UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the quarterly period ended November 30, 2000
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from to
Commission File Number: 000-19320
Ag Services of America, Inc.
(Exact name of registrant as specified in its charter)
Iowa 42-1264455
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2302 West First Street, Cedar Falls, Iowa 50613
(Address of principal executive offices) (Zip Code)
(319) 277-0261
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year, if changed since
last report.)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
[X] Yes [ ] No
5,273,469 common shares were outstanding as of December 31, 2000.
<PAGE>
AG SERVICES OF AMERICA, INC.
INDEX
Page
PART I. FINANCIAL INFORMATION
Item 1. Financial statements:
Consolidated condensed balance sheets, November 30, 2000
(unaudited) and February 29, 2000 1
Unaudited consolidated condensed statements of income,
three months and nine months ended November 30, 2000 and 1999 2
Unaudited consolidated condensed statements of cash
flows, nine months ended November 30, 2000 and 1999 3
Unaudited consolidated statement of stockholders' equity,
nine months ended November 30, 2000 4
Notes to consolidated condensed financial statements
(unaudited) 5-8
Item 2. Management's discussion and analysis of
financial condition and results of operations 9-13
Item 3. Quantitative and Qualitative Disclosures about Market Risk 13
PART II. OTHER INFORMATION
Item 6. Exhibits and reports on form 8-K: 14
(a) Exhibits
(10.26) Employment Agreement with Kevin D. Schipper 15-22
(10.27) Employment Agreement with Gaylen D. Miller 23-30
(10.28) Employment Agreement with Henry C. Jungling 31-38
(11) Statement re computation of earnings 39
per common share
<PAGE>
<TABLE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
AG SERVICES OF AMERICA, INC.
CONSOLIDATED CONDENSED BALANCE SHEETS
(Dollars in Thousands)
<CAPTION>
November 30, February 29
ASSETS 2000 2000*
(Unaudited)
----------- -----------
<S> <C> <C>
CURRENT ASSETS
Cash $1,702 $45
Customer notes receivable, less allowance
for doubtful notes and reserve for
discounts November 30, 2000 $10,828;
February 29, 2000 $5,700 235,072 130,882
Inventory and other assets 1,027 4,863
Foreclosed assets held for sale 1,923 1,075
Prepaid income taxes - 922
Deferred income taxes, net 3,952 1,920
----------- -----------
Total current assets $243,676 $139,707
----------- -----------
LONG-TERM RECEIVABLES AND OTHER ASSETS
Customer notes receivable, less allowance
for doubtful notes November 30, 2000
$2,707; February 29, 2000 $1,550 $29,248 $22,475
Loan origination fees, less accumulated
amortization November 30, 2000 $729;
February 29, 2000 $454; 867 647
Deferred income taxes, net 863 292
----------- -----------
$30,978 $23,414
----------- -----------
EQUIPMENT, less accumulated depreciation
November 30, 2000 $1,847; February 29, 2000
$1,546; $1,326 $1,207
----------- -----------
$275,980 $164,328
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES
Notes payable, including current maturities $172,576 $82,066
Outstanding checks in excess of
bank balances - 9,834
Accounts payable 10,730 1,091
Accrued expenses 2,350 1,577
Income taxes payable 2,341 -
----------- -----------
Total current liabilities $187,997 $94,568
----------- -----------
LONG-TERM LIABILITIES
Notes payable, less current maturities $22,425 $11,324
----------- -----------
STOCKHOLDERS' EQUITY
Capital stock $23,151 $22,884
Retained earnings 42,407 35,552
----------- -----------
$65,558 $58,436
----------- -----------
$275,980 $164,328
=========== ===========
<CAPTION>
*Condensed from Audited Financial Statements.
<FN>
See notes to Consolidated Condensed Financial Statements.
</TABLE>
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<TABLE>
AG SERVICES OF AMERICA, INC.
UNAUDITED CONSOLIDATED CONDENSED STATEMENTS OF INCOME
Three Months and Nine Months Ended November 30, 2000 and 1999
(Dollars in Thousands, Except Per Share Amounts)
<CAPTION>
Three Months Ended Nine Months Ended
November 30, November 30,
2000 1999 2000 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Net revenues:
Farm inputs $14,314 $18,918 $256,930 $227,929
Financing income 9,312 7,761 26,027 20,330
----------- ----------- ----------- -----------
Net revenues $23,626 $26,679 $282,957 $248,259
----------- ----------- ----------- -----------
Cost of revenues:
Farm inputs $12,951 $16,949 $243,805 $214,257
Financing expense 5,533 4,034 13,862 9,740
Provision for doubtful notes 433 453 5,017 4,552
----------- ----------- ----------- -----------
Net cost of revenues $18,917 $21,436 $262,684 $228,549
----------- ----------- ----------- -----------
Income from continuining
operations before
operating expenses
and income taxes $4,709 $5,243 $20,273 $19,710
Operating expenses 3,060 2,545 9,252 7,647
----------- ----------- ----------- -----------
Income from continuing
operations before
income taxes $1,649 $2,698 $11,021 $12,063
Federal and state income taxes 651 1,011 4,166 4,522
----------- ----------- ----------- -----------
Income from continuing
operations $998 $1,687 $6,855 $7,541
Discontinued operations - (72) - (121)
----------- ----------- ----------- -----------
Net income $998 $1,615 $6,855 $7,420
=========== =========== =========== ===========
Earnings per share: Basic
Income from continuing
operations $0.19 $0.32 $1.30 $1.44
Discontinued operations - (0.01) - (0.02)
=========== =========== =========== ===========
Net Income $0.19 $0.31 $1.30 $1.42
=========== =========== =========== ===========
Earnings per share: Diluted
Income from continuing
operations $0.18 $0.31 $1.24 $1.38
Discontinued operations - (0.01) - (0.02)
----------- ----------- ----------- -----------
Net income $0.18 $0.30 $1.24 $1.36
=========== =========== =========== ===========
Weighted average shares:
Basic 5,272 5,236 5,268 5,230
=========== =========== =========== ===========
Diluted 5,476 5,445 5,508 5,448
=========== =========== =========== ===========
<FN>
See Notes to Consolidated Condensed Financial Statements.
</TABLE>
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<TABLE>
AG SERVICES OF AMERICA, INC.
UNAUDITED CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
Nine Months Ended November 30, 2000 and 1999
(Dollars in Thousands)
<CAPTION>
2000 1999
----------- -----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income $6,855 $7,420
Adjustments to reconcile net income to
net cash (used in) operating activities:
Depreciation 301 317
Amortization 275 132
(Increase) in customer notes receivable (110,963) (102,646)
Changes in assets and liabilities 14,850 15,085
----------- -----------
Net cash (used in) operating activities ($88,682) ($79,692)
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of equipment ($545) ($710)
Proceeds from sale of equipment 182 133
(Increase)in foreclosed assets
held for sale (848) (3,495)
----------- -----------
Net cash (used in) investing activities ($1,211) ($4,072)
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Proceeds from notes payable $277,311 $214,422
Principal payments on notes payable (175,700) (100,233)
(Decrease) in excess of outstanding
checks over bank balance (9,834) (9,986)
(Increase) in loan origination fees (494) (508)
Proceeds from issuance of capital stock, net 267 193
----------- -----------
Net cash provided by financing
activities $91,550 $103,888
----------- -----------
Increase in cash and cash equivalants $1,657 $20,124
CASH
Beginning 45 67
----------- -----------
Ending $1,702 $20,191
=========== ===========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION
Cash payments for:
Interest $12,494 $8,755
Income taxes $3,506 $5,420
<FN>
See Notes to Consolidated Condensed Financial Statements
</TABLE>
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<TABLE>
AG SERVICES OF AMERICA, INC.
UNAUDITED CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Nine Months Ended November 30, 2000
(Dollars in thousands)
<CAPTION>
Capital Stock
-----------------------
Shares Retained
Issued Amount Earnings Total
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Balance,
February 29, 2000 5,249,039 $22,884 $35,552 $58,436
Net income -- -- 6,855 6,855
Issuance of 25,225
shares of capital
stock upon the
exercise of
options 25,225 256 -- 256
Issuance of 500
shares of capital
stock under the
employee stock
purchase plan 500 11 -- 11
----------- ----------- ----------- -----------
Balance,
November 30, 2000 5,274,764 $23,151 $42,407 $65,558
=========== =========== =========== ===========
<FN>
See Notes to Consolidated Condensed Financial Statements
</TABLE>
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<PAGE>
AG SERVICES OF AMERICA, INC.
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
Note 1. Basis of Presentation
The accompanying unaudited condensed financial statements
have been prepared in accordance with the instructions of Form 10-Q
and Rule 10-01 of Regulation S-X. Certain information and footnote
disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been
condensed or omitted. It is suggested these interim consolidated
condensed financial statements be read in conjunction with the
financial statements and notes thereto included in the Company's
Annual Report for the year ended February 29, 2000. In the opinion of
management, all adjustments (which include only normal recurring
adjustments) necessary for a fair presentation of the financial
position, results of operations and cash flows for the interim
periods presented have been made. Operating results for the three
and nine month periods ended November 30, 2000 are not necessarily
indicative of the results that may be expected for the year ending
February 28, 2001.
Principles of Consolidation:
The consolidated financial statements include the accounts of Ag
Services of America, Inc. (the Company) and its wholly owned subsidiaries,
Ag Acceptance Corporation and Powerfarm, Inc. All material intercompany
balances and transactions have been eliminated in consolidation.
According to the terms related to the asset backed securitized
financing program as described in Note 3 of the consolidated condensed
financial statements, the Company formed Ag Acceptance Corporation,
a wholly owned, special purpose corporation.
In conjunction with the Company's e-commerce initiative the Company
created Powerfarm, Inc. a wholly owned subsidiary which operates
and manages the Company's e-commerce website Powerfarm.com.
Unless otherwise noted, all amounts presented are in thousands except
per share amounts.
