Exhibit 10.34
AGREEMENT CONCERNING EMPLOYMENT
THIS AGREEMENT CONCERNING EMPLOYMENT (the "Agreement") is made and entered
into this 15th day of January, 1999, at Hastings, Nebraska, by and between
GIBRALTAR PACKAGING GROUP, INC., a Delaware corporation (hereinafter referred to
as "Gibraltar"), and XXXX X. XXXXX, an individual residing at 000 Xxxxxx Xxxx
Xx., Xxxxxxxxx, XX 00000 (hereinafter referred to as "Xxxxx").
RECITALS:
A. Gibraltar has engaged Xxxxx to serve as an employee of Gibraltar, and
has been elected by Gibraltar to the offices of Executive Vice President and
Chief Financial Officer, and Xxxxx has been serving in such capacities.
B. The parties now desire to formalize and modify their understandings
related to certain terms and conditions of Lloyd's employment, as set forth
below.
Accordingly, the parties hereto agree as follows:
1. COMPENSATION. During the period of Lloyd's employment (the
"Employment Period"), Xxxxx shall receive the following compensation:
(a) A salary which shall be at an annual rate of not less than Two
Hundred Thousand Seven Hundred Thirty Nine Dollars ($200,739), payable not less
frequently than semi-monthly.
(b) The right to participate in a stock appreciation rights plan,
pursuant to the terms thereof, a copy of which is attached hereto, and the
related agreement between Gibraltar and Xxxxx;
(c) An opportunity to earn a bonus in an amount not to exceed forty
percent (40%) of the salary paid to Xxxxx during Gibraltar's fiscal year, with
respect to fiscal years ending during the Employment Period, the precise amount
of which shall be determined by the Board of Directors, based upon the
recommendation of the Compensation Committee; provided, however, that a bonus of
thirty percent (30%) will be paid if the base budget is met; and
(d) The right to participate in all corporate employee benefit
programs offered to employees by Gibraltar.
2. DUTIES. During the Employment Period, Lloyd's job assignments, duties
and responsibilities shall be consistent with those of executive vice presidents
and chief financial officers of companies of a size comparable to Gibraltar;
provided, however, that it is expressly understood and agreed that Xxxxx will
also devote a portion of his business efforts to Rostra Technologies, Inc.
("Rostra") and that, as a result, Xxxxx will not be required to devote all of
his business efforts to Gibraltar.
3. EMPLOYMENT AT WILL. It is understood and agreed that (i) nothing
contained in this Agreement is intended to provide a definite duration for
Lloyd's employment at Gibraltar, (ii) that the employment relationship remains
one of "employment at will" (i.e., terminable by either party), except to the
extent that (iii) a termination under the specific circumstances described in
this Agreement may entitle Xxxxx to receive the severance compensation described
below.
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4. SEVERANCE COMPENSATION.
(a) If the employment of Xxxxx by Gibraltar should terminate after a
"Change of Control" (as defined in subparagraph (b) below) has occurred or has
been deemed to have occurred, Gibraltar shall pay severance compensation to
Xxxxx, whether such termination is instituted by Xxxxx or by Gibraltar. The
severance compensation shall be the continuing payment to Xxxxx of the salary
described in paragraph 1(a) above, at the rate in effect immediately prior to
such Change of Control but in no event at a rate lower than the rate set forth
in paragraph 1(a) above, for a period of one (1) year following the date of
termination.
(b) No severance compensation shall be payable under this Agreement
unless and until either (i) a "Change of Control" has occurred or has been
deemed to have occurred, while Xxxxx is still an active employee of Gibraltar
and Lloyd's employment with Gibraltar has ended in connection therewith or
within six (6) months thereafter, or (ii) Lloyd's employment with Gibraltar has
been terminated in accordance with paragraph 5.
(c) For purposes of this Agreement, a "Change in Control" shall
occur or shall be deemed to have occurred (i) if there occurs any transaction
(which shall include a series of transactions occurring within 60 days or
occurring pursuant to a plan), that has the result that stockholders of
Gibraltar immediately before such transaction cease to own at least 51% of the
voting stock of Gibraltar or of any entity that results from the participation
of Gibraltar in a reorganization, consolidation, merger, liquidation or any
other form of corporate transaction, (ii) if the stockholders of Gibraltar
approve a plan of merger, consolidation, reorganization, liquidation or
dissolution in which Gibraltar does not survive (unless the approved merger,
consolidation, reorganization, liquidation or dissolution is subsequently
abandoned), or (iii) if the
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stockholders of Gibraltar approve a plan for the sale, lease, exchange,
transfer, assignment or other disposition of all or substantially all the
property and assets of Gibraltar (unless such plan is subsequently abandoned).
(d) Xxxxx shall not be required to mitigate damages by seeking other
employment or otherwise in order to receive severance compensation hereunder,
nor shall the amount of any payment provided for under this Agreement be reduced
by any compensation earned by Xxxxx as the result of employment by another
employer after the termination of his employment pursuant hereto.
5. TERMINATION IN THE ABSENCE OF A CHANGE OF CONTROL.
(a) In the absence of a Change of Control, Xxxxx shall also be
entitled to the compensation provided in paragraph 4 upon the termination of
Lloyd's employment, unless such termination is as a result of (i) Lloyd's death,
(ii) Lloyd's "Disability" (as defined in paragraph 5(b) below), (iii) Lloyd's
"Retirement" (as defined in paragraph 5(c) below), or (iv) Lloyd's termination
by Gibraltar for "Cause" (as defined in paragraph 5(d) below).
