) a number equal to the number of years of his Life Expectancy if he shall
have then attained age 58 (or if he shall not have then attained age 58, the
number of years of his Life Expectancy assuming he shall have then attained age
58) or (ii) twenty (20);
d. In the case of Harmon, an amount equal to one-half (1/2) of
his Salary for the Plan Year during which a Change of Control (or a Potential
Change of Control, as the case may be) shall occur multiplied times the greater
of (i) a number equal to the number of years of his Life Expectancy if he shall
have then attained age 55 (or if he shall not have then attained age 55, the
number of years of his Life Expectancy assuming he shall have then attained age
55) or (ii) twenty (20);
ARTICLE VI
GENERAL PROVISIONS
Section 6.01. AMENDMENT. The Company may amend this Plan at any time,
including any remedial retroactive changes (within the specified period of time
as may be determined by Internal Revenue Service regulations) to comply with the
requirements of any law or regulation issued by any governmental agency to which
the Company or this Plan is subject. The Company may not otherwise amend this
Plan without the prior written consent of all the Participants or their legal
representatives.
Section 6.02. EMPLOYMENT STATUS. Nothing contained in this Plan gives a
Participant the right to be retained in the Company's employ or to interfere
with the Company's right to discharge any Participant.
Section 6.03. RIGHTS TO PLAN ASSETS. No Participant shall have any
right to or interest in any assets of the Plan upon termination of his
employment or otherwise except as specifically provided under this Plan, and
then only to the extent of the benefits payable to such Participant or to his
spouse in accordance with the Plan.
Any final payment or distribution to a Participant or his legal
representative or to the spouse of such Participant under the Plan shall be in
full satisfaction of all claims against the Plan and the Company arising under
or by virtue of the Plan.
Section 6.04. NONALIENATION OF BENEFITS. Benefits payable under the Plan
are not subject to the claims of any creditor of any Participant or his spouse.
A
<PAGE>
Participant or his spouse does not have any right to alienate, anticipate,
commute, pledge, encumber or assign any of such benefits. The preceding
sentences shall also apply to the creation, assignment, or recognition of a
right to any benefit payable with respect to a Participant according to a
domestic relations order, unless such order is determined by the Plan
Administrator to be a qualified domestic relations order, as defined in ERISA
Section 206(d), or any domestic relations order entered before January 1, 1985.
Section 6.05. CONSTRUCTION. The validity of the Plan or any of its
provisions is determined under and construed according to Federal law and, to
the extent permissible, according to the laws of the state of Iowa. In case any
provision of the Plan is held illegal or invalid for any reason, such
determination shall not affect the remaining provisions of the Plan, and the
Plan shall be construed and enforced as if the illegal or invalid provision had
never been included.
Section 6.06. LEGAL ACTIONS. The Plan and the Plan Administrator are
the necessary parties to any action or proceeding involving the assets held with
respect to the Plan or administration of the Plan. No person employed by the
Company, Participant, former Participant, the spouse of a Participant or any
other person having or claiming to have an interest in the Plan is entitled to
any notice of process. A final judgment entered in any such action or proceeding
shall be binding and conclusive on all persons having or claiming to have an
interest in the Plan.
Section 6.07. WORD USAGE. The masculine gender, where used in this
Plan, shall include the feminine gender and the singular words as used in this
Plan may include the plural, unless the context indicates otherwise.
Executed this 24th day of October, 1997.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
------------------------------
President and C.O.O.
------------------------------
Title
Exhibit 10.31
Casey's General Stores, Inc.
Non-Qualified Supplemental Executive Retirement Plan Trust Agreement
This Trust Agreement is made as of this 24th day of October, 1997, by
and between Casey's General Stores, Inc., an Iowa corporation (the "Company"),
and UMB Bank, n.a. (the "Trustee"). This Trust Agreement provides for the
establishment of a trust to be known as the Casey's General Stores, Inc.
Non-Qualified Supplemental Executive Retirement Plan Trust (the "Trust") to
provide a source for payments required to be made under the Casey's General
Stores, Inc. Non-Qualified Supplemental Executive Retirement Plan (the "Plan")
for the benefit of certain of the Company's senior executive officers named
therein (the "Participants") and their spouses.
WITNESSETH:
WHEREAS, the Company will transfer to the Trustee certain assets in
trust, subject to the claims of the Company's creditors in the event of the
Company's insolvency or bankruptcy, until paid to the Participants or their
spouses upon the terms and conditions stated in this Trust Agreement; and
WHEREAS, it is the intention of the Company to make contributions in
addition to the Initial Contribution (as defined in Section 1(a) below) (such
additional contributions are referred to herein as the "Additional
Contributions" and, together with the Initial Contribution, are referred to
collectively as the "Contributions") to the Trustee upon or in anticipation of
the occurrence of a Change of Control (as defined in Section 3(a) below) of the
Company.
NOW, THEREFORE, the parties hereto do hereby establish the Trust and
agree that the Trust shall be comprised, held, administered and disposed of as
follows:
Section 1. TRUST FUND
(a) Subject to the claims of its creditors as set forth in Section 5
hereof, the Company hereby deposits with the Trustee in trust One Hundred
Dollars ($100.00) (the "Initial Contribution") which shall become the initial
principal of the Trust to be held, administered and disposed of by the Trustee
as provided in this Trust Agreement. The Trustee shall have no obligation to
invest the Initial Contribution in an interest-bearing account.
(b) The Trust is intended to be a grantor trust, within the
meaning of Section
<PAGE>
671 of the Internal Revenue Code of 1986, as amended (the "Code"), and shall be
construed accordingly. The purpose of the Trust is to assure that the Company's
obligations to the Participants pursuant to the Plan are fulfilled. The Trust is
not intended to qualify under Section 401(a) of the Code.
(c) The principal of the Trust and any earnings thereon (such
principal, together with any earnings thereon and other increases thereof,
reduced by any losses and distributions from the Trust and any other reductions
thereof, is sometimes referred to herein as the "Trust Assets") shall be held
separate and apart from other funds of the Company and shall be used exclusively
for the uses and purposes herein set forth. The Participants shall not have any
preferred claim on, or any beneficial ownership interest in, any of the Trust
Assets prior to the time any of the Trust Assets are paid to the Participants
pursuant to the terms of this Trust Agreement, and all rights created under the
Plan and this Trust Agreement shall be mere unsecured contractual rights of the
Participants against the Company.
(d) Except as provided in the second succeeding sentence, the Trustee
shall have full discretion in and sole responsibility for the investment,
management and control of the Trust Assets. Without limiting such discretion,
the Company requests, but does not direct, that the Trustee, based upon the
nature of this Trust, only make short-term investments with a stated maturity of
twelve (12) months or less from the date of purchase by the Trustee. The Trust
Assets shall only be invested in obligations of or guaranteed by the United
States of America, in commercial paper obligations receiving the highest rating
from either Moody's Investors Service, Inc. or Standard & Poor's Rating Group or
a similar rating service or in certificates of deposit, bank repurchase
agreements or bankers acceptances (including those of the Trustee) of commercial
banks with capital exceeding $1,000,000,000 the securities of which or the
securities of the holding company of which are rated in the highest category by
a nationally-recognized credit agency ("Permitted Investments") or in
money-market funds which are invested solely in Permitted Investments.
(e) The advisor to the Trust (the "Consulting Firm") shall be such firm
of independent public accountants or consulting actuaries of recognized national
standing as the Trustee shall select following a Change of Control or a
Potential Change of Control (each as defined herein). It is not intended that
the Consulting Firm act in a fiduciary capacity under the Plan or the Trust.
Section 2. CONTRIBUTIONS
(a) Except as provided in Section 2(b) hereof, the Company may make
such Contributions to the Trust as the Board of Directors of the Company deems
appropriate from time to time.
<PAGE>
(b) As soon as practicable following a Change of Control (as defined in
Section 3(a) hereof), the Consulting Firm shall calculate the maximum aggregate
amount due pursuant to the Plan (without regard to the present value thereof)
(the aggregate of such amounts is hereinafter referred to as the "Maximum Amount
Payable"). The Consulting Firm shall promptly furnish such calculation to the
Company and the Company shall have the obligation to make Additional
Contributions to the Trust, and shall make Additional Contributions to the
Trust, within three (3) business days of the receipt of such calculation, in an
amount equal to the excess (the "Excess"), if any, of the Maximum Amount Payable
over the then fair market value of the Trust Assets, or shall direct the Trustee
to draw down a Letter of Credit (as defined in Section 2(d) hereof) held by the
Trust in such amount for such purpose. If at any time following a Change of
Control, a valuation of the Trust Assets occurs pursuant to this Trust Agreement
and it is determined by the Consulting Firm that an Excess shall exist, the
Company shall promptly contribute such amount to the Trust as is necessary to
eliminate the Excess, or the Trustee shall be authorized to draw down a Letter
of Credit held by the Trust in such amount.
(c) Anything contained in Section 2(b) hereof to the contrary
notwithstanding, in the event of a Potential Change of Control (as defined in
Section 3(b) hereof), the Company shall have the obligation to make Additional
Contributions to the Trust in an amount equal to the Excess, or the Trustee
shall be authorized to draw down a Letter of Credit held by the Trust in such
amount. If a Change of Control shall not have occurred within ninety (90) days
of a Contribution made pursuant to this Section 2(c) and the Board of Directors
adopts a resolution to the effect that, for purposes of this Trust Agreement, a
Change of Control is not imminent, any amounts contributed to the Trust pursuant
to this Section 2(c), together with any earnings thereon, shall be promptly paid
by the Trustee to the Company.
(d) The Company shall make all required Contributions to the Trust in
cash or, alternatively, may provide the Trustee with an irrevocable and
unconditional letter of credit (the "Letter of Credit") sufficient for the
Trustee to draw down an amount equal to all required Contributions. If at any
time the Trust has been provided with a Letter of Credit by the Company, the
Consulting Firm will direct the Trustee (i) when to draw down on such Letter of
Credit and in what amount and (ii) whether, if necessary, to renew the Letter of
Credit or change its amount or terms. All Contributions so received (including
any cash received on the draw down of a Letter of Credit), together with the
income therefrom and any increment thereon, shall be held, managed and
administered by the Trustee as a single commingled Trust pursuant to the terms
of this Trust Agreement without distinction between principal and income.
Neither the Trustee nor the Consulting Firm shall have any duty to require any
Contributions to be made to the Trustee by the Company or to determine whether a
Change of Control or Potential Change of Control has occurred.
<PAGE>
(e) Anything in Section 2 hereof to the contrary notwithstanding, the
Trustee shall return to the Company as soon as feasible following the close of
each calendar quar ter within each calendar year the excess, if any, of (i) the
then aggregate fair market value of the Trust Assets over (ii) one hundred fifty
percent (150%) of the Maximum Amount Payable, as determined by the Consulting
Firm at the request of the Company.
(f) The Company may at any time or from time to time make Additional
Contributions to the Trustee, which shall be held, administered and disposed of
by Trustee as provided in this Trust Agreement.
Section 3. CHANGE OF CONTROL
(a) For purposes of this Trust Agreement, a "Change of Control"
shall mean:
(i) The acquisition (other than from the Company in a
transaction approved by the Incumbent Board (as defined in Section 3(a)(ii)
below)) by any person, entity or "group" within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")
(excluding, for this purpose, the Company or its subsidiaries, or any employee
benefit plan of the Company or its subsidiaries which acquires beneficial
ownership of voting securities of the Company with the approval of a majority of
the Incumbent Board) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty percent (20%) or more of either
the then outstanding shares of the Company's Common Stock, no par value (the
"Common Stock") or the combined voting power of the Company's then outstanding
voting securities in a transaction or series of transactions not approved by a
vote of at least a majority of the Incumbent Board (as defined below); or
(ii) The failure of individuals who, as of the date hereof,
constitute the Board of Directors of the Company (the "Incumbent Board") for any
reason to constitute at least a majority of the Board of Directors of the
Company, provided that any person becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's shareholders,
was approved by a vote of at least a majority of the directors comprising the
Incumbent Board (other than an election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Company, as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) shall be, for purposes of this Trust Agreement, considered as
though such person were a member of the Incumbent Board; or
(iii) The approval by the stockholders of the Company of a
reorganization, merger or consolidation (in each case, with respect to which the
stockholders of the Company do not, immediately thereafter, own more than fifty
percent
<PAGE>
(50%) of the combined voting power of the reorganized, merged or consolidated
company's then outstanding voting securities), of a liquidation or dissolution
of the Company or of the sale of all or substantially all of the assets of the
Company.
(b) For purposes of this Trust Agreement, a "Potential Change of
Control" shall be deemed to have occurred if (i) any third person commences a
tender or exchange offer (other than a tender or exchange offer which, if
consummated, would not result in a Change of Control) for twenty percent (20%)
or more of the then outstanding shares of Common Stock or combined voting power
of the Company's then outstanding voting securities; (ii) the Company enters
into an agreement, the consummation of which would result in the occurrence of a
Change of Control; (iii) any person (including the Company) publicly announces
an intention to take or to consider taking actions which if consummated would
constitute a Change of Control; or (iv) the Board of Directors of the Company
adopts a resolution to the effect that, for purposes of this Trust Agreement, a
Change of Control is imminent.
(c) The Company shall have a duty to inform the Trustee whenever a
Change of Control or Potential Change of Control has occurred. If any two
Participants notify the Trustee in writing that a Change of Control or Potential
Change of Control has occurred then, unless, in the opinion of nationally
recognized counsel to the Company (which opinion may be based on representations
of fact as long as counsel does not know that such representations are untrue)
such a Change of Control or Potential Change of Control has not occurred, a
Change of Control or Potential Change of Control will be deemed to have occurred
for purposes of this Trust Agreement.
Section 4. ACCOUNTING BY THE TRUSTEE AND CONSULTING FIRM
(a) The Trustee shall keep accurate and detailed records of all
investments, receipts, disbursements and all other transactions required to be
done, including such specific records as shall be agreed upon in writing between
the Company and the Trustee. Within sixty (60) days following the close of each
calendar year and within sixty (60) days after the removal or resignation of the
Trustee, the Trustee shall deliver to the Company and the Consulting Firm a
written account of its administration of the Trust during such year or during
the period from the close of the last preceding year to the date of such removal
or resignation, setting forth all investments, receipts, disbursements and other
transactions effected by it, including a description of all securities and
investments purchased and sold with the cost or net proceeds of such purchases
or sales (accrued interest paid or receivable being shown separately), showing
all cash, securities and other property held in the Trust at the end of such
year or as of the date of such removal or resignation, as the case may be, and
the book and fair market value of any such asset. The Consulting Firm shall send
a copy of any written account to each Participant at the address provided by the
Company.
<PAGE>
(b) As soon as practicable following a Change of Control of the
Company, the Consulting Firm shall (i) establish and maintain a memorandum
account for each Participant with respect to the Plan (the "Participant's
Account") and (ii) calculate the amount which would be due to each Participant
(or the Participant's spouse) upon satisfaction of the conditions under the Plan
which give rise to the obligation of the Company to pay such amount to the
Participant (or the Participant's spouse) (the "Plan Payments"). The Consulting
Firm shall credit each Participant's Account with the Plan Payments and shall
debit the Participant's Account with any amounts paid to the Participant (or the
Participant's spouse) with respect to the Plan by the Company or the Trustee.
(c) The Company shall furnish the Consulting Firm with copies of the
Plan and any and all amendments thereto. The Company will promptly provide the
Consulting Firm with a copy of any notice of termination given by the Company
with respect to any Participant and will also promptly provide the Consulting
Firm with any and all additional information the Consulting Firm reasonably
requests or the Company believes would be useful to the Consulting Firm in order
to enable the Consulting Firm to determine the amount of Plan Payments with
respect to each Participant and to effect such Plan Payments and will promptly
update such information as it changes. The Company will use its best efforts to
cause each Participant to provide the Consulting Firm with all information that
it may reasonably request in order to determine the amount of Plan Payments with
respect to the Participant. The Trustee shall notify the Consulting Firm of any
payment made from the Trust to the Participant or the Participant's spouse
pursuant to the terms of the Plan, in each case, so that the Consulting Firm may
debit the Participant's Account.
(d) All accounts, books and records maintained pursuant to Section 4
shall be open to inspection and audit at all reasonable times by the Company and
on an annual basis by the Participants; provided, however, that no Participant
shall have access to information about another Participant's Account other than
in the normal course of performing his duties as an employee of the Company.
(e) The fair market value of the Trust Assets shall be determined by
the Trustee whenever required pursuant to this Trust Agreement, but in any event
not less than quarterly. The Trustee may base such determination upon such
sources of information as it may deem reliable, including, but not limited to,
information reported in (i) newspapers of general circulation, (ii) standard
financial periodicals or publications, (iii) statistical and valuation services,
(iv) the records of securities exchanges or brokerage firms deemed by the
Trustee to be reliable or (v) any combination thereof. The Trustee shall
promptly inform the Consulting Firm of any such valuation.
Section 5. PAYMENTS TO THE PARTICIPANTS
<PAGE>
(a) The Trustee shall make payments to the Participants (or the
Participants' spouses) from the Trust Assets, if and to the extent such Trust
Assets are available for distribution, in accordance with the provisions of this
Trust Agreement, provided that the Company is not Insolvent (as defined in
Section 6(a)) at the time any such payment is required to be made.