Note 2. Commitments and Contingencies
Commitments:
In the normal course of business, the Company makes various commitments
that are not reflected in the accompanying consolidated condensed
financial statements. These include various commitments to extend
credit to customers. At November 30, 2000 and February 29, 2000 the
Company had approximately $9,000 and $91,000, respectively, in
commitments to supply farm inputs. No material losses or liquidity
demands are anticipated as a result of these commitments.
The Company currently has contracted with a company to construct a
building to replace the Company's corporate headquarters. The new
facility will have approximately 55,000 to 60,000 square feet of office
space with adequate land for future expansion. The construction of
the new office facility will start in spring of 2001 with an estimated
cost of $4.8 million and completion estimated in February of 2002.
-5-
<PAGE>
Contingencies:
The Company is named in lawsuits in the ordinary course of business.
Counsel for the Company has advised the Company, while the outcome
of various legal proceedings is not certain, it is unlikely that these
proceedings will result in any liability which will materially affect
the financial position or operating results of the Company.
The availability of lines of credit to finance operations and the
existence of a multi-peril crop insurance program are essential to the
Company's operations. If the federal multi-peril crop insurance
program currently in existence were terminated or negatively modified
and no comparable private or government program were established, this
could have a material adverse effect on the Company's future operations.
The government has from time to time evaluated the federal multi-peril
insurance program and is likely to review the program in the future,
and there can be no assurance about the outcome of such evaluations.
Note 3. Pledged Assets and Related Debt
The Company entered into a five-year asset backed securitized financing
program through fiscal 2004, with a maximum available borrowing amount
of $325 million. Under the terms of the five-year facility, the
Company sells and may continue to sell or contribute certain notes
receivable to Ag Acceptance Corporation ("Ag Acceptance"), a wholly
owned, special purpose subsidiary of the Company. Ag Acceptance
pledges its interest in these notes receivable to a commercial-paper
market conduit entity on $255 million of the facility that incurs
interest at variable rates in the commercial paper market (current
effective rates range from 6.55% to 6.75% at November 30,2000) and the
remaining $70 million is a three-year term note with interest at
a variable cost of LIBOR plus 25 basis points (current effective
rates is 6.87% at November 30, 2000). The agreement contains
various restrictive covenants including, among others, restrictions
on mergers, issuance of stock, declaration or payment of dividends,
transactions with affiliates and requires the Company to maintain
certain levels of equity and pretax earnings. Advances under the
facility are made subject to portfolio performance, financial covenant
restrictions and borrowing base calculations. At November 30, 2000,
the Company had a maximum additional amount available under the asset
backed securitized financing program of approximately $6.1 million based
on borrowing base computations as provided by the agreement.
During August of 2000, the Company negotiated a new $30 million
term loan. The term loan will be due in four equal annual installments
beginning in July of 2002 through maturity in July of 2005.
Additional terms of the agreement allow two variable interest rate
alternatives based on prime or LIBOR (current effective rates range from
8.625% to 10.0% at November 30, 2000). The agreement also contains various
restrictive covenants, including, among others, restrictions on mergers,
issuance of stock, declaration or payment of dividends, loans to
stokholders, and requires the Company to maintain certian levels of
equity and pretax earnings. At November 30, 2000, the Company
had $30 million outstanding under the term loan.
-6-
<PAGE>
In conjunction with the securitized financing program and the term loan,
the Company maintains a $15 million revolving bank line of credit through
July 2003. The line of credit is accessible to cover any potential
deficiencies in available funds financed through the securitization
program. The terms of the agreement allow for two variable interest
rate alternatives based on prime or LIBOR (current effective rates range
from 8.625% to 10.0% at November 30, 2000). The agreement also contains
various restrictive covenants, including, among others, restricitions
on mergers, issuance of stock, declaration or payment of dividends,
loans to stock holders, and requires the Company to maintain certain
levels of equity and pretax earnings. Advances under the line of credit
agreement are also subject to portfolio performance, financial covenant
restrictions and borrowing base calculations. At November 30, 2000 the
Company had a maximum amount available under the agreement of approximately
$15.0 million based on borrowing base computation as provided by the
agreement.
Note 4. Earnings Per Share
Basic earnings per share is computed by dividing net income available
to common stockholders by the weighted average number of shares
outstanding. In computing diluted earnings per share, the dilutive
effect of stock options during the periods presented increase the
weighted average number of shares.
Note 5. Segment Information
The Compnay has two operating segments, Powerfarm and Ag Service of America,
which supply and finance agricultural inputs to grain producers throughout
the United States. Powerfarm was created to operate and manage the Company's
e-commerce website Powerfarm.com.
See the following page for a summary of financial information relating to the
two segments for the three and nine-month periods ending November 30, 2000.
-7-
<PAGE>
<TABLE>
The following is a summary of financial information relating to the two operating segments for the
three-month period ended November 30, 2000.
<CAPTION>
Ag Services Powerfarm Consolidated
----------- ----------- ----------- ----------- ----------- -----------
2000 1999 2000 1999 2000 1999
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Net revenues:
Farm inputs $14,255 $18,918 $59 - $14,314 $18,918
Financing income 9,303 7,761 9 - 9,312 7,761
----------- ----------- ----------- ----------- ----------- -----------
Net revenues $23,558 $26,679 $68 - $23,626 $26,679
----------- ----------- ----------- ----------- ----------- -----------
Cost of revenues:
Farm inputs $12,900 $16,949 $51 - $12,951 $16,949
Financing expense 5,528 4,034 5 - 5,533 4,034
Provision for doubtful notes 432 453 1 - 433 453
----------- ----------- ----------- ----------- ----------- -----------
Net cost of revenues $18,860 $21,436 $57 - $18,917 $21,436
----------- ----------- ----------- ----------- ----------- -----------
Income from continuining
operations before
operating expenses
and income taxes $4,698 $5,243 $11 - $4,709 $5,243
Operating expenses 2,681 2,540 379 5 3,060 2,545
----------- ----------- ----------- ----------- ----------- -----------
Income from continuing
operations before
income taxes $2,017 $2,703 ($368) ($5) $1,649 $2,698
Federal and state income taxes 792 1,011 (141) - 651 1,011
----------- ----------- ----------- ----------- ----------- -----------
Income from continuing
operations $1,225 $1,692 ($227) ($5) $998 $1,687
Discontinued operations - (72) - - - (72)
----------- ----------- ----------- ----------- ----------- -----------
Net income $1,225 $1,620 ($227) ($5) $998 $1,615
=========== =========== =========== =========== =========== ===========
The following is a summary of financial information relating to the two operating segments for the
nine-month period ended November 30, 2000.
Ag Services Powerfarm Consolidated
----------- ----------- ----------- ----------- ----------- -----------
2000 1999 2000 1999 2000 1999
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Net revenues:
Farm inputs $256,200 $227,929 $730 - $256,930 $227,929
Financing income 25,994 20,330 33 - 26,027 20,330
----------- ----------- ----------- ----------- ----------- -----------
Net revenues $282,194 $248,259 $763 - $282,957 $248,259
----------- ----------- ----------- ----------- ----------- -----------
Cost of revenues:
Farm inputs $243,098 $214,257 $707 - $243,805 $214,257
Financing expense 13,834 9,740 28 - 13,862 9,740
Provision for doubtful notes 5,005 4,552 12 - 5,017 4,552
----------- ----------- ----------- ----------- ----------- -----------
Net cost of revenues $261,937 $228,549 $747 - $262,684 $228,549
----------- ----------- ----------- ----------- ----------- -----------
Income from continuining
operations before
operating expenses
and income taxes $20,257 $19,710 $16 - $20,273 $19,710
Operating expenses 8,202 7,642 1,050 5 9,252 7,647
----------- ----------- ----------- ----------- ----------- -----------
Income from continuing
operations before
income taxes $12,055 $12,068 ($1,034) ($5) $11,021 $12,063
Federal and state income taxes 4,557 4,522 (391) - 4,166 4,522
----------- ----------- ----------- ----------- ----------- -----------
Income from continuing
operations $7,498 $7,546 ($643) ($5) $6,855 $7,541
Discontinued operations - (121) - - - (121)
----------- ----------- ----------- ----------- ----------- -----------
Net income $7,498 $7,425 ($643) ($5) $6,855 $7,420
=========== =========== =========== =========== =========== ===========
</TABLE>
-8-
<PAGE>
AG SERVICES OF AMERICA, INC.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Results of Operations
The following table sets forth percentages of net revenues
represented by the selected items in the unaudited condensed
statements of income of the Company for the three and nine
months ended November 30, 2000 and 1999. In the opinion of
management, all normal and recurring adjustments necessary for a
fair statement of the results for such periods have been included.
The operating results for any period are not necessarily
indicative of results for any future period.
Percentage Percentage
of Net Revenues of Net Revenues
------------------ ------------------
Three Months Ended Nine Months Ended
November 30, November 30,
------------------ ------------------
2000 1999 2000 1999
-------- -------- -------- --------
Net Revenues:
Farm inputs 60.6% 70.9% 90.8% 91.8%
Financing Income 39.4% 29.1% 9.2% 8.2%
-------- -------- -------- --------
100.0% 100.0% 100.0% 100.0%
-------- -------- -------- --------
Cost of Revenues:
Farm inputs 54.8% 63.5% 86.1% 86.3%
Financing expense 23.4% 15.1% 4.9% 3.9%
Provision for doubtful
notes 1.8% 1.7% 1.8% 1.8%
-------- -------- -------- --------
80.1% 80.3% 92.8% 92.0%
-------- -------- -------- --------
Income from continuining
operationgs before
operating expenses and
income taxes 19.9% 19.7% 7.2% 8.0%
Operating expenses 12.9% 9.5% 3.3% 3.1%
-------- -------- -------- --------
Income from continuing
operations before
income taxes 7.0% 10.1% 3.9% 4.9%
Federal and state income
taxes 2.8% 3.8% 1.5% 1.8%
-------- -------- -------- --------
Income from continuing
operations 4.2% 6.3% 2.4% 3.1%
Discontinued operations 0.0% (0.2%) 0.0% (0.1%)
-------- -------- -------- --------
Net income 4.2% 6.1% 2.4% 3.0%
======== ======== ======== ========
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<PAGE>
Net Revenues:
Net revenues from continuing operations decrease $3.1 million or
11.5% during the three months ended November 30, 2000, compared with
the three months ended November 30, 1999. Net revenues from continuing
operations increased $34.7 million or 14.0% during the
nine months ended November 30, 2000, compared with the nine months ended
November 30, 1999. The decline in net revenues for the three months
ended November 30, 2000 was a result of a decline in cash advances and
an increase in program discounts earned by the Company's customers
above any previous historical level due to faster than expected
payments from customers as compared to the same period a year ago.
