FIRST AMENDMENT TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This is the First Amendment to the Amended and Restated Employment
Agreement which was entered into in May, 1997 and was effective as of June
11, 1996 ("Agreement"), between Ameron International Corporation, a Delaware
corporation (the "Company") and Xxxxx X. Xxxxxx (the "Employee").
I.
Paragraph 10.5 of the Agreement is hereby amended to delete the
paragraph on pages 7 and 8 which immediately follows paragraph 10.5(4) and
begins with the words "Notwithstanding any other provisions..." and ends with
the words "...the provisions of Exhibit "T."," and replace the paragraph
which is deleted with the following paragraph, which shall read as follows:
"Notwithstanding any other provisions in this Agreement or any other
agreement, plan or arrangement, if any payment or benefit received or
to be received by Employee, whether under the terms of this Agreement,
or any other agreement, plan or arrangement with the Company or any
person affiliated with the Company (all such payments and benefits
being hereinafter referred to as "Total Payments") would be subject,
in whole or in part, to taxes imposed by IRC Section 4999, then an
additional gross-up payment shall be made to Employee in accordance
with the provisions of Exhibit "T" hereof, the provisions of which
Exhibit are hereby fully incorporated herein by reference, such that,
after payment of all Federal, state and local income, employment and
excise taxes, Employee will be in the same after-tax position as if no
excise taxes (or interest or penalties thereon) had been imposed."
II.
Exhibit T to the Agreement is hereby amended and restated in full to
read as set forth in Exhibit T which is attached to this First Amendment to
the Agreement.
III.
All other terms and conditions of the Agreement are hereby ratified and
confirmed.
Exhibit 10
22
IN WITNESS WHEREOF, the parties have executed this First Amendment to the
Agreement effective as of May 15, 1998.
AMERON INTERNATIONAL CORPORATION
By: /s/ A. Xxxxxxxxx Xxxxxxxx
--------------------------------
A. Xxxxxxxxx Xxxxxxxx
Chairman, Compensation & Stock Option Committee
Board of Directors
EMPLOYEE
/s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
EXHIBIT T
Exhibit "T"
(Page 1 of 1)
If any portion of the Total Payments (as defined in Paragraph 10.5 of
the Agreement) shall be subject to excise tax pursuant to Section 4999 of the
Internal Revenue Code of 1986, or any successor or similar provision thereto,
or comparable state or local tax laws, the Company shall pay to the Employee
such additional compensation as is necessary (after taking into account all
Federal, state and local income, employment and excise taxes payable by the
Employee as a result of the receipt of such additional compensation) to place
the Employee in the same after-tax position he would have been in had no such
excise tax (or any interest or penalties thereon) been paid or incurred. The
Company shall pay additional compensation upon the earlier of (i) the time at
which the Company withholds such excise tax from any payments to the Employee
or (ii) 30 days after the Employee notifies the Company that the Employee
has filed a tax return which taxes the position that such excise tax is due
and payable in reliance on a written opinion of the Employee's tax counsel or
accountant that it is more likely than not that such payment with respect to
any such excise tax is due and payable. If the Employee makes any payment
with respect to any such excise tax as a result of an adjustment to the
Employee's tax liability by any Federal, state or local authority, the
Company will pay such additional compensation within 30 days after the
Employee notifies the Company of such payment. Without limiting the
obligation of the Company hereunder, the Employee agrees, in the event the
Employee makes any payment pursuant to the preceding sentence, to negotiate
with the Company in good faith with respect to procedures reasonably
requested by the Company which would afford the Company the ability to
contest the imposition of such excise tax; provided, however that the
Employee will not be required to afford the Company any right to contest the
applicability of any such excise tax to the extent that the Employee
reasonably determines that such contest is inconsistent with the overall tax
interests of the Employee. The Company agrees to hold in confidence and not
to disclose, without the Employee's prior written consent, any information
with regard to the Employee's tax position which the Company obtains pursuant
to this Exhibit T.
CHANGE OF CONTROL AGREEMENT
This change of control agreement (the "Agreement") is made effective as
of September 23, 1998, by and between Ameron International Corporation, a
Delaware corporation (the "Company") and Xxxxxx Xxxxx ("Employee").
WITNESSETH
WHEREAS, if certain corporate transactions were proposed or pending,
such potential transactions could result in distractions to Employee's
performance at a critical period; and
WHEREAS, Employee and Company wish to enter into this Agreement in order
to provide security to Employee as a means of maintaining performance under
such circumstances;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the Company and Employee agree as follows:
1. TERM.
1.1 The term of this Agreement (the "Term") shall commence on September
23, 1998 and shall be for two years, subject to earlier termination in
accordance with the provisions of Section 4 hereinbelow. Beginning on
September 24, 1998 and on each day thereafter, the Term shall automatically
be extended for an additional day, unless the Company notifies Employee in
writing that it does not wish to further extend the Term.