(b) Subject to Section 5(a) hereof, the Consulting Firm shall, within
five (5) business days of the date a payment is required to be made under the
Plan, notify and direct the Trustee to pay the Participant (or the Participant's
spouse) an amount equal to the lesser of the amount so required to be paid or
the then credit balance in the Participant's Account; provided, however, that if
the aggregate of the then credit balances in the Participants' Accounts exceeds
the then fair market value of the Trust Assets, then the Consulting Firm shall
direct the Trustee to pay to the Participant (or the Participant's spouse) the
lesser of the amount so required to be paid or such portion of the credit
balance in the Participant's Account which is equal to (a) the full credit
balance in the Participant's Account multiplied by (b) a fraction (i) the
numerator of which is the then fair market value of the Trust Assets and (ii)
the denominator of which is the aggregate of the then credit balances in the
Participants' Accounts.
(c) Whenever the Consulting Firm notifies the Trustee to make a payment
to a Participant (or the Participant's spouse), the Trustee shall supply the
Consulting Firm with the current fair market value of the Trust Assets within
two (2) business days so that the Consulting Firm may make the determination
required hereunder. The Trustee shall pay the Participant (or the Participant's
spouse) the amount set forth in the notice from the Consulting Firm within five
(5) business days of receiving notice from the Consulting Firm.
(d) For the purposes of this Trust Agreement, the Consulting Firm shall
determine, pursuant to the terms of the Plan, when a Participant (or the
Participant's spouse) is entitled to receive a payment thereunder and the amount
thereof. The Trustee shall be under no duty to make inquiry as to whether the
determination made by the Consulting Firm is correct or whether any payment
amount is proper and correct.
(e) Anything in this Trust Agreement to the contrary notwithstanding,
all payments pursuant to this Section 5 may be made without the approval or
direction of the Company, shall be made despite any direction to the contrary by
the Company and shall be made upon the direction of the Consulting Firm.
(f) If the Trust Assets are not sufficient to make all payments to the
Participants required to be made pursuant to the terms of the Plan, the Company
shall pay to each Participant the balance of each such payment as it falls due.
If such payments are not made by the Company, and the Trust later contains
sufficient Trust Assets to make
<PAGE>
such payments, they shall be made from the Trust Assets, together with interest
at the rate determined pursuant to Section 1274(d) of the Code, subject to the
requirements of Sections 5(a) and 5(b) hereof.
Section 6. TRUSTEE RESPONSIBILITY REGARDING PAYMENTS WHEN
COMPANY INSOLVENT
(a) The Company shall be considered "Insolvent" for purposes
of this Trust Agreement if (i) the Company is unable to pay its debts as they
mature, or (ii) the Company is subject to a pending proceeding as a debtor under
the United States Bankruptcy Code or any similar law of any state.
(b) At all times during the continuance of this Trust, the
Trust Assets shall be subject to claims of general creditors of the Company as
hereinafter set forth, and at any time the Trustee has actual knowledge, or has
determined, that the Company is Insolvent, the Trustee shall deliver any
undistributed Trust Assets to satisfy such claims as a court of competent
jurisdiction may direct. The Chief Executive Officer of the Company shall have
the duty to inform the Trustee of the Company's Insolvency. If the Company or a
person claiming to be a creditor of the Company alleges in writing to the
Trustee that the Company has become Insolvent, the Trustee shall independently
determine, within thirty (30) days after receipt of such notice, whether the
Company is Insolvent and, pending such determination, the Trustee shall
discontinue payments to the Participants, shall hold the Trust Assets for the
potential benefit of the Company's general creditors and shall resume payments
to the Participants in accordance with Section 5 of this Trust Agreement only
after the Trustee has determined that the Company is not Insolvent (or is no
longer Insolvent, if the Trustee initially determines the Company to be
Insolvent). If the Trustee, after the expiration of such thirty (30) days, in
good faith and with the advice of such advisors as may be retained pursuant to
Section 7 hereof, is unable to determine whether the Company is Insolvent, the
Trustee (i) shall so notify the Company and the Consulting Firm in writing (and
the Consulting Firm shall promptly notify the Participants (or their spouses) at
the address supplied by the Company) and any of the Trustee, the Company or the
Participants (or any of the Participants' spouses) may apply to any court of
competent jurisdiction for a determination, for purposes of this Trust, as to
whether or not the Company is Insolvent, and (ii) the Trustee shall thereupon
hold the Trust Assets pursuant to the terms of this Trust Agreement pending the
determination of such court. Unless the Trustee has actual knowledge of the
Company's Insolvency, the Trustee shall have no duty to inquire whether the
Company is Insolvent. The Trustee may in all events rely on such evidence
concerning the Company's solvency as may be furnished to the Trustee as will
give the Trustee a reasonable basis for making a determination concerning the
Company's solvency. Nothing in this Trust Agreement shall in any way diminish
any rights of a Participant (or a Participant's spouse) to pursue his or her
rights as a general creditor of the Company with respect to the Plan or
<PAGE>
otherwise.
(c) If the Trustee discontinues payments from the Trust to any
Participant (or to a Participant's spouse) pursuant to Section 6(b) and
subsequently resumes such payments, the first payment following such
discontinuance shall, subject to Sections 5(a) and 5(b) hereof, include the
aggregate amount of all payments which would have been made to the Participant
(or to the Participant's spouse), together with interest at the rate determined
pursuant to Section 1274 of the Code on the amount delayed, during the period of
such discontinuance, less the aggregate amount of payments made to each
Participant (or to the Participant's spouse) by the Company in lieu of the
payments provided for hereunder during any such period of discontinuance, as
certified to the Trustee by the Consulting Firm.
Section 7. RESPONSIBILITY OF TRUSTEE AND THE CONSULTING FIRM
(a) The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in a like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to anyone for any action taken pursuant to a
direction, request or approval given by the Company, the Consulting Firm or any
Participant contemplated by and complying with the terms of this Trust
Agreement. The Trustee shall discharge its responsibility for the investment,
management and control of the Trust Assets solely in the interest of the
Participants (and the Participants' spouses) and for the exclusive purpose of
assuring that, to the extent of available Trust Assets, all Plan Payments are
paid when due to the Participants (or to the Participants' spouses).
(b) Neither the Trustee nor the Consulting Firm shall be required to
undertake or to defend any litigation arising in connection with this Trust
Agreement, unless it be first indemnified by the Company against its prospective
costs, expenses and liability, and the Company hereby agrees to indemnify the
Trustee and the Consulting Firm for such costs, expenses and liability.
(c) The Trustee and the Consulting Firm may consult with legal counsel
(who may also be counsel for the Trustee or the Consulting Firm generally) with
respect to any of its duties or obligations hereunder and shall be fully
protected in acting or refraining from acting in accordance with the advice of
such counsel.
(d) The Trustee may hire agents, accountants and financial
consultants.
(e) The Trustee is authorized and empowered:
<PAGE>
(i) To purchase, hold, sell, invest and reinvest the assets of the Trust,
together with income therefrom;
(ii) To hold, maintain and control all property at any time forming part of
the Trust Assets;
(iii) To sell, convey, transfer, exchange and otherwise
dispose of the Trust Assets from time to time in such manner, for such
consideration and upon such terms and conditions as it shall determine;
(iv) To make payments from the Trust as provided hereunder; and
(v) To exercise all the further rights, powers, options and
privileges granted, provided for or vested in trustees generally under
applicable Federal or State of Missouri law, as amended from time to time, it
being intended that, except as herein otherwise provided, the powers conferred
upon the Trustee herein shall not be construed as being in limitation of any
authority conferred by law, but shall be construed as in addition thereto.
(f) The Trustee in any and all events is authorized and empowered to do
all other acts necessary or desirable for the proper administration of the Trust
Assets, as though the absolute owner thereof, including, but not limited to, the
authorization and power:
(i) To cause any of the Trust Assets to be issued, held or
registered in the name of the Trustee, in the name of its nominee or in such
form that title will pass by delivery, provided, the records of the Trustee
shall indicate the true ownership of such property;
(ii) To employ such agents and counsel as may be
reasonably necessary in managing and protecting the Trust Assets and to pay
them reasonable compensation; and
(iii) To settle, compromise or abandon with the consent of the
Company all claims and demands from other than the Participants or the Company
in favor of or against the Trust Assets.
Section 8. COMPENSATION AND EXPENSES OF TRUSTEE AND
CONSULTING FIRM
The Trustee and the Consulting Firm shall each be entitled to receive
such reasonable compensation for their services as shall be agreed upon by the
Company and
<PAGE>
the Trustee or the Consulting Firm, as the case may be. The Trustee and the
Consulting Firm shall each also be entitled to receive their reasonable expenses
incurred with respect to the administration of the Trust, including counsel fees
and fees incurred by the Trustee and the Consulting Firm pursuant to Sections
7(b), 7(c), 7(d) and 7(f) hereof. Such compensation and expenses shall be
payable by the Company and if not so paid, shall be paid by the Trustee from the
Trust Assets. In the event any Trust Assets are used pursuant to the preceding
sentence to pay compensation and expenses to the Trustee or Consulting Firm, the
Company shall promptly contribute to the Trust any such amount (or direct the
Trustee to draw down on a Letter of Credit held by the Trust in such amount).
Section 9. RESIGNATION AND REPLACEMENT OF TRUSTEE
(a) The Trustee may resign at any time during the term of this Trust by
delivering to the Company and the Consulting Firm a written notice of the
proposed resignation. The Consulting Firm shall deliver a copy of any such
notice to each Participant or his spouse at the address supplied by the Company.
Such resignation shall take effect upon the qualification of a successor Trustee
and such successor Trustee commencing to act as such.
(b) In the event that, prior to a Change of Control, the Trustee
notifies the Company of its intention to resign, in accordance with the
foregoing provisions of this Section 9, the Company shall appoint a successor
Trustee which shall be a bank or trust company. The Trustee shall thereupon
deliver to the successor Trustee all the Trust Assets, together with such
records and documents as may be reasonably required to enable the successor
Trustee to properly administer the Trust, reserving such funds as it reasonably
deems necessary to cover its unpaid bills, expenses and closing costs.
(c) Upon qualification of a successor Trustee, all right, title and
interest of the resigning Trustee in the Trust Assets and all rights and
privileges under this Trust Agreement theretofore vested in such resigning
Trustee shall vest in the successor Trustee where applicable, and thereupon all
future liability of said resigning Trustee shall terminate; provided, however,
that the Trustee shall execute, acknowledge and deliver all documents and
written instruments which are necessary to assign, transfer and convey the
right, title and interest in the Trust Assets and all rights and privileges of
the Trustee to the successor Trustee.
(d) Nothing in this Trust Agreement shall be interpreted as depriving
the Trustee or the Company of the right to have a judicial settlement of the
Trustee's accounts, and upon any proceeding for a judicial settlement of the
Trustee's accounts or for instructions the only necessary parties thereto will
be the Trustee and the Company.
Section 10. AMENDMENT OR TERMINATION
<PAGE>
(a) This Trust Agreement may be amended at any time prior to the time
any Additional Contribution is made (or, after the time any Additional
Contribution is made if such Additional Contribution is returned to the Company
in accordance with Section 2(c) hereof) and to any extent (including amendments
to add other agreements, contracts or plans between the Company and the
Participants or other key employees) by a written instrument executed by the
Trustee and the Company.
(b) This Trust shall be revocable by the Company prior to the time any
Additional Contribution is made or required to be made pursuant to the terms
hereof and may be terminated by the Company prior thereto (or, after the time
any Additional Contribution is made if such Additional Contribution is returned
to the Company in accordance with Section 2(c) hereof). After the occurrence of
a Change of Control, the Trust shall remain in effect until the receipt by the
Trustee of a certification from the Consulting Firm that all liabilities under
the Plan have been satisfied; provided that, if any payment made from the Trust
or to be made pursuant to the Plan is being contested or litigated, the Trust
shall remain in effect until such contest, litigation or dispute is resolved.
(c) At the termination of the Trust pursuant to Section 10(b), the
Trustee shall as soon as practicable, but in any event within ninety (90) days
of the date of such termination, transfer to the Company the value of the Trust
Assets as of the termination date.
Section 11. PROTECTION OF THE TRUSTEE AND THE CONSULTING
FIRM
(a) The Company agrees, to the extent permitted by applicable law, to
indemnify the Trustee and the Consulting Firm and hold them harmless from and
against any claim or liability that may be asserted against them by reason of
their taking or refraining from taking any action under this Trust Agreement,
including, without limiting the generality of the foregoing, any claim brought
against the Trustee or the Consulting Firm by the Company, in any case,
otherwise than on account of the Trustee's or the Consulting Firm's own
negligence or willful misconduct.
(b) The Trustee shall be fully protected in relying upon a
certification of an authorized representative of the Company or the Consulting
Firm with respect to any instruction, direction or approval of the Company or
the Consulting Firm until a subsequent certification is filed with the Trustee.
(c) The Trustee and the Consulting Firm shall each be fully protected
in acting upon any instrument, certificate or paper believed by them to be
genuine and to be signed or presented by the proper person or persons, and
neither the Trustee nor the Consulting
<PAGE>
Firm shall be under any duty to make any investigation or inquiry as to any
statement contained in any such writing but may accept the same as conclusive
evidence of the truth and accuracy of the statements therein contained.
(d) The Trustee shall not be liable for the proper application of any
part of the Trust Assets if distributions are made in accordance with the terms
of this Trust Agreement and information furnished to the Trustee by the
Consulting Firm. All persons dealing with the Trustee are released from inquiry
into the decision or authority of the Trustee and from seeing to the application
of any monies, securities or other property paid or delivered to the Trustee.
Section 12. COMMUNICATION
(a) Communications to the Company shall be addressed to the
Company at:
Casey's General Stores, Inc.
P.O. Box 3001
One Convenience Blvd.
Ankeny, Iowa 50021
Attention: President
(b) Communications to the Trustee shall be addressed to it at:
UMB Bank, n.a.
1010 Grand Blvd.
P.O. Box 419692
Kansas City, Missouri 64141-6692
Attention: Employee Benefit Division
Section 13. SEVERABILITY AND ALIENATION
(a) Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition without invalidating or in any
other way limiting the remaining provisions hereof.
(b) The rights, benefits and payments of a Participant payable from the
Trust Assets may not be anticipated, assigned (either at law or in equity),
alienated or subject to attachment, garnishment, levy, execution or other legal
or equitable process except as required by law. Any attempt by a Participant to
anticipate, alienate, assign, sell, transfer, pledge, encumber or charge the
same shall be void. The Trust Assets shall not in any
<PAGE>
manner be subject to the debts, contracts, liabilities, engagements or torts of
any Participant and payments hereunder shall not be considered an asset of the
Participant (or of the Participant's spouse) in the event of insolvency or
bankruptcy.
Section 14. GOVERNING LAW
This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Missouri without reference to principles of
conflicts of law.
Section 15. MISCELLANEOUS
(a) The Trustee shall not be either individually or severally liable
for any taxes of any kind levied or assessed under the existing or future laws
against the Trust Assets. The Trustee shall withhold from each payment to any
Participant or spouse any federal, state or local withholding taxes which is
from time to time required to be deducted under applicable laws, as directed by
the Consulting Firm. To the extent that any taxes levied or assessed upon the
Trust are not paid by the Company, the Trustee shall pay such taxes out of the
Trust Assets.
(b) Expenses and fees of the Company for the administration of this
Trust and services in relation thereto for actuarial, legal and accounting and
other similar expenses, including any costs with respect to the creation of the
Trust, shall be paid by the Company and, if not so paid, may be paid by the
Trustee from the Trust Assets.
(c) Participation in this Trust shall not give any Participant any
right to be retained as an employee of the Company nor any rights other than
those specifically enumerated herein or in the Plan.
(d) Any payment to any Participant (or to a Participant's spouse) in
accordance with this Trust Agreement shall, to the extent thereof, be in full
satisfaction of all claims against the Trustee and the Company under the Plan.
Nothing in this Trust Agreement shall relieve the Company of its liability to
pay benefits under the Plan except to the extent such liabilities are met
through the use of the Trust Assets.
(e) Headings in this Trust Agreement are inserted for convenience
of reference only and are not to be considered in the construction
of the provisions hereof.
(f) This Trust Agreement may be executed in several counterparts, each
of which shall be deemed an original, and said counterparts shall constitute but
one and the same instrument, which may be sufficiently evidenced by any one
counterpart.
(g) This Trust Agreement shall inure to the benefit of, and be
binding upon, the
<PAGE>
parties hereto and their successors and assigns.
(h) As used in this Trust Agreement, the masculine gender shall
include the feminine and neuter genders.
(i) Any action of the Company pursuant to this Trust Agreement,
including all orders, requests, data, directions, instructions and other related
information shall be in writing signed on behalf of the Company by an officer or
named designee of the Company.
IN WITNESS WHEREOF, the Company and the Trustee have executed this
Trust Agreement as of the date first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
------------------------------
Name: Ronald M. Lamb
Title: President and C.O.O.
UMB BANK, n.a.
By: /s/ Mark P. Herman
----------------------------------
Name: Mark P. Herman
Title: Senior Vice President
<PAGE>
FEE AGREEMENT
The employer acknowledges that the fees for Trustee/Custodial services to be
performed by UMB Bank, n.a. will be in accordance with the Negotiated Fee
Schedule listed below.
