Genco Shipping Letterhead]
Exhibit
10.2
[Genco
Shipping Letterhead]
September
21,
2007
Xx.
Xxxx
X. Xxxxxxxxxx
Xxxxx
Shipping & Trading Limited
000
Xxxx
Xxxxxx, 00xx Floor
New
York,
NY 10171
Dear
Xx.
Xxxxxxxxxx:
The
purpose of this letter is to set forth the agreement (this "Agreement") with
respect to the terms of your continued employment by Genco Shipping &
Trading Limited. (“Genco” or the “Company”). As used in this
Agreement, the term “Genco Group” means and includes the Company and each of its
subsidiaries and controlled affiliates and joint ventures from time to
time. It is agreed as follows:
1. Subject
to the terms and conditions of this Agreement, Xxxxx agrees to continue to
employ you and you agree to continue to be employed by Xxxxx, effective
September 21, 2007 (the “Effective Date”).
2. Subject
to the terms and conditions of this Agreement, your employment with Genco shall
be for an initial term of two (2) years from the date of this Agreement (the
“Term”). Unless either party provides at least ninety (90) days
written notice to the other prior to the expiration of the Term of its intent
not to extend this Agreement, the Term shall be automatically extended for
a
period of one-year, and the same procedure shall apply each year
successively. The terms and conditions of this Agreement shall
remain in force during the Term. Any failure to renew this Agreement
on the Company’s part shall be a termination without Cause and the terms of
Section 6(c) below shall apply.
3. During
the Term, your titles shall be Chief Financial Officer, Principal Accounting
Officer, Secretary and Treasurer and/or such other titles of a senior executive
nature as the Board of Directors may assign to you. You shall report
to the Board of Directors. You shall have such specific duties,
responsibilities and authority (including without limitation service as an
officer, director or equivalent position of any subsidiary, affiliated company
or venture of the Genco Group, without additional compensation) as
may be assigned to you by the Board of Directors of Genco, and in the absence
of
such assignment, such duties, responsibilities and authority as are customary
to
your positions.
4. During
your employment, you shall devote your full business time, attention, energy
and
best efforts to the business and affairs of Xxxxx (and the members of the Genco
Group to the extent requested pursuant to Section 3 above). You shall
abide by all applicable policies of the Company and the Genco Group from time
to
time in effect known to you or provided to you
electronically
or in writing. You agree that you shall not engage in or be
interested in any capacity in any activity that is contrary to the interest
of
Genco, or that is reasonably deemed by Genco to be harmful to Genco’s business
interests, unless such activity is fully disclosed and approved in writing
prior
to the undertaking by the Board of Directors of Genco. To the
extent consistent with your duties and responsibilities hereunder, you may
(a) engage in charitable, educational and community affairs, including
serving on the board of directors of any charitable, educational or community
organization, (b) manage your own passive investments, (c) upon
approval of the Board of Directors of the Company or a committee thereof, serve
as a director of another company and (d) engage in activities approved by
the Board of Directors.
5.
(a) In
consideration of your services, you shall be paid an annualized base salary
of
$300,000 during your employment (“Base Salary”), payable in accordance with
Genco’s normal payroll practices. Your Base Salary shall be reviewed
annually by Genco’s Compensation Committee, and may be subject to increase, but
not decrease, during the Term.
(b) In
addition, you shall be eligible to receive annual discretionary bonus
compensation. The amount of such bonus, if any, shall be in the
Compensation Committee’s sole discretion.
(c) You
shall
be eligible to receive Restricted Stock and other equity grants from time to
time pursuant to the Company’s 2005 Equity Incentive Plan, as amended from time
to time, or any successor employee stock incentive or option plan in accordance
with the terms and conditions thereof.
(d) You
shall
be entitled to four (4) weeks paid vacation per calendar year. You
shall also be entitled to employee benefits on the same basis as those benefits
are made available to other Genco employees in comparable
positions. Genco will also bear the cost, up to $20,000 per annum
during the Term, of long-term disability coverage and life insurance for your
benefit .
(e) Genco
will
reimburse you, in accordance with its standard policies from time to time in
effect, for such reasonable and necessary out-of-pocket business expenses as
may
be incurred by you during your employment in the performance of your duties
and
responsibilities for any member of the Genco Group. You will provide
documentation of such expenses as reasonably required under standard Company
policies from time to time.