The Company reached record level of revenues for the nine months
ended November 30, 2000 through greater market penetration with the
increased name recognition gained by the Company's Agri-Flex Credit(R)
program in its 30 state market area. Financing income as a percentage
of net revenues increased to 39.4% and 9.2% for the three and nine
months ended November 30, 2000, respectively, from 29.1% and 8.2% for
the same periods of the previous year. This increase was primarily a
result of an increase in the prime lending rate by approximately 130
basis points, which is the base rate used by the Company to charge
interest on a variable rate basis to its customers, as compared to
a year ago and offsetting this increase was a decline in volume
under the Company's servicing and marketing agreement.
Cost of Revenues:
The total cost of revenues changed slightly to 80.1% and
92.8% of net revenues for the three and nine months ended November 30,
2000 as compared to 80.3% and 92.0% for the three and nine months ended
November 30, 1999. The gross margin on the sale of farm inputs
decreased to 9.5% and 5.1% for the three and nine months ended November
30, 2000, respectively, compared to 10.4% and 6.0% for the three and
nine months ended November 30, 1999. The decrease in gross margin on
the sale of farm inputs was the result of increased pricing pressures
in the chemical industry, sales mix shift into lower margin inputs for
non-traditional crops such as sugar beets and potatoes, increases in
the average size of the Company's customers and the resulting volume
discounts. Gross margins on the sale of farm inputs were also reduced
as a result of program discounts earned by the Company's customer to
be above any previous historical level due to faster than expected
payments from customers. Concerning the gross margin on financing income
alone, the percentages decreased to 40.6% and 46.7% for the three and
nine months ended November 30, 2000 from 48.0% and 52.1% for the three
and nine months ended November 30, 1999. The decrease in financing
margins was primarily a result of an increase in the prime lending
rate by approximately 130 basis points as compared to a year ago.
The decrease in gross margin was also a result of a continued increase
in leverage and financing fees associated with changes in the commercial
paper program over the same periods one year ago. The provision for
doubtful notes remaind relatively constant at 1.8% of net revenues for
the three and nine months ended November 30, 2000, as compared to 1.7% and
1.8% for the three and nine months ended November 30, 1999.
Operating Expenses:
Operating expenses increased slightly to 12.9% of net revenues for the
three months ended November 30, 2000 from 9.5% for the three months
ended November 30, 1999 due to expenses associated with Powerfarm.com
the Company's e-commerce initiative. Operating expenses increased slightly
to 3.3% of net revenues for the nine months ended November 30, 2000 as compared
to 3.1% for the same period last year. The increase in operating expenses
is attributed primarily to the Company's growth and expenses associated with
Powerfarm.com the Company's e-commerce initiative. Payroll and payroll
related expenses increased to $1,961 and $6,170 for the three and nine months
ended November 30, 2000 from $1,817 and $5,583 for the three and nine months
ended November 30, 1999.
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<PAGE>
Discontinued Operations:
During fiscal 2000 the Company decided to discontinue the operations for the
three retail service centers in Northwestern Illinois. The Company began
leasing the three retail service centers in May of 1997 as a pilot program to
increase its customer base in Northwestern Illinois, as well as create
synergies to improve margins on the sale of fertilizer and agricultural
chemicals. Due to changes in market conditions at the retail level, the
Company was not successful in developing a profitable customer base in the
area. In addition, management's long-term strategies for continued growth and
profitability are focused on services, information and technology rather than
bricks and mortar. Net operating (loss) from discontinued operations were
($72) and ($121), for the three and nine months ended November 30, 1999.
Net Income:
Net income from continuing operations decreased 40.9% to $998 for
the three months ended November 30, 2000 from $1,687 for the three months
ended November 30,1999 and decreased 9.1% to $6,855 for the nine months ended
November 30, 2000 from $7,541 for the nine months ended November 30, 1999.
The decrease in net income for the three and nine months is attributable to
the expenses associated with infrastructure development of Powerfarm.com
the Company's e-commerce initiative and lower farm input margins as
discussed above.
Powerfarm:
Powerfarm.com has compiled one of the most comprehensive assortment of
agriculture products, services and credit options available on the Internet
today. Products currently available include seed, fertilizer and crop
protection chemicals, along with headline ag news, market quotes and
weather. Growers can shop at their convenience day or night for products
and sign up for additional services like crop insurance, grain marketing
programs, crop scouting and soil sampling services. Within the Powerfarm
Community, growers can post questions for the Company's agronomists and
Certified Crop Advisors. The Company continues discussions with additional
suppliers serving the $250 billion agriculture industry.
The investment and build out of Powerfarm impacted three and nine month earnings
by $227,000 and $643,000, or $0.04 and $0.12 per share on a diluted basis,
respectively. Powerfarm's results included revenues of approximately $763,000,
cost of revenues of $747,000 and expenses related to infrastructure and web site
development and the ongoing operations of Powerfarm of $1,050,000 for the first
nine months of fiscal 2001. The Company expects Powerfarm operations to
operate at a loss during fiscal 2001.
Inflation:
The Company does not believe the Company's net revenues and income
from continuing operations were significantly impacted by inflation
or changing prices in fiscal 2000 or the first nine months of fiscal
2001.
Seasonality:
The Company's revenues and income are directly related to the growing
cycle for crops. Accordingly, quarterly revenues and income vary
during each fiscal year. The following table shows the Company's
quarterly net revenues and net income for fiscal 2000 and the first
three quarters of fiscal 2001. This information is derived from
-11-
<PAGE>
unaudited consolidated financial statements, which include, in the
opinion of management, all normal and recurring adjustments which
management consider necessary for a fair statement of results of
those periods. The operating results for any quarter are not
necessarily indicative of the results for any future period.
Fiscal 2001 Quarter Ended
May 31 August 31 November 30 February 28
----------- ----------- ----------- -----------
(Dollars in thousands)
Net revenues $155,802 $103,530 $23,626
Net income $3,125 $2,733 $998
Fiscal 2000 Quarter Ended
May 31 August 31 November 30 February 29
----------- ----------- ----------- -----------
(Dollars in thousands)
Net revenues $132,877 $88,703 $26,679 $46,325
Net income $3,077 $2,727 $1,615 $191
Liquidity and Capital Resources:
At November 30, 2000 the Company had working capital of $55,679 an
increase of $7,877 over a year ago and an increase of $10,540 since
February 29, 2000. The components of this net increase, since
February 29, 2000, were (i) $10,818 resulting from operating activities,
consisting of approximately, $6,855 in net income, $301 in depreciation,
$275 in amortization, and the remainder from a net change in other
working capital items, (ii) capital expenditures of approximately $545
related to the acquisition of equipment and furniture, and (iii) net
proceeds of $267 from the issuance of common stock upon exercise of
options and sales of stock through the employee stock purchase plan.
The Company entered into a five-year asset backed securitized financing
program through fiscal 2004 with a maximum available borrowing amount
of $325 million. Under the terms of the five-year facility, the Company
sells and may continue to sell or contribute certain notes receivable to
Ag Acceptance Corporation ("Ag Acceptance"), wholly owned, special
purpose subsidiary of the Company. Ag Acceptance pledges its interest
in these notes receivable to a commercial paper market conduit entity
on $255 million of the facility which incurs interest at variable rates
in the commercial paper market (current effective rates range from 6.55%
to 6.75% at November 30, 2000) and the remaining $70 million is a
three-year term note with interest at a variable cost of LIBOR plus 25
basis points (current effective rates is 6.87% at November 30, 2000).
The agreement contains various restrictive covenants,
including, among others, restrictions on mergers, issuance of stock,
declaration or payment of dividends, transactions with affiliates, and
requires the Company to maintain certain levels of equity and pretax
earnings. Advances under the facility are made subject to portfolio
performance, financial covenant restrictions and borrowing base
calculations. At November 30, 2000, the Company had a maximum additional
amount available under the asset backed securitized financing program of
approximately $6.1 million, based on borrowing base computations as
provided by the agreement.
During August of 2000, the Company negotiated a new $30 million term loan.
The term loan will be due in four equal annual installments beginning in
July of 2002 through maturity in July of 2005. All borrowings are
collateralized by substantially all assets of the Company. Additional
terms of the agreement allow two variable interest rate alternatives based
on prime or LIBOR (current effective rates range from 8.625% to 10.0% at
November 30, 2000). The agreement also contains various restrictive covenants,
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<PAGE>
including, among others, restrictions on mergers, issuance of stock,
declaration or payment of dividends, loans to stockholders, and requires
the Company to maintain certain levels of equity and pretax earnings. At
November 30, 2000, the Company had $30 million outstanding under the term loan.
In conjunction with the securitized financing program and the term loan,
the Company maintains a $15 million revolving bank line of credit through
July 2003. The line of credit is accessible to cover any potential
deficiencies in available funds financed through the securitization program.
All borrowings are collateralized by substantially all assets of the Company.
The terms of the agreement allow for two variable interst rate alternatives
based on prime or LIBOR (current effective rates range from 8.625% to 10.0%
at November 30, 2000). The agreement also contains various restrictive
covenants, including, among others, restrictions on mergers, issuance of
stock, declaration or payment of dividends, loans to stockholders, and
requires the Company to maintain certain levels of equity and pretax
earnings. Advances under the line of credit agreement are also subject to
portfolio performance, financial covenant restrictions, and borrowing base
calculations. At November 30, 2000 the Company had a maximum amount
available under the agreement of $15.0 million based on borrowing base
computations as provided by the agreement.