Fees may be billed to the employer or charged to the Trust.
ACCOUNT SET-UP FEE: $300
ANNUAL ADMINISTRATIVE FEE: $350
TAX REPORTING FEE: $100/year
SECURITIES FEE: WAIVED (on initial $100 contribution)
Future securities fees are WAIVED
until an additional contribution is
made to this account.
If a securities fee is implemented, the following schedule
will apply:
These are assessed quarterly on the ending market value of the
assets. The amounts specified are the annual percentages to be
charged.
a. .65 of 1% on the first $500,000
.45 of 1% on the next $2,000,000
.35 of 1% on all over $2,500,000
b. .20 of 1% on all assets invested in Scout,
Fidelity Advisor, American Century Advisor
and Federated Funds
SECURITIES TRANSACTION FEE: There is a $15 charge for each directed
security transaction in excess of one
per quarter. Transactions in the
Scout Funds are exempt from this charge.
BENEFIT PAYMENTS AND OTHER
EXPENSE DISBURSEMENTS: $10/check
TERMINATION AND TRANSFER FEE: Charged at hourly rates
(minimum fee of $300)
EXTRAORDINARY CHARGES: Charged at hourly rates
HOURLY FEE: Legal or Management $100/hour
<PAGE>
Other $ 50/hour
The Fee Schedule referenced above is applicable to the account(s) listed below:
Name of Plan: Casey's General Stores, Inc. Supplemental Executive
Retirement Plan
Account No.: 46-0080
--
-- The fee is to be Charged to the Trust.
--
X The fee is to be Billed to the firm for payment.
--
October 24, 1997 /s/ John G. Harmon
- --------------------- ---------------------------
Date Casey's General Stores, Inc.
November 4, 1997 /s/ Mark P. Herman, Senior Vice President
- ----------------------- -----------------------------------------
Date UMB Bank, n.a.
Exhibit 10.21(a)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 24th day of October, 1997, by and between Casey's
General Stores, Inc., an Iowa corporation (the "Company"), and Donald F.
Lamberti ("Lamberti").
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") recognizes that the dedication of Lamberti as an officer and
director to the affairs and welfare of the Company since its organization has
resulted in a long and successful association; and
WHEREAS, the Board of Directors further recognizes that the Company has
grown and prospered as a result of its association with Lamberti, and has
determined that it is in the best interests of the Company and its shareholders
to preserve this association so as to enable the Company to further benefit from
Lamberti's superior knowledge and expertise in all of its present and future
business endeavors; and
WHEREAS, the Company and Lamberti are parties to an Employment
Agreement dated as of March 2, 1992, as amended by a First Amendment to
Employment Agreement dated as of January 16, 1997 (together, the "Original
Agreement"), providing for the employment of Lamberti to serve as the Chief
Executive Officer of the Company under the terms and conditions set forth
therein; and
WHEREAS, the Board of Directors has further determined that it is
appropriate and in the best interests of the Company and its shareholders to
modify the existing contractual arrangements with respect to Lamberti's
employment by the Company, with the concurrence of Lamberti, and to amend and
restate the Original Agreement to reflect the same; and
WHEREAS, the Board of Directors has further determined that it is in
the best interest of the Company and its shareholders to assure that the Company
will have the continued dedication of Lamberti, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
and to further encourage Lamberti's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide Lamberti with compensation arrangements upon a Change of Control
which provide him with compensation for expected losses that he would suffer in
the event of a Change of Control and which are
<PAGE>
competitive with those of other corporations, and, in order to accomplish these
objectives, has determined to cause the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, and in
addition to the other definitions set forth herein, the following terms shall
have the following meanings:
a) "Change of Control" shall mean:
(i) the acquisition (other than from the Company) by any
Person (as hereinafter defined), entity or "group" within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act"), (excluding for this purpose, the Company or any employee benefit plan of
the Company, which acquires beneficial ownership of voting securities of the
Company) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of either the then
outstanding shares of Common Stock, no par value, of the Company or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors (hereinafter referred to as the
"Common Stock"), unless such beneficial ownership was acquired as a result of an
acquisition of shares of Common Stock by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person, entity or "group" to twenty percent (20%) or
more of the Common Stock of the Company then outstanding; provided, however,
that if a Person, entity or "group" shall become the beneficial owner of twenty
percent (20%) or more of the Common Stock of the Company then outstanding by
reason of share purchases by the Company and shall, after such share purchases
by the Company, become the beneficial owner of any additional shares of Common
Stock of the Company, then such Person, entity or "group" shall be deemed to
have met the conditions hereof; or
(ii) individuals who, as of the date hereof, constitute the
Board of Directors (as of the date hereof, the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors, provided
that any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of this Agreement considered as though such person were a
member of the
<PAGE>
Incumbent Board; or
(iii) approval by the shareholders of the Company of a
reorganization, merger, consolidation (in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities) or a liquidation or dissolution of
the Company or of the sale of all or substantially all of the assets of the
Company.
(b) "Annual Increase" shall take effect on each January 1 for which the
benefit at issue is payable and shall mean fifty percent (50%) of the annual
increase in the National Consumer Price Index for the City of Des Moines, Iowa,
as published by the United States Bureau of Labor Statistics.
(c) "Annual Bonus" shall mean any bonus payable at the discretion of
the Board of Directors of the Company, on such terms and in such amounts as it
shall determine.
(d) "Employment Period" shall mean the term of Lamberti's employment
under this Agreement, as set forth in Section 2 hereof.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Accrued Obligations" shall mean (i) Lamberti's Salary through the
Date of Termination at the rate in effect on the Date of Termination, (ii) the
product of the Annual Bonus paid to Lamberti for the last full fiscal year and a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(iii) any compensation previously deferred (together with any accrued interest
thereon) and not yet paid by the Company and any accrued vacation pay not yet
paid by the Company.
(g) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) and all
"affiliates" and "associates" of such entity (as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Exchange Act).
2. EMPLOYMENT AND TERM. The Company agrees to employ Lamberti, and Lamberti
agrees to serve the Company, as Chief Executive Officer of the Company on the
terms and under the conditions set forth in this Agreement. The initial term of
employment under this Agreement shall commence on the date hereof and shall
terminate
<PAGE>
on April 30, 1998 (the "Initial Term"), after which this Agreement and the
Employment Period hereunder shall be automatically renewed and extended for
successive periods of three years (each of which shall be a "Renewal Term"),
subject to the right of the Company and Lamberti to terminate this Agreement
during the Initial Term or any such Renewal Term in accordance with the terms
and conditions set forth in subsequent sections of this Agreement, and further
subject to the right of the Company and Lamberti to cause this Agreement and the
Employment Period hereunder to expire at the end of the Initial Term or any
Renewal Term by giving written notice thereof at least one year prior to the end
of the Initial Term or the then current Renewal Term, as applicable; provided,
however, that in the event of a Change of Control during the Initial Term or any
Renewal Term, this Agreement and the Employment Period hereunder automatically
shall continue in full force and effect for the greater of (i) the remaining
term of employment then in progress or (ii) three years from the effective date
of the Change of Control. References herein to the Employment Period shall refer
to both the Initial Term and any successive Renewal Term.
3. DUTIES OF LAMBERTI. During the period of his employment in the
capacity of Chief Executive Officer, Lamberti will perform his duties to the
best of his ability, subject to the control of the Board of Directors. It is
agreed and understood that the position (including status, office, title and
reporting requirements), authority, duties and responsibilities of Lamberti
shall be substantially the same as those performed by Lamberti as Chief
Executive Officer of the Company prior to the date of this Agreement, and that
Lamberti shall at all times serve the best interests of the Company. The Company
agrees that Lamberti shall at all times have such authority and discretion as is
required in the carrying out of Lamberti's duties in a proper and efficient
manner, subject to review by the Board of Directors.
During the period of his employment, it shall not be a violation of
this Agreement for Lamberti to (i) serve on corporate, civil or charitable
boards or committees, (ii) deliver lectures or fulfill speaking engagements and
(iii) manage personal investments, so long as such activities do not
significantly interfere with the performance of Lamberti's responsibilities as
an employee of the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities have been
conducted by Lamberti prior to the date hereof, the continued conduct of such
activities (or the conduct of activities similar in nature and scope thereto)
subsequent to the date hereof shall not thereafter be deemed to interfere with
the performance of Lamberti's responsibilities to the Company.
4. COMPENSATION. The Company shall pay to Lamberti an annual salary of
Three Hundred and Fifty Thousand Dollars ($350,000), payable in equal monthly
installments, or such other amount as shall be mutually agreed upon by the
Company and Lamberti (the "Salary"). In addition, Lamberti and/or Lamberti's
family shall be entitled
<PAGE>
to receive all benefits presently provided or those which may hereafter be
generally provided by the Company to its employees, officers or directors,
including health insurance and life insurance. With respect to such health
insurance benefits, the Company agrees that at all times the health insurance
coverages available to Lamberti and his spouse under such plans shall include
provisions providing for lifetime benefits payable on behalf of Lamberti and his
spouse of not less than One Million Dollars ($1,000,000) each, or such other
amount as the Company and Lamberti may specifically agree upon in writing,
subject, however, to any limitations, restrictions or conditions that shall from
time to time be necessary to satisfy the requirements of applicable federal or
state laws and regulations.
5. TERMINATION OF EMPLOYMENT. (a) Death or Disability. Lamberti's
employment under this Agreement shall terminate automatically upon Lamberti's
death. If the Company determines in good faith that the Disability of Lamberti
has occurred (pursuant to the definition of "Disability" set forth below), it
may give to Lamberti written notice of its intention to terminate Lamberti's
employment as Chief Executive Officer of the Company. In such event, Lamberti's
employment with the Company shall terminate effective on the thirtieth (30th)
day after receipt of such notice by Lamberti (the "Disability Effective Date"),
provided that, within the thirty (30) days after such receipt, Lamberti shall
not have returned to full-time performance of his duties. For purposes of this
Agreement, "Disability" means disability or incapacity of Lamberti which, at
least twenty-six (26) weeks after its commencement, is determined by the Board
of Directors upon competent medical advice to be such as to prevent Lamberti
from performing substantially all of the duties of Chief Executive Officer of
the Company.
(b) Cause. The Company may terminate Lamberti's employment for "Cause."
For purposes of this Agreement, "Cause" means (i) an act or acts of personal
dishonesty taken by Lamberti and intended to result in substantial personal
enrichment of Lamberti at the expense of the Company, (ii) repeated violations
by Lamberti of Lamberti's obligations under Section 3 of this Agreement which
are demonstrably willful and deliberate on Lamberti's part and which are not
remedied in a reasonable period of time after receipt of written notice from the
Company or (iii) the conviction of Lamberti of a felony when such conviction is
no longer subject to direct appeal.
(c) Good Reason. Lamberti's employment may be terminated by Lamberti for
Good Reason. For purposes of this Agreement, "Good Reason" means:
(i) the assignment to Lamberti of any duties inconsistent in
any respect with Lamberti's position (including status, office, titles and
reporting requirements), authority, duties or responsibilities as contemplated
by Section 3 of this Agreement, or any other action by the Company which results
in a diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and
<PAGE>
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by Lamberti;
(ii) Any failure by the Company to comply with the provisions
of Section 4 of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Lamberti;
(iii) the Company's requiring Lamberti to be based at any
office or location other than the Company's Corporate Headquarters facility in
Ankeny, Iowa, except for travel reasonably required in the performance of
Lamberti's responsibilities;
(iv) any purported termination by the Company of
Lamberti's employment otherwise than for death, Disability or Cause as
expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 13(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by Lamberti shall be conclusive.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause or
by Lamberti for Good Reason shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 14(b) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Lamberti's employment under the provision
so indicated and (iii) if the Date of Termination (as defined below) is other
than the date of receipt of such notice, specifies the termination date (which
date shall be not more than fifteen (15) days after the giving of such notice).
The failure of Lamberti to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive any
right of Lamberti hereunder or preclude Lamberti from asserting such fact or
circumstance in enforcing his rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that (i) if Lamberti's employment is terminated
by the Company other than for Cause or Disability, the Date of Termination shall
be the date on which the Company notifies Lamberti of such termination and (ii)
if Lamberti's employment is terminated by reason of death or Disability, the
Date of Termination shall be the date of
<PAGE>
death of Lamberti or the Disability Effective Date, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF
EMPLOYMENT.
(a) Death of Lamberti. In the event of the death of Lamberti during the
term hereof, the Company shall pay to Lamberti's spouse, commencing on the first
day of the month following his death and continuing for a period of twenty-four
(24) months thereafter, benefits equal to the monthly installments of Salary
which was then being paid to Lamberti pursuant to Section 4 herein. Immediately
following such two-year period, the Company shall commence the payment of
monthly benefits to Lamberti's spouse equal in amount to one-fourth (1/4) of the
monthly installments of Salary which was being paid to Lamberti at the time of
his death under Section 4 herein, which monthly benefits shall be paid for a
period of twenty (20) years or until the death of Lamberti's spouse, whichever
occurs first. In addition, the Company shall continue at all times to offer and
provide health insurance coverage to Lamberti's spouse, in accordance with the
plans, programs, practices and policies provided by the Company under the terms
of this Agreement at the time of Lamberti's death, until the death of Lamberti's
spouse, except to the extent such coverage is or otherwise becomes available to
Lamberti's spouse under the Medicare program of benefits.
(b) Disability of Lamberti. If Lamberti's employment is terminated by
reason of the Disability of Lamberti, Lamberti's employment under this Agreement
shall terminate without further obligations to Lamberti, other than those
obligations accrued or earned and vested (if applicable) by Lamberti as of the
Date of Termination, including for this purpose, all Accrued Obligations and
those set forth herein. All such Accrued Obligations shall be paid to Lamberti
in a lump sum in cash within thirty (30) days of the Date of Termination.
Anything in this Agreement to the contrary notwithstanding, Lamberti shall be
entitled after the Disability Effective Date to receive disability and other
benefits in an amount equal to one-half (1/2) of his Salary (adjusted on an
annual basis by the amount of the Annual Increase), which shall be payable in
equal monthly installments until the close of the calendar year during which
Lamberti attains sixty-five (65) years of age or until the last day of the month
in which Lamberti is no longer deemed disabled pursuant to this Agreement, or
until Lamberti's death, whichever shall first occur.
If Lamberti shall receive any disability payments from any insurance
policies paid for by the Company, the payments to Lamberti pursuant to this
provision shall be reduced by the amount of disability payments received by
Lamberti under any such insurance policy or policies.
If, following the termination of Lamberti's employment by reason of
Disability, the
<PAGE>
Board of Directors determines, upon competent medical advice, that Lamberti has
recovered from said Disability to the point where he is no longer prevented by
said Disability from performing substantially all of the duties as Chief
Executive Officer of the Company, the Company shall give Lamberti not less than
thirty (30) days written notice of its election to cease the payment of
Disability benefits to him pursuant to this Section 6(b), following which (i)
the Company shall have no further obligations to Lamberti to make said
Disability payments as provided herein and (ii) Lamberti thereafter shall be
entitled to retire and terminate his employment with the Company, without
further action or notice on his part, and to receive the benefits payable under
the Non- Qualified Supplemental Executive Retirement Plan of the Company (the
"SERP") (or any successor plan), as and to the extent set forth therein, and
shall hold himself available to the Board of Directors for consultation as
provided in Section 10 hereof.
Notwithstanding any Disability on the part of Lamberti, the Company
shall continue at all times to offer and provide health insurance coverages to
Lamberti and his spouse, in accordance with the most favorable plans, programs,
practices and policies provided by the Company during the 90-day period
immediately preceding the Disability Effective Date or, if more favorable to
Lamberti, as in effect at any time thereafter with respect to other key
employees and their families, until the death of Lamberti and his spouse, except
to the extent such coverage is or otherwise becomes available to Lamberti and
his spouse under the Medicare program of benefits.
(c) CAUSE; OTHER THAN FOR GOOD REASON. If Lamberti's employment shall
be terminated for Cause, Lamberti's employment under this Agreement shall
terminate without further obligations to Lamberti (other than the obligation to
pay to Lamberti his Salary through the Date of Termination plus the amount of
any compensation previously deferred by Lamberti, together with accrued interest
thereon). If Lamberti terminates employment other than for Good Reason, this
Agreement shall terminate without further obligations to Lamberti, other than
those obligations accrued or earned and vested (if applicable) by Lamberti
through the Date of Termination, including for this purpose, all Accrued
Obligations. All such Accrued Obligations shall be paid to Lamberti in a lump
sum in cash within thirty (30) days of the Date of Termination.
