Exhibit 10.7
EMPLOYMENT AGREEMENT
This Agreement is made as of the 27th day of November, 1996
between Statia Terminals Group N.V., a Netherlands Antilles corporation, having
a registered office at L.B. Xxxxxxxxxx 0, Xxxxxxx, Xxxxxxxxxxx Antilles (the
"Company"); Statia Terminals, Inc., a Delaware corporation, with offices at 000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, Xxxxxxx 00000 (the "Subsidiary"); and
Xxxxx X. Xxxxxxx, an individual with an address of 0000 X.X. 00xx Xxxxxx, Xxxxx,
XX 00000 (the "Employee").
RECITALS
WHEREAS, the Company has entered into a certain Amended and
Restated Stock Purchase and Sale Agreement dated as of November 4, 1996, among
the Company and certain other corporations (the "Purchase and Sale Agreement")
pursuant to which the Company shall, directly or indirectly, acquire all of the
issued and outstanding shares of the common stock of the Subsidiary;
WHEREAS, the Employee has been and is presently in the employ
of the Subsidiary;
WHEREAS, the Employee possesses an intimate knowledge of the
business and affairs of the Subsidiary and its policies, procedures, methods and
personnel;
WHEREAS, the Company desires to secure the continued services
and employment of the Employee on behalf of the Subsidiary, and the Employee
desires to be employed by the Subsidiary, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, the parties hereto, each intending to be legally
bound hereby, agree as follows:
1. Employment. The Company hereby agrees to cause the
Subsidiary to employ and continue to employ the Employee as a senior financial
officer of the Subsidiary and the Subsidiary hereby agrees to employ and
continue to employ the Employee as a senior financial officer, and the Employee
accepts such employment for the term of the employment specified in Section 3
hereof (the "Employment Term"). During the Employment Term, the Employee shall
serve as a senior financial officer of the Subsidiary, performing such duties
and having such authority as shall be reasonably required of an executive-level
employee of the Subsidiary.
2. Performance. The Employee will serve the Subsidiary
faithfully and to the best of his ability and will devote substantially all of
his time, energy, experience and talents during regular business hours and
as otherwise reasonably necessary to such employment, to the
exclusion of all other business activities; provided however, that such
exclusion shall not prohibit the Employee from attending to the Employee's
personal matters and/or financial and investment affairs (which financial or
investment affairs shall not conflict with the business of the Subsidiary or
the Company and is subject to the provisions of Section 12 hereof) during
regular business hours as may from time-to-time be reasonably necessary so long
as attendance to such matters and affairs does not interfere with the
performance of the Employee's duties hereunder.
3. Employment Term. Subject to earlier termination pursuant
to Section 7 hereof the Employment Term shall (i) begin on the date of this
Agreement and continue until December 31, 1999 and (ii) be automatically renewed
for successive two-year periods thereafter, unless, at least 90 days before the
end of the initial term or any subsequent two-year period, either party gives
notice to the other of his or its desire to terminate this Agreement, in which
case it shall terminate as of the end of such term or period. Notwithstanding
the foregoing, if after December 31, 1997, there is a Change in Control (as
hereinafter defined) which occurs during the Employment Term, the Employment
Term shall be extended automatically for a period of two years from and after
the date of such Change in Control and shall not be automatically renewed
thereafter.
4. Compensation.
(a) Salary. During the Employment Term, the
Company shall cause the Subsidiary to pay the Employee a base salary, payable in
equal bi-weekly installments, subject to withholding and other applicable taxes,
at an annual rate of not less than Eighty-One Thousand Two Hundred Sixty-Eight
U.S. Dollars ($81,268). Such base salary shall be reviewed in January, 1997, and
at least annually thereafter.
(b) Cash Incentive Bonus. For the
calendar year 1997 and for each subsequent calendar year, or portion
thereof, during the Employment Term, a reasonable target EBITDA (as defined
below) for each calendar year and a target bonus for the Employee for such
calendar year shall be established by the Board of Directors of the Subsidiary
(the "Board") in its discretion after receiving the recommendation of the
management of the Subsidiary, and as soon as practicable after the end of each
such calendar year as the actual EBITDA achieved for such calendar year has been
determined, the Company shall cause the Subsidiary to pay to the Employee a lump
sum bonus determined as follows:
% of Target EBITDA Achieved
At Least But Less Than % of Target Bonus to be Paid
-- 85 None
85 90 85
90 95 90
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% of Target EBITDA Achieved % of Target Bonus to be Paid
95 100 95
100 105 100
105 110 105
110 115 110
115 120 115
120 125 120
125 and above -- 125
If during the course of any calendar year, the Company shall sell or otherwise
dispose of five percent (5%) or more of the total assets of the Company and its
subsidiaries, the Board shall establish a revised EBITDA target for such
calendar year after receiving management's recommendation.