Management believes that the financial resources available to it,
including its bank lines of credit, asset backed securitization
program, five-year term note, trade credit, its equity and internally
generated funds, will be sufficient to finance the Company and its operations
in the foreseeable future.
The Company currently has contracted with a company to construct a building
to replace the Company's corporate headquarters. The new facility will have
approximately 55,000 to 60,000 square feet of office space with adequate land
for future expansion. The construction of the new office facility will start
in spring of 2001 with an estimated cost of $4.8 million and completion
estimated in February of 2002.
"Safe Harbor" Statement under the Private Securities Litigation Reform
Act of 1995
Information contained in this report, other than historical information,
should be considered forward looking which reflect Management's current
views of future events and financial performance that involve a number
of risks and uncertainties. The factors that could cause actual
results to differ materially include, but are not limited to, the
following: general economic conditions within the agriculture industry;
competitive factors and pricing pressures; changes in product mix;
changes in the seasonality of demand patterns; changes in weather
conditions; changes in agricultural regulations; technological
problems; the amount and availability under its asset backed
securitization program; unknown risks; and other risks detailed in
the Company's Securities and Exchange Commission filings.
Item 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
At November 30,2000 the Company had $195.0 million outstanding in notes payable
at an average variable interest rate of 6.99%. A 10% increase in the average
variable interest rate would increase interest expense by approximately 70 basis
points. Assuming similar average outstanding borrowings as fiscal 2000 of
$167.5 million, this would increase the Company's interest expense by
approximately $1,173,000.
The above sensitivity ananlysis is to provide information about the Company's
potential market risks as they pertain to an adverse change in interest rates.
The above analysis excludes the positive impact that increased interest rates
would have on financing income as 98% of the Company's notes receivable are
variable rate notes.
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<PAGE>
AG SERVICES OF AMERICA, INC.
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
(10.26) Employment Agreement effective July 1, 2000 between
the Company and Kevin D. Schipper
(10.27) Employment Agreement effective July 1, 2000 between
the Company and Gaylen D. Miller
(10.28) Employment Agreement effective July 1, 2000 between
the Company and Henry C. Jungling
(11) Statement re computation of earnings per common share
is attached.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the period covered by
this report.
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf
by the undersigned thereunto duly authorized.
AG SERVICES OF AMERICA, INC.
----------------------------
(Registrant)
/s/ Brad D. Schlotfeldt
----------------------------
Brad D. Schlotfeldt
Senior Executive Officer & Treasurer
(Principal Financial & Accounting Officer)
Date: January 15, 2000
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<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (the "Agreement")
is effective as of July 1, 2000, by and between AG SERVICES
OF AMERICA, INC., an Iowa corporation ("Company"), and
Kevin D. Schipper ("Employee").
RECITALS:
WHEREAS, Employee is one of the original founders of Company and has
been instrumental in the successful establishment, growth and
development of Company and its business operations; and
WHEREAS, it is in the best interest of Company and its shareholders
to retain the services of Employee for the period and upon the other
terms and conditions provided in this Agreement; and
WHEREAS, Employee is willing to serve in the employ of Company on
a full-time basis for the period and upon such other terms and
conditions provided within this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals which
are incorporated in and made a part of this Agreement, and in
further consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree as follows:
1. Employment. Company hereby employs Employee, and Employee
hereby accepts employment with Company, all upon the terms and
conditions contained in this Agreement.
2. Services. Employee shall devote his entire working time
and attention to the business of Company. Employee shall perform
such management level duties as assigned to him from time to time
by the Board of Directors of Company. Employee shall carry out
his duties within the policies and directions as established by
Company and in a prudent, businesslike manner.
3. Term. Company agrees to employ Employee and Employee agrees
to remain in the employment of Company for a term commencing on the
date hereof and continuing for a period of three (3) years. At the
end of each year the agreement shall automatically renew for an
additional year unless earlier terminated in accordance with the
provisions hereof (the "Term").
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<PAGE>
4. Compensation. In consideration for all services rendered by
Employee under the terms of this Agreement, Company agrees to
compensate Employee as follows:
a. Base Salary. Company shall pay Employee a base salary of
$250,000 per year, which shall be paid in accordance with the
normal payroll practices of Company in effect from time to time.
Employee's base salary shall be reviewed annually by the Board
of Directors during the Term and may be adjusted upward (but not
downward) if deemed necessary or appropriate in the sole
discretion of the Board of Directors.
b. Bonus. The Company shall pay Employee a performance
bonus based upon the earning per share ("EPS") growth of
the Company. The EPS growth shall be determined by comparing
the fiscal year end audited results to the EPS of the
previous year. The Employee bonus payment shall be $150,000
if the EPS growth is 15%. The bonus shall be adjusted upward
by $10,000 for each full percent increase above 15% and
conversely be adjusted downward by $5,000 for each full percent
that falls below 15%. In the event the Company fails to achieve
what the Board deems to be appropriate sustained growth,
the Board in its discretion may determine the bonus by
comparing the fiscal year end audited results to the EPS of
either of the two prior year's end results, whichever is
higher. The Board of Directors in its sole discretion may
elect to exclude from EPS calculations any events which may
have a negative short term impact to EPS yet may be considered
significant to the long term success of the Company. The EPS
will be determined by the annual audit of Company prepared
in accordance with generally accepted accounting principles
by an independent certified public accountant selected by
Company. The Bonus will be paid no later than thirty (30)
days after completion of such audit, with deductions for
payroll taxes and other items of withholding applicable
to Employee.
c. Automobile and Life Insurance. At all times during
the Term hereof, Company shall at its expense provide Employee
with: (i) an automobile of such make and model as determined
in accordance with Company policy as in effect from time to
time; and (ii) a life insurance policy covering employee with
a face value not less than Two Hundred Fifty Thousand Dollars
($250,000) payable to such beneficiary as Employee
in his sole discretion may designate from time to time.
d. Other Fringe Benefits. Employee shall be entitled
to participate (at the expense of Company) in all now
existing or hereafter adopted plans providing fringe
benefits to the key executive personnel of Company and in
all now existing or hereafter adopted plans (to the extent
eligible therefore) providing benefits to Company's employees
in general, including, but not limited to, group life insurance,
supplemental life insurance and health and accident insurance.
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<PAGE>
5. Termination of Employment by Company.
a. Termination on Account of Disability. Employee's employment
under this Agreement shall terminate in the event of Employee's
disability (as hereinafter defined) during the Term hereof.
For purposes of this Agreement, "disability" shall be defined as:
(i) the permanent physical or mental disability of Employee
continuing for a period of at least six (6) consecutive months
which prevents Employee from performing a major portion of his
duties as certified by three reputable practicing physicians in
the State of Iowa, with one such physician selected by Company,
another such physician selected by Employee and the third such
physician selected by the two physicians selected by Company and
Employee, and the decision of a majority of the three physicians
shall be binding upon the parties; or (ii) the death of Employee.
In such event, Company's obligation to continue to pay Employee's
compensation under paragraph 4 hereof shall terminate as of the
end of the month during which a determination of "disability" in
accordance with this paragraph has been made. However,
notwithstanding such termination, Company shall remain obligated
to pay Employee (or, in the event of death, to Employee's spouse
or, if she is not living, then to Employee's estate or such other
person or entity as Employee shall designate) the following amounts:
(1) Any base salary which is due and unpaid at the date
of termination, plus a pro rata Bonus amount. The pro rata
Bonus amount shall be calculated by dividing number of days
worked in the fiscal year in which the termination occurs by
365 and applying that percentage to the Bonus calculations
specified in paragraph 4(b) hereof. The Bonus will be paid
at the time specified in paragraph 4(b) hereof); and
(2) A severance benefit consisting of a monthly payment
equal to one-half (1/2) of the amount Employee would have
been entitled to receive on a monthly basis as base salary
pursuant to paragraph 4(a) hereof, commencing with the month
of termination and continuing each month thereafter through
and including the term of this agreement. For purposes of
this paragraph 5(a), the base salary used to determine
the severance benefit will be the rate of base salary in
effect on the date of termination.
b. Termination for Cause. Notwithstanding any provision in
this Agreement which may appear to be to the contrary, Employee's
employment under this Agreement shall terminate for "cause"
effective immediately upon Employee's receipt of written notice
from Company of such termination directed to Employee, and, in
such event, the obligation of Company to pay Employee's
compensation under paragraph 4 of this Agreement shall
immediately terminate. However, notwithstanding such termination,
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<PAGE>
Company shall remain obligated to pay Employee any base salary
which is due and unpaid as of the date of termination, plus a
pro rata Bonus amount. The pro rata Bonus amount shall be
calculated by dividing number of days worked in the fiscal
year in which the termination occurs by 365 and applying that
percentage to the Bonus calculation specified in paragraph 4(b)
hereof. For purposes of this Agreement, "cause" shall be defined
as the occurrence of any one or more of the following events:
(1) A repeated neglect of duties, a violation of the
Company's policies, malfeasance, nonfeasance, or other
conduct of Employee in the performance of duties
contemplated by this Agreement which, in the sole
discretion of the Board of Directors of Company, is
detrimental to the best interests of the Company;
(2) Any other material breach by Employee, as determined
in the sole discretion of the Board of Directors of Company,
of the provisions of this Agreement; or
(3) The indictment, conviction or plea of guilty or nolo
contendere of Employee to any felony or to a misdemeanor
involving moral turpitude.
c. Termination Without Cause. Notwithstanding any provision
in this Agreement which may appear to the contrary, Employee's
employment shall terminate without "cause" effective immediately
upon Employee's receipt of written notice of such termination
directed to Employee. In the event Employee's employment is
terminated by Company without "cause" (as defined above), Company's
obligation to continue to pay Employee's compensation under
paragraph 4 hereof shall terminate as of the date of termination.