(d) GOOD REASON; OTHER THAN FOR CAUSE OR DISABILITY. If the Company
shall terminate Lamberti's employment other than for Cause, Disability, or death
or if Lamberti shall terminate his employment for Good Reason at any time during
the Employment Period, except during a three-year period following any Change of
Control (in which case the provisions of Section 6(e) shall apply), then in such
event:
(i) the Company shall pay to Lamberti in a lump sum in cash
within thirty (30) days after the Date of Termination the aggregate of the
following amounts:
<PAGE>
A. to the extent not theretofore paid, Lamberti's Salary through
the Date of Termination; and
B. the product of (x) the highest Annual Bonus paid to Lamberti
during the three (3) fiscal years preceding the fiscal year in which the Date of
Termination occurs (the "Recent Bonus") and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the date of
Termination and the denominator of which is 365; and
C. the product of (x) two (2.0) and (y) the sum of (i) the Salary
and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by Lamberti,
all amounts previously deferred (together with any accrued interest thereon) and
not yet paid by the Company, and any accrued vacation pay not yet paid by the
Company; and
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Lamberti and/or Lamberti's family at
least equal to those which would have been provided to them in accordance with
the plans, programs, practices and policies provided under this Agreement if
Lamberti's employment had not been terminated, including health insurance and
life insurance, in accordance with the most favorable plans, practices, programs
or policies provided by the Company and its subsidiaries during the 90-day
period immediately preceding the Date of Termination or, if more favorable to
Lamberti, as in effect at any time thereafter with respect to other key
employees and their families. Notwithstanding the foregoing, however, the
Company shall continue at all times to offer and provide the above-described
health insurance coverages to Lamberti and his spouse until their respective
dates of death, except to the extent such coverage is or otherwise becomes
available to Lamberti and his spouse under the Medicare program of benefits.
(e) GOOD REASON; OTHER THAN FOR CAUSE OR DISABILITY, FOLLOWING A CHANGE
OF CONTROL. If, during a three year period following any Change of Control, the
Company shall terminate Lamberti's employment other than for Cause, Disability,
or death or if Lamberti shall terminate his employment for Good Reason:
(i) the Company shall pay to Lamberti in a lump sum in cash on
the thirtieth (30th) day following the Date of Termination the aggregate of the
following amounts:
A. to the extent not theretofore paid, Lamberti's Salary through
the Date of Termination; and
<PAGE>
B. the product of (x) the Recent Bonus and (y) a fraction, the
numerator of which is the number of days in the current fiscal year through the
date of Termination and the denominator of which is 365; and
C. the product of (x) three (3.0) and (y) the sum of (i) the
Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by Lamberti,
all amounts previously deferred (together with any accrued interest thereon) and
not yet paid by the Company, and any accrued vacation pay not yet paid by the
Company; and
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Lamberti and/or Lamberti's
family at least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies provided under this
Agreement if Lamberti's employment had not been terminated, including health
insurance and life insurance, in accordance with the most favorable plans,
practices, programs or policies provided by the Company and its subsidiaries
during the 90-day period immediately preceding the Date of Termination or, if
more favorable to Lamberti, as in effect at any time thereafter with respect to
other key employees and their families. Notwithstanding the foregoing, however,
the Company shall continue at all times to offer and provide the above-described
health insurance coverages to Lamberti and his spouse until their respective
dates of death, except to the extent such coverage is or otherwise becomes
available to Lamberti and his spouse under the Medicare program of benefits.
(f) ALTERNATIVE EXCISE TAX CAP. Notwithstanding the provisions of
Section 6(e) hereof, if any payments or benefits received or to be received by
Lamberti (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
Change of Control or any person affiliated with the Company or such person)
constitute "parachute payments" within the meaning of Section 280G(b)(2)(A) of
the Code and the value thereof exceeds 2.99 times Lamberti's "base amount," as
defined in Section 280G(b)(3) of the Code, then, in lieu thereof, the Company
shall pay to Lamberti, as soon as practicable following the Date of Termination
but in no event later than thirty (30) days thereafter, a lump sum cash payment
equal to 2.99 times his "base amount" (the "Alternative Severance Payment"),
reduced as provided below. The value of the payments to be made under Section
6(e) and Lamberti's base amount shall be determined in accordance with temporary
or final regulations, if any, promulgated under Section 280G of the Code and
based upon the advice of the tax counsel referred to below.
The Alternative Severance Payment shall be reduced by the amount of any
other payment or the value of any benefit received or to be received by Lamberti
in connection
<PAGE>
with a Change of Control of the Company or his termination of employment unless
(i) Lamberti shall have effectively waived his receipt or enjoyment of such
payment or benefit prior to the date of payment of the Alternative Severance
Payment, (ii) in the opinion of tax counsel selected by the Company's
independent auditors, such other payment or benefit does not constitute a
"parachute payment" within the meaning of Section 280G(b)(2) of the Code, or
(iii) in the opinion of such tax counsel, the Alternative Severance Payment plus
all other payments or benefits which constitute "parachute payments" within the
meaning of Section 280G(b)(2) of the Code are reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of the Code
or are otherwise not subject to disallowance as a deduction by reason of Section
280G of the Code. The value of any non-cash benefit or any deferred payment or
benefit shall be determined in accordance with the principles of Section
280G(d)(3) and (4) of the Code.
(g) SECTION 162(M) LIMITATION. In the event that the payments due to
Lamberti under this Section 6 exceed the "reasonable compensation" limitations
of Section 162(m) of the Code, that portion thereof that would not be deductible
by the Company in the taxable year in which the payment is due shall be deferred
by the Company and paid to Lamberti on the date that is sixteen (16) months
following the Date of Termination, together with interest thereon at the rate
provided in Section 7872(f)(2) of the Code.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit Lamberti's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company and for which Lamberti may qualify, including but not limited to the
SERP, nor shall anything herein limit or otherwise affect such rights as
Lamberti may have under the SERP or any stock option or other agreements with
the Company. Amounts which are vested benefits or which Lamberti is otherwise
entitled to receive under any plan, policy, practice or program of the Company
at or subsequent to the Date of Termination, including but not limited to the
SERP, shall be payable in accordance with the SERP or such plan, policy,
practice or program.
8. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Lamberti or others. In no event shall Lamberti be obligated to seek other
employment or take any other action by way of mitigation of the amounts payable
to Lamberti under any of the provisions of this Agreement, but such payments
shall be reduced to the extent of Lamberti's other earned income (if any) during
any remaining portion of the Employment Period. Following any Change of Control,
the Company agrees to pay, to the full extent permitted by law, all
<PAGE>
legal fees and expenses which Lamberti may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company or others (including
Lamberti) of the validity or enforceability of, or liability under, any
provision of this Agreement or any guarantee of performance thereof, plus in
each case interest at the applicable Federal rate provided for in Section
7872(f)(2) of the Code.
9. RETIREMENT OF LAMBERTI. It is understood that Lamberti shall retire
on the last day of the calendar year during which he reaches sixty-five (65)
years of age. The Board of Directors of the Company, at its sole option, may
offer to extend Lamberti's employment on a year-to-year basis after the calendar
year in which Lamberti reaches age sixty-five (65). At the conclusion of each
year it will be presumed that Lamberti will retire unless the Board of Directors
determines to offer to extend Lamberti's employment for an additional year.
Following the retirement of Lamberti, the Company shall continue at all
times to offer and provide health insurance coverages to Lamberti and his
spouse, in accordance with the most favorable plans, programs, practices and
policies provided by the Company during the 90-day period immediately preceding
the effective date of Lamberti's retirement or, if more favorable to Lamberti,
as in effect at any time thereafter with respect to other key employees and
their families, until the death of Lamberti and his spouse, except to the extent
such coverage is or otherwise becomes available to Lamberti and his spouse under
the Medicare program of benefits.
10. AVAILABILITY OF LAMBERTI AFTER RETIREMENT. Following his
retirement, Lamberti shall at reasonable times and insofar as his physical
condition may permit, hold himself available at the written request of the Board
of Directors of the Company to consult with and advise the officers, directors,
and other representatives of the Company. Such requests for Lamberti's service
shall, however, be structured so that reasonable allowances are made for
Lamberti's needs for vacation time and for other considerations of his physical
well-being. All such services shall be provided by Lamberti at his place of
residence unless otherwise agreed to by Lamberti. Lamberti shall not be required
to devote any prescribed hours to consulting with and giving advice to the
officers, directors, and other representatives of the Company in order to be
entitled to the retirement benefits as set out in the SERP, but all such
benefits shall be considered as earned in return for the consulting service and
advice that Lamberti may give from time to time to the Company, its officers,
directors, and other representatives.
If Lamberti's physical condition shall prevent him from consulting and
advising with the officers, directors or other representatives of the Company,
the retirement benefits provided under the SERP shall nonetheless be paid as
therein provided.
Lamberti shall be reimbursed by the Company for all reasonable expenses
incurred
<PAGE>
as a consultant and advisor, including expenses for travel, communication,
entertainment and similar items, upon presentation of itemized accounts of such
expenditures.
11. DISCRETION OF BOARD OF DIRECTORS. Notwithstanding any other term or
provision of this Agreement to the contrary, nothing stated herein is intended
to, nor shall it be construed, to abrogate, limit, alter or affect the
authority, rights and privileges of the Board of Directors of the Company to
remove Lamberti as Chief Executive Officer or Chairman of the Board of the
Company, without Cause, or during the term of this Agreement to elect as Chief
Executive Officer or Chairman of the Board of Directors of the Company a person
other than Lamberti, as provided by the laws of the State of Iowa; provided,
however, it is expressly agreed and understood that, in the event any one or any
combination of such events occurs, unless Lamberti is terminated for Cause as
defined in Section 5(b) hereof, Lamberti may terminate his employment for Good
Reason, in which case the Company shall pay Lamberti the benefits described in
either Section 6(d) or Section 6(e) of this Agreement, as applicable, in
consideration thereof.
12. CONFIDENTIAL INFORMATION; RESTRICTIVE COVENANT. (a) During the
period of his employment, Lamberti shall hold in fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and their respective
businesses, which shall have been obtained by Lamberti during Lamberti's
employment by the Company or any of its subsidiaries and which shall not be or
become public knowledge (other than by acts by Lamberti or his representatives
in violation of this Agreement). During a three (3) year period following
termination of Lamberti's employment with the Company, Lamberti shall not,
without the prior written consent of the Company, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it.
(b) While this Agreement remains in effect and Lamberti is entitled to
compensation or benefits pursuant to Sections 4 through 6 hereof (or, in the
event of termination of his employment for Good Reason, for a period of three
(3) years thereafter), Lamberti shall not directly or indirectly associate with,
participate in or render service to, whether as an employee, officer, director,
consultant, independent contractor or otherwise, any organization that is
engaged in business in competition with the Company, and he shall not himself
engage in any such business on his own account.
(c) In the event of a demonstrated breach of this Section 12, the
parties agree that the Company shall be entitled to seek equitable relief in a
court of competent jurisdiction to prevent any anticipated continuing breach of
the terms and conditions of this Section 12 and to secure the enforcement
thereof. The foregoing remedy shall be exclusive and in lieu of any other remedy
otherwise available to the Company under law.
<PAGE>
13. SUCCESSORS. (a) This Agreement is personal to Lamberti and without the
prior written consent of the Company shall not be assignable by Lamberti
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by Lamberti's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company agrees and covenants to require (i) any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company through a Change of Control or otherwise, and, (ii) within its lawful
power to do so, any party effecting or taking steps to accomplish a Change of
Control, to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession or Change of Control had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
14. MISCELLANEOUS. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If the Company, to Casey's General Stores, Inc., P. O. Box 3001, One Convenience
Blvd., Ankeny, Iowa 50021, Attention: President; and if to Lamberti, to his
address appearing on the books of the Company, or to his residence, or to such
other address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
<PAGE>
(e) The Company's or Lamberti's failure to insist upon strict
compliance with any provision hereof shall not be deemed to be a waiver of such
provision or any other provision thereof.
(f) This Agreement contains the entire understanding of the Company and
Lamberti with respect to the subject matter hereof. The Original Agreement
between Lamberti and the Company, as defined in the preambles hereof, is hereby
terminated and shall be of no further force or effect.
(g) No change, amendment or modification of this Agreement shall be
valid unless the same be in writing and signed by the Company and Lamberti.
(h) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument with the same force and effect as if all
the parties had executed the same document.
IN WITNESS WHEREOF, the respective parties have caused this Agreement
to be executed as of the day and year first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
---------------------------------
Ronald M. Lamb, President
ATTEST:
/s/ John G. Harmon
- --------------------------------
John G. Harmon, Secretary
/s/ Donald F. Lamberti
----------------------------
Donald F. Lamberti
Exhibit 10.22(a)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 24th day of October, 1997, by and between Casey's
General Stores, Inc., an Iowa corporation (the "Company"), and Ronald M. Lamb
("Lamb").
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") recognizes that the dedication of Lamb as an officer and director to
the affairs and welfare of the Company since its organization has resulted in a
long and successful association; and
WHEREAS, the Board of Directors further recognizes that the Company has
grown and prospered as a result of its association with Lamb, and has determined
that it is in the best interests of the Company and its shareholders to preserve
this association so as to enable the Company to further benefit from Lamb's
superior knowledge and expertise in all of its present and future business
endeavors; and
WHEREAS, the Company and Lamb are parties to an Employment Agreement
dated as of March 2, 1992, as amended by a First Amendment to Employment
Agreement dated as of January 16, 1997 (together, the "Original Agreement"),
providing for the employment of Lamb to serve as the President and Chief
Operating Officer of the Company under the terms and conditions set forth
therein; and
WHEREAS, the Board of Directors has further determined that it is
appropriate and in the best interests of the Company and its shareholders to
modify the existing contractual arrangements with respect to Lamb's employment
by the Company, with the concurrence of Lamb, and to amend and restate the
Original Agreement to reflect the same; and
WHEREAS, the Board of Directors has further determined that it is in
the best interest of the Company and its shareholders to assure that the Company
will have the continued dedication of Lamb, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
and to further encourage Lamb's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide Lamb with compensation arrangements upon a Change of Control which
provide him with compensation for expected losses that he would suffer in the
event of a Change of Control and which are competitive with those
<PAGE>
of other corporations, and, in order to accomplish these objectives, has
determined to cause the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, and in
addition to the other definitions set forth herein, the following terms shall
have the following meanings:
a) "Change of Control" shall mean:
(i) the acquisition (other than from the Company) by any
Person (as hereinafter defined), entity or "group" within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act"), (excluding for this purpose, the Company or any employee benefit plan of
the Company, which acquires beneficial ownership of voting securities of the
Company) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of either the then
outstanding shares of Common Stock, no par value, of the Company or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors (hereinafter referred to as the
"Common Stock"), unless such beneficial ownership was acquired as a result of an
acquisition of shares of Common Stock by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person, entity or "group" to twenty percent (20%) or
more of the Common Stock of the Company then outstanding; provided, however,
that if a Person, entity or "group" shall become the beneficial owner of twenty
percent (20%) or more of the Common Stock of the Company then outstanding by
reason of share purchases by the Company and shall, after such share purchases
by the Company, become the beneficial owner of any additional shares of Common
Stock of the Company, then such Person, entity or "group" shall be deemed to
have met the conditions hereof; or
(ii) individuals who, as of the date hereof, constitute the
Board of Directors (as of the date hereof, the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors, provided
that any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of this Agreement considered as though such person were a
member of the
<PAGE>
Incumbent Board; or
(iii) approval by the shareholders of the Company of a
reorganization, merger, consolidation (in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities) or a liquidation or dissolution of
the Company or of the sale of all or substantially all of the assets of the
Company.
(b) "Annual Increase" shall take effect on each January 1 for which the
benefit at issue is payable and shall mean fifty percent (50%) of the annual
increase in the National Consumer Price Index for the City of Des Moines, Iowa,
as published by the United States Bureau of Labor Statistics.
(c) "Annual Bonus" shall mean any bonus payable at the discretion of
the Board of Directors of the Company, on such terms and in such amounts as it
shall determine.
(d) "Employment Period" shall mean the term of Lamb's employment under
this Agreement, as set forth in Section 2 hereof.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Accrued Obligations" shall mean (i) Lamb's Salary through the Date
of Termination at the rate in effect on the Date of Termination, (ii) the
product of the Annual Bonus paid to Lamb for the last full fiscal year and a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(iii) any compensation previously deferred (together with any accrued interest
thereon) and not yet paid by the Company and any accrued vacation pay not yet
paid by the Company.
(g) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) and all
"affiliates" and "associates" of such entity (as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Exchange Act).
2. EMPLOYMENT AND TERM. The Company agrees to employ Lamb, and Lamb agrees
to serve the Company, as Chief Operating Officer and President of the Company on
the terms and under the conditions set forth in this Agreement. The initial term
of employment under this Agreement shall commence on the date hereof and shall
<PAGE>
terminate on April 30, 2000 (the "Initial Term"), after which this Agreement and
the Employment Period hereunder shall be automatically renewed and extended for
successive periods of three years (each of which shall be a "Renewal Term"),
subject to the right of the Company and Lamb to terminate this Agreement during
the Initial Term or any such Renewal Term in accordance with the terms and
conditions set forth in subsequent sections of this Agreement, and further
subject to the right of the Company and Lamb to cause this Agreement and the
Employment Period hereunder to expire at the end of the Initial Term or any
Renewal Term by giving written notice thereof at least one year prior to the end
of the Initial Term or the then current Renewal Term, as applicable; provided,
however, that in the event of a Change of Control during the Initial Term or any
Renewal Term, this Agreement and the Employment Period hereunder automatically
shall continue in full force and effect for the greater of (i) the remaining
term of employment then in progress or (ii) three years from the effective date
of the Change of Control. References herein to the Employment Period shall refer
to both the Initial Term and any successive Renewal Term.