"EBITDA" shall mean for any period, the (a) net income (or net loss) of the
Company and its subsidiaries plus (b) the sum of (i) interest expense, (ii)
income tax expense, (iii) depreciation expense, (iv) amortization expense, and
(v) extraordinary or unusual losses deducted in calculating net income (or net
loss) less (c) extraordinary or unusual gains added in calculating net income
(or net loss), in each case determined in accordance with generally accepted
accounting principles at the end of each such calendar year for the Company and
its subsidiaries on a consolidated basis, and plus (d) any fees paid to or
expenses incurred by the Company pursuant to the Management Agreement between
the Company and an Affiliate (as hereinafter defined) of a stockholder of the
Company dated November __, 1996.
(c) Employee Benefits. The Employee shall be entitled to and shall
receive employee benefits or part:icipate in plans and programs maintained by or
on behalf of the Subsidiary which are otherwise made available to employees of
the Subsidiary, including but not limited to, medical, health, accident and
disability plan, cafeteria plan and 401(k) plan.
(d) Additional Benefits. In addition to the other compensation payable
to the Employee hereunder, during the Employment Term, the Company shall cause
the Subsidiary to furnish at its expense an automobile, or a reasonable
allowance in lieu thereof at the option of the Subsidiary, office, reasonable
secretarial services, and such other supplies, equipment, facilities, services
and emoluments appropriate to such Employee's position.
(e) Paid Time Off. Employee shall be entitled to paid vacation, holidays,
and sick leave during each calendar year of employment in accordance with
policies of the Subsidiary. Vacation may only be taken at times mutually
convenient for the Subsidiary and the Employee. The Subsidiary may elect to pay
out all accrued and unused vacation time as of
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December 31 of any calendar year in January of the following calendar year. Such
pay out will be at the then prevailing rate of annual compensation. No more than
four weeks vacation time may be accrued at any time.
5. Expenses. The Employee shall be entitled to be reimbursed
by the Subsidiary for all reasonable expenses incurred by him in connection with
the performance of his duties hereunder in accordance with policies established
by the Board from time to time and upon receipt of appropriate documentation.
6. Secret Processes and Confidential Information. For the
Employment Term and thereafter (a) the Employee will not divulge, transmit or
otherwise disclose (except as legally compelled by court order, and then only to
the extent required, after prompt notice to both the Company and the Subsidiary
of any such order), directly or indirectly, other than in the regular and proper
course of business of the Company and/or the Subsidiary, any confidential
knowledge or information with respect to the operations or finances of the
Subsidiary or the Company or any of their subsidiaries or Affiliates, or with
respect to confidential or secret processes, services, techniques, customers or
plans with respect to the Company and/or the Subsidiary, and (b) the Employee
will not use, directly or indirectly, any confidential information for the
benefit of anyone other than the Company and/or the Subsidiary; provided,
however, that the Employee has no obligation, express or implied, to refrain
from using or disclosing to others any such knowledge or information which is or
hereafter shall become available to the public other than through disclosure by
the Employee.
To the greatest extent possible, any Work Product (as
hereinafter defined) shall be deemed to be "work made for hire" (as defined in
the Copyright Act, 17 U.S.C.A. Section 101 et seq., as amended) and owned
exclusively by the Subsidiary. The Employee hereby unconditionally and
irrevocably transfers and assigns to the Subsidiary all right, title and
interest the Employee may currently have or in the future may have by operation
of law or otherwise in or to any Work Product, including, without limitation,
all patents, copyrights, trademarks, service marks and other intellectual
property rights. The Employee agrees to execute and deliver to the Subsidiary
any transfers, assignments, documents or other instruments which the Company may
deem necessary or appropriate to vest complete title and ownership of any Work
Product, and all rights therein, exclusively in the Subsidiary.
