EXHIBIT 10.05
EMPLOYMENT AGREEMENT
AGREEMENT, made as of January 1, 1992, by and between GREAT LAKES HOLDINGS
CORPORATION, a Delaware corporation (the "Company"), and Xxxxxxx Xxxxxx
("Executive").
RECITALS
--------
In order to induce Executive to remain in his current position and to
continue serving as a senior executive officer of the Company, the Company
desires to provide Executive with compensation and other benefits on the terms
and conditions set forth in this Agreement.
Executive is willing to continue his employment and perform services
for the Company on the terms and conditions set forth in this Agreement.
Executive acknowledges that:
(i) this Agreement is the sole existing employment agreement between
Executive and the Company; and
(ii) this Agreement nullifies and supersedes all previous contracts
governing the terms of Executive's employment with the Company.
It is therefore hereby agreed by and between the parties as follows:
1. Employment.
----------
1.1 Subject to the terms and conditions of this Agreement, the
Company agrees to employ Executive during the term hereof as Senior Vice
President, General Counsel and Secretary of the Company. In those capacities,
Executive shall have the customary powers, responsibilities and authority of
other persons
2
having similar positions at corporations of the size, type and nature of the
Company, as they exist from time to time. Executive's principal office shall be
at the principal executive offices of the Company in Oak Brook, Illinois.
1.2 Subject to the terms and conditions of this Agreement, Executive
hereby accepts employment by the Company in the positions specified in Section
1.1 hereof and agrees to devote his full working time and efforts, to the best
of his ability, experience and talent, to the performance of services, duties
and responsibilities in connection therewith. Nothing in this Agreement shall
preclude Executive from engaging, consistent with his duties and
responsibilities hereunder, in charitable and community affairs, from managing
his personal investments, from continuing to serve on the boards of directors of
the companies and associations listed on Exhibit A or from serving, subject to
approval of the Board of Directors of the Company, as a member of boards of
directors or as a trustee of other companies, associations or entities.
2. Term of Employment.
------------------
Executive's term of employment under this Agreement shall commence on the
date hereof and, subject to the terms hereof, shall terminate on the earlier of
(i) the third anniversary of the date hereof (the "Termination Date") or (ii)
termination of Executive's employment pursuant to this Agreement; provided,
however, that on the Termination Date and each anniversary thereof, the
Termination Date shall be extended for a period of one additional year unless
either party shall have given written notice to the other party not less than 90
days
3
prior to such date that the Termination Date shall not be so extended. Upon any
such extension, references to the Termination Date shall be deemed to be
references to the Termination Date as so extended.
3. Compensation.
------------
The Company shall pay Executive a base salary at an annual rate of
$157,500, which salary shall be automatically increased by five percent (5%) on
the first anniversary of Executive's lase increase in base salary. Thereafter,
Executive's base shall be reviewed by the Compensation Committee of the Board of
Directors of the Company at least once in every twelve-month period during the
term of this Agreement and, if adjusted, such adjusted amount shall constitute
Executive's base salary.
4. Employee Benefits.
-----------------
The Company shall provide Executive during the term of his employment
hereunder coverage (commensurate with his positions in the Company and to the
extent possible under any employee benefit plan) under any bonus plans and other
employee benefit programs, plans and practices (including the cash bonus program
and Company stock option plan), in accordance with the terms thereof, which the
Company makes available to its senior executive officers.
5. Expenses.
--------
Executive is authorized to incur reasonable expenses in carrying out his
duties and responsibilities under this Agreement, including, without limitation,
expenses for travel and similar items related to such duties and
responsibilities. The
4
Company will reimburse Executive for all such expenses upon presentation by
Executive from time to time of an itemized account of such expenditures.
6. Termination of Employment.
-------------------------
6.1 Termination
-----------
The Company may terminate Executive's employment at any time for any
reason, and Executive may terminate his employment at any time upon 30 days
prior written notice to the Company. If prior to the Termination Date, as then
in effect, Executive either (a) resigns for Good Reason (as defined in Section
6.2 hereof) or (b) is terminated by the Company for any reason other than for
Cause (as defined in Section 6.2), death or Permanent Disability (as defined in
Section 6.2), Executive shall be entitled to receive equal monthly installments
for twelve months, in lieu of any other cash compensation provided for herein
but not in substitution for compensation already paid or earned, equal to 8.34
percent multiplied by the sum of (x) Executive's then current base salary and
(y) Executive's current bonus, which shall be a percentage of his then current
base salary equal to (i) the average percentage of Executive's base salary
represented by the bonuses Executive received during the term of this
Agreement prior to his termination or (ii) if employment terminates on or prior
to December 31, 1992, the percentage of Executive's base salary represented by
the bonus Executive received with respect to the 1991 calendar year.
5
6.2 Certain Definitions.
-------------------
For purposes of this Agreement:
(a) "Cause" shall mean:
(i) commission by the Executive of any felony involving moral turpitude;
(ii) the Executive's willful misconduct as an employee of the Company
involving dishonesty (including the unauthorized disclosure of
confidential or proprietary information of the Company); or
(iii) the Executive's willful failure to render services to the Company in
accordance with his employment.
(b) "Good Reason" shall mean the resignation of Executive from employment
by the Company as a result of the occurrence of any of the following events
without Executive's express prior written consent:
(i) a material reduction or a material adverse alteration in the nature of
the Executive's position, responsibilities or authorities;
(ii) the Executive's becoming the holder of a lesser office or title than
that previously held;
(iii) any reduction in the aggregate of the Executive's bonus, compensation
and benefits, other than a reduction in bonus or benefits generally applicable
to executive employees;
(iv) the relocation of the Executive's job more than fifty miles from his
present location; or
(v) any material breach of this Agreement by the Company which causes an
adverse change to the terms and conditions of the Executive's employment.