Notwithstanding such termination, however, Company shall remain
obligated to pay Employee as a severance benefit the following
amounts:
(1) All the base salary which Employee, but for such
termination, would have been entitled to receive hereunder
for two years from the date of termination, to be paid at
the same time and in the same manner as provided in paragraph
4(a) (hereinafter referred to as the "Severance Period").
(2) All Bonus payments which would have accrued to Employee,
but for such termination, during the Severance Period,
including a pro rata amount of the Bonus for any portion of a
fiscal year included within the Severance Period. Such
payments shall be determined and made by Company at the same
time and in the same manner as provided in paragraph 4(b) hereof.
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<PAGE>
6. Termination of Employment by Employee.
a. Termination by Employee. Notwithstanding any provision in
this Agreement which may appear to be the contrary, Employee shall
have the right to terminate his employment hereunder upon or after
the occurrence of a Change in Control (as defined below) or a
Diminution in Responsibility (as defined below) with respect to
Employee and, in the event of such a termination by Employee, he
shall be entitled to receive as a severance benefit from Company
the following amounts:
(1) All base salary which Employee, but for such
termination, would have been entitled to receive hereunder
for the Severance Period (as defined in paragraph 5(c)(1)
hereof and including any adjustment thereto authorized by
such paragraph). For purposes of this paragraph 6(a)(1),
the base salary to be paid to Employee during the Severance
Period will be at the rate of base salary in effect on the
date of termination. Such payments shall be made by Company
at the same time and in the same manner as provided in
paragraph 4(a) hereof; and
(2) All Bonus payments which would have accrued to Employee,
but for such termination, during the Severance Period,
including a pro rata amount of the Bonus for any portion of a
fiscal year included within the Severance Period. Such payments
shall be determined and made by Company at the same time and in
the same manner as provided in paragraph 4(b) hereof.
b. Change in Control. For purposes of this paragraph 6, the term
"Change in Control" shall be defined to mean any of the following events:
(1) The acquisition and/or merger in a single transaction or in
any series of transactions by any person acting directly or
indirectly or through or in concert with one or more persons
(other than Company) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of
1934) of 25% or more of the combined voting power of the then
outstanding voting securities of Company;
(2) During any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of
Directors of Company cease for any reason (other than an
uncontested election) to constitute at least a majority thereof.
For purposes of this definition, the term "person" shall mean an individual
or a corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any other
form of entity not listed.
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<PAGE>
c. Diminution in Responsibility. For purposes of this
paragraph 6, the term "Diminution of Responsibility" shall
be defined to mean any of the following events with respect
to Employee:
(1) Employee, without his written consent, is not
elected or re-elected to or is removed from an office
or position at least equal to that which Employee held
in connection with his employment immediately prior to
the Change of Control; or
(2) A material change in the nature or scope of the
authorities, powers, functions, duties, titles or
responsibilities attached to Employee's position of
employment without Employee's written consent as a
result of which change Employee's position shall be or
become of less dignity, responsibility, importance or scope.
7. Confidential Information and Trade Secrets.
Employee recognizes and acknowledges that Company has developed and
continues to develop and use commercially valuable proprietary
technical and non-technical information which is vital to the
success of Company's business, and furthermore, that Company
utilizes trade secrets in formulating, promoting, financing and
selling its products which are entitled to protection from
disclosure. Employee shall hold in strict confidence during the
Term of this Agreement and at all times thereafter and shall not
disclose to any third party any information of a confidential and
proprietary nature not generally available to the public which
becomes known to Employee in his course of employment with Company,
or has become known to Employee in his course of employment with
Company prior to the date hereof, relating to the business operations
of Company or its customers. If Employee fails to keep and perform
every covenant of this paragraph 7, Company shall be entitled to
specifically enforce the same by injunction in equity in addition
to any other remedies Company may have.
8. Noncompetition. Employee shall not, during the Term of
this Agreement and for two (2) years thereafter, within the trade
area now or hereafter served by Company, associate in any capacity
whatsoever, whether as a promoter, owner, officer, director,
employee, partner, lessee, lessor, lender, agent, consultant,
advisor, broker, commission salesman or otherwise, in any business
which is in competition with the business of Company, except for
passive investments in publicly held companies over which Employee
does not exercise any controlling influence. Further, Employee
shall not, for a period of two (2) years after the termination of
his employment hereunder, in any manner, directly or indirectly,
contact or solicit any of the then existing customers of Company
(including but not limited to, any officer, director, employee,
agent or affiliate of a customer) with respect to the business
of Company or employ (or contact or solicit for the purpose of
seeking to employ) any then existing employee of Company. For
purposes of this paragraph 8, the business of Company shall mean
E-Commerce activities, and the marketing distribution and/or sale
of agricultural inputs (such as seed, chemicals and fertilizer)
to farmers in conjunction with the extension of credit by Company
to such farmers. If Employee fails to keep and perform every
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<PAGE>
covenant of this paragraph 8, Company shall be entitled to
specifically enforce the same by injunction in equity in addition
to any other remedies which Company may have. If any portion of
this paragraph 8 shall be invalid or unenforceable, such
invalidity or unenforceability shall in no way be deemed or
construed to affect in any way the enforceability of any other
portion of this paragraph 8. If any court in which Company seeks
to have the provisions of this paragraph 8 specifically enforced
determines that the scope, area or duration hereinafter specified
is too broad, such court may determine a reasonable scope, area
or duration and shall specifically enforce this paragraph 8 for
such scope, area or duration. Employee acknowledges that covenants
contained in this paragraph 8 are reasonable in scope, area and
duration and are necessary in furtherance of the legitimate
interests of Company. Employee represents and warrants that he
has available to him sufficient other means of support and that
observance of the covenants contained in this paragraph 8 will
not deprive him of his ability to earn a livelihood or to support
his dependents.
9. Non-Waiver. The failure of either party to insist in
any one or more instances upon performance of any of the terms
or conditions of this Agreement shall not be construed as a
waiver or relinquishment of any right granted hereunder, or of
the future performance of any such term, covenant or condition,
but the obligations of either party with respect thereto shall
continue in full force and effect.
10. Assignment. This Agreement and all rights hereunder are
personal to Employee and shall not be assignable by him and any
purported assignment thereof shall not be valid and binding on
Company. Company may assign this Agreement and all of its rights
hereunder to any person, firm or corporation succeeding to the
business of Company, provided such person, firm or corporation
shall assume by contract or by operation of law all of Company's
obligations hereunder.
11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings
between the parties with respect to the subject matter hereof.
12. Applicable Law. This Agreement and the legal relations between
the parties hereto shall be governed by and construed in accordance
with the laws of the State of Iowa.
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<PAGE>
13. Notices. All notices or other communications required or
permitted to be given, pursuant to the terms of this Agreement,
shall be in writing and shall be deemed to be duly given when
received if delivered in person or by fax, telex, telegram or
cable and confirmed by mail, or mailed by registered or certified
mail (return receipt requested) or express mail, postage prepaid,
as follows:
If to Company: Ag Services of America, Inc.
Thunder Ridge Court
2302 West First
Cedar Falls, Iowa 50613
If to Employee: Kevin D. Schipper
Ag Services of America, Inc.
Thunder Ridge Court
2302 West First
Cedar Falls, Iowa 50613
IN WITNESS WHEREOF, this Employment and Noncompetition Agreement
has been executed by the parties as of the Effective Date.
AG SERVICES OF AMERICA, INC.
an Iowa corporation
By: _____________________________
Its: _____________________________
By: _____________________________
Its: _____________________________
"EMPLOYEE"
_________________________________
Kevin D. Schipper
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<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (the "Agreement")
is effective as of July 1, 2000, by and between AG SERVICES
OF AMERICA, INC., an Iowa corporation ("Company"), and
Gaylen D. Miller ("Employee").
RECITALS:
WHEREAS, Employee is one of the original founders of Company and has
been instrumental in the successful establishment, growth and
development of Company and its business operations; and
WHEREAS, it is in the best interest of Company and its shareholders
to retain the services of Employee for the period and upon the other
terms and conditions provided in this Agreement; and
WHEREAS, Employee is willing to serve in the employ of Company on
a full-time basis for the period and upon such other terms and
conditions provided within this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals which
are incorporated in and made a part of this Agreement, and in
further consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree as follows:
1. Employment. Company hereby employs Employee, and Employee
hereby accepts employment with Company, all upon the terms and
conditions contained in this Agreement.
2. Services. Employee shall devote his entire working time
and attention to the business of Company. Employee shall perform
such management level duties as assigned to him from time to time
by the Board of Directors of Company. Employee shall carry out
his duties within the policies and directions as established by
Company and in a prudent, businesslike manner.
3. Term. Company agrees to employ Employee and Employee agrees
to remain in the employment of Company for a term commencing on the
date hereof and continuing for a period of three (3) years. At the
end of each year the agreement shall automatically renew for an
additional year unless earlier terminated in accordance with the
provisions hereof (the "Term").
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<PAGE>
4. Compensation. In consideration for all services rendered by
Employee under the terms of this Agreement, Company agrees to
compensate Employee as follows:
a. Base Salary. Company shall pay Employee a base salary of
$250,000 per year, which shall be paid in accordance with the
normal payroll practices of Company in effect from time to time.