3. DUTIES OF LAMB. During the period of his employment in the capacity
of Chief Operating Officer and President, Lamb will perform his duties to the
best of his ability, subject to the control of the Board of Directors. It is
agreed and understood that the position (including status, office, title and
reporting requirements), authority, duties and responsibilities of Lamb shall be
substantially the same as those performed by Lamb as Chief Operating Officer and
President of the Company prior to the date of this Agreement, and that Lamb
shall at all times serve the best interests of the Company. The Company agrees
that Lamb shall at all times have such authority and discretion as is required
in the carrying out of Lamb's duties in a proper and efficient manner, subject
to review by the Board of Directors.
During the period of his employment, it shall not be a violation of
this Agreement for Lamb to (i) serve on corporate, civil or charitable boards or
committees, (ii) deliver lectures or fulfill speaking engagements and (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of Lamb's responsibilities as an employee of the
Company in accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted by Lamb prior to
the date hereof, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the date hereof
shall not thereafter be deemed to interfere with the performance of Lamb's
responsibilities to the Company.
4. COMPENSATION. The Company shall pay to Lamb an annual salary of Three
Hundred and Fifty Thousand Dollars ($350,000), payable in equal monthly
installments, or such other amount as shall be mutually agreed upon by the
Company and Lamb (the "Salary"). In addition, Lamb and/or Lamb's family shall be
entitled to receive
<PAGE>
all benefits presently provided or those which may hereafter be generally
provided by the Company to its employees, officers or directors, including
health insurance and life insurance. With respect to such health insurance
benefits, the Company agrees that at all times the health insurance coverages
available to Lamb and his spouse under such plans shall include provisions
providing for lifetime benefits payable on behalf of Lamb and his spouse of not
less than One Million Dollars ($1,000,000) each, or such other amount as the
Company and Lamb may specifically agree upon in writing, subject, however, to
any limitations, restrictions or conditions that shall from time to time be
necessary to satisfy the requirements of applicable federal or state laws and
regulations.
5. TERMINATION OF EMPLOYMENT. (a) Death or Disability. Lamb's
employment under this Agreement shall terminate automatically upon Lamb's death.
If the Company determines in good faith that the Disability of Lamb has occurred
(pursuant to the definition of "Disability" set forth below), it may give to
Lamb written notice of its intention to terminate Lamb's employment as Chief
Operating Officer and President. In such event, Lamb's employment with the
Company shall terminate effective on the thirtieth (30th) day after receipt of
such notice by Lamb (the "Disability Effective Date"), provided that, within the
thirty (30) days after such receipt, Lamb shall not have returned to full-time
performance of his duties. For purposes of this Agreement, "Disability" means
disability or incapacity of Lamb which, at least twenty-six (26) weeks after its
commencement, is determined by the Board of Directors upon competent medical
advice to be such as to prevent Lamb from performing substantially all of the
duties of Chief Operating Officer and President of the Company.
(b) Cause. The Company may terminate Lamb's employment for "Cause." For
purposes of this Agreement, "Cause" means (i) an act or acts of personal
dishonesty taken by Lamb and intended to result in substantial personal
enrichment of Lamb at the expense of the Company, (ii) repeated violations by
Lamb of Lamb's obligations under Section 3 of this Agreement which are
demonstrably willful and deliberate on Lamb's part and which are not remedied in
a reasonable period of time after receipt of written notice from the Company or
(iii) the conviction of Lamb of a felony when such conviction is no longer
subject to direct appeal.
(c) Good Reason. Lamb's employment may be terminated by Lamb for
Good Reason. For purposes of this Agreement, "Good Reason" means:
(i) the assignment to Lamb of any duties inconsistent in any
respect with Lamb's position (including status, office, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3 of this Agreement, or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly
<PAGE>
after receipt of notice thereof given by Lamb;
(ii) Any failure by the Company to comply with the provisions
of Section 4 of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Lamb;
(iii) the Company's requiring Lamb to be based at any office
or location other than the Company's Corporate Headquarters facility in Ankeny,
Iowa, except for travel reasonably required in the performance of Lamb's
responsibilities;
(iv) any purported termination by the Company of Lamb's
employment otherwise than for death, Disability or Cause as expressly permitted
by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 13(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by Lamb shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause or
by Lamb for Good Reason shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 14(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Lamb's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date
shall be not more than fifteen (15) days after the giving of such notice). The
failure of Lamb to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive any
right of Lamb hereunder or preclude Lamb from asserting such fact or
circumstance in enforcing his rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that (i) if Lamb's employment is terminated by
the Company other than for Cause or Disability, the Date of Termination shall be
the date on which the Company notifies Lamb of such termination and (ii) if
Lamb's employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of Lamb or the Disability Effective Date,
as the case may be.
<PAGE>
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF EMPLOYMENT. (a) Death
of Lamb. In the event of the death of Lamb during the term hereof, the Company
shall pay to Lamb's spouse, commencing on the first day of the month following
his death and continuing for a period of twenty-four (24) months thereafter,
benefits equal to the monthly installments of Salary which was then being paid
to Lamb pursuant to Section 4 herein. Immediately following such two-year
period, the Company shall commence the payment of monthly benefits to Lamb's
spouse equal in amount to one-fourth (1/4) of the monthly installments of Salary
which was being paid to Lamb at the time of his death under Section 4 herein,
which monthly benefits shall be paid for a period of twenty (20) years or until
the death of Lamb's spouse, whichever occurs first. In addition, the Company
shall continue at all times to offer and provide health insurance coverage to
Lamb's spouse, in accordance with the plans, programs, practices and policies
provided by the Company under the terms of this Agreement at the time of Lamb's
death, until the death of Lamb's spouse, except to the extent such coverage is
or otherwise becomes available to Lamb's spouse under the Medicare program of
benefits.
(b) Disability of Lamb. If Lamb's employment is terminated by reason of
the Disability of Lamb, Lamb's employment under this Agreement shall terminate
without further obligations to Lamb, other than those obligations accrued or
earned and vested (if applicable) by Lamb as of the Date of Termination,
including for this purpose, all Accrued Obligations and those set forth herein.
All such Accrued Obligations shall be paid to Lamb in a lump sum in cash within
thirty (30) days of the Date of Termination. Anything in this Agreement to the
contrary notwithstanding, Lamb shall be entitled after the Disability Effective
Date to receive disability and other benefits in an amount equal to one-half
(1/2) of his Salary (adjusted on an annual basis by the amount of the Annual
Increase), which shall be payable in equal monthly installments until the close
of the calendar year during which Lamb attains sixty-five (65) years of age or
until the last day of the month in which Lamb is no longer deemed disabled
pursuant to this Agreement, or until Lamb's death, whichever shall first occur.
If Lamb shall receive any disability payments from any insurance
policies paid for by the Company, the payments to Lamb pursuant to this
provision shall be reduced by the amount of disability payments received by Lamb
under any such insurance policy or policies.
If, following the termination of Lamb's employment by reason of
Disability, the Board of Directors determines, upon competent medical advice,
that Lamb is no longer prevented by said Disability from performing
substantially all of the duties as Chief Operating Officer and President of the
Company, the Company shall give Lamb not less than thirty (30) days written
notice of its election to cease the payment of Disability benefits to him
pursuant to this Section 6(b), following which (i) the Company shall have
<PAGE>
no further obligations to Lamb to make said Disability payments as provided
herein and (ii) Lamb thereafter shall be entitled to retire and terminate his
employment with the Company, without further action or notice on his part, and
to receive the benefits payable under the Non-Qualified Supplemental Executive
Retirement Plan of the Company (the "SERP") (or any successor plan), as and to
the extent set forth therein, and shall hold himself available to the Board of
Directors for consultation as provided in Section 10 hereof.
Notwithstanding any Disability on the part of Lamb, the Company shall
continue at all times to offer and provide health insurance coverages to Lamb
and his spouse, in accordance with the most favorable plans, programs, practices
and policies provided by the Company during the 90-day period immediately
preceding the Disability Effective Date or, if more favorable to Lamb, as in
effect at any time thereafter with respect to other key employees and their
families, until the death of Lamb and his spouse, except to the extent such
coverage is or otherwise becomes available to Lamb and his spouse under the
Medicare program of benefits.
(c) Cause; Other than for Good Reason. If Lamb's employment shall be
terminated for Cause, Lamb's employment under this Agreement shall terminate
without further obligations to Lamb (other than the obligation to pay to Lamb
his Salary through the Date of Termination plus the amount of any compensation
previously deferred by Lamb, together with accrued interest thereon). If Lamb
terminates employment other than for Good Reason, this Agreement shall terminate
without further obligations to Lamb, other than those obligations accrued or
earned and vested (if applicable) by Lamb through the Date of Termination,
including for this purpose, all Accrued Obligations. All such Accrued
Obligations shall be paid to Lamb in a lump sum in cash within thirty (30) days
of the Date of Termination.
(d) Good Reason; Other than for Cause or Disability. If the Company
shall terminate Lamb's employment other than for Cause, Disability, or death or
if Lamb shall terminate his employment for Good Reason at any time during the
Employment Period, except during a three-year period following any Change of
Control (in which case the provisions of Section 6(e) shall apply), then in such
event:
(i) the Company shall pay to Lamb in a lump sum in cash within
thirty (30) days after the Date of Termination the aggregate of the following
amounts:
A. to the extent not theretofore paid, Lamb's
Salary through the Date of Termination; and
B. the product of (x) the highest Annual Bonus
paid to Lamb during the three (3) fiscal years preceding the fiscal year in
which the Date of
<PAGE>
Termination occurs (the "Recent Bonus") and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the date of
Termination and the denominator of which is 365; and
C. the product of (x) two (2.0) and (y) the sum
of (i) the Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously
deferred by Lamb, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Company, and any accrued vacation
pay not yet paid by the Company; and
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Lamb and/or Lamb's family at least equal
to those which would have been provided to them in accordance with the plans,
programs, practices and policies provided under this Agreement if Lamb's
employment had not been terminated, including health insurance and life
insurance, in accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day period
immediately preceding the Date of Termination or, if more favorable to Lamb, as
in effect at any time thereafter with respect to other key employees and their
families. Notwithstanding the foregoing, however, the Company shall continue at
all times to offer and provide the above-described health insurance coverages to
Lamb and his spouse until their respective dates of death, except to the extent
such coverage is or otherwise becomes available to Lamb and his spouse under the
Medicare program of benefits.
(e) Good Reason; Other than for Cause or Disability, following a Change
of Control. If, during a three year period following any Change of Control, the
Company shall terminate Lamb's employment other than for Cause, Disability, or
death or if Lamb shall terminate his employment for Good Reason:
(i) the Company shall pay to Lamb in a lump sum in cash on the
thirtieth (30th) day following the Date of Termination the aggregate of the
following amounts:
A. to the extent not theretofore paid, Lamb's
Salary through the Date of Termination; and
B. the product of (x) the Recent Bonus and (y)
a fraction, the numerator of which is the number of days in the current fiscal
year through the date of Termination and the denominator of which is 365; and
C. the product of (x) three (3.0) and (y) the sum of (i) the
Salary
<PAGE>
and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by Lamb,
all amounts previously deferred (together with any accrued interest thereon)
and not yet paid by the Company, and any accrued vacation pay not yet
paid by the Company; and
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Lamb and/or Lamb's family at
least equal to those which would have been provided to them in accordance with
the plans, programs, practices and policies provided under this Agreement if
Lamb's employment had not been terminated, including health insurance and life
insurance, in accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day period
immediately preceding the Date of Termination or, if more favorable to Lamb, as
in effect at any time thereafter with respect to other key employees and their
families. Notwithstanding the foregoing, however, the Company shall continue at
all times to offer and provide the above-described health insurance coverages to
Lamb and his spouse until their respective dates of death, except to the extent
such coverage is or otherwise becomes available to Lamb and his spouse under the
Medicare program of benefits.
(f) Alternative Excise Tax Cap. Notwithstanding the provisions of
Section 6(e) hereof, if any payments or benefits received or to be received by
Lamb (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
Change of Control or any person affiliated with the Company or such person)
constitute "parachute payments" within the meaning of Section 280G(b)(2)(A) of
the Code and the value thereof exceeds 2.99 times Lamb's "base amount," as
defined in Section 280G(b)(3) of the Code, then, in lieu thereof, the Company
shall pay to Lamb, as soon as practicable following the Date of Termination but
in no event later than thirty (30) days thereafter, a lump sum cash payment
equal to 2.99 times his "base amount" (the "Alternative Severance Payment"),
reduced as provided below. The value of the payments to be made under Section
6(e) and Lamb's base amount shall be determined in accordance with temporary or
final regulations, if any, promulgated under Section 280G of the Code and based
upon the advice of the tax counsel referred to below.
The Alternative Severance Payment shall be reduced by the amount of any
other payment or the value of any benefit received or to be received by Lamb in
connection with a Change of Control of the Company or his termination of
employment unless (i) Lamb shall have effectively waived his receipt or
enjoyment of such payment or benefit prior to the date of payment of the
Alternative Severance Payment, (ii) in the opinion of tax counsel selected by
the Company's independent auditors, such other payment or benefit does not
constitute a "parachute payment" within the meaning of Section
<PAGE>
280G(b)(2) of the Code, or (iii) in the opinion of such tax counsel, the
Alternative Severance Payment plus all other payments or benefits which
constitute "parachute payments" within the meaning of Section 280G(b)(2) of the
Code are reasonable compensation for services actually rendered within the
meaning of Section 280G(b)(4) of the Code or are otherwise not subject to
disallowance as a deduction by reason of Section 280G of the Code. The value of
any non-cash benefit or any deferred payment or benefit shall be determined in
accordance with the principles of Section 280G(d)(3) and (4) of the Code.
(g) Section 162(m) Limitation. In the event that the payments due to
Lamb under this Section 6 exceed the "reasonable compensation" limitations of
Section 162(m) of the Code, that portion thereof that would not be deductible by
the Company in the taxable year in which the payment is due shall be deferred by
the Company and paid to Lamb on the date that is sixteen (16) months following
the Date of Termination, together with interest thereon at the rate provided in
Section 7872(f)(2) of the Code.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit Lamb's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company and for which Lamb may qualify, including but not limited to the SERP,
nor shall anything herein limit or otherwise affect such rights as Lamb may have
under the SERP or any stock option or other agreements with the Company. Amounts
which are vested benefits or which Lamb is otherwise entitled to receive under
any plan, policy, practice or program of the Company at or subsequent to the
Date of Termination, including but not limited to the SERP, shall be payable in
accordance with the SERP or such plan, policy, practice or program.
8. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against Lamb
or others. In no event shall Lamb be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to Lamb under any
of the provisions of this Agreement, but such payments shall be reduced to the
extent of Lamb's other earned income (if any) during any remaining portion of
the Employment Period. Following any Change of Control, the Company agrees to
pay, to the full extent permitted by law, all legal fees and expenses which Lamb
may reasonably incur as a result of any contest (regardless of the outcome
thereof) by the Company or others (including Lamb) of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof, plus in each case interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Code.
<PAGE>
9. RETIREMENT OF LAMB. It is understood that Lamb shall retire on the
last day of the calendar year during which he reaches sixty-five (65) years of
age. The Board of Directors of the Company, at its sole option, may offer to
extend Lamb's employment on a year-to-year basis after the calendar year in
which Lamb reaches age sixty-five (65). At the conclusion of each year it will
be presumed that Lamb will retire unless the Board of Directors determines to
offer to extend Lamb's employment for an additional year.
Following the retirement of Lamb, the Company shall continue at all
times to offer and provide health insurance coverages to Lamb and his spouse, in
accordance with the most favorable plans, programs, practices and policies
provided by the Company during the 90-day period immediately preceding the
effective date of Lamb's retirement or, if more favorable to Lamb, as in effect
at any time thereafter with respect to other key employees and their families,
until the death of Lamb and his spouse, except to the extent such coverage is or
otherwise becomes available to Lamb and his spouse under the Medicare program of
benefits.
10. AVAILABILITY OF LAMB AFTER RETIREMENT. Following his retirement,
Lamb shall at reasonable times and insofar as his physical condition may permit,
hold himself available at the written request of the Board of Directors of the
Company to consult with and advise the officers, directors, and other
representatives of the Company. Such requests for Lamb's service shall, however,
be structured so that reasonable allowances are made for Lamb's needs for
vacation time and for other considerations of his physical well-being. All such
services shall be provided by Lamb at his place of residence unless otherwise
agreed to by Lamb. Lamb shall not be required to devote any prescribed hours to
consulting with and giving advice to the officers, directors, and other
representatives of the Company in order to be entitled to the retirement
benefits as set out in the SERP, but all such benefits shall be considered as
earned in return for the consulting service and advice that Lamb may give from
time to time to the Company, its officers, directors, and other representatives.
If Lamb's physical condition shall prevent him from consulting and
advising with the officers, directors or other representatives of the Company,
the retirement benefits provided under the SERP shall nonetheless be paid as
therein provided.
Lamb shall be reimbursed by the Company for all reasonable expenses
incurred as a consultant and advisor, including expenses for travel,
communication, entertainment and similar items, upon presentation of itemized
accounts of such expenditures.