(f) Genco
will
also reimburse you for reasonable legal fees incurred by you in the negotiation
of this Agreement up to $25,000.
(g) All
salary
and other payments by Genco are subject to all required withholdings and such
deductions as you may instruct Genco to take.
6.
(a) Genco
may
immediately terminate your employment for Cause (as defined
herein). In such event, or if you resign (other than for Good Reason
or Disability (as defined below)) or retire as an employee of Genco, the
obligations of Genco shall cease immediately and you shall not be entitled
to
any further payments of any kind except for (i) an amount equal to your
accrued but unpaid Base Salary through the Termination Date (as defined below
in
Section
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6(e));
(ii) any amounts owing to you but not yet paid, including without
limitation, any bonus payments awarded for any performance period that has
ended
and any business expenses required to be reimbursed under Section 5(e), and
(iii) other payments entitlements and benefits, if any, in accordance with
applicable plans, programs, arrangements of, or any agreement, including this
Agreement, with the Company or any affiliate. For purposes of this
Agreement, Cause shall include:
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(i)
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any
act or failure to act by you involving fraud, material theft or
embezzlement;
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(ii)
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conviction
of (or a plea of nolo contendere to) a crime that constitutes a felony
or
other crime involving moral turpitude, in either case within the
meaning
of applicable law;
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(iii)
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in
carrying out your duties for the Company, you engage in conduct that
constitutes willful gross neglect or willful gross misconduct resulting,
in either case, in material economic harm to the Company;
or
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(iv)
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failure
or refusal to perform or observe any of your material duties,
responsibilities or obligations set forth in this Agreement or your
failure to follow the directions of an officer of Genco to whom you
report
or of the Board of Directors.
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Notwithstanding
anything herein to the contrary, your employment shall not be terminated for
Cause under Section 6(a)(i), (iii) or (iv) above unless you are given notice
by
the Company of circumstances constituting the basis for such termination and,
if
such circumstances are curable, for thirty (30) days after receipt of such
notice you have failed to cure them.
(b) In
the event of your death, or termination of your employment due to Disability
(as
defined below), the Company will pay to you (or your estate or legal
representative, as the case may be) in a lump sum within thirty (30) days after
the Termination Date, an amount equal to the sum of (i) Base Salary plus a
Pro-rata Bonus (as defined below in Section 6(c)) through the Termination Date
and (ii) one year’s Base Salary and shall provide you and your eligible
dependents in the case of Disability continued medical, dental, long-term
disability and life insurance at the Company’s cost, for a period of twelve (12)
months from the Termination Date to the extent available under the Company’s
applicable plans or programs. In addition, the Company agrees that
your rights under COBRA to continued medical and dental coverage shall be deemed
to commence after the expiration of the 12-month period described above, so
long
as the Company’s policies allow such a commencement. Finally, you (or
your estate or legal representative, as the case may be) shall be entitled
to
any amounts owing to you but not yet paid, including without
limitation, any bonus payments awarded for any performance period that has
ended
and any business expenses required to be reimbursed under Section 5(e) as
well as any payments, entitlements and benefits, if any, in accordance with
applicable plans, programs, arrangements, or any agreement, including this
Agreement, with, the Company or any affiliate.
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For
purposes of this Agreement, “Disability” shall mean your inability to perform
your duties and responsibilities as contemplated under this Agreement for a
period of more than 180 consecutive days, or for a period aggregating more
than
240 days, whether or not continuous, during any 360-day period, due to physical
or mental incapacity or impairment as determined in accordance
herewith. A determination of Disability will be made by a physician
satisfactory to both you and the Company; provided that if you and the Company
cannot agree as to a physician, then each will select a physician and these
two
together will select a third physician, whose determination as to Disability
will be binding on you and the Company. You, your legal
representative or any adult member of your immediate family shall have the
right
to present to the Company and such physician such information and arguments
on
your behalf as you or they deem appropriate, including the opinion of your
personal physician. Should your employment be terminated due to
Disability, all base salary and other compensation otherwise due to you
hereunder shall be continued through the date on which your employment is
terminated for Disability.