2. POSITION AND TITLE.
2.1 The Company, on behalf of itself and its affiliates and
subsidiaries, currently employs Employee as Senior Vice President of
Administration, Secretary and General Counsel.
2.2 Employee shall devote substantially all of his efforts on a
full-time basis to the business and affairs of the Company and shall not
engage in any business or perform any services in any capacity whatsoever
adverse to the interests of the Company.
2.3 Employee shall at all times faithfully, industriously, and to the
best of his ability, experience, and talents perform all of the duties of his
position.
3. COMPENSATION.
-1-
3.1 As of the date of this Agreement, Employee's annual base salary is
$200,000. Employee's base salary and performance shall be reviewed
periodically at intervals determined by the Board of Directors of the Company
(the "Board"), and Employee's base salary may be increased from time to time
based on merit or such other considerations as the Board may deem
appropriate.
4. TERMINATION OF EMPLOYMENT.
For purposes of this Agreement only, a Termination Without Cause shall
exist if Employee is terminated by the Company for any reason except:
(1) Willful breach of duty by Employee in the course of his
employment or habitual neglect of his duty or continued incapacity to
perform it, as contemplated by Section 2924 of the California Labor Code;
(2) Willful malfeasance or gross negligence by Employee in the
performance of his duties;
(3) Any act of fraud, insubordination or other conduct by Employee
which demonstrates gross unfitness for service; or
(4) Employee's conviction (or entry of a plea of guilty, nolo
contendere or the equivalent) for any crime involving moral turpitude,
dishonesty or breach of trust or any felony which is punishable by
imprisonment in the jurisdiction involved.
Additionally, if Employee terminates employment with the Company because
(a) Employee's annual base salary is reduced below the amount stated in
Paragraph 3.1 hereinabove (unless such reduction is part of an across the
board reduction affecting all Company executives with a comparable level of
responsibility, title or stature), or (b) Employee is removed from or denied
participation in incentive plans, benefit plans, or perquisites generally
provided by the Company to other executives with a comparable level of
responsibility, title or stature, or (c) Employee's target incentive
opportunity, benefits or perquisites are reduced relative to other executives
with comparable responsibility, title or stature, or (d) Employee's title,
duties or responsibilities with the Company are significantly reduced, or (e)
Employee is required to relocate to an area outside the Metropolitan Los
Angeles area, such event shall be considered a Termination Without Cause;
provided that Employee must furnish written notice to the Company setting
forth the reasons for Employee's intention to terminate employment under this
paragraph, and the Company shall have an opportunity to cure the actions or
omissions forming the basis for such intended termination, if possible,
within thirty (30) days after receipt of such written notice.
-2-
5. CHANGE OF CONTROL.
5.1 In the event of a Change of Control of the Company at any time
during the Term of this Agreement, and Employee's Termination Without Cause
within a period of twelve (12) months following the date of such Change of
Control, Employee shall be entitled to the following benefits:
(1) The Company shall pay Employee a lump-sum severance amount
within thirty (30) days following Termination Without Cause equal to three
(3) times the sum of (a) the higher of the Employee's annual base salary at
the time of Termination Without Cause or the annual base salary stated in
Paragraph 3.1 above, and (b) the average annual bonus earned by Employee
(whether paid in cash or deferred) under the Company's annual bonus plan
(currently known as the "Management Incentive Compensation Plan") for the two
completed fiscal years immediately prior to Termination Without Cause.
(2) The Company shall provide for Employee to receive medical,
dental, life, and disability insurance coverage for three (3) years following
Termination Without Cause at levels and a net cost to Employee comparable to
that provided to Employee immediately prior to Employee's Termination Without
Cause.
(3) The Company shall pay Employee an additional lump-sum amount
within thirty (30) days following Employee's Termination Without Cause equal
to a pro-rated portion of Employee's target incentive bonuses (based on the
period prior to Termination Without Cause in proportion to the entire period
for which such bonuses are payable) under the Company's annual and long-term
management cash incentive plans, which are currently known as the "Management
Incentive Compensation Plan" and "Key Executive Long-Term Cash Incentive
Plan."
5.2 In the event of a Change of Control at any time during the term of
this Agreement, all unvested restricted stock grants and stock options
granted to Employee shall automatically vest in full upon the Change of
Control.