11. DISCRETION OF BOARD OF DIRECTORS. Notwithstanding any other term or
provision of this Agreement to the contrary, nothing stated herein is intended
to, nor shall it be construed, to abrogate, limit, alter or affect the
authority, rights and
<PAGE>
privileges of the Board of Directors of the Company to remove Lamb as Chief
Operating Officer and President of the Company, without Cause, or during the
term of this Agreement to elect as Chief Operating Officer and President of the
Company a person other than Lamb, as provided by the laws of the State of Iowa;
provided, however, it is expressly agreed and understood that in the event any
one or any combination of such events occurs, unless Lamb is terminated for
Cause as defined in Section 5(b) hereof, Lamb may terminate his employment for
Good Reason, in which case the Company shall pay Lamb the benefits described in
either Section 6(d) or Section 6(e) of this Agreement, as applicable, in
consideration thereof.
12. CONFIDENTIAL INFORMATION; RESTRICTIVE COVENANT. (a) During the
period of his employment, Lamb shall hold in fiduciary capacity for the benefit
of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and their respective
businesses, which shall have been obtained by Lamb during Lamb's employment by
the Company or any of its subsidiaries and which shall not be or become public
knowledge (other than by acts by Lamb or his representatives in violation of
this Agreement). During a three (3) year period following termination of Lamb's
employment with the Company, Lamb shall not, without the prior written consent
of the Company, communicate or divulge any such information, knowledge or data
to anyone other than the Company and those designated by it.
(b) While this Agreement remains in effect and Lamb is entitled to
compensation or benefits pursuant to Sections 4 through 6 hereof (or, in the
event of termination of his employment for Good Reason, for a period of three
(3) years thereafter), Lamb shall not directly or indirectly associate with,
participate in or render service to, whether as an employee, officer, director,
consultant, independent contractor or otherwise, any organization that is
engaged in business in competition with the Company, and he shall not himself
engage in any such business on his own account.
(c) In the event of a demonstrated breach of this Section 12, the
parties agree that the Company shall be entitled to seek equitable relief in a
court of competent jurisdiction to prevent any anticipated continuing breach of
the terms and conditions of this Section 12 and to secure the enforcement
thereof. The foregoing remedy shall be exclusive and in lieu of any other remedy
otherwise available to the Company under law.
13. SUCCESSORS. (a) This Agreement is personal to Lamb and without the
prior written consent of the Company shall not be assignable by Lamb otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Lamb's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the
<PAGE>
Company and its successors and assigns.
(c) The Company agrees and covenants to require (i) any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company through a Change of Control or otherwise, and, (ii) within its lawful
power to do so, any party effecting or taking steps to accomplish a Change of
Control, to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession or Change of Control had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
14. MISCELLANEOUS. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If the Company, to Casey's General Stores, Inc., P. O. Box 3001, One Convenience
Blvd., Ankeny, Iowa 50021, Attention: President; and if to Lamb, to his address
appearing on the books of the Company, or to his residence, or to such other
address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Company's or Lamb's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision thereof.
(f) This Agreement contains the entire understanding of the
Company and Lamb with respect to the subject matter hereof. The Original
Agreement between Lamb
<PAGE>
and the Company, as defined in the preambles hereof, is hereby terminated and
shall be of no further force or effect.
(g) No change, amendment or modification of this Agreement shall be
valid unless the same be in writing and signed by the Company and Lamb.
(h) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument with the same force and effect as if all
the parties had executed the same document.
IN WITNESS WHEREOF, the respective parties have caused this Agreement
to be executed as of the day and year first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Donald F. Lamberti
----------------------------
Donald F. Lamberti, Chief
Executive Officer
ATTEST:
/s/ John G. Harmon
- --------------------------------
John G. Harmon, Secretary
/s/ Ronald M. Lamb
---------------------------
Ronald M. Lamb
Exhibit 10.23(a)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 24th day of October, 1997, by and between Casey's
General Stores, Inc., an Iowa corporation (the "Company"), and Douglas K. Shull
("Shull").
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") recognizes that the dedication of Shull as an officer and director
to the affairs and welfare of the Company has resulted in a long and successful
association; and
WHEREAS, the Board of Directors further recognizes that the Company has
grown and prospered as a result of its association with Shull, and has
determined that it is in the best interests of the Company and its shareholders
to preserve this association so as to enable the Company to further benefit from
Shull's superior knowledge and expertise in all of its present and future
business endeavors; and
WHEREAS, the Company and Shull are parties to an Employment Agreement
dated as of March 2, 1992, as amended by a First Amendment to Employment
Agreement date as of January 9, 1997 (together, the "Original Agreement"),
providing for the employment of Shull to serve as the Treasurer of the Company
under the terms and conditions set forth therein; and
WHEREAS, the Board of Directors has further determined that it is
appropriate and in the best interests of the Company and its shareholders to
modify the existing contractual arrangements with respect to Shull's employment
by the Company, with the concurrence of Shull, and to amend and restate the
Original Agreement to reflect the same; and
WHEREAS, the Board of Directors has further determined that it is in
the best interest of the Company and its shareholders to assure that the Company
will have the continued dedication of Shull, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
and to further encourage Shull's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide Shull with compensation arrangements upon a Change of Control which
provide him with compensation for expected losses that he would suffer in the
event of a Change of Control and which are competitive with those of other
corporations, and, in order to accomplish these objectives, has determined to
<PAGE>
cause the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, and in addition to
the other definitions set forth herein, the following terms shall have the
following meanings:
a) "Change of Control" shall mean:
(i) the acquisition (other than from the Company) by any
Person (as hereinafter defined), entity or "group" within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act"), (excluding for this purpose, the Company or any employee benefit plan of
the Company, which acquires beneficial ownership of voting securities of the
Company) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of either the then
outstanding shares of Common Stock, no par value, of the Company or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors (hereinafter referred to as the
"Common Stock"), unless such beneficial ownership was acquired as a result of an
acquisition of shares of Common Stock by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person, entity or "group" to twenty percent (20%) or
more of the Common Stock of the Company then outstanding; provided, however,
that if a Person, entity or "group" shall become the beneficial owner of twenty
percent (20%) or more of the Common Stock of the Company then outstanding by
reason of share purchases by the Company and shall, after such share purchases
by the Company, become the beneficial owner of any additional shares of Common
Stock of the Company, then such Person, entity or "group" shall be deemed to
have met the conditions hereof; or
(ii) individuals who, as of the date hereof, constitute the
Board of Directors (as of the date hereof, the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors, provided
that any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of this Agreement considered as though such person were a
member of the Incumbent Board; or
<PAGE>
(iii) approval by the shareholders of the Company of a
reorganization, merger, consolidation (in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities) or a liquidation or dissolution of
the Company or of the sale of all or substantially all of the assets of the
Company.
(b) "Annual Increase" shall take effect on each January 1 for which the
benefit at issue is payable and shall mean fifty percent (50%) of the annual
increase in the National Consumer Price Index for the City of Des Moines, Iowa,
as published by the United States Bureau of Labor Statistics.
(c) "Annual Bonus" shall mean any bonus payable at the discretion of
the Board of Directors of the Company, on such terms and in such amounts as it
shall determine.
(d) "Employment Period" shall mean the term of Shull's employment under
this Agreement, as set forth in Section 2 hereof.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Accrued Obligations" shall mean (i) Shull's Salary through the
Date of Termination at the rate in effect on the Date of Termination, (ii) the
product of the Annual Bonus paid to Shull for the last full fiscal year and a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(iii) any compensation previously deferred (together with any accrued interest
thereon) and not yet paid by the Company and any accrued vacation pay not yet
paid by the Company.
(g) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) and all
"affiliates" and "associates" of such entity (as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Exchange Act).
2. EMPLOYMENT AND TERM. The Company agrees to employ Shull, and Shull
agrees to serve the Company, as Treasurer of the Company until August 1, 2001,
unless his employment is otherwise terminated as provided herein; provided,
however, that in the event of a Change of Control during the foregoing
Employment Period, this Agreement shall continue in full force and effect for an
additional period of three (3) years following the expiration of the Employment
Period (until August 1, 2004).
<PAGE>
3. DUTIES OF SHULL. During the period of his employment in the
capacity of Treasurer, Shull agrees to devote all professional skill and energy
to the faithful and full satisfaction of his duties as Treasurer. It is agreed
and understood that Shull will perform all duties assigned to him, which shall
be substantially the same as those performed by Shull as Treasurer of the
Company prior to the date of this Agreement (including status, offices, titles
and reporting requirements), to the full satisfaction of the Board of Directors.
The Company agrees that Shull shall have such authority and discretion as is
necessary to fully and faithfully perform his duties in a proper and efficient
manner, subject to review by the Board of Directors.
During the period of his employment, it shall not be a violation of
this Agreement for Shull to (i) serve on corporate, civil or charitable boards
or committees, (ii) deliver lectures or fulfill speaking engagements and (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of Shull's responsibilities as an employee of the
Company in accordance with this Agreement. It is expressly understood and agreed
that to the extent that any such activities have been conducted by Shull prior
to the date hereof, the continued conduct of such activities (or the conduct of
activities similar in nature and scope thereto) subsequent to the date hereof
shall not thereafter be deemed to interfere with the performance of Shull's
responsibilities to the Company.
4. COMPENSATION. The Company shall pay to Shull an annual salary of One
Hundred Forty-Five Thousand Dollars ($145,000), payable in equal monthly
installments, or such other amount as shall be mutually agreed upon by the
Company and Shull (the "Salary"). In addition, Shull and/or Shull's family shall
be entitled to receive all benefits presently provided or those which may
hereafter be provided generally by the Company to its employees, officers or
directors, including health insurance and life insurance. With respect to such
health insurance benefits, the Company agrees that at all times the health
insurance coverages available to Shull and his spouse under such plans shall
include provisions providing for lifetime benefits payable on behalf of Shull
and his spouse of not less than One Million Dollars ($1,000,000) each, or such
other amount as the Company and Shull may specifically agree upon in writing,
subject, however, to any limitations, restrictions or conditions that shall from
time to time be necessary to satisfy the requirements of applicable federal or
state laws and regulations.
5. TERMINATION OF EMPLOYMENT. (a) Death or Disability. Shull's
employment under this Agreement shall terminate automatically upon Shull's
death. If the Company determines in good faith that the Disability of Shull has
occurred (pursuant to the definition of "Disability" set forth below), it may
give to Shull written notice of its intention to terminate Shull's employment as
Treasurer of the Company. In such event, Shull's employment with the Company
shall terminate effective on the thirtieth (30th) day after receipt of such
notice by Shull (the "Disability Effective Date"), provided that,
<PAGE>
within the thirty (30) days after such receipt, Shull shall not have returned to
full-time performance of his duties. For purposes of this Agreement, "Disability
means disability or incapacity of Shull which, at least twenty-six (26) weeks
after its commencement, is determined by the Board of Directors upon competent
medical advice to be such as to prevent Shull from performing substantially all
of the duties as Treasurer of the Company.
Notwithstanding any Disability on the part of Shull, the Company shall
continue at all times to offer and provide health insurance coverages to Shull
and his spouse, in accordance with the plans, programs, practices and policies
provided by the Company during the 90-day period immediately preceding the
Disability Effective Date or, if more favorable to Shull, as in effect at any
time thereafter with respect to other key employees and their families, until
the death of Shull and his spouse, except to the extent such coverage is or
otherwise becomes available to Shull and his spouse under the Medicare program
of benefits.
(b) Cause. The Company may terminate Shull's employment for "Cause."
For purposes of this Agreement, "Cause" means (i) an act or acts of personal
dishonesty taken by Shull and intended to result in substantial personal
enrichment of Shull at the expense of the Company, (ii) repeated violations by
Shull of Shull's obligations under Section 3 of this Agreement which are
demonstratively willful and deliberate on Shull's part and which are not
remedied in a reasonable period of time after receipt of written notice from the
Company or (iii) the conviction of Shull of a felony when such conviction is no
longer subject to direct appeal.
(c) Good Reason. Shull's employment may be terminated by Shull
for Good Reason. For purposes of this Agreement, "Good Reason" means:
(i) the assignment to Shull of any duties inconsistent in any
respect with Shull's position (including status, office, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3 of this Agreement, or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by Shull;
(ii) Any failure by the Company to comply with the provisions
of Section 4 of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt of notice thereof given by Shull;
(iii) the Company's requiring Shull to be based at any
office or location
<PAGE>
other than the Company's Corporate Headquarters facility in Ankeny,
Iowa, except for travel reasonably required in the performance of Shull's
responsibilities;
(iv) any purported termination by the Company of Shull's
employment otherwise than for death, Disability or Cause as expressly permitted
by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 13(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by Shull shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause or
by Shull for Good Reason shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 14(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Shull's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date
shall be not more than fifteen (15) days after the giving of such notice). The
failure by Shull to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive any
right of Shull hereunder or preclude Shull from asserting such fact or
circumstance in enforcing his rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that (i) if Shull's employment is terminated by
the Company other than for Cause or Disability, the Date of Termination shall be
the date on which the Company notifies Shull of such termination and (ii) if
Shull's employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of Shull or the Disability Effective
Date, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF
EMPLOYMENT. (a) Death of Shull. In the event of the death of Shull during the
term hereof, the Company shall pay to Shull's spouse, commencing on the first
day of the month following his death and continuing for a period of twelve (12)
months thereafter, benefits equal to the monthly installments of Salary which
was then being paid to Shull pursuant to Section 4 herein. Immediately following
such one-year period, the Company shall commence the payment of monthly benefits
to Shull's spouse equal in amount to one-fourth (1/4) of the monthly
installments of Salary which was being paid to Shull at
<PAGE>
the time of his death under Section 4 herein, which monthly benefits shall be
paid for a period of twenty (20) years or until the death of Shull's spouse,
whichever occurs first. In addition, the Company shall continue at all times to
offer and provide health insurance coverage to Shull's spouse, in accordance
with the plans, programs, practices and policies provided by the Company under
the terms of this Agreement at the time of Shull's death, until the death of
Shull's spouse, except to the extent such coverage is or otherwise becomes
available to Shull's spouse under the Medicare program of benefits.
(b) Cause; Other than for Good Reason. If Shull's employment shall be
terminated for Cause, Shull's employment under this Agreement shall terminate
without further obligations to Shull (other than the obligation to pay to Shull
his Salary through the Date of Termination plus the amount of any compensation
previously deferred by Shull, together with accrued interest thereon). If Shull
terminates employment other than for Good Reason, this Agreement shall terminate
without further obligations to Shull, other than those obligations accrued or
earned and vested (if applicable) by Shull through the Date of Termination,
including for this purpose, all Accrued Obligations. All such Accrued
Obligations shall be paid to Shull in a lump sum in cash within thirty (30) days
of the Date of Termination.
(c) Good Reason; Other than for Cause or Disability. If the Company
shall terminate Shull's employment other than for Cause, Disability, or death or
if Shull shall terminate his employment for Good Reason at any time during the
Employment Period, except during a three-year period following any Change of
Control (in which case the provisions of Section 6(d) shall apply), then in such
event:
(i) the Company shall pay to Shull in a lump sum in cash
within thirty (30) days after the Date of Termination the aggregate of the
following amounts:
A. to the extent not theretofore paid, Shull's Salary
through the Date of Termination; and
B. the product of (x) the highest Annual Bonus paid to Shull
during the three (3) fiscal years preceding the fiscal year in which the Date of
Termination occurs (the "Recent Bonus") and (y) a fraction, the numerator of
which is the number of days in the current fiscal year through the date of
Termination and the denominator of which is 365; and
C. the product of (x) two (2.0) and (y) the sum of (i) the
Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by Shull,
all amounts previously deferred (together with any accrued interest thereon) and
not yet paid
<PAGE>
by the Company, and any accrued vacation pay not yet paid by the Company; and
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Shull and/or Shull's family at least
equal to those which would have been provided to them in accordance with the
plans, programs, practices and policies provided under this Agreement if Shull's
employment had not been terminated, including health insurance and life
insurance, in accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day period
immediately preceding the Date of Termination or, if more favorable to Shull, as
in effect at any time thereafter with respect to other key employees and their
families. Notwithstanding the foregoing, however, the Company shall continue at
all times to offer and provide the above-described health insurance coverages to
Shull and his spouse until their respective dates of death, except to the extent
such coverage is or otherwise becomes available to Shull and his spouse under
the Medicare program of benefits.
(d) Good Reason; Other than for Cause or Disability, following a Change
of Control. If, during a three year period following any Change of Control, the
Company shall terminate Shull's employment other than for Cause, Disability, or
death or if Shull shall terminate his employment for Good Reason:
(i) the Company shall pay to Shull in a lump sum in cash on
the thirtieth (30th) day following the Date of Termination the aggregate of the
following amounts:
A. to the extent not theretofore paid, Shull's Salary through the
Date of Termination; and
B. the product of (x) the Recent Bonus and (y) a fraction, the numerator
of which is the number of days in the current fiscal year through the date
of Termination and the denominator of which is 365; and
C. the product of (x) three (3.0) and (y) the sum of (i) the
Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously deferred by Shull, all
amounts previously deferred (together with any accrued interest thereon) and not
yet paid by the Company, and any accrued vacation pay not yet paid by the
Company; and
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Shull and/or Shull's family
at least equal to those which would have been provided to them in accordance
with the plans, programs, practices and policies provided under this Agreement
if Shull's employment had not been
<PAGE>
terminated, including health insurance and life insurance, in accordance with
the most favorable plans, practices, programs or policies provided by the
Company and its subsidiaries during the 90-day period immediately preceding the
Date of Termination or, if more favorable to Shull, as in effect at any time
thereafter with respect to other key employees and their families.
