Exhibit 10.5
Form of Employment Agreement
between the Company and Xxxxxxx X. Familia
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of October 30, 1997, by and between GIANT CEMENT
HOLDING, INC., a Delaware corporation (the "Company"), and XXXXXXX XXXXXXX (the
"Executive").
WHEREAS, the Company and the Executive wish to obtain assurances from each
other that the Company will have the benefit of the Executive's services;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the Company and the Executive agree as follows:
1. Employment. The Company hereby employs the Executive as its Vice
President, Environmental Affairs and as President of its subsidiary Giant
Resource Recovery Company, Inc. and the Executive accepts such employment and
agrees to perform services for the Company for the Term (as defined in Section 2
hereof) and upon the other terms and conditions set forth in this Agreement.
2. Term. The term of the Executive's employment hereunder (the "Term")
shall be for a period commencing as of the date of this Agreement and
terminating on December 31, 2000, subject to earlier termination as hereafter
specified. This Agreement shall be automatically extended for one (1) year terms
unless the Company or the Executive gives the other written notice that the
Agreement is terminated prior to June 30, 2000 or thereafter on the applicable
anniversary date.
3. Position and Duties.
3.01 Service with the Company. The Executive agrees to perform such
executive employment duties for the Company and its subsidiaries consistent with
the positions specified in Section 1 hereof and as the Chairman of the Board,
the President or the Board of Directors of the Company (the "Board") shall
assign to him from time to time. The executive also agrees to serve, during the
Term hereof, as requested by the Board, and without any additional compensation,
as a Director of the Company's subsidiaries.
3.02 Performance of Duties. The Executive agrees to serve the Company
faithfully and to the best of his ability and to devote the time, attention and
efforts necessary to advance the business and affairs of the Company and its
subsidiaries during the Term of this Agreement. During the Term hereof, the
Executive shall not serve as an officer, employee, proprietor, or partner
(excluding a non-executive capacity which will not conflict with his duties
herein) to any other corporation or other entity not affiliated with the Company
without the prior written consent of the Board.
4. Compensation.
4.01 Base Salary. As compensation for all services to be rendered by the
Executive under this Agreement, the Company shall pay the Executive an initial
base annual salary (the "Base Salary") of $118,000. The Base Salary shall be
paid in installments in accordance with the Company's normal payroll procedures
and policies. In addition, on an annual basis, the Chief Executive Officer shall
review the Base Salary with a view toward increases, bonuses or both, based upon
the Executive's performance during the preceding year or pursuant to guidelines
established by the Compensation Committee.
4.02 Stock Options. As an incentive to enter into this Agreement, the
Executive shall be entitled to stock options for the purchase of shares of the
Company's Common Stock exercisable over a five (5) year period, pursuant to the
1994 Employee Stock Option Plan. The Executive may be granted additional stock
options as determined by the Stock Option Committee of the Board.
4.03 Participation in Benefit Plans. The Executive shall also be entitled,
to the extent that his position, title, tenure, salary, age, health and other
qualifications make him eligible, to participate in all employee benefit plans
or programs (including, but not limited to, medical/dental and life insurance,
disability, stock option, retirement and pension plans, vacation time, sick
leave and holidays) of the Company currently in existence on the date hereof or
as may hereafter be instituted from time to time. The Executive's participation
in any such plan or program shall be subject to the provisions, rules and
regulations applicable thereto. The Executive shall make himself available for
medical examinations in connection with the Company obtaining insurance on the
life of the Executive.
4.04 Expenses. In accordance with the Company's policies established from
time to time, the Company shall pay or reimburse the Executive for all
reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the presentment of
appropriate vouchers and receipts. The Company also shall provide the Executive
with an automobile of the type commensurate with the Executive's position.
5. Confidential Information. Except as permitted or directed by the Board,
the Executive shall not during the Term of this Agreement nor at any time
thereafter divulge, furnish or make accessible to anyone for use in any way
(other than in the ordinary course of the business of the Company) any
confidential or secret knowledge or information of the Company (for the purposes
of this Section 5 and Section 6 hereof, the term "Company" shall be deemed to
include any subsidiary or affiliate of the Company, including, but not limited
to, Giant Cement Company, Keystone Cement Company and Giant Resource Recovery
Company, Inc.) which the Executive has acquired or become acquainted with or
will acquire or become acquainted with prior to the termination of the Term
of his employment by the Company, whether developed by himself or by others,
concerning any trade secrets, confidential or secret designs, processes,
formulae, plans, devices or material (whether or not patented or patentable)
directly or indirectly useful in any aspect of the business of the Company, and
confidential customer or supplier lists of the Company, or any confidential or
secret development or research work of the Company or any other confidential or
secret aspects of the business of the Company. The Executive acknowledges that
the above-described knowledge or information constitutes a unique and valuable
asset of the Company acquired at great time and expense by the Company, and that
any disclosure or other use of such knowledge or information other than for the
sole benefit of the Company would be wrongful and would cause irreparable harm
to the Company. Both during and after the Term of this Agreement, the Executive
shall refrain from any acts or omissions that would reduce the value of the use
of such knowledge or information to the Company. The foregoing obligations of
confidentiality, however, shall not apply to any knowledge or information which
is now published or which subsequently becomes generally publicly known, other
than as a direct or indirect result of the breach of this Agreement by the
Executive.