5.3 Notwithstanding any other provisions in this Agreement or any other
agreement, plan or arrangement, if any payment or benefit received or to be
received by Employee, whether under terms of this Agreement or any other
agreement, plan or arrangement with the Company or an affiliate of the Company
(all such payments and benefits being hereinafter referred to as "Total
Payments"), would be subject, in whole or in part, to taxes imposed by Internal
Revenue Code ("IRC") Section 4999, then the Total Payments shall be reduced to
the extent necessary so that no portion of the Total Payments shall be subject
to the parachute excise tax (the "Excise Tax") imposed by IRC Section 4999
(after taking into account any reduction in the Total Payments provided by
reason of IRC Section 280G in any other plan, arrangement or agreement). Total
Payments shall not include any amounts which are not considered as "parachute
payments" under IRC Section 280G in the opinion of suitable experts selected by
the Company's Board of Directors. The Company shall provide Employee with the
calculation of the foregoing amounts and any supporting materials reasonably
necessary for Employee to
-3-
evaluate the calculations. Any reduction in the Total Payments in accordance
with this Paragraph 5.3 shall be made in such order as may be determined by
Employee.
5.4 As used herein, the term "Change of Control" means either (a) the
dissolution or liquidation of the Company, (b) a reorganization, merger or
consolidation of the Company with one or more entities as a result of which
the Company is not the surviving entity, (c) approval by the stockholders of
the Company of any sale, lease exchange or other transfer (in one or a series
of transactions) of all or substantially all of the assets of the Company,
(d) approval by the stockholder of the Company of any merger or consolidation
of the Company in which the holders of voting stock of the Company
immediately before the merger or consolidation will not own fifty percent
(50%) or more of the outstanding voting shares of the continuing or surviving
entity immediately after such merger or consolidation, or (e) a change of
25% or more (rounded to the next whole person) in the membership of the Board
of Directors of the Company within a 12-month period, unless the election or
nomination for election by stockholders of each new director within such
period was approved by the vote of at least 85% (rounded to the next whole
person) of the directors then still in office who were in office at the
beginning of the 12-month period.
5.5 Employee shall not be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to Employee
under any provisions of this Agreement, and the amounts payable to Employee
hereunder shall not be reduced or offset by any payments received by Employee
on account of other employment.
6. COVENANTS.
6.1 Employee acknowledges that he has entered into an "Employee Patent
Assignment and Non-Disclosure Agreement" with the Company.
6.2 Employee agrees to provide a release of any claims with respect to
termination of his employment on such form as reasonably requested by the
Company upon payment of the sums provided in Paragraph 5.1 hereinabove and
the Company's agreement to perform its other obligations under this Agreement
and any other agreement(s) between the Company and Employee.
7. MISCELLANEOUS PROVISIONS.
7.1 All terms and conditions of this Agreement are set forth herein,
and there are no warranties, agreements or understandings, express or
implied, except those expressly set forth herein.
7.2 Any modifications to this Agreement shall be binding only if
evidenced in writing signed by all parties hereto.
7.3 Any notice or other communication required or permitted to be
given hereunder shall be deemed properly given if personally delivered or
deposited in the United States Mail, registered or certified and postage
prepaid, addressed to the Company at 000 X. Xxx Xxxxxx
-0-
Xxxxxx, Xxxxxxxx, XX 00000 or to Employee at his most recent home address on
file with the Company, or at such other addresses as may from time to time be
designated in writing by the respective parties.
7.4 The laws of the State of California shall govern the validity of
this Agreement, the construction of its terms, and the interpretation of the
rights and duties of the parties involved.
7.5 In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal
or unenforceable provisions had never been contained herein.
7.6 This Agreement shall be binding upon, and inure to the benefit of,
the successors and assigns of the Company and the personal representatives,
heirs and legatees of Employee.
7.7 The term "Company" shall include, with respect to employment
hereunder, any subsidiary or affiliate of the Company, as well as any
successor employer following a Change of Control.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
BY: ______________________________________
Xxxxx X. Xxxxxx, Chairman of the Board,
President and Chief Executive Officer
BY: ______________________________________
Xxxxxx Xxxxx
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CHANGE OF CONTROL AGREEMENT
This change of control agreement (the "Agreement") is made effective as
of September 23, 1998, by and between Ameron International Corporation, a
Delaware corporation (the "Company") and Xxxx Xxxxxx ("Employee").