(c) In
the event of your resignation for Good Reason, or in the event that your
employment is terminated by Genco, other than in accordance with Section 6(a)
or
(b), you shall be entitled to receive (i) your Base Salary through the
Termination Date; (ii) a lump sum payment equal in amount to double your
annualized base salary, as determined on the Termination Date, less all
deductions and withholdings; (iii) a lump sum payment equal to double the
average of your three (3) prior years’ Annual Incentive Award (or, if
applicable, such lesser period that you were employed by the Company) payable
within twenty (20) days of your termination date and (iv) a pro-rata Bonus
for the year in which the Termination Date occurs equal to the amount by which
(x) the amount determined by multiplying the average Annual Incentive Award
granted to you during the three years preceding the year in which the
Termination Date occurs (or, if applicable, such lesser period that you were
employed by the Company) by a fraction, the numerator of which is the number
of
days you were employed by the Company during the year of termination and the
denominator of which is 365 exceeds (y) the value of any Annual Incentive
Award granted or paid to you in respect of the year of termination (“Pro-rata
Bonus”) payable within twenty (20) days of your termination date. For
purposes of this Agreement, “Annual Incentive Award” for any year shall mean the
cash bonus earned by you for such year, including any amounts
deferred. In addition, with respect to a termination of your
employment by you for Good Reason or by the Company without Cause (other than
due to your death or Disability) upon or within two years of a Change of
Control, Annual Incentive Award shall also include the value on the date of
grant of any equity awards granted to you for such year which for stock options
shall be the Black-Sholes value. For the avoidance of doubt, your
Annual Incentive Award for 2005 shall not include the grant of 32,262 shares
of
restricted stock made to you on October 31, 2005. In any event, for
purposes of this Section 6(c), your Annual Incentive Award for 2005 and 2006
shall be deemed to be not less than $500,000 for each of 2005 and 2006; and
your
restricted stock awards for 2005 and 2006 (exclusive of the initial grant of
32,
262 shares), which were 15,000 shares for 2005 and 20,000 shares for 2006,
shall
each be deemed to be valued at not less than $475,000. In addition,
you shall be entitled to any amounts owing to you but not yet paid, including
without limitation, any bonus payments awarded for any performance period that
has ended and any business expenses required to be reimbursed under Section
5(e), as well as any other payments, entitlements and benefits, if any, in
accordance with applicable plans, programs, arrangements of, or any agreement,
including this Agreement, with, the Company or any affiliate, payable within
twenty (20) days of your termination. Additionally, Genco
shall provide you with coverages under any Genco Group medical,
dental,
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long-term
disability or life insurance benefit plan or program in which you participated
immediately prior to such termination or any replacement plan or program (so
long as such coverage is available under the Company’s applicable plans or
programs) for a period of 24 months following the Termination
Date. Finally, the Company agrees that your rights under COBRA to
continued medical and dental coverage shall be deemed to commence after the
expiration of such 24-month period, so long as the Company’s policies allow such
a commencement.
(d) Your
resignation shall be deemed to be for “Good Reason” if the Company:
(i) materially diminishes your authority, duties or responsibilities; (ii)
materially diminishes your annualized Base Salary below $300,000 during the
Term; (iii) materially changes the location of your office and
such new location is outside of the borough of Manhattan in New York, New York;
or (iv) materially breaches this Agreement. You will give the
Company written notice of your intention to terminate your employment within
thirty (30) days of the occurrence of any event constituting Good Reason, and
the Company shall have thirty (30) days from the receipt of such notice to
cure
such event. Your termination of employment on account of such event
must be effective no later than thirty (30) days after the expiration of such
cure period.
(e) For
purposes of this Agreement, “Termination Date” shall mean: (i) if your
employment is terminated by Genco for Cause, the date of the notice of
termination from the Company, provided that if the termination is for Cause
pursuant to Section 6(a)(i), (iii) or (iv) of the definition of Cause, then
the
Termination Date shall be the date on which the applicable cure period lapses
if
you have not cured; (ii) if your employment is terminated by the Company
without Cause or by you without Good Reason (other than for Disability), the
date set forth in the notice of termination (which no event shall be earlier
than the date such notice is effective); (iii) if your employment is terminated
by reason of death, the date of death; (iv) if your employment is
terminated upon Disability, 30 days after notice is given by the Company; and
(v) if your employment is terminated by you for Good Reason, 30 days after
such notice is given unless the Company has cured the grounds for such
termination within the applicable cure period.