During the term of this Agreement and thereafter, Employee
shall not take any action to disparage or criticize to any third parties any of
the services of the Company and/or the Subsidiary or to commit any other action
that injures or hinders the business relationships of the Company and/or the
Subsidiary.
All files, records, documents, memorandums, notes or other
documents relating to the business of Company and/or the Subsidiary, whether
prepared by Employee or otherwise coming into his possession in the course of
the performance of his services under this Agreement, shall be the exclusive
property of Company and shall be delivered to Company and not retained by
Employee upon termination of this Agreement for any reason whatsoever.
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7. Termination.
(a) Mutual Agreement. The employment of the
Employee hereunder may be terminated at any time by the mutual agreement of the
parties hereto.
(b) Termination for Substantial Cause. The
Subsidiary may at any time upon thirty (30) days prior written notice to the
Employee, terminate the employment of the Employee for Substantial Cause (as
hereinafter defined).
(c) Termination by the Employee. The Employee
shall be entitled to terminate his employment without being in violation of any
provision of this Agreement upon 30 days prior written notice to the Subsidiary
(i) for Good Reason; (ii) upon retirement pursuant to the CBI Pension Plan, as
amended effective August 1, 1996, or pursuant to any other plan or policy of the
Subsidiary; or (iii) at any time and for any reason after the Employee has
attained the age of sixty-five (65) years.
(d) Termination by Death or Disability. The
employment of the Employee shall terminate upon the death of the Employee or
the inability of the Employee to perform his duties as a result of physical or
mental disability for an aggregate of 90 days in any 180 day period, as
determined in good faith by the Board ("Disability").
8. Definitions. For purposes of this Agreement:
(a) "Business" shall mean the business of
owning, leasing or operating petroleum and other bulk liquid blending,
trans-shipment, storage or processing facilities or providing related
terminaling services such as supply of bunker fuel for vessels, emergency and
spill response services; brokering of product trades and vessel representation.
(b) "Substantial Cause" shall mean:
(i) Conviction of the Employee of a crime
constituting a felony in the jurisdiction in which committed,
or for any other criminal act against the Subsidiary or the
Company involving dishonesty or willful misconduct intended
to injure the Subsidiary or the Company or any Affiliate of
either of them in any substantial way (whether or not a felony
and whether or not criminal proceedings are initiated);
(ii) Failure or refusal of the Employee in
any material respect to perform his obligations under this
Agreement or the duties of his employment or to follow the
lawful and proper directives of the Board, other than by
reason of a Disability provided such duties or directives are
consistent with this Agreement, and such failure or refusal
continues uncured for a period of sixty (60) days after
written notice thereof from the Subsidiary to the Employee
which specifies (i) the
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nature of such failure or refusal, and (ii) the reasonable
action of the Employee necessary for cure;
(iii) Any willful or intentional misconduct
of the Employee committed for the purpose, or having the
reasonably foreseeable effect, of injuring in a substantial
way the Company, the Subsidiary, or any Affiliate of either of
them, or their respective businesses or reputations; or
(iv) Any conduct by Employee that causes the
Subsidiary or any of its Affiliates to violate any state or
federal law relating to the workplace environment or any
violation of any written policy of the Subsidiary providing
for termination in the event of violation of such policy.
(a) "Good Reason" shall mean:
(i) assignment to an office location
which is more than 100 miles from the office location of
the Employee as of the date of this Agreement; or
(ii) material breach of this Agreement by
the Subsidiary or the Company which is not cured within thirty
(30) days after written notice of such breach is given by the
Employee to the Company and the Subsidiary.
(b) "Change in Control" shall mean the
occurrence of any of the following events with respect to
the Company or with respect to the Subsidiary:
(i) a merger, consolidation, combination,
reorganization or other transaction resulting in less than
fifty percent (50%) of the combined voting power of the
surviving or resulting entity being owned by the former
shareholders of the Company or the Subsidiary, as applicable;
(ii) the sale or other disposition
of all or substantially all of the assets or business of
the Company or the Subsidiary, as applicable other than to
an Affiliate of the Company or the Subsidiary, as applicable;
or
(iii) during any period of two (2)
consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of the Company or of
the Subsidiary, as applicable, cease for any reason to
constitute at least a majority of such board, unless the
election, or nomination for the election by the shareholders
of the Company or the Subsidiary, respectively, of each new
director was approved by at least two-thirds of the directors
then still in office who were directors at the beginning of
the period;
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provided, however, that, the foregoing to the contrary notwithstanding, in no
event shall any Change in Control be deemed to occur, for purposes of this
Agreement, as the direct or indirect result of the occurrence of any of the
transactions contemplated under the Purchase and Sale Agreement.