Employee's base salary shall be reviewed annually by the Board
of Directors during the Term and may be adjusted upward (but not
downward) if deemed necessary or appropriate in the sole
discretion of the Board of Directors.
b. Bonus. The Company shall pay Employee a performance
bonus based upon the earning per share ("EPS") growth of
the Company. The EPS growth shall be determined by comparing
the fiscal year end audited results to the EPS of the
previous year. The Employee bonus payment shall be $150,000
if the EPS growth is 15%. The bonus shall be adjusted upward
by $10,000 for each full percent increase above 15% and
conversely be adjusted downward by $5,000 for each full percent
that falls below 15%. In the event the Company fails to achieve
what the Board deems to be appropriate sustained growth,
the Board in its discretion may determine the bonus by
comparing the fiscal year end audited results to the EPS of
either of the two prior year's end results, whichever is
higher. The Board of Directors in its sole discretion may
elect to exclude from EPS calculations any events which may
have a negative short term impact to EPS yet may be considered
significant to the long term success of the Company. The EPS
will be determined by the annual audit of Company prepared
in accordance with generally accepted accounting principles
by an independent certified public accountant selected by
Company. The Bonus will be paid no later than thirty (30)
days after completion of such audit, with deductions for
payroll taxes and other items of withholding applicable
to Employee.
c. Automobile and Life Insurance. At all times during
the Term hereof, Company shall at its expense provide Employee
with: (i) an automobile of such make and model as determined
in accordance with Company policy as in effect from time to
time; and (ii) a life insurance policy covering employee with
a face value not less than Two Hundred Fifty Thousand Dollars
($250,000) payable to such beneficiary as Employee
in his sole discretion may designate from time to time.
d. Other Fringe Benefits. Employee shall be entitled
to participate (at the expense of Company) in all now
existing or hereafter adopted plans providing fringe
benefits to the key executive personnel of Company and in
all now existing or hereafter adopted plans (to the extent
eligible therefore) providing benefits to Company's employees
in general, including, but not limited to, group life insurance,
supplemental life insurance and health and accident insurance.
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5. Termination of Employment by Company.
a. Termination on Account of Disability. Employee's employment
under this Agreement shall terminate in the event of Employee's
disability (as hereinafter defined) during the Term hereof.
For purposes of this Agreement, "disability" shall be defined as:
(i) the permanent physical or mental disability of Employee
continuing for a period of at least six (6) consecutive months
which prevents Employee from performing a major portion of his
duties as certified by three reputable practicing physicians in
the State of Iowa, with one such physician selected by Company,
another such physician selected by Employee and the third such
physician selected by the two physicians selected by Company and
Employee, and the decision of a majority of the three physicians
shall be binding upon the parties; or (ii) the death of Employee.
In such event, Company's obligation to continue to pay Employee's
compensation under paragraph 4 hereof shall terminate as of the
end of the month during which a determination of "disability" in
accordance with this paragraph has been made. However,
notwithstanding such termination, Company shall remain obligated
to pay Employee (or, in the event of death, to Employee's spouse
or, if she is not living, then to Employee's estate or such other
person or entity as Employee shall designate) the following amounts:
(1) Any base salary which is due and unpaid at the date
of termination, plus a pro rata Bonus amount. The pro rata
Bonus amount shall be calculated by dividing number of days
worked in the fiscal year in which the termination occurs by
365 and applying that percentage to the Bonus calculations
specified in paragraph 4(b) hereof. The Bonus will be paid
at the time specified in paragraph 4(b) hereof); and
(2) A severance benefit consisting of a monthly payment
equal to one-half (1/2) of the amount Employee would have
been entitled to receive on a monthly basis as base salary
pursuant to paragraph 4(a) hereof, commencing with the month
of termination and continuing each month thereafter through
and including the term of this agreement. For purposes of
this paragraph 5(a), the base salary used to determine
the severance benefit will be the rate of base salary in
effect on the date of termination.
b. Termination for Cause. Notwithstanding any provision in
this Agreement which may appear to be to the contrary, Employee's
employment under this Agreement shall terminate for "cause"
effective immediately upon Employee's receipt of written notice
from Company of such termination directed to Employee, and, in
such event, the obligation of Company to pay Employee's
compensation under paragraph 4 of this Agreement shall
immediately terminate. However, notwithstanding such termination,
-25-
<PAGE>
Company shall remain obligated to pay Employee any base salary
which is due and unpaid as of the date of termination, plus a
pro rata Bonus amount. The pro rata Bonus amount shall be
calculated by dividing number of days worked in the fiscal
year in which the termination occurs by 365 and applying that
percentage to the Bonus calculation specified in paragraph 4(b)
hereof. For purposes of this Agreement, "cause" shall be defined
as the occurrence of any one or more of the following events:
(1) A repeated neglect of duties, a violation of the
Company's policies, malfeasance, nonfeasance, or other
conduct of Employee in the performance of duties
contemplated by this Agreement which, in the sole
discretion of the Board of Directors of Company, is
detrimental to the best interests of the Company;
(2) Any other material breach by Employee, as determined
in the sole discretion of the Board of Directors of Company,
of the provisions of this Agreement; or
(3) The indictment, conviction or plea of guilty or nolo
contendere of Employee to any felony or to a misdemeanor
involving moral turpitude.
c. Termination Without Cause. Notwithstanding any provision
in this Agreement which may appear to the contrary, Employee's
employment shall terminate without "cause" effective immediately
upon Employee's receipt of written notice of such termination
directed to Employee. In the event Employee's employment is
terminated by Company without "cause" (as defined above), Company's
obligation to continue to pay Employee's compensation under
paragraph 4 hereof shall terminate as of the date of termination.
Notwithstanding such termination, however, Company shall remain
obligated to pay Employee as a severance benefit the following
amounts:
(1) All the base salary which Employee, but for such
termination, would have been entitled to receive hereunder
for two years from the date of termination, to be paid at
the same time and in the same manner as provided in paragraph
4(a) (hereinafter referred to as the "Severance Period").
(2) All Bonus payments which would have accrued to Employee,
but for such termination, during the Severance Period,
including a pro rata amount of the Bonus for any portion of a
fiscal year included within the Severance Period. Such
payments shall be determined and made by Company at the same
time and in the same manner as provided in paragraph 4(b) hereof.
-26-
<PAGE>
6. Termination of Employment by Employee.
a. Termination by Employee. Notwithstanding any provision in
this Agreement which may appear to be the contrary, Employee shall
have the right to terminate his employment hereunder upon or after
the occurrence of a Change in Control (as defined below) or a
Diminution in Responsibility (as defined below) with respect to
Employee and, in the event of such a termination by Employee, he
shall be entitled to receive as a severance benefit from Company
the following amounts:
(1) All base salary which Employee, but for such
termination, would have been entitled to receive hereunder
for the Severance Period (as defined in paragraph 5(c)(1)
hereof and including any adjustment thereto authorized by
such paragraph). For purposes of this paragraph 6(a)(1),
the base salary to be paid to Employee during the Severance
Period will be at the rate of base salary in effect on the
date of termination. Such payments shall be made by Company
at the same time and in the same manner as provided in
paragraph 4(a) hereof; and
(2) All Bonus payments which would have accrued to Employee,
but for such termination, during the Severance Period,
including a pro rata amount of the Bonus for any portion of a
fiscal year included within the Severance Period. Such payments
shall be determined and made by Company at the same time and in
the same manner as provided in paragraph 4(b) hereof.
b. Change in Control. For purposes of this paragraph 6, the term
"Change in Control" shall be defined to mean any of the following events:
(1) The acquisition and/or merger in a single transaction or in
any series of transactions by any person acting directly or
indirectly or through or in concert with one or more persons
(other than Company) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of
1934) of 25% or more of the combined voting power of the then
outstanding voting securities of Company;
(2) During any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of
Directors of Company cease for any reason (other than an
uncontested election) to constitute at least a majority thereof.
For purposes of this definition, the term "person" shall mean an individual
or a corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any other
form of entity not listed.
-27-
<PAGE>
c. Diminution in Responsibility. For purposes of this
paragraph 6, the term "Diminution of Responsibility" shall
be defined to mean any of the following events with respect
to Employee:
(1) Employee, without his written consent, is not
elected or re-elected to or is removed from an office
or position at least equal to that which Employee held
in connection with his employment immediately prior to
the Change of Control; or
(2) A material change in the nature or scope of the
authorities, powers, functions, duties, titles or
responsibilities attached to Employee's position of
employment without Employee's written consent as a
result of which change Employee's position shall be or
become of less dignity, responsibility, importance or scope.
7. Confidential Information and Trade Secrets.
Employee recognizes and acknowledges that Company has developed and
continues to develop and use commercially valuable proprietary
technical and non-technical information which is vital to the
success of Company's business, and furthermore, that Company
utilizes trade secrets in formulating, promoting, financing and
selling its products which are entitled to protection from
disclosure. Employee shall hold in strict confidence during the
Term of this Agreement and at all times thereafter and shall not
disclose to any third party any information of a confidential and
proprietary nature not generally available to the public which
becomes known to Employee in his course of employment with Company,
or has become known to Employee in his course of employment with
Company prior to the date hereof, relating to the business operations
of Company or its customers. If Employee fails to keep and perform
every covenant of this paragraph 7, Company shall be entitled to
specifically enforce the same by injunction in equity in addition
to any other remedies Company may have.
8. Noncompetition. Employee shall not, during the Term of
this Agreement and for two (2) years thereafter, within the trade
area now or hereafter served by Company, associate in any capacity
whatsoever, whether as a promoter, owner, officer, director,
employee, partner, lessee, lessor, lender, agent, consultant,
advisor, broker, commission salesman or otherwise, in any business
which is in competition with the business of Company, except for
passive investments in publicly held companies over which Employee
does not exercise any controlling influence. Further, Employee
shall not, for a period of two (2) years after the termination of
his employment hereunder, in any manner, directly or indirectly,
contact or solicit any of the then existing customers of Company
(including but not limited to, any officer, director, employee,
agent or affiliate of a customer) with respect to the business
of Company or employ (or contact or solicit for the purpose of
seeking to employ) any then existing employee of Company. For
purposes of this paragraph 8, the business of Company shall mean
E-Commerce activities, and the marketing distribution and/or sale
of agricultural inputs (such as seed, chemicals and fertilizer)
to farmers in conjunction with the extension of credit by Company
to such farmers. If Employee fails to keep and perform every
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<PAGE>
covenant of this paragraph 8, Company shall be entitled to
specifically enforce the same by injunction in equity in addition
to any other remedies which Company may have. If any portion of
this paragraph 8 shall be invalid or unenforceable, such
invalidity or unenforceability shall in no way be deemed or
construed to affect in any way the enforceability of any other
portion of this paragraph 8. If any court in which Company seeks
to have the provisions of this paragraph 8 specifically enforced
determines that the scope, area or duration hereinafter specified
is too broad, such court may determine a reasonable scope, area
or duration and shall specifically enforce this paragraph 8 for
such scope, area or duration. Employee acknowledges that covenants
contained in this paragraph 8 are reasonable in scope, area and
duration and are necessary in furtherance of the legitimate
interests of Company. Employee represents and warrants that he
has available to him sufficient other means of support and that
observance of the covenants contained in this paragraph 8 will
not deprive him of his ability to earn a livelihood or to support
his dependents.