Notwithstanding the foregoing, however, the Company shall continue at all times
to offer and provide the above-described health insurance coverages to Shull and
his spouse until their respective dates of death, except to the extent such
coverage is or otherwise becomes available to Shull and his spouse under the
Medicare program of benefits.
(e) Alternative Excise Tax Cap. Notwithstanding the provisions of
Section 6(d) hereof, if any payments or benefits received or to be received by
Shull (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
Change of Control or any person affiliated with the Company or such person)
constitute "parachute payments" within the meaning of Section 280G(b)(2)(A) of
the Code and the value thereof exceeds 2.99 times Shull's "base amount," as
defined in Section 280G(b)(3) of the Code, then, in lieu thereof, the Company
shall pay to Shull, as soon as practicable following the Date of Termination but
in no event later than thirty (30) days thereafter, a lump sum cash payment
equal to 2.99 times his "base amount" (the "Alternative Severance Payment"),
reduced as provided below. The value of the payments to be made under Section
6(e) and Shull's base amount shall be determined in accordance with temporary or
final regulations, if any, promulgated under Section 280G of the Code and based
upon the advice of the tax counsel referred to below.
The Alternative Severance Payment shall be reduced by the amount of any
other payment or the value of any benefit received or to be received by Shull in
connection with a Change of Control of the Company or his termination of
employment unless (i) Shull shall have effectively waived his receipt or
enjoyment of such payment or benefit prior to the date of payment of the
Alternative Severance Payment, (ii) in the opinion of tax counsel selected by
the Company's independent auditors, such other payment or benefit does not
constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the
Code, or (iii) in the opinion of such tax counsel, the Alternative Severance
Payment plus all other payments or benefits which constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code are reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code or are otherwise not subject to disallowance as a
deduction by reason of Section 280G of the Code. The value of any non-cash
benefit or any deferred payment or benefit shall be determined in accordance
with the principles of Section 280G(d)(3) and (4) of the Code.
(f) Section 162(m) Limitation. In the event that the payments due to Shull
under this Section 6 exceed the "reasonable compensation" limitations of Section
162(m)
<PAGE>
of the Code, that portion thereof that would not be deductible by the Company in
the taxable year in which the payment is due shall be deferred by the Company
and paid to Shull on the date that is sixteen (16) months following the Date of
Termination, together with interest thereon at the rate provided in Section
7872(f)(2) of the Code.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit Shull's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company and for which Shull may qualify, including but not limited to the
Non-Qualified Supplemental Executive Retirement Plan of the Company (the "SERP")
(or any successor plan), nor shall anything herein limit or otherwise affect
such rights as Shull may have under the SERP or any stock option or other
agreements with the Company. Amounts which are vested benefits or which Shull is
otherwise entitled to receive under any plan, policy, practice or program of the
Company at or subsequent to the Date of Termination, including but not limited
to the SERP, shall be payable in accordance with the SERP or such plan, policy,
practice or program.
8. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against Shull
or others. In no event shall Shull be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to Shull under any
of the provisions of this Agreement, but such payments shall be reduced to the
extent of Shull's other earned income (if any) during any remaining portion of
the Employment Period. Following any Change of Control, the Company agrees to
pay, to the full extent permitted by law, all legal fees and expenses which
Shull may reasonably incur as a result of any contest (regardless of the outcome
thereof) by the Company or others (including Shull) of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof, plus in each case interest at the applicable
Federal rate provided for in Section 7872(f)(2) of the Code.
9. RETIREMENT OF SHULL. Provided that this Agreement or an extension
thereof remains in effect, it is understood that Shull shall retire on the last
day of the calendar year during which he reaches sixty-five (65) years of age.
In such event, the Board of Directors of the Company, at its sole option, may
offer to extend Shull's employment on a year-to-year basis after the calendar
year in which Shull reaches age sixty-five (65). At the conclusion of each year
it will be presumed that Shull will retire unless the Board of Directors
determines to offer to extend Shull's employment for an additional year.
Following the retirement of Shull, the Company shall continue at all
times to offer
<PAGE>
and provide health insurance coverages to Shull and his spouse, in accordance
with the most favorable plans, programs, practices and policies provided by the
Company during the 90-day period immediately preceding the effective date of
Shull's retirement or, if more favorable to Shull, as in effect at any time
thereafter with respect to other key employees and their families, until the
death of Shull and his spouse, except to the extent such coverage is or
otherwise becomes available to Shull and his spouse under the Medicare program
of benefits, and provided further that Shull and his spouse shall pay the same
contribution as that required by other Company employees receiving such benefits
until they reach sixty-five (65) years of age.
10. AVAILABILITY OF SHULL AFTER RETIREMENT. Following his retirement,
Shull shall at reasonable times and insofar as his physical condition may
permit, hold himself available at the written request of the Board of Director's
of the Company to consult with and advise the officers, directors, and other
representatives of the Company. Such requests for Shull's service shall,
however, be structured so that reasonable allowances are made for Shull's needs
for vacation time and for other considerations of his physical well-being. All
such services shall be provided by Shull at his place of residence unless
otherwise agreed to by Shull. Shull shall not be required to devote any
prescribed hours to consulting with and giving advice to the officers,
directors, and other representatives of the Company in order to be eligible to
receive any benefits that may be available to him under the SERP or any other
plan or program of the Company.
If Shull's physical condition shall prevent him from consulting and
advising with the officers, directors or other representatives of the Company,
the benefits that may be available to Shull under the SERP or any other plan or
program of the Company shall nonetheless be paid as and to the extent therein
provided.
Shull shall be reimbursed by the Company for all reasonable expenses
incurred as a consultant and advisor, including expenses for travel,
communication, entertainment and similar items, upon presentation of itemized
accounts of such expenditures.
11. DISCRETION OF BOARD OF DIRECTORS. Notwithstanding any other term or
provision of this Agreement to the contrary, nothing stated herein is intended
to, nor shall it be construed, to abrogate, limit, alter or affect the
authority, rights and privileges of the Board of Directors of the Company to
remove Shull as Treasurer of the Company, without Cause, or during the term of
this Agreement to elect as Treasurer of the Company a person other than Shull,
as provided by the laws of the State of Iowa; provided, however, it is expressly
agreed and understood that, in the event any one or any combination of such
events occurs, unless Shull is terminated for Cause as defined in Section 5(b)
hereof, Shull shall be entitled to terminate his employment for Good Reason (as
defined in Section 5(c) hereof) and receive the benefits described in either
Section
<PAGE>
6(c) or Section 6(d) of this Agreement, as applicable, in consideration thereof.
12. CONFIDENTIAL INFORMATION; RESTRICTIVE COVENANT. (a) During the
period of his employment, Shull shall hold in fiduciary capacity for the benefit
of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and their respective
businesses, which shall have been obtained by Shull during Shull's employment by
the Company or any of its subsidiaries and which shall not be or become public
knowledge (other than by acts by Shull or his representatives in violation of
this Agreement). During a three (3) year period following termination of Shull's
employment with the Company, Shull shall not, without the prior written consent
of the Company, communicate or divulge any such information, knowledge or data
to anyone other than the Company and those designated by it.
(b) While this Agreement remains in effect and Shull is entitled to
compensation or benefits pursuant to Sections 4 through 6 hereof (or, in the
event of termination of his employment for Good Reason, for a period of three
(3) years thereafter), Shull shall not directly or indirectly associate with,
participate in or render service to, whether as an employee, officer, director,
consultant, independent contractor or otherwise, any organization that is
engaged in business in competition with the Company, and he shall not himself
engage in any such business on his own account.
(c) In the event of a demonstrated breach of this Section 12, the
parties agree that the Company shall be entitled to seek equitable relief in a
court of competent jurisdiction to prevent any anticipated continuing breach of
the terms and conditions of this Section 12 and to secure the enforcement
thereof. The foregoing remedy shall be exclusive and in lieu of any other remedy
otherwise available to the Company under law.
13. SUCCESSORS. (a) This Agreement is personal to Shull and without the
prior written consent of the Company shall not be assignable by Shull otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Shull's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
(c) The Company agrees and covenants to require (i) any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company through a Change of Control or otherwise, and any, (ii) within its
lawful power to do so, any party effecting or taking steps to accomplish a
Change of Control, to assume expressly and agree to perform this Agreement in
the same manner and to the same extent that the Company would be
<PAGE>
required to perform it if no such succession or Change of Control had taken
place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
14. MISCELLANEOUS. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If the Company, to Casey's General Stores, Inc., P. O. Box 3001, One Convenience
Boulevard, Ankeny, Iowa 50021, Attention: President; and if to Shull, to his
address appearing on the books of the Company, or to his residence, or to such
other address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Company's or Shull's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision thereof.
(f) This Agreement contains the entire understanding of the Company and
Shull with respect to the subject matter hereof. The Original Agreement between
Shull and the Company, as defined in the preambles hereof, is hereby terminated
and shall be of no further force or effect.
(g) No change, amendment or modification of this Agreement shall be
valid unless the same be in writing and signed by the Company and Shull.
(h) This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute
<PAGE>
one and the same instrument with the same force and effect as if all the parties
had executed the same document.
IN WITNESS WHEREOF, the respective parties have caused this Agreement
to be executed as of the day and year first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
------------------------------
Ronald M. Lamb, President
ATTEST:
/s/ John G. Harmon
- --------------------------
John G. Harmon, Secretary
/s/ Douglas K. Shull
--------------------------
Douglas K. Shull
Exhibit 10.24(a)
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement") is made
and entered into as of the 24th day of October, 1997, by and between Casey's
General Stores, Inc., an Iowa corporation (the "Company"), and John G. Harmon
("Harmon").
WHEREAS, the Board of Directors of the Company (the "Board of
Directors") recognizes that the dedication of Harmon as an officer and director
to the affairs and welfare of the Company has resulted in a long and successful
association; and
WHEREAS, the Board of Directors further recognizes that the Company has
grown and prospered as a result of its association with Harmon, and has
determined that it is in the best interest of the Company and its shareholders
to preserve this association so as to enable the Company to further benefit from
Harmon's superior knowledge and expertise in all of its present and future
business endeavors; and
WHEREAS, the Company and Harmon are parties to an Employment Agreement
dated as of July 19, 1994, as amended by a First Amendment to Employment
Agreement dated as of January 9, 1997 (together, the "Original Agreement"),
providing for the employment of Harmon to serve as the Corporate Secretary of
the Company under the terms and conditions set forth therein; and
WHEREAS, the Board of Directors has further determined that it is
appropriate and in the best interests of the Company and its shareholders to
enter into written contractual arrangements with respect to Harmon's employment
by the Company, with the concurrence of Harmon, and to amend and restate the
Original Agreement to reflect the same; and
WHEREAS, the Board of Directors has further determined that it is in
the best interest of the Company and its shareholders to assure that the Company
will have the continued dedication of Harmon, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
and to further encourage Harmon's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide Harmon with compensation arrangements upon a Change of Control which
provide him with compensation for expected losses that he would suffer in the
event of a Change of Control and which are competitive with those of other
corporations, and, in order to accomplish these objectives,
<PAGE>
has determined to cause the Company to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Agreement, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, and in addition to
the other definitions set forth herein, the following terms shall have the
following meanings:
a) "Change of Control" shall mean:
(i) the acquisition (other than from the Company) by any
Person (as hereinafter defined), entity or "group" within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act"), (excluding for this purpose, the Company or any employee benefit plan of
the Company, which acquires beneficial ownership of voting securities of the
Company) of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty percent (20%) or more of either the then
outstanding shares of Common Stock, no par value, of the Company or the combined
voting power of the Company's then outstanding voting securities entitled to
vote generally in the election of directors (hereinafter referred to as the
"Common Stock"), unless such beneficial ownership was acquired as a result of an
acquisition of shares of Common Stock by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of shares
beneficially owned by such Person, entity or "group" to twenty percent (20%) or
more of the Common Stock of the Company then outstanding; provided, however,
that if a Person, entity or "group" shall become the beneficial owner of twenty
percent (20%) or more of the Common Stock of the Company then outstanding by
reason of share purchases by the Company and shall, after such share purchases
by the Company, become the beneficial owner of any additional shares of Common
Stock of the Company, then such Person, entity or "group" shall be deemed to
have met the conditions hereof; or
(ii) individuals who, as of the date hereof, constitute the
Board of Directors (as of the date hereof, the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors, provided
that any person becoming a director subsequent to the date hereof whose
election, or nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company, as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
shall be, for purposes of this Agreement considered as though such person were a
member of the Incumbent Board; or
<PAGE>
(iii) approval by the shareholders of the Company of a
reorganization, merger, consolidation (in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own more
than fifty percent (50%) of the combined voting power entitled to vote generally
in the election of directors of the reorganized, merged or consolidated
company's then outstanding voting securities) or a liquidation or dissolution of
the Company or of the sale of all or substantially all of the assets of the
Company.
(b) "Annual Increase" shall take effect on each January 1 for which the
benefit at issue is payable and shall mean fifty percent (50%) of the annual
increase in the National Consumer Price Index for the City of Des Moines, Iowa,
as published by the United States Bureau of Labor Statistics.
(c) "Annual Bonus" shall mean any bonus payable at the discretion of
the Board of Directors of the Company, on such terms and in such amounts as it
shall determine.
(d) "Employment Period" shall mean the term of Harmon's employment
under this Agreement, as set forth in Section 2 hereof.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(f) "Accrued Obligations" shall mean (i) Harmon's Salary through the
Date of Termination at the rate in effect on the Date of Termination, (ii) the
product of the Annual Bonus paid to Harmon for the last full fiscal year and a
fraction, the numerator of which is the number of days in the current fiscal
year through the Date of Termination, and the denominator of which is 365 and
(iii) any compensation previously deferred (together with any accrued interest
thereon) and not yet paid by the Company and any accrued vacation pay not yet
paid by the Company.
(g) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) and all
"affiliates" and "associates" of such entity (as those terms are defined in Rule
12b-2 of the General Rules and Regulations under the Exchange Act).
2. EMPLOYMENT AND TERM. The Company agrees to employ Harmon, and Harmon
agrees to serve the Company, as Corporate Secretary of the Company until August
1, 2001, unless his employment is otherwise terminated as provided herein;
provided, however, that in the event of a Change of Control during the foregoing
Employment Period, this Agreement shall continue in full force and effect for an
additional period of three (3) years following the expiration of the Employment
Period
<PAGE>
(until August 1, 2004).
3. DUTIES OF HARMON. During the period of his employment in the
capacity of Secretary, Harmon agrees to devote his professional skill and energy
to the faithful and full satisfaction of his duties as Corporate Secretary. It
is agreed and understood that Harmon will perform all duties assigned to him,
which shall be substantially the same as those performed by Harmon as Secretary
of the Company prior to the date of this Agreement (including status, offices,
titles and reporting requirements), to the full satisfaction of the Board of
Directors. The Company agrees that Harmon shall have such authority and
discretion as is necessary to fully and faithfully perform his duties in a
proper and efficient manner, subject to review by the Board of Directors.
During the period of his employment, it shall not be a violation of
this Agreement for Harmon to (i) serve on corporate, civil or charitable boards
or committees, (ii) deliver lectures or fulfill speaking engagements and (iii)
manage personal investments, so long as such activities do not significantly
interfere with the performance of Harmon's responsibilities as an employee of
the Company in accordance with this Agreement. It is expressly understood and
agreed that to the extent that any such activities have been conducted by Harmon
prior to the date hereof, the continued conduct of such activities (or the
conduct of activities similar in nature and scope thereto) subsequent to the
date hereof shall not thereafter be deemed to interfere with the performance of
Harmon's responsibilities to the Company.
4. COMPENSATION. The Company shall pay to Harmon an annual salary of
One Hundred Thirty-Five Thousand Dollars ($135,000), payable in equal monthly
installments, or such other amount as shall be mutually agreed upon by the
Company and Harmon (the "Salary"). In addition, Harmon and/or Harmon's family
shall be entitled to receive all benefits presently provided or those which may
hereafter be provided generally by the Company to its employees, officers or
directors, including health insurance and life insurance. With respect to such
health insurance benefits, the Company agrees that at all times the health
insurance coverages available to Harmon and his spouse under such plans shall
include provisions providing for lifetime benefits payable on behalf of Harmon
and his spouse of not less than One Million Dollars ($1,000,000) each, or such
other amount as the Company and Harmon may specifically agree upon in writing,
subject, however, to any limitations, restrictions or conditions that shall from
time to time be necessary to satisfy the requirements of applicable federal or
state laws and regulations.
5. TERMINATION OF EMPLOYMENT. (a) Death or Disability. Harmon's employment
under this Agreement shall terminate automatically upon Harmon's death. If the
Company determines in good faith that the Disability of Harmon has occurred
(pursuant to the definition of "Disability" set forth below), it may give to
Harmon written
<PAGE>
notice of its intention to terminate Harmon's employment as Secretary of the
Company. In such event, Harmon's employment with the Company shall terminate
effective on the thirtieth (30th) day after receipt of such notice by Harmon
(the "Disability Effective Date"), provided that, within the thirty (30) days
after such receipt, Harmon shall not have returned to full-time performance of
his duties. For purposes of this Agreement, "Disability means disability or
incapacity of Harmon which, at least twenty-six (26) weeks after its
commencement, is determined by the Board of Directors upon competent medical
advice to be such as to prevent Harmon from performing substantially all of the
duties as Secretary of the Company.