7. (a) Notwithstanding
anything in this Agreement to the contrary, if (i) a Change in Control
occurs; and (ii) upon the Change in Control or within 2 years thereafter
you terminate your employment for Good Reason as defined above or the Company
terminates your employment without Cause, you shall be entitled to all the
payments, benefits and entitlements as of the Termination Date as set forth
in
Section 6(c) provided that the multiple in Section 6(c)(ii) and
(iii) shall be triple (not double) and the time period in Section
6(c) shall be 36 months, not 24 months.
For
purposes of this Agreement, the term "Change of Control" shall mean the
occurrence of any of the following:
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(i)
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any
person or "group" (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934 (the “1934 Act”), other than Oaktree
Capital Management, LLC and its related entities or Xxxxx X.
Xxxxxxxxxxxxx, acquiring "beneficial ownership" (as defined in Rule
13d-3
under the 1934 Act), directly or indirectly, of (A) thirty percent
(30%)
or more of the aggregate voting power of the capital stock ordinarily
entitled to elect directors of Genco within a 12-month period or
(B) more
than fifty percent (50%) of such aggregate voting power or of the
value of
the Genco capital stock; or
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(ii)
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the
sale of all or substantially all of Genco's assets in one or more
related
transactions within a 12-month period to any person, other than such
a
sale to (x) a subsidiary of Genco which does not involve a change
in the
equity holdings of Genco or (y) to an entity which Oaktree Capital
Management, LLC or Xxxxx X. Xxxxxxxxxxxxx directly or indirectly
controls;
or
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(iii)
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any
merger, consolidation, reorganization or similar event of Genco or
any of
its subsidiaries, as a result of which the holders of the voting
stock of
Genco immediately prior to such merger, consolidation, reorganization
or
similar event do not directly or indirectly hold at least fifty percent
(50%) of the aggregate voting power of the capital stock of the surviving
entity; or
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(iv)
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a
majority of the members of the Board of Directors of Genco is replaced
during any 12-month period by directors whose appointment or election
is
not endorsed by a majority of Genco’s Board of Directors before the date
of such appointment or election.
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Notwithstanding
the foregoing, for each award subject to Section 409A of the Internal Revenue
Code, a Change in Control shall be deemed to occur under this Plan with respect
to such award only if a change in the ownership or effective control of Genco
or
a change in the ownership of a substantial portion of the assets of Genco shall
also be deemed to have occurred under Section 409A of the Internal Revenue
Code.
(b) Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined (as hereafter provided) that any payment, benefit or distribution
to
you or for your benefit, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise (a “Payment”), would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
(the “Code”) (or any successor provision thereto), or any interest or penalties
with respect to such excise tax (other than interest or penalties payable solely
as a result of action or inaction by you other than any action or inaction
which
is at the direction of, or results from a determination by, the inaction which
is at the direction of, or results from a determination by, the Firm (as defined
below) or the Company) (such tax, together with any such interest and penalties,
hereafter collectively referred to as the “Excise Tax”), then you shall be
entitled to receive an additional payment or payments (a “Gross-Up Payment”) in
an amount such that, after payment by you of all taxes (excluding any interest
or penalties payable solely as a result of action or inaction by you other
than
any action or inaction which is at the direction of, or results from a
determination by, the Firm or the Company), including any Excise Tax, imposed
upon the
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Gross-Up
Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments (disregarding any Payments made pursuant to this
Section 7(b). For purposes of determining the amount of the Gross-Up
Payment, you shall be deemed to pay federal income taxes at the highest marginal
rate of federal income taxation applicable to individuals in the calendar year
in which the Gross-Up Payment is to be made and state and local income taxes
at
the highest marginal rates of taxation applicable to individuals as are in
effect in the state and locality of your residence in the calendar year in
which
the Gross-Up Payment is to be made, net of the maximum reduction in federal
income taxes that can be obtained from deduction of such state and local taxes,
taking into account any limitations applicable to individuals subject to federal
income tax at the highest marginal rates.