9. Non-Waiver. The failure of either party to insist in
any one or more instances upon performance of any of the terms
or conditions of this Agreement shall not be construed as a
waiver or relinquishment of any right granted hereunder, or of
the future performance of any such term, covenant or condition,
but the obligations of either party with respect thereto shall
continue in full force and effect.
10. Assignment. This Agreement and all rights hereunder are
personal to Employee and shall not be assignable by him and any
purported assignment thereof shall not be valid and binding on
Company. Company may assign this Agreement and all of its rights
hereunder to any person, firm or corporation succeeding to the
business of Company, provided such person, firm or corporation
shall assume by contract or by operation of law all of Company's
obligations hereunder.
11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings
between the parties with respect to the subject matter hereof.
12. Applicable Law. This Agreement and the legal relations between
the parties hereto shall be governed by and construed in accordance
with the laws of the State of Iowa.
-29-
<PAGE>
13. Notices. All notices or other communications required or
permitted to be given, pursuant to the terms of this Agreement,
shall be in writing and shall be deemed to be duly given when
received if delivered in person or by fax, telex, telegram or
cable and confirmed by mail, or mailed by registered or certified
mail (return receipt requested) or express mail, postage prepaid,
as follows:
If to Company: Ag Services of America, Inc.
Thunder Ridge Court
2302 West First
Cedar Falls, Iowa 50613
If to Employee: Gaylen D. Miller
Ag Services of America, Inc.
Thunder Ridge Court
2302 West First
Cedar Falls, Iowa 50613
IN WITNESS WHEREOF, this Employment and Noncompetition Agreement
has been executed by the parties as of the Effective Date.
AG SERVICES OF AMERICA, INC.
an Iowa corporation
By: _____________________________
Its: _____________________________
By: _____________________________
Its: _____________________________
"EMPLOYEE"
_________________________________
Gaylen D. Miller
-30-
<PAGE>
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (the "Agreement")
is effective as of July 1, 2000, by and between AG SERVICES
OF AMERICA, INC., an Iowa corporation ("Company"), and
Henry C. Jungling ("Employee").
RECITALS:
WHEREAS, Employee is one of the original founders of Company and has
been instrumental in the successful establishment, growth and
development of Company and its business operations; and
WHEREAS, it is in the best interest of Company and its shareholders
to retain the services of Employee for the period and upon the other
terms and conditions provided in this Agreement; and
WHEREAS, Employee is willing to serve in the employ of Company on
a full-time basis for the period and upon such other terms and
conditions provided within this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals which
are incorporated in and made a part of this Agreement, and in
further consideration of the mutual agreements, provisions and
covenants contained herein, the parties hereto agree as follows:
1. Employment. Company hereby employs Employee, and Employee
hereby accepts employment with Company, all upon the terms and
conditions contained in this Agreement.
2. Services. Employee shall devote his entire working time
and attention to the business of Company. Employee shall perform
such management level duties as assigned to him from time to time
by the Board of Directors of Company. Employee shall carry out
his duties within the policies and directions as established by
Company and in a prudent, businesslike manner.
3. Term. Company agrees to employ Employee and Employee agrees
to remain in the employment of Company for a term commencing on the
date hereof and continuing for a period of three (3) years. At the
end of each year the agreement shall automatically renew for an
additional year unless earlier terminated in accordance with the
provisions hereof (the "Term").
-31-
<PAGE>
4. Compensation. In consideration for all services rendered by
Employee under the terms of this Agreement, Company agrees to
compensate Employee as follows:
a. Base Salary. Company shall pay Employee a base salary of
$250,000 per year, which shall be paid in accordance with the
normal payroll practices of Company in effect from time to time.
Employee's base salary shall be reviewed annually by the Board
of Directors during the Term and may be adjusted upward (but not
downward) if deemed necessary or appropriate in the sole
discretion of the Board of Directors.
b. Bonus. The Company shall pay Employee a performance
bonus based upon the earning per share ("EPS") growth of
the Company. The EPS growth shall be determined by comparing
the fiscal year end audited results to the EPS of the
previous year. The Employee bonus payment shall be $150,000
if the EPS growth is 15%. The bonus shall be adjusted upward
by $10,000 for each full percent increase above 15% and
conversely be adjusted downward by $5,000 for each full percent
that falls below 15%. In the event the Company fails to achieve
what the Board deems to be appropriate sustained growth,
the Board in its discretion may determine the bonus by
comparing the fiscal year end audited results to the EPS of
either of the two prior year's end results, whichever is
higher. The Board of Directors in its sole discretion may
elect to exclude from EPS calculations any events which may
have a negative short term impact to EPS yet may be considered
significant to the long term success of the Company. The EPS
will be determined by the annual audit of Company prepared
in accordance with generally accepted accounting principles
by an independent certified public accountant selected by
Company. The Bonus will be paid no later than thirty (30)
days after completion of such audit, with deductions for
payroll taxes and other items of withholding applicable
to Employee.
c. Automobile and Life Insurance. At all times during
the Term hereof, Company shall at its expense provide Employee
with: (i) an automobile of such make and model as determined
in accordance with Company policy as in effect from time to
time; and (ii) a life insurance policy covering employee with
a face value not less than Two Hundred Fifty Thousand Dollars
($250,000) payable to such beneficiary as Employee
in his sole discretion may designate from time to time.
d. Other Fringe Benefits. Employee shall be entitled
to participate (at the expense of Company) in all now
existing or hereafter adopted plans providing fringe
benefits to the key executive personnel of Company and in
all now existing or hereafter adopted plans (to the extent
eligible therefore) providing benefits to Company's employees
in general, including, but not limited to, group life insurance,
supplemental life insurance and health and accident insurance.
-32-
<PAGE>
5. Termination of Employment by Company.
a. Termination on Account of Disability. Employee's employment
under this Agreement shall terminate in the event of Employee's
disability (as hereinafter defined) during the Term hereof.
For purposes of this Agreement, "disability" shall be defined as:
(i) the permanent physical or mental disability of Employee
continuing for a period of at least six (6) consecutive months
which prevents Employee from performing a major portion of his
duties as certified by three reputable practicing physicians in
the State of Iowa, with one such physician selected by Company,
another such physician selected by Employee and the third such
physician selected by the two physicians selected by Company and
Employee, and the decision of a majority of the three physicians
shall be binding upon the parties; or (ii) the death of Employee.
In such event, Company's obligation to continue to pay Employee's
compensation under paragraph 4 hereof shall terminate as of the
end of the month during which a determination of "disability" in
accordance with this paragraph has been made. However,
notwithstanding such termination, Company shall remain obligated
to pay Employee (or, in the event of death, to Employee's spouse
or, if she is not living, then to Employee's estate or such other
person or entity as Employee shall designate) the following amounts:
(1) Any base salary which is due and unpaid at the date
of termination, plus a pro rata Bonus amount. The pro rata
Bonus amount shall be calculated by dividing number of days
worked in the fiscal year in which the termination occurs by
365 and applying that percentage to the Bonus calculations
specified in paragraph 4(b) hereof. The Bonus will be paid
at the time specified in paragraph 4(b) hereof); and
(2) A severance benefit consisting of a monthly payment
equal to one-half (1/2) of the amount Employee would have
been entitled to receive on a monthly basis as base salary
pursuant to paragraph 4(a) hereof, commencing with the month
of termination and continuing each month thereafter through
and including the term of this agreement. For purposes of
this paragraph 5(a), the base salary used to determine
the severance benefit will be the rate of base salary in
effect on the date of termination.
b. Termination for Cause. Notwithstanding any provision in
this Agreement which may appear to be to the contrary, Employee's
employment under this Agreement shall terminate for "cause"
effective immediately upon Employee's receipt of written notice
from Company of such termination directed to Employee, and, in
such event, the obligation of Company to pay Employee's
compensation under paragraph 4 of this Agreement shall
immediately terminate. However, notwithstanding such termination,
-33-
<PAGE>
Company shall remain obligated to pay Employee any base salary
which is due and unpaid as of the date of termination, plus a
pro rata Bonus amount. The pro rata Bonus amount shall be
calculated by dividing number of days worked in the fiscal
year in which the termination occurs by 365 and applying that
percentage to the Bonus calculation specified in paragraph 4(b)
hereof. For purposes of this Agreement, "cause" shall be defined
as the occurrence of any one or more of the following events:
(1) A repeated neglect of duties, a violation of the
Company's policies, malfeasance, nonfeasance, or other
conduct of Employee in the performance of duties
contemplated by this Agreement which, in the sole
discretion of the Board of Directors of Company, is
detrimental to the best interests of the Company;
(2) Any other material breach by Employee, as determined
in the sole discretion of the Board of Directors of Company,
of the provisions of this Agreement; or
(3) The indictment, conviction or plea of guilty or nolo
contendere of Employee to any felony or to a misdemeanor
involving moral turpitude.
c. Termination Without Cause. Notwithstanding any provision
in this Agreement which may appear to the contrary, Employee's
employment shall terminate without "cause" effective immediately
upon Employee's receipt of written notice of such termination
directed to Employee. In the event Employee's employment is
terminated by Company without "cause" (as defined above), Company's
obligation to continue to pay Employee's compensation under
paragraph 4 hereof shall terminate as of the date of termination.
Notwithstanding such termination, however, Company shall remain
obligated to pay Employee as a severance benefit the following
amounts:
(1) All the base salary which Employee, but for such
termination, would have been entitled to receive hereunder
for two years from the date of termination, to be paid at
the same time and in the same manner as provided in paragraph
4(a) (hereinafter referred to as the "Severance Period").