6. Non-Competition.
6.01 Prohibition. The Executive agrees that for a period of one (1) year
following the termination of his employment hereunder he shall not act as an
officer, director, stockholder, partner, employee or consultant to a
corporation, partnership or other entity which engages in a business competitive
to the business that the Company is engaged in at the time the Executive ceased
to be an employee of the Company or within six (6) months prior to the cessation
of his employment hereunder, and which is located in area within a three hundred
(300) mile radius of any cement plant or other major facility owned or operated
by the Company at the time the Executive ceased to be an employee of the
Company.
6.02 Application. The restrictions in this Section 6 shall not apply (i)
with respect to a passive investment by the Executive of less than five percent
(5%) of the outstanding shares of capital stock of any corporation, (ii) with
respect to employment by the Executive with an entity in a management capacity
in an area of business which is not, directly or indirectly, competitive with
that of the Company, (iii) if the Executive's employment is terminated by the
Company other than pursuant to Section 7.03 or by the Executive for Good Reason
pursuant to Section 7.04 hereof or (iv) if the Company gives written notice to
the Executive that the Agreement is terminated, pursuant to Section 2 hereof.
7. Termination.
7.01 By Death or Disability of the Executive. This Agreement shall
automatically terminate in the event of the death or disability of the
Executive. For purposes of this Agreement, "disability" shall mean a condition,
due to illness or injury, either physical or mental, subject to which the
Executive is unable to perform his customary duties and responsibilities as
required by this Agreement for more than six (6) months in the aggregate out of
any period of twelve (12) consecutive months. The determination that the
Executive is disabled will be made by the Executive Committee, based upon the
examination and certification by a qualified physician selected by the Company
and subject to the Executive's approval.
7.02 Payment on Death or Disability. In the event this Agreement is
terminated by reason of death of the Executive, the Company shall pay the
representative of the Executive an amount equal to twice his then current Base
Salary (less any disability insurance benefits previously paid to the Executive
from disability policies provided by the Company) which payment shall be made
within sixty (60) days after the date of death. The foregoing death benefit
shall be in addition to any life insurance proceeds payable to the Executive's
estate on policies taken by the Company or any subsidiary thereof. In the event
this Agreement is terminated by reason of the disability of the Executive, the
Company shall pay the Executive an amount equal to twice his then current Base
Salary (less any disability insurance benefits paid to the Executive from
disability policies provided by the Company), in twelve (12) equal monthly
installments commencing no more than thirty (30) days after such termination.
7.03 By the Company for Cause. The Company may terminate this Agreement
for cause at any time. For purposes of this Section 7.03, the term "cause" shall
be limited to (i) the willful engaging by the Executive in gross misconduct
which is materially injurious to the Company, with written notice of specific
misconduct given to the Executive, (ii) the conviction of the Executive of a
crime involving any financial impropriety or other crime which would materially
interfere with the Executive's ability to perform his services required under
this Agreement or otherwise be materially injurious to the Company or (iii) the
willful breach by the Executive of any of his material obligations under this
Agreement without proper justification, which breach is not cured within ten
(10) days after written notice thereof from the Company. For the purposes of
this Section 7.03 and Section 6.02 hereof, no act, or failure to act, on the
Executive's part shall be considered willful unless done, or admitted to be
done, by the Executive in bad faith and without reasonable belief that such
action or omission was in the best interest of the Company. In the event this
Agreement is terminated pursuant to the Section 7.03, the Executive shall not be
entitled to any compensation other than his then current Base Salary which has
accrued though his date of termination, subject to the Company's right of offset
based upon acts of the Executive which gave rise to the termination.
7.04 By the Executive for Good Reason.
(a) The Executive may terminate this Agreement at any time for good reason
(as defined in Subsection (b) below). In the event that the Executive terminates
this Agreement pursuant to this Section 7.04, or should the Company terminate
this Agreement other than pursuant to Section 7.03 hereof, the Executive shall
receive a severance allowance equal to the greater of (i) his then current Base
Salary for twelve (12) months or (ii) the Base Salary for the remainder of the
then Term of this Agreement, which payments shall be in equal monthly
installments.