(c) "Affiliate" shall mean, with respect to
any Person, any entity that directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control with such
Person.
(d) "Person" shall mean any corporation,
partnership, limited liability company, joint venture, association, joint
stock company, trust, unincorporated organization or other entity or
organization.
(e) "Work Product" shall mean work product,
property, data documentation or information of any kind relating to the
Business, prepared, conceived, discovered, developed or created by the Employee
for the Subsidiary or any of the Subsidiary's Affiliates, clients or customers
while the Employee is employed by the Subsidiary.
(f) "Disability" shall have the meaning
specified in Section 7(d) hereof.
9. Directors and Officers Insurance and Indemnification. The
Subsidiary shall provide directors and officers insurance covering the Employee
for events occurring during the Employment Term on terms at least as favorable
as coverage for Directors of the Company, and the Subsidiary shall provide
indemnification to the Employee to the full extent allowed by the law of its
jurisdiction of incorporation.
10. Severance.
(a) If the Employee's employment is terminated
by the Subsidiary without Substantial Cause or by the Employee for Good
Reason, then without further liability of the Subsidiary or the Company the
Employee shall be entitled to (i) medical and dental benefits as provided
immediately prior to the date of termination which shall continue for the
Severance Period (as hereinafter defined) (which shall be terminated sooner to
the extent provided by another employer) and (ii) severance compensation for the
Severance Period following any such termination, payable in equal monthly
installments, subject to withholding and other applicable taxes, at an annual
rate equal to the Employees base rate of pay for the year of termination. In
addition, the Employee will be entitled to a pro rata portion of the bonus
compensation referred to in Section 4(b) hereof for the year of termination
only as and when ordinarily determined for such year. For the purposes of this
Agreement, "Severance Period" shall mean a period commencing on the date of any
such termination and ending on the expiration of the Employment Term (determined
as of the date of such termination without giving effect to such termination);
provided, however, that the Severance Period shall not be less than one year.
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(b) If the Employee's employment is terminated for
any other reason, then without further liability of the Subsidiary or the
Company, the Employee shall be entitled to the salary, expenses and benefits
accrued to the termination date (excluding the bonus referred to in Section (b)
hereof).
11. Notice. Any notices required or permitted hereunder
shall be in writing, signed and shall be deemed to have been given when
personally delivered or when mailed, certified or registered mail, postage
prepaid, to the following addresses:
If to the Employee:
Xxxxx X. Xxxxxxx
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
If to the Subsidiary:
Statia Terminals, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
With a copy to:
Xxxxxx Xxxxxx Partners II, L.P.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
and a copy to:
Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
If to the Company:
Statia Terminals Group N. V.
c/o Statia Terminals Inc.
000 Xxxxxxx Xxxxx
0
Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
With a copy to:
Xxxxxx Xxxxxx Partners II, L.P.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
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and a copy to:
Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Each of the Employee, the Subsidiary and the Company may
change its address for purposes of this Section by sending notice to the other
parties.
12. Non-Competition. The Employee shall not, at any time
during the Employment Term and for a period of eighteen months thereafter,
directly or indirectly, except where specifically contemplated by the terms of
his employment or this Agreement, (a) be employed by, engage in or participate
in the ownership, management, operation or control of, or act in any advisory or
other capacity for, any Competing Entity which conducts its business within the
Territory (as the terms Competing Entity and Territory are hereinafter defined);
provided, however, that notwithstanding the foregoing, the Employee may make
solely passive investments in any Competing Entity the common stock of which is
publicly held and of which the Employee shall not own or control, directly or
indirectly, in the aggregate securities which constitute 5% or more of the
voting rights or equity ownership of such Competing Entity; or (b) solicit or
divert any business or any customer from the Subsidiary or any Affiliate of the
Subsidiary or assist any person, firm or corporation in doing so or attempting
to do so; or (c) cause or seek to cause any person, firm or corporation to
refrain from dealing or doing business with the Subsidiary or any Affiliate of
the Subsidiary or assist any person, firm or corporation in doing so.