WITNESSETH
WHEREAS, if certain corporate transactions were proposed or pending,
such potential transactions could result in distractions to Employee's
performance at a critical period; and
WHEREAS, Employee and Company wish to enter into this Agreement in order
to provide security to Employee as a means of maintaining performance under
such circumstances;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the Company and Employee agree as follows:
1. TERM.
1.1 The term of this Agreement (the "Term") shall commence on September
23, 1998 and shall be for two years, subject to earlier termination in
accordance with the provisions of Section 4 hereinbelow. Beginning on
September 24, 1998 and on each day thereafter, the Term shall automatically
be extended for an additional day, unless the Company notifies Employee in
writing that it does not wish to further extend the Term.
2. POSITION AND TITLE.
2.1 The Company, on behalf of itself and its affiliates and
subsidiaries, currently employs Employee as Senior Vice President and Chief
Financial Officer.
2.2 Employee shall devote substantially all of his efforts on a
full-time basis to the business and affairs of the Company and shall not
engage in any business or perform any services in any capacity whatsoever
adverse to the interests of the Company.
2.3 Employee shall at all times faithfully, industriously, and to the
best of his ability, experience, and talents perform all of the duties of his
position.
3. COMPENSATION.
-1-
3.1 As of the date of this Agreement, Employee's annual base salary is
$200,000. Employee's base salary and performance shall be reviewed
periodically at intervals determined by the Board of Directors of the Company
(the "Board"), and Employee's base salary may be increased from time to time
based on merit or such other considerations as the Board may deem
appropriate.
4. TERMINATION OF EMPLOYMENT.
For purposes of this Agreement only, a Termination Without Cause shall
exist if Employee is terminated by the Company for any reason except:
(1) Willful breach of duty by Employee in the course of his
employment or habitual neglect of his duty or continued incapacity to
perform it, as contemplated by Section 2924 of the California Labor Code;
(2) Willful malfeasance or gross negligence by Employee in the
performance of his duties;
(3) Any act of fraud, insubordination or other conduct by Employee
which demonstrates gross unfitness for service; or
(4) Employee's conviction (or entry of a plea of guilty, nolo
contendere or the equivalent) for any crime involving moral turpitude,
dishonesty or breach of trust or any felony which is punishable by
imprisonment in the jurisdiction involved.
Additionally, if Employee terminates employment with the Company because
(a) Employee's annual base salary is reduced below the amount stated in
Paragraph 3.1 hereinabove (unless such reduction is part of an across the
board reduction affecting all Company executives with a comparable level of
responsibility, title or stature), or (b) Employee is removed from or denied
participation in incentive plans, benefit plans, or perquisites generally
provided by the Company to other executives with a comparable level of
responsibility, title or stature, or (c) Employee's target incentive
opportunity, benefits or perquisites are reduced relative to other executives
with comparable responsibility, title or stature, or (d) Employee's title,
duties or responsibilities with the Company are significantly reduced, or (e)
Employee is required to relocate to an area outside the Metropolitan Los
Angeles area, such event shall be considered a Termination Without Cause;
provided that Employee must furnish written notice to the Company setting
forth the reasons for Employee's intention to terminate employment under this
paragraph, and the Company shall have an opportunity to cure the actions or
omissions forming the basis for such intended termination, if possible,
within thirty (30) days after receipt of such written notice.
-2-
5. CHANGE OF CONTROL.
5.1 In the event of a Change of Control of the Company at any time
during the Term of this Agreement, and Employee's Termination Without Cause
within a period of twelve (12) months following the date of such Change of
Control, Employee shall be entitled to the following benefits:
(1) The Company shall pay Employee a lump-sum severance amount
within thirty (30) days following Termination Without Cause equal to three
(3) times the sum of (a) the higher of the Employee's annual base salary at
the time of Termination Without Cause or the annual base salary stated in
Paragraph 3.1 above, and (b) the average annual bonus earned by Employee
(whether paid in cash or deferred) under the Company's annual bonus plan
(currently known as the "Management Incentive Compensation Plan") for the two
completed fiscal years immediately prior to Termination Without Cause.
(2) The Company shall provide for Employee to receive medical,
dental, life, and disability insurance coverage for three (3) years following
Termination Without Cause at levels and a net cost to Employee comparable to
that provided to Employee immediately prior to Employee's Termination Without
Cause.
(3) The Company shall pay Employee an additional lump-sum amount
within thirty (30) days following Employee's Termination Without Cause equal
to a pro-rated portion of Employee's target incentive bonuses (based on the
period prior to Termination Without Cause in proportion to the entire period
for which such bonuses are payable) under the Company's annual and long-term
management cash incentive plans, which are currently known as the "Management
Incentive Compensation Plan" and "Key Executive Long-Term Cash Incentive
Plan."