(2) All Bonus payments which would have accrued to Employee,
but for such termination, during the Severance Period,
including a pro rata amount of the Bonus for any portion of a
fiscal year included within the Severance Period. Such
payments shall be determined and made by Company at the same
time and in the same manner as provided in paragraph 4(b) hereof.
-34-
<PAGE>
6. Termination of Employment by Employee.
a. Termination by Employee. Notwithstanding any provision in
this Agreement which may appear to be the contrary, Employee shall
have the right to terminate his employment hereunder upon or after
the occurrence of a Change in Control (as defined below) or a
Diminution in Responsibility (as defined below) with respect to
Employee and, in the event of such a termination by Employee, he
shall be entitled to receive as a severance benefit from Company
the following amounts:
(1) All base salary which Employee, but for such
termination, would have been entitled to receive hereunder
for the Severance Period (as defined in paragraph 5(c)(1)
hereof and including any adjustment thereto authorized by
such paragraph). For purposes of this paragraph 6(a)(1),
the base salary to be paid to Employee during the Severance
Period will be at the rate of base salary in effect on the
date of termination. Such payments shall be made by Company
at the same time and in the same manner as provided in
paragraph 4(a) hereof; and
(2) All Bonus payments which would have accrued to Employee,
but for such termination, during the Severance Period,
including a pro rata amount of the Bonus for any portion of a
fiscal year included within the Severance Period. Such payments
shall be determined and made by Company at the same time and in
the same manner as provided in paragraph 4(b) hereof.
b. Change in Control. For purposes of this paragraph 6, the term
"Change in Control" shall be defined to mean any of the following events:
(1) The acquisition and/or merger in a single transaction or in
any series of transactions by any person acting directly or
indirectly or through or in concert with one or more persons
(other than Company) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Securities Exchange Act of
1934) of 25% or more of the combined voting power of the then
outstanding voting securities of Company;
(2) During any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of
Directors of Company cease for any reason (other than an
uncontested election) to constitute at least a majority thereof.
For purposes of this definition, the term "person" shall mean an individual
or a corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any other
form of entity not listed.
-35-
<PAGE>
c. Diminution in Responsibility. For purposes of this
paragraph 6, the term "Diminution of Responsibility" shall
be defined to mean any of the following events with respect
to Employee:
(1) Employee, without his written consent, is not
elected or re-elected to or is removed from an office
or position at least equal to that which Employee held
in connection with his employment immediately prior to
the Change of Control; or
(2) A material change in the nature or scope of the
authorities, powers, functions, duties, titles or
responsibilities attached to Employee's position of
employment without Employee's written consent as a
result of which change Employee's position shall be or
become of less dignity, responsibility, importance or scope.
7. Confidential Information and Trade Secrets.
Employee recognizes and acknowledges that Company has developed and
continues to develop and use commercially valuable proprietary
technical and non-technical information which is vital to the
success of Company's business, and furthermore, that Company
utilizes trade secrets in formulating, promoting, financing and
selling its products which are entitled to protection from
disclosure. Employee shall hold in strict confidence during the
Term of this Agreement and at all times thereafter and shall not
disclose to any third party any information of a confidential and
proprietary nature not generally available to the public which
becomes known to Employee in his course of employment with Company,
or has become known to Employee in his course of employment with
Company prior to the date hereof, relating to the business operations
of Company or its customers. If Employee fails to keep and perform
every covenant of this paragraph 7, Company shall be entitled to
specifically enforce the same by injunction in equity in addition
to any other remedies Company may have.
8. Noncompetition. Employee shall not, during the Term of
this Agreement and for two (2) years thereafter, within the trade
area now or hereafter served by Company, associate in any capacity
whatsoever, whether as a promoter, owner, officer, director,
employee, partner, lessee, lessor, lender, agent, consultant,
advisor, broker, commission salesman or otherwise, in any business
which is in competition with the business of Company, except for
passive investments in publicly held companies over which Employee
does not exercise any controlling influence. Further, Employee
shall not, for a period of two (2) years after the termination of
his employment hereunder, in any manner, directly or indirectly,
contact or solicit any of the then existing customers of Company
(including but not limited to, any officer, director, employee,
agent or affiliate of a customer) with respect to the business
of Company or employ (or contact or solicit for the purpose of
seeking to employ) any then existing employee of Company. For
purposes of this paragraph 8, the business of Company shall mean
E-Commerce activities, and the marketing distribution and/or sale
of agricultural inputs (such as seed, chemicals and fertilizer)
to farmers in conjunction with the extension of credit by Company
to such farmers. If Employee fails to keep and perform every
-36-
<PAGE>
covenant of this paragraph 8, Company shall be entitled to
specifically enforce the same by injunction in equity in addition
to any other remedies which Company may have. If any portion of
this paragraph 8 shall be invalid or unenforceable, such
invalidity or unenforceability shall in no way be deemed or
construed to affect in any way the enforceability of any other
portion of this paragraph 8. If any court in which Company seeks
to have the provisions of this paragraph 8 specifically enforced
determines that the scope, area or duration hereinafter specified
is too broad, such court may determine a reasonable scope, area
or duration and shall specifically enforce this paragraph 8 for
such scope, area or duration. Employee acknowledges that covenants
contained in this paragraph 8 are reasonable in scope, area and
duration and are necessary in furtherance of the legitimate
interests of Company. Employee represents and warrants that he
has available to him sufficient other means of support and that
observance of the covenants contained in this paragraph 8 will
not deprive him of his ability to earn a livelihood or to support
his dependents.
9. Non-Waiver. The failure of either party to insist in
any one or more instances upon performance of any of the terms
or conditions of this Agreement shall not be construed as a
waiver or relinquishment of any right granted hereunder, or of
the future performance of any such term, covenant or condition,
but the obligations of either party with respect thereto shall
continue in full force and effect.
10. Assignment. This Agreement and all rights hereunder are
personal to Employee and shall not be assignable by him and any
purported assignment thereof shall not be valid and binding on
Company. Company may assign this Agreement and all of its rights
hereunder to any person, firm or corporation succeeding to the
business of Company, provided such person, firm or corporation
shall assume by contract or by operation of law all of Company's
obligations hereunder.
11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings
between the parties with respect to the subject matter hereof.
12. Applicable Law. This Agreement and the legal relations between
the parties hereto shall be governed by and construed in accordance
with the laws of the State of Iowa.
-37-
<PAGE>
13. Notices. All notices or other communications required or
permitted to be given, pursuant to the terms of this Agreement,
shall be in writing and shall be deemed to be duly given when
received if delivered in person or by fax, telex, telegram or
cable and confirmed by mail, or mailed by registered or certified
mail (return receipt requested) or express mail, postage prepaid,
as follows:
If to Company: Ag Services of America, Inc.
Thunder Ridge Court
2302 West First
Cedar Falls, Iowa 50613
If to Employee: Henry C. Jungling
Ag Services of America, Inc.
Thunder Ridge Court
2302 West First
Cedar Falls, Iowa 50613
IN WITNESS WHEREOF, this Employment and Noncompetition Agreement
has been executed by the parties as of the Effective Date.
AG SERVICES OF AMERICA, INC.
an Iowa corporation
By: _____________________________
Its: _____________________________
By: _____________________________
Its: _____________________________
"EMPLOYEE"
_________________________________
Henry C. Jungling
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<PAGE>
<TABLE>
AG SERVICES OF AMERICA, INC.
EXHIBIT 11
STATEMENT RE: COMPUTATION OF EARNINGS PER SHARE
<CAPTION>
Three Months Ended Nine Months Ended
November 30, November 30,
2000 1999 2000 1999
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Computation of weighted average
number of basic shares:
Basic:
Common shares outstanding at
beginning of the period 5,269,964 5,233,864 5,249,039 5,212,604
Weighted average number of
shares issued during the
period 2,522 2,633 19,439 17,653
----------- ----------- ----------- -----------
Weighted average shares
outstanding (basic) 5,272,486 5,236,497 5,268,478 5,230,257
=========== =========== =========== ===========
Net income available to
shareholders:
Income from continuing
operations $997,658 $1,686,941 $6,855,525 $7,541,134
Discontinued operations - (71,597) - (121,446)
----------- ----------- ----------- -----------
Net income available to
stockholders: $997,658 $1,615,344 $6,855,525 $7,419,688
=========== =========== =========== ===========
Basic earnings per share:
Income from continuing
operations $0.19 $0.32 $1.30 $1.44
Discontinued opeartions - (0.01) - (0.02)
----------- ----------- ----------- -----------
Basic earnings per share $0.19 $0.31 $1.30 $1.42
=========== =========== =========== ===========
Diluted:
Common shares outstanding at
beginning of the period 5,269,964 5,233,864 5,249,039 5,212,604
Weighted average number of
shares issued during the
period 2,522 2,633 19,439 17,653
Weighted average of potential
dilutive shares computed
using the treasury stock
method using the average
market price during the
period:
Option (1) 203,517 208,274 239,052 217,641
----------- ----------- ----------- -----------
Weighted average shares
outstanding (diluted) 5,476,003 5,444,771 5,507,530 5,447,898
=========== =========== =========== ===========
Net income
Income from continuing
operations $997,658 $1,686,941 $6,855,525 $7,541,134
Discontinued operations - (71,597) - (121,446)
----------- ----------- ----------- -----------
Net income available to
stockholders $997,658 $1,615,344 $6,855,525 $7,419,688
=========== =========== =========== ===========
Diluted earnings per share
Income from continuing
operations $0.18 $0.31 $1.24 $1.38
Discontinued operations - (0.01) - (0.02)
----------- ----------- ----------- -----------
Diluted earnings per share $0.18 $0.30 $1.24 $1.36
=========== =========== =========== ===========
<CAPTION>
(1) Some of the stock options have been excluded because they are
antidilutive.
</TABLE>
-39-
<PAGE>