Notwithstanding any Disability on the part of Harmon, the Company shall
continue at all times to offer and provide health insurance coverages to Harmon
and his spouse, in accordance with the plans, programs, practices and policies
provided by the Company during the 90-day period immediately preceding the
Disability Effective Date or, if more favorable to Harmon, as in effect at any
time thereafter with respect to other key employees and their families, until
the death of Harmon and his spouse, except to the extent such coverage is or
otherwise becomes available to Harmon and his spouse under the Medicare program
of benefits.
(b) Cause. The Company may terminate Harmon's employment for "Cause."
For purposes of this Agreement, "Cause" means (i) an act or acts of personal
dishonesty taken by Harmon and intended to result in substantial personal
enrichment of Harmon at the expense of the Company, (ii) repeated violations by
Harmon of Harmon's obligations under Section 3 of this Agreement which are
demonstratively willful and deliberate on Harmon's part and which are not
remedied in a reasonable period of time after receipt of written notice from the
Company or (iii) the conviction of Harmon of a felony when such conviction is no
longer subject to direct appeal.
(c) Good Reason. Harmon's employment may be terminated by Harmon for Good
Reason. For purposes of this Agreement, "Good Reason" means:
(i) the assignment to Harmon of any duties inconsistent in any
respect with Harmon's position (including status, office, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
3 of this Agreement, or any other action by the Company which results in a
diminution in such position, authority, duties or responsibilities, excluding
for this purpose an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after receipt of notice
thereof given by Harmon;
(ii) Any failure by the Company to comply with the provisions
of Section 4 of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is remedied by the
Company promptly after receipt
<PAGE>
of notice thereof given by Harmon;
(iii) the Company's requiring Harmon to be based at any office
or location other than the Company's Corporate Headquarters facility in Ankeny,
Iowa, except for travel reasonably required in the performance of Harmon's
responsibilities;
(iv) any purported termination by the Company of Harmon's
employment otherwise than for death, Disability or Cause as expressly
permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy
Section 13(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by Harmon shall be conclusive.
(d) Notice of Termination. Any termination by the Company for Cause or
by Harmon for Good Reason shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 14(b) of this Agreement. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Harmon's employment under the provision so
indicated and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date (which date
shall be not more than fifteen (15) days after the giving of such notice). The
failure by Harmon to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason shall not waive any
right of Harmon hereunder or preclude Harmon from asserting such fact or
circumstance in enforcing his rights hereunder.
(e) Date of Termination. "Date of Termination" means the date of
receipt of the Notice of Termination or any later date specified therein, as the
case may be; provided, however, that (i) if Harmon's employment is terminated by
the Company other than for Cause or Disability, the Date of Termination shall be
the date on which the Company notifies Harmon of such termination and (ii) if
Harmon's employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of Harmon or the Disability Effective
Date, as the case may be.
6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OF EMPLOYMENT. (a) Death of
Harmon. In the event of the death of Harmon during the term hereof, the Company
shall pay to Harmon's spouse, commencing on the first day of the month following
his death and continuing for a period of twelve (12) months thereafter, benefits
equal to the monthly installments of Salary which was then being paid
<PAGE>
to Harmon pursuant to Section 4 herein. Immediately following such one-year
period, the Company shall commence the payment of monthly benefits to Harmon's
spouse equal in amount to one-fourth (1/4) of the monthly installments of Salary
which was being paid to Harmon at the time of his death under Section 4 herein,
which monthly benefits shall be paid for a period of twenty (20) years or until
the death of Harmon's spouse, whichever occurs first. In addition, the Company
shall continue at all times to offer and provide health insurance coverage to
Harmon's spouse, in accordance with the plans, programs, practices and policies
provided by the Company under the terms of this Agreement at the time of
Harmon's death, until the death of Harmon's spouse, except to the extent such
coverage is or otherwise becomes available to Harmon's spouse under the Medicare
program of benefits.
(b) Cause; Other than for Good Reason. If Harmon's employment shall be
terminated for Cause, Harmon's employment under this Agreement shall terminate
without further obligations to Harmon (other than the obligation to pay to
Harmon his Salary through the Date of Termination plus the amount of any
compensation previously deferred by Harmon, together with accrued interest
thereon). If Harmon terminates employment other than for Good Reason, this
Agreement shall terminate without further obligations to Harmon, other than
those obligations accrued or earned and vested (if applicable) by Harmon through
the Date of Termination, including for this purpose, all Accrued Obligations.
All such Accrued Obligations shall be paid to Harmon in a lump sum in cash
within thirty (30) days of the Date of Termination.
(c) Good Reason; Other than for Cause or Disability. If the Company
shall terminate Harmon's employment other than for Cause, Disability, or death
or if Harmon shall terminate his employment for Good Reason at any time during
the Employment Period, except during a three-year period following any Change of
Control (in which case the provisions of Section 6(d) shall apply), then in such
event:
(i) the Company shall pay to Harmon in a lump sum in cash
within thirty (30) days after the Date of Termination the aggregate of the
following amounts:
A. to the extent not theretofore paid, Harmon's
Salary through the Date of Termination; and
B. the product of (x) the highest Annual Bonus
paid to Harmon during the three (3) fiscal years preceding the fiscal year in
which the Date of Termination occurs (the "Recent Bonus") and (y) a fraction,
the numerator of which is the number of days in the current fiscal year
through the date of Termination and the denominator of which is 365; and
C. the product of (x) two (2.0) and (y) the
sum of (i) the Salary
<PAGE>
and (ii) the Recent Bonus; and
D. in the case of compensation previously
deferred by Harmon, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Company, and any accrued vacation
pay not yet paid by the Company; and
(ii) for a two-year period following the Date of Termination,
the Company shall continue benefits to Harmon and/or Harmon's family at least
equal to those which would have been provided to them in accordance with the
plans, programs, practices and policies provided under this Agreement if
Harmon's employment had not been terminated, including health insurance and life
insurance, in accordance with the most favorable plans, practices, programs or
policies provided by the Company and its subsidiaries during the 90-day period
immediately preceding the Date of Termination or, if more favorable to Harmon,
as in effect at any time thereafter with respect to other key employees and
their families. Notwithstanding the foregoing, however, the Company shall
continue at all times to offer and provide the above-described health insurance
coverages to Harmon and his spouse until their respective dates of death, except
to the extent such coverage is or otherwise becomes available to Harmon and his
spouse under the Medicare program of benefits.
(d) Good Reason; Other than for Cause or Disability, following a Change
of Control. If, during a three year period following any Change of Control, the
Company shall terminate Harmon's employment other than for Cause, Disability, or
death or if Harmon shall terminate his employment for Good Reason:
(i) the Company shall pay to Harmon in a lump sum in cash on
the thirtieth (30th) day following after the Date of Termination the aggregate
of the following amounts:
A. to the extent not theretofore paid, Harmon's
Salary through the Date of Termination; and
B. the product of (x) the Recent Bonus and (y)
a fraction, the numerator of which is the number of days in the current fiscal
year through the date of Termination and the denominator of which is 365; and
C. the product of (x) three (3.0) and (y) the
sum of (i) the Salary and (ii) the Recent Bonus; and
D. in the case of compensation previously
deferred by Harmon, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Company, and any accrued vacation
pay not yet paid by the Company; and
<PAGE>
(ii) for a three-year period following the Date of
Termination, the Company shall continue benefits to Harmon and/or Harmon's
family at least equal to those which would have been provided to them in
accordance with the plans, programs, practices and policies provided under this
Agreement if Harmon's employment had not been terminated, including health
insurance and life insurance, in accordance with the most favorable plans,
practices, programs or policies provided by the Company and its subsidiaries
during the 90-day period immediately preceding the Date of Termination or, if
more favorable to Harmon, as in effect at any time thereafter with respect to
other key employees and their families. Notwithstanding the foregoing, however,
the Company shall continue at all times to offer and provide the above-described
health insurance coverages to Harmon and his spouse until their respective dates
of death, except to the extent such coverage is or otherwise becomes available
to Harmon and his spouse under the Medicare program of benefits.
(e) Alternative Excise Tax Cap. Notwithstanding the provisions of
Section 6(d) hereof, if any payments or benefits received or to be received by
Harmon (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions result in a
Change of Control or any person affiliated with the Company or such person)
constitute "parachute payments" within the meaning of Section 280G(b)(2)(A) of
the Code and the value thereof exceeds 2.99 times Harmon's "base amount," as
defined in Section 280G(b)(3) of the Code, then, in lieu thereof, the Company
shall pay to Harmon, as soon as practicable following the Date of Termination
but in no event later than thirty (30) days thereafter, a lump sum cash payment
equal to 2.99 times his "base amount" (the "Alternative Severance Payment"),
reduced as provided below. The value of the payments to be made under Section
6(e) and Harmon's base amount shall be determined in accordance with temporary
or final regulations, if any, promulgated under Section 280G of the Code and
based upon the advice of the tax counsel referred to below.
The Alternative Severance Payment shall be reduced by the amount of any
other payment or the value of any benefit received or to be received by Harmon
in connection with a Change of Control of the Company or his termination of
employment unless (i) Harmon shall have effectively waived his receipt or
enjoyment of such payment or benefit prior to the date of payment of the
Alternative Severance Payment, (ii) in the opinion of tax counsel selected by
the Company's independent auditors, such other payment or benefit does not
constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the
Code, or (iii) in the opinion of such tax counsel, the Alternative Severance
Payment plus all other payments or benefits which constitute "parachute
payments" within the meaning of Section 280G(b)(2) of the Code are reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code or are otherwise not subject to disallowance as a
deduction by reason of Section 280G of the Code. The value of any non-cash
benefit or any deferred payment or benefit
<PAGE>
shall be determined in accordance with the principles of Section 280G(d)(3) and
(4) of the Code.
(f) Section 162(m) Limitation. In the event that the payments due to
Harmon under this Section 6 exceed the "reasonable compensation" limitations of
Section 162(m) of the Code, that portion thereof that would not be deductible by
the Company in the taxable year in which the payment is due shall be deferred by
the Company and paid to Harmon on the date that is sixteen (16) months following
the Date of Termination, together with interest thereon at the rate provided in
Section 7872(f)(2) of the Code.
7. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit Harmon's continuing or future participation in any benefit, bonus,
incentive or other plans, programs, policies or practices, provided by the
Company and for which Harmon may qualify, including but not limited to the
Non-Qualified Supplemental Executive Retirement Plan of the Company (the "SERP")
(or any successor plan), nor shall anything herein limit or otherwise affect
such rights as Harmon may have under the SERP or any stock option or other
agreements with the Company. Amounts which are vested benefits or which Harmon
is otherwise entitled to receive under any plan, policy, practice or program of
the Company at or subsequent to the Date of Termination, including but not
limited to the SERP, shall be payable in accordance with the SERP or such plan,
policy, practice or program.
8. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against
Harmon or others. In no event shall Harmon be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to Harmon
under any of the provisions of this Agreement, but such payments shall be
reduced to the extent of Harmon's other earned income (if any) during any
remaining portion of the Employment Period. Following any Change of Control, the
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which Harmon may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company or others (including Harmon)
of the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof, plus in each case interest at
the applicable Federal rate provided for in Section 7872(f)(2) of the Code.
9. RETIREMENT OF HARMON. Provided that this Agreement or an extension
thereof remains in effect, it is understood that Harmon shall retire on the last
day of the calendar year during which he reaches sixty-five (65) years of age.
In such event, the Board of Directors of the Company, at its sole option, may
offer to extend Harmon's employment on a year-to-year basis after the calendar
year in which Harmon
<PAGE>
reaches age sixty-five (65). At the conclusion of each year it will be presumed
that Harmon will retire unless the Board of Directors determines to offer to
extend Harmon's employment for an additional year.
Following the retirement of Harmon, the Company shall continue at all
times to offer and provide health insurance coverages to Harmon and his spouse,
in accordance with the most favorable plans, programs, practices and policies
provided by the Company during the 90-day period immediately preceding the
effective date of Harmon's retirement or, if more favorable to Harmon, as in
effect and any time thereafter with respect to other key employees and their
families, until the death of Harmon and his spouse, except to the extent such
coverage is or otherwise becomes available to Harmon and his spouse under the
Medicare program of benefits, and provided further that Harmon and his spouse
shall pay the same contribution as that required of other Company employees
receiving such benefits until they reach sixty-five (65) years of age.
10. AVAILABILITY OF HARMON AFTER RETIREMENT. Following his retirement,
Harmon shall at reasonable times and insofar as his physical condition may
permit, hold himself available at the written request of the Board of Director's
of the Company to consult with and advise the officers, directors, and other
representatives of the Company. Such requests for Harmon's service shall,
however, be structured so that reasonable allowances are made for Harmon's needs
for vacation time and for other considerations of his physical well-being. All
such services shall be provided by Harmon at his place of residence unless
otherwise agreed to by Harmon. Harmon shall not be required to devote any
prescribed hours to consulting with and giving advice to the officers,
directors, and other representatives of the Company in order to be eligible to
receive any benefits that may be available to him under the SERP or any other
plan or program of the Company.
If Harmon's physical condition shall prevent him from consulting and
advising with the officers, directors or other representatives of the Company,
the benefits that may be available to Harmon under the SERP or any other plan or
program of the Company shall nonetheless be paid as and to the extent therein
provided.
Harmon shall be reimbursed by the Company for all reasonable expenses
incurred as a consultant and advisor, including expenses for travel,
communication, entertainment and similar items, upon presentation of itemized
accounts of such expenditures.
11. DISCRETION OF BOARD OF DIRECTORS. Notwithstanding any other term or
provision of this Agreement to the contrary, nothing stated herein is intended
to, nor shall it be construed, to abrogate, limit, alter or affect the
authority, rights and privileges of the Board of Directors of the Company to
remove Harmon as Corporate Secretary of the Company, without Cause, or during
the term of this Agreement to elect
<PAGE>
as Corporate Secretary of the Company a person other than Harmon, as provided by
the laws of the State of Iowa; provided, however, it is expressly agreed and
understood that, in the event any one or any combination of such events occurs,
unless Harmon is terminated for Cause as defined in Section 5(b) hereof, Harmon
shall be entitled to terminate his employment for Good Reason (as defined in
Section 5(c) hereof) and receive the benefits described in either Section 6(c)
or Section 6(d) of this Agreement, as applicable, in consideration thereof.
12. CONFIDENTIAL INFORMATION; RESTRICTIVE COVENANT. (a) During the
period of his employment, Harmon shall hold in fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and their respective
businesses, which shall have been obtained by Harmon during Harmon's employment
by the Company or any of its subsidiaries and which shall not be or become
public knowledge (other than by acts by Harmon or his representatives in
violation of this Agreement). During a three (3) year period following
termination of Harmon's employment with the Company, Harmon shall not, without
the prior written consent of the Company, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it.
(b) While this Agreement remains in effect and Harmon is entitled to
compensation or benefits pursuant to Sections 4 through 6 hereof (or, in the
event of termination of his employment for Good Reason, for a period of three
(3) years thereafter), Harmon shall not directly or indirectly associate with,
participate in or render service to, whether as an employee, officer, director,
consultant, independent contractor or otherwise, any organization that is
engaged in business in competition with the Company, and he shall not himself
engage in any such business on his own account.
(c) In the event of a demonstrated breach of this Section 12, the
parties agree that the Company shall be entitled to seek equitable relief in a
court of competent jurisdiction to prevent any anticipated continuing breach of
the terms and conditions of this Section 12 and to secure the enforcement
thereof. The foregoing remedy shall be exclusive and in lieu of any other remedy
otherwise available to the Company under law.
13. SUCCESSORS. (a) This Agreement is personal to Harmon and without the
prior written consent of the Company shall not be assignable by Harmon otherwise
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Harmon's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns.
<PAGE>
(c) The Company agrees and covenants to require (i) any successor or
assignee (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company through a Change of Control or otherwise, and, (ii) within its lawful
power to do so, any party effecting or taking steps to accomplish a Change of
Control, to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession or Change of Control had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
14. MISCELLANEOUS. (a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa, without reference to principles
of conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not be
amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If the Company, to Casey's General Stores, Inc., P. O. Box 3001, One Convenience
Blvd., Ankeny, Iowa 50021, Attention: President; and if to Harmon, to his
address appearing on the books of the Company, or to his residence, or to such
other address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Company's or Harmon's failure to insist upon strict compliance
with any provision hereof shall not be deemed to be a waiver of such provision
or any other provision thereof.
(f) This Agreement contains the entire understanding of the Company and
Harmon with respect to the subject matter hereof. The Original Agreement between
the Company and Harmon, as defined in the preambles hereof, is hereby terminated
and shall be of no further force or effect.
<PAGE>
(g) No change, amendment or modification of this Agreement shall be
valid unless the same be in writing and signed by the Company and Harmon.
(h) This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument with the same force and effect as if all
the parties had executed the same document.
IN WITNESS WHEREOF, the respective parties have caused this Agreement
to be executed as of the day and year first above written.
CASEY'S GENERAL STORES, INC.
By: /s/ Ronald M. Lamb
------------------------------
Ronald M. Lamb, President
ATTEST:
/s/ Eli J. Wirtz
- ------------------------------
Eli J. Wirtz, Assistant Secretary
/s/ John G. Harmon
----------------------------
John G. Harmon