5.2 In the event of a Change of Control at any time during the term of
this Agreement, all unvested restricted stock grants and stock options
granted to Employee shall automatically vest in full upon the Change of
Control.
5.3 Notwithstanding any other provisions in this Agreement or any other
agreement, plan or arrangement, if any payment or benefit received or to be
received by Employee, whether under terms of this Agreement or any other
agreement, plan or arrangement with the Company or an affiliate of the
Company (all such payments and benefits being hereinafter referred to as
"Total Payments"), would be subject, in whole or in part, to taxes imposed by
Internal Revenue Code ("IRC") Section 4999, then the Total Payments shall be
reduced to the extent necessary so that no portion of the Total Payments
shall be subject to the parachute excise tax (the "Excise Tax") imposed by
IRC Section 4999 (after taking into account any reduction in the Total
Payments provided by reason of IRC Section 280G in any other plan,
arrangement or agreement). Total Payments shall not include any amounts
which are not considered as "parachute payments" under IRC Section 280G in
the opinion of suitable experts selected by the Company's Board of Directors.
The Company shall provide Employee with the calculation of the foregoing
amounts and any supporting materials reasonably necessary for Employee to
-3-
evaluate the calculations. Any reduction in the Total Payments in accordance
with this Paragraph 5.3 shall be made in such order as may be determined by
Employee.
5.4 As used herein, the term "Change of Control" means either (a) the
dissolution or liquidation of the Company, (b) a reorganization, merger or
consolidation of the Company with one or more entities as a result of which
the Company is not the surviving entity, (c) approval by the stockholders of
the Company of any sale, lease exchange or other transfer (in one or a series
of transactions) of all or substantially all of the assets of the Company,
(d) approval by the stockholder of the Company of any merger or consolidation
of the Company in which the holders of voting stock of the Company
immediately before the merger or consolidation will not own fifty percent
(50%) or more of the outstanding voting shares of the continuing or surviving
entity immediately after such merger or consolidation, or (e) a change of
25% or more (rounded to the next whole person) in the membership of the Board
of Directors of the Company within a 12-month period, unless the election or
nomination for election by stockholders of each new director within such
period was approved by the vote of at least 85% (rounded to the next whole
person) of the directors then still in office who were in office at the
beginning of the 12-month period.
5.5 Employee shall not be obligated to seek other employment or take
any other action by way of mitigation of the amounts payable to Employee
under any provisions of this Agreement, and the amounts payable to Employee
hereunder shall not be reduced or offset by any payments received by Employee
on account of other employment.
6. COVENANTS.
6.1 Employee acknowledges that he has entered into an "Employee Patent
Assignment and Non-Disclosure Agreement" with the Company.
6.2 Employee agrees to provide a release of any claims with respect to
termination of his employment on such form as reasonably requested by the
Company upon payment of the sums provided in Paragraph 5.1 hereinabove and
the Company's agreement to perform its other obligations under this Agreement
and any other agreement(s) between the Company and Employee.
7. MISCELLANEOUS PROVISIONS.
7.1 All terms and conditions of this Agreement are set forth herein,
and there are no warranties, agreements or understandings, express or
implied, except those expressly set forth herein.
7.2 Any modifications to this Agreement shall be binding only if
evidenced in writing signed by all parties hereto.
7.3 Any notice or other communication required or permitted to be
given hereunder shall be deemed properly given if personally delivered or
deposited in the United States Mail, registered or certified and postage
prepaid, addressed to the Company at 000 X. Xxx Xxxxxx
-0-
Xxxxxx, Xxxxxxxx, XX 00000 or to Employee at his most recent home address on
file with the Company, or at such other addresses as may from time to time be
designated in writing by the respective parties.
7.4 The laws of the State of California shall govern the validity of
this Agreement, the construction of its terms, and the interpretation of the
rights and duties of the parties involved.
7.5 In the event that any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal or
unenforceable, the same shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid, illegal
or unenforceable provisions had never been contained herein.
7.6 This Agreement shall be binding upon, and inure to the benefit of,
the successors and assigns of the Company and the personal representatives,
heirs and legatees of Employee.
7.7 The term "Company" shall include, with respect to employment
hereunder, any subsidiary or affiliate of the Company, as well as any
successor employer following a Change of Control.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
BY: ____________________________________________
Xxxxx X. Xxxxxx, Chairman of the Board,
President and Chief Executive Officer
BY: ____________________________________________
Xxxx Xxxxxx
-5-