(b) "Good Reason" shall mean, without the Executive's express written
consent, any of the following circumstances, unless in the case of paragraphs
(i), (iv), or (v) immediately below such circumstances are fully corrected prior
to the date of termination specified in the notice of termination, given in
respect thereof;
(i) the assignment to the Executive of any duties inconsistent with his
status as the Vice President, Environmental Affairs of the Company or a
substantial adverse alteration in the nature or status of his responsibilities
from those in effect immediately prior to a change in such duties or
responsibilities;
(ii) a reduction by the Company in the Executive's Base Salary as then in
effect, except for across-the-board salary reductions similarly affecting all
senior executives of the Company and all senior executives of any entity in
control of the Company;
(iii) the failure by the Company to pay to the Executive any portion of his
current compensation except pursuant to an across-the-board compensation
deferral similarly affecting all senior executives of the Company and all senior
executives of any entity in control of the Company;
(iv) the failure by the Company to continue in effect any compensation plan
in which the Executive participates which is material to the Executive's total
compensation, unless an equitable arrangement (embodied in an ongoing substitute
or alternative plan) has been made with respect to such plan, or the failure by
the Company to continue the Executive's participation therein (or in such
substitute or alternative plan) on a basis not materially less favorable, both
in terms of the amount of benefits provided and the level of the Executive's
participation relative to other participants, than the Executive's participation
as it existed at the time of a change in any such plan;
(v) the failure by the Company to continue to provide the Executive with
benefits substantially similar to those enjoyed by him under any of the
Company's medical/dental and life insurance, disability, retirement or pension
plans in which he was participating, or the taking of any action by the Company
which would, directly or indirectly, materially reduce any of such benefits or
deprive the Executive of any material fringe benefit enjoyed by him, or the
failure by the Company to provide the Executive with the number of paid vacation
days to which he is entitled on the basis of years of service with the Company
in accordance with the Company's normal vacation policy;
(vi) the assignment of this Agreement by the Company pursuant to Section
9.05 hereof without the consent of the Executive;
(vii) any purported termination of the Executive's employment which is not
effected pursuant to the terms of this Agreement.
8. Injunctive Relief. The Executive agrees that it would be difficult to
compensate the Company fully for damages for any violation of the provisions of
this Agreement, including without limitation the provisions of Sections 5 and 6
hereof. Accordingly, the Executive specifically agrees that the Company shall be
entitled to temporary and permanent injunctive relief to enforce the provisions
of this Agreement. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company to claim and recover damages in
addition to injunctive relief.
9. Miscellaneous.
9.01 Governing Law. This Agreement is made under and shall be governed by
and construed in accordance with the laws of the State of Delaware, subject to
any principles of conflict of laws.
9.02 Prior Agreements. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof and supersedes all prior
agreements and understandings with respect to such subject matter, and the
parties hereto have made no agreements, representations or warranties relating
to the subject matter of this Agreement which are not set forth herein.
9.03 Withholding Taxes. The Company may withhold from any benefits payable
under this Agreement all federal, state, city and other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
9.04 Amendments. No amendment or modification of this Agreement shall be
deemed effective unless made in writing and signed by the party against whom
enforcement of the amendment or modification is sought. Any written waiver shall
not be deemed a continuing waiver unless specifically so stated and shall
operate only as to the particular term, condition or act specified.
9.05 Binding; Assignment. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, successors,
administrators and permitted assigns. The Company may, without the consent of
the Executive, assign its rights and obligations under this Agreement to any
corporation, firm or other business entity (i) with or into which the Company
may merge or consolidate, or (ii) to which the Company may sell or transfer all
or substantially all of its assets or (iii) of which fifty percent (50%) or more
of the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company; provided,
however, that if the assignee was not previously part of a consolidated group
with the Company, within thirty (30) days after receipt of written notice of the
assignment the Executive may terminate this Agreement pursuant to Section 7.04
hereof, or the executive may terminate this Agreement pursuant to the terms of
the Change of Control Agreement, dated October 30, 1997, by and between Giant
Cement Holding, Inc. and the Executive.
9.06 Notices. Any notice, request, demand or other document to be given
hereunder shall be in writing, and shall be delivered personally or sent by
registered, certified or express mail or facsimile followed by mail as follows:
If to the Company:
Giant Cement Holding, Inc.
000-X Xxxxxxx Xxxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Chief Financial Officer
If to the Executive, to his or her last shown address on the
books of the Company.
or to such other address as either party hereto may hereinafter duly give to the
other.
9.07. Severability. To the extent any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted here from and the
remainder of such provision of this Agreement shall be unaffected and shall
continue in full force and effect. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by, any provision of this Agreement be in excess of that which is valid
or enforceable under applicable law, then such provision shall be reconstructed
to cover only that duration, extent or activities which may be valid and
enforceable.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year set forth above.
GIANT CEMENT HOLDING, INC.
By: _____________________________
Xxxx Xxxxxxx
Chairman, President and CEO
_____________________________
XXXXXXX XXXXXXX