(b) Disability. If, as result of Lloyd's incapacity due to physical
or mental illness, Xxxxx shall have been absent from his duties with Gibraltar
on a full-time basis for six months and within thirty (30) days after written
notice of termination is thereafter given by Gibraltar Xxxxx shall not have
returned to the full-time performance of Lloyd's duties, Gibraltar may terminate
this Agreement for "Disability".
(c) Retirement. The term "Retirement" as used in this Agreement
shall mean termination by Gibraltar or by Xxxxx of Xxxxx'x employment after
Xxxxx has reached age 65, or
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such other age as shall have been fixed in any arrangement established with
Lloyd's consent with respect to Xxxxx.
(d) Cause. "Cause" shall mean (i) final conviction of Xxxxx of a
felony under the laws of the United States or any state thereof which results or
was intended to result directly or indirectly in gain or personal enrichment by
Xxxxx at the expense of Gibraltar, (ii) participation by Xxxxx as an employee,
officer or holder of more than five percent of the equity in any business
engaged in activities in direct competition with Gibraltar without the prior
written consent of Gibraltar, or (iii) Lloyd's failure to perform his duties as
an employee at substantially the same level as he had performed those duties
immediately prior to the date of this Agreement; provided, however, that
notwithstanding the foregoing, Xxxxx shall not be deemed to have been terminated
for "Cause" pursuant to subparagraph (d)(iii) unless and until there shall have
been delivered to Xxxxx a written notice setting forth his deficiencies, an
opportunity for Xxxxx to present argument to the contrary to Gibraltar's Board
of Directors at a meeting of the Board at which this subject is an agenda item
(and of which Xxxxx had reasonable notice and at which Xxxxx had an opportunity
to be heard), and the adoption by the Board of a resolution, approved by the
affirmative vote of not less than three-quarters of the members of the Board
present at such meeting, finding that in the good faith opinion of the Board
Xxxxx had failed to perform his duties as an employee at substantially the same
level as he had performed those duties immediately prior to the date of this
Agreement.
(e) Notice of Termination. Any termination by Gibraltar pursuant to
paragraph 5(b), 5(c) or 5(d) shall be communicated by a Notice of Termination.
For purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which identifies the
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specific termination provisions in this Agreement relied upon and which sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Lloyd's employment under the provision so identified.
For purposes of this Agreement, no such purported termination by Gibraltar shall
be effective without such Notice of Termination.
(f) Date of Termination. "Date of Termination" shall mean (i) if
this Agreement is terminated by Gibraltar for Disability, thirty (30) days after
Notice of Termination is given to Xxxxx (provided that Xxxxx shall not have
returned to the performance of Lloyd's duties on a full-time basis during such
30-day period), or (ii) if Lloyd's employment is terminated by Gibraltar for any
other reason, the date on which a Notice of Termination is given.
6. NO EFFECT ON OTHER CONTRACTUAL RIGHTS. The provisions of this
Agreement, and any payment provided for hereunder, are not intended to reduce
any amounts otherwise payable, or in any way diminish Lloyd's existing rights,
or rights which would accrue solely as a result of the passage of time, under
any benefit plan, incentive plan, stock option plan, employment agreement or
other contract, plan or arrangement which may presently be in effect, except to
the extent that any such contract, plan or arrangement is directly contrary to
any provision hereof, in which case the terms set forth in this Agreement shall
prevail.
7. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their heirs, representatives and successors.
8. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect
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any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal, or unenforceable provision had never been contained
herein.
9. EFFECT OF CAPTIONS. The captions in this Agreement are included for
convenience only and shall not in any way effect the interpretation or
construction of any provision hereof.
10. REMEDIES CUMULATIVE; NO WAIVER. All remedies specified herein or
otherwise available shall be cumulative and in addition to any and every other
remedy provided hereunder or now or hereafter available. No waiver or failure
(intentional or unintentional) to act with respect to any breach or default
hereunder shall be deemed to be a waiver with respect to any subsequent breach
or default, whether of a similar or different nature.
11. NOTICES. All notices, requests, demands or other communications
hereunder shall be sent by registered or certified mail to:
To Employer: Gibraltar Packaging Group, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Copy to: Xxxx X. Xxxxx, Esquire
Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
0000 Xxxx Xxxxx Xxxxxx
20th Floor, Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
To Xxxxx: Xxxx X. Xxxxx
000 Xxxxxx Xxxx Xx.
Xxxxxxxxx, XX 00000
12. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the substantive law of the State of Delaware. The
parties
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intend to and hereby do confer jurisdiction upon the courts of any jurisdiction
within the State of Delaware to determine any dispute arising out of or related
to this Agreement, including the enforcement and the breach hereof.
13. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between Employer and Xxxxx and supersedes all prior agreements and
understandings relating to the subject matter hereof.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands on the
date first hereinabove mentioned.
GIBRALTAR PACKAGING GROUP, INC.
("Gibraltar")
By: /s/ Xxxxxx X. Xxxx
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Its: Chairman
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/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX ("Xxxxx")
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