All
determinations required to be made under this Section 7(b), including whether
an
Excise Tax is payable by you, the amount of such Excise Tax, whether a Gross-Up
Payment is required, and the amount of such Gross-Up Payment, shall be made
by
an independent auditor (the “Firm”) selected by you and reasonably acceptable to
the Company. The Firm shall be a nationally-recognized United States
public accounting firm which has not, during the two years preceding the date
of
its selection, acted in any way for the Company or any affiliate
thereof. Either the Company or you may request that a determination
be made. The Firm shall submit its determination and detailed
supporting calculations to you and the Company as promptly as
practicable. If the Firm determines that any Excise Tax is payable by
you and that a Gross-Up Payment is required, the Company shall pay you the
required Gross-Up Payment (i) within thirty (30) days of receipt of such
determination and calculations or (ii) if later, upon the earlier of
(x) the payment to you of any Payment that gives rise to an Excise Tax or
(y) the imposition upon you or payment by you of any Excise
Tax. In no event shall the Gross-Up Payment be paid later than
December 31 of the year following the year in which you pay the applicable
Excise Tax. If the Firm determines that no Excise Tax is payable by
you, it shall, at the same time it makes such determination, furnish you with
an
opinion that you have substantial authority not to report any Excise Tax on
your
federal income tax return. Any determination by the Firm as to the
amount of the Gross-Up Payment shall be binding upon you and the
Company.
As
a
result of the uncertainty in the application of Section 4999 of the Code (or
any
successor provision thereto) at the time of the initial determination by the
Firm hereunder, it is possible that Gross-Up Payments which will not have been
made by the Company should have been made (an “Underpayment”). If you
thereafter are required to make a payment of any Excise Tax, the Firm shall
determine the amount of the Underpayment (if any) that has occurred and submit
its determination and detailed supporting calculations to you and the Company
as
promptly as possible. Any such Underpayment shall be promptly paid by
the Company to you, or for your benefit, within thirty (30) days of receipt
of
such determination and calculations but in no event later than December 31
of
the year following the year in which you pay such Excise Tax.
In
the
event that the Internal Revenue Service makes any claim, gives notice of any
potential claim or institutes a proceeding against you asserting that any Excise
Tax or additional Excise Tax is due in respect of the Payments, you shall
promptly give the Company notice of any such claim, potential claim or
proceeding. The Company shall have the right to conduct all
discussions, negotiations, defenses, actions and proceedings, solely to the
extent relating to any Excise Tax payable in respect of the Payments, and you
shall cooperate with and assist the
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Company,
at the Company’s expense, in any such discussions, negotiations, defenses,
actions and proceedings, to the extent reasonably requested by the
Company. You will not settle any claim or proceeding relating solely
to the Excise Tax payable in respect of the Payments without the consent of
the
Company, which consent shall not be unreasonably withheld. You shall
file, at the Company’s expense, all requests for refunds of the Gross-Up Amount,
or any portion thereof, paid to any taxing authority as shall be reasonably
requested by the Company and shall pay over to the Company (net of any tax
payable thereon) any such refunds, together with any interest thereon, when
and
as such refunds and interest are received by you. All fees and
expenses for services in connection with the determinations and calculations
contemplated by this Section 7(b), including without limitation the reasonable
costs of your own counsel, shall be borne by the Company and shall be paid
not
later than December 31 of the year following the year in which any such audit
is
completed or there is a final and nonappealable settlement or other
resolution.
8. You
shall
have no duty to mitigate the amounts payable to you in the event of the
termination of your employment under Sections 6 and 7 or any other amounts,
benefits or entitlements payable to you hereunder or otherwise, and such
amounts, benefits and entitlements shall not be subject to reduction, offset
or
repayment for any compensation received by you from employment in any capacity
or other source following the termination of your employment
with Genco or on account of any claim the Company or any member of
the Genco Group may have against you.
9. Within
fifteen (15) days after the effective date of a merger, consolidation, sale
or
similar transaction, Genco shall obtain in writing from any successor entity
an
assumption in writing of Genco’s obligation to perform this Agreement and any
other any agreement between you and Genco.
10. You
represent and warrant as follows:
(a) You
are not in breach of any agreement requiring you to preserve the confidentiality
of any information, client lists, trade secrets or other confidential
information or any agreement not to compete or interfere with any prior
employer, and that neither the execution of this letter nor the performance
by
you of your obligations hereunder will conflict with, result in a breach of,
or
constitute a default under, any agreement to which you are a party or to which
you may be subject;
(b) You
have not taken and will not take any confidential information from any prior
employer and will not use any such information in performing your obligations
hereunder, but instead will rely on your generalized knowledge and skill in
performing your services hereunder; and
(c) You
are
not the subject of any investigation by any prior employer; and you are not
a
party in any litigation or arbitration proceeding related in any way to your
current or prior employment.