6
(c) "Permanent Disability" shall mean the inability of the Executive to
perform substantially all his duties and responsibilities to the Company by
reason of a physical or mental disability or infirmity for a continuous period
of six months. The date of such Permanent Disability shall be the last day of
such six-month period or if later, the day on which the Executive submits
satisfactory medical evidence of such Permanent Disability.
7. Notices.
-------
All notices or communications hereunder shall be in writing, addressed as
follows:
To the Company:
Great Lakes Holdings Corporation
0000 Xxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
with a copy to:
Blackstone Dredging Partners L.P.
000 Xxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
To Executive at the address set forth on the signature page of this
Agreement.
Any such notice or communication shall be sent certified or registered mail,
return receipt requested, postage prepaid, addressed as above (or to such other
address as such party may designate in a notice duly delivered as described
above), and the actual date of mailing shall constitute the time at which notice
was given.
7
8. Separability; Legal Fees.
------------------------
If any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof, which shall remain in full force and
effect. In addition, the Company shall bear, or reimburse Executive for, all
reasonable legal fees incurred in connection with entering into this Agreement.
9. Assignment.
----------
This Agreement shall be binding upon and inure to the benefit of the heirs
and representatives of Executive and the assigns and successors of the Company,
but neither this Agreement nor any rights hereunder shall be assignable or
otherwise subject to hypothecation by Executive (except by will or by operation
of the laws of intestate succession) or by the Company, except that the Company
may assign this Agreement to any successor (whether by merger, purchase or
otherwise) to all or substantially all of the stock, assets or businesses of the
Company.
10. Amendment.
---------
This Agreement may only be amended by written agreement of the parties
hereto.
11. Nondisclosure of Confidential Information; Non-Competition.
----------------------------------------------------------
(a) Executive shall not, without the prior written consent of the Company,
divulge, disclose or make accessible to any other person, firm, partnership,
corporation or other entity any Confidential Information pertaining to the
business of the Company, except (i) while employed by the Company, in the
8
business of and for the benefit of the Company, or (ii) when required to do so
by a court of competent jurisdiction or an individual duly appointed thereby, by
any administrative body or legislative body (including a committee thereof)
having supervisory authority over the business of the Company, or by any
administrative body or legislative body (including a committee thereof) with
jurisdiction to order Executive to divulge, disclose or make accessible such
information. For purposes of this Section 11(a), "Confidential Information"
shall mean non-public information concerning the financial data, strategic
business plans, product development (or other proprietary product data),
customer lists, marketing plans and other non-public, proprietary and
confidential information of the Company and its subsidiaries that is not
otherwise available to the public; provided, however, that Confidential
Information shall also include any information of the type herein described
which has become publicly available through any breach of fiduciary duty.
(b) During the period of his employment hereunder and for a period of
one year thereafter, Executive agrees that, without the prior written consent of
the Company, he will not, directly or indirectly, either as principal, manager,
agent, consultant, officer, stockholder, partner, investor, lender or employee
or in any other capacity, carry on, be engaged in or have any financial interest
in, any business which is in material competition with the business of the
Company and/or its affiliates.
(c) For purposes of this Section 11, a business shall be deemed to be
in competition with the Company if it is
9
principally involved in the purchase, sale or other dealing in any property or
the rendering of any service purchased, sold, dealt in or rendered by the
Company and/or its affiliates as a material part of the business of the Company
and/or its affiliates within the same geographic areas in which the Company
and/or its affiliates principally effect such purchases, sales or dealings or
render such services. Nothing in this Section 11 shall be construed so as to
preclude Executive from (i) investing in any publicly held company provided
Executive's beneficial ownership of any class of such company's securities does
not exceed 3% of the outstanding securities of such class.
(d) Executive and the Company agree that this covenant not to compete is a
reasonable covenant under the circumstances, and further agree that if in the
opinion of any court of competent jurisdiction such restraint is not reasonable
in any respect, such court shall have the right, power and authority to excise
or modify such provision or provisions of this covenant as to the court shall
appear not reasonable and to enforce the remainder of the covenant as so
amended. Executive agrees that any breach of the covenants contained in this
Section 11 would irreparably injure the Company. Accordingly, the Company may,
in addition to pursuing any other remedies it may have in law or in equity,
obtain an injunction against Executive from any court having jurisdiction over
the matter, restraining any further violation of this Agreement by Executive.
12. Survivorship.
------------
The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the
10
extent necessary to the intended preservation of such rights and obligations.
The provisions of this Section 12 are in addition to the survivorship provisions
of any other section of this Agreement.
13. Governing Law.
-------------
This Agreement shall be construed, interpreted and governed in accordance
with the laws of the State of New York without reference to rules relating to
conflicts of law.
14. Withholding.
-----------
The Company shall be entitled to withhold from payment any amount of
withholding required by law.
15. Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of which
will be deemed an original.
GREAT LAKES HOLDINGS
CORPORATION
By /s/
--------------------------------
Title:
/s/ XXXXXXX XXXXXX
--------------------------------
Xxxxxxx Xxxxxx
EXHIBIT A
---------
Existing Board of Directors Positions of Executive
--------------------------------------------------
The Steamship Mutual Underwriting Association Limited