For purposes of this Section 12, (i) the term "Competing
Entity" shall mean any Person which presently or hereafter during the term
hereof engages in the Business; and (ii) the term Territory shall mean the
Caribbean and the area within a three hundred mile radius of (a) the terminal
facility operated by an Affiliate of the Subsidiary at Point Xxxxxx, Nova Scotia
and (b) any terminal hereafter operated by the Subsidiary or any Affiliate of
the Subsidiary.
13. General.
(a) Governing Law: Captions. The terms of this
Agreement shall be governed by and construed under the laws of the State of
Florida. Paragraph and Section captions used herein are for convenience of
reference only, and shall not in any way affect the meaning or interpretation
of this Agreement.
(b) Assignability. The Employee may not assign his
interest in or delegate his duties under this Agreement. Notwithstanding
anything else in this Agreement to the contrary, the Subsidiary may assign this
Agreement and all rights hereunder shall inure to the benefit of the assignee or
any person, firm or corporation succeeding to all or substantially all of the
business or assets of the Subsidiary by purchase, merger or consolidation.
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(c) Dispute Resolution. With the exception of the
Company's or the Subsidiary's right to elect to seek injunctive relief pursuant
to paragraph (g) of this Section 13, in the event of any dispute between either
the Company or the Subsidiary and the Employee arising out of or relating to
this Agreement or its termination or any other aspect of Employee's employment,
the parties hereby agree to submit such dispute to a non-binding mediation under
the American Arbitration Association's National Rules for the Resolution of
Employment Disputes; Arbitration and Mediation Rules (the "Rules") within sixty
(60) days of notice from any one of the parties to another. Unless the parties
can agree on a mediator within thirty (30) days of such notice, mediation shall
proceed pursuant to the Rules. In the event any such dispute is not resolved by
mediation, any party hereto may initiate an action or claim to enforce any
provision or term of this Agreement. Each party shall bear its or his own costs
and expenses (including attorney's fees) associated with any mediation, action,
or claim.
(d) Binding Effect. This Agreement is for the
employment of Employee, personally, and the services to be rendered by him must
be rendered by him and no other person. This Agreement shall be binding upon and
inure to the benefit of the Company, the Subsidiary, and the Employee and, as
the case may be, their respective successors and assigns, personal
representatives, heirs and legatees.
(e) Entire Agreement; Modification. This Agreement
constitutes the entire agreement of the parties hereto with respect to the
subject matter hereof and may not be modified or amended in any way except in
writing by the parties.
(f) Duration. Notwithstanding the term of
employment hereunder, this Agreement shall continue for so long as any
obligations remain under this Agreement hereto, including without limitation any
obligations of the Company or the Subsidiary under Sections 9, 10 or 13 of this
Agreement.
(g) Survival. The covenants set forth in Sections
6 and 12 of this Agreement shall survive and shall continue to be binding upon
Employee notwithstanding the termination of this Agreement for any reason
whatsoever. The covenants set forth in Section 6 and Section 12 of this
Agreement shall be deemed and construed as separate agreements independent of
any other provision of this Agreement. The existence of any claim or cause of
action by Employee against Company and/or Subsidiary, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by
Company or Subsidiary of any or all covenants. It is expressly agreed that the
remedy at law for the breach of any such covenant is inadequate and that
injunctive relief shall be available to prevent the breach or any threatened
breach thereof.
(h) Severability. In case any provision in this
Agreement shall be held invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions hereof will not in any
way be affected or impaired thereby and the parties shall in good faith agree on
a modification of the invalid, illegal or unenforceable provision which renders
it
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valid, legal or enforceable (as the case may be) and which as closely as
possible reflects the original intent of the parties.
(i) Guaranty of Company. The Company hereby
unconditionally guarantees to Employee the full and timely performance by
Subsidiary of its obligations under this Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have hereunto executed this Agreement the day and year first
written above.
Statia Terminals, Inc.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Statia Terminals Group N. V.
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Attoney-in-fact
EMPLOYEE
/s/ Xxxxx X. Xxxxxxx
-----------------------------
Xxxxx X. Xxxxxxx
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