11. The
Company represents and warrants that as of the date hereof (i) the
execution, delivery and performance of this Agreement by the Company has been
fully and validly authorized by all necessary corporate action, (ii) the
officer signing this Agreement on behalf of the
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Company
is duly authorized to do so, (iii) the execution, delivery and performance
of this Agreement does not violate any applicable law, regulation, order,
judgment or decree or any agreement, plan or corporate governance document
to
which the Company is a party or by which it is bound and (iv) upon
execution and delivery of this Agreement by the parties, it shall be a valid
and
binding obligation of the Company enforceable against it in accordance with
its
terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally.
12. All
notices and consents required or permitted hereunder will be given in
writing. Notices shall be given by personal delivery; by express
delivery via any reputable express courier service; or by registered or
certified mail, return receipt requested, postage prepaid, in each case
addressed to the parties at the respective addresses set forth above or at
such
other address as may be designated in writing by either party to the other
in
the manner set forth herein. Notices which are delivered personally,
or by courier as aforesaid, will be effective on the date of
delivery. Notices delivered by mail will be deemed effectively given
upon the fifth calendar day subsequent to the postmark date
thereof.
13. (a) The
Genco Group owns and has developed and compiled, and will own, develop and
compile, certain techniques, information, and materials tangible or intangible,
relating to itself, its customers, suppliers and others, which are secret,
proprietary and confidential, and which have great value to its business
(referred to in this Agreement, collectively, as “Confidential Information”).
Confidential Information shall not in any event include information which (i)
was generally known or generally available to the public or within the relevant
trade or industry prior to its disclosure to you or (ii) becomes generally
known
or generally available to the public or within the relevant trade or industry
subsequent to disclosure to you other than due to your breach of your
obligations. Confidential Information includes, but is not limited
to, information contained in manuals, documents, computer programs, compilations
of technical, financial, legal or other data, specifications, designs, business
or marketing plans, forecasts, financial information, work in progress, and
other technical or business information.
(b) You
acknowledge and agree that in the performance of your duties hereunder the
Genco
Group will from time to time disclose to you and entrust you with Confidential
Information. You also acknowledge and agree that the unauthorized disclosure
of
Confidential Information obtained by you during your employment, among other
things, may be prejudicial to the interests of the Genco Group’s interests and
an improper disclosure of trade secrets. Unless Genco otherwise consents, you
agree that during the Term hereunder and for three years thereafter you shall
not, except as otherwise provided herein, directly or indirectly, use, make
available, sell, disclose or otherwise communicate to any corporation,
partnership, individual or other third party, other than in the ordinary course
of your employment, any Confidential Information. Anything herein to
the contrary notwithstanding, the provisions of this Section 13 shall not apply
(x) when disclosure is required by law or by any court, arbitrator, mediator
or
administrative or legislative body (including any committee thereof) with actual
or apparent jurisdiction to order you to disclose or make accessible any
information or (y) to the extent reasonably necessary to enforce or defend
your
rights pursuant to this Agreement or any other agreement between you and Genco
(provided that in the case of clause (x), unless otherwise prohibited by law,
you provide the Company with prior notice of the contemplated disclosure and
reasonably cooperate with the Company at the Company’s expense in seeking a
protective order or other appropriate protection of such
information).
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(c) Upon
termination of your employment, you shall not retain or take with you any
Confidential Information in a Tangible Form (defined below), and you shall
as
promptly as possible deliver to Genco any Confidential Information in a Tangible
Form that you then control, as well as all other Genco Group property, including
equipment, documents or other things, that was issued to you or otherwise
received or obtained during your employment with Genco that you then control.
“Tangible Form” includes information or materials in written or graphic form, on
a computer disk or other medium, or otherwise stored in or available through
electronic or other form. Anything herein to the contrary
notwithstanding, you shall be entitled to retain (i) papers and other materials
of a personal nature, including, but not limited to, photographs, personal
correspondence, personal diaries, personal calendars and Xxxxxxxxx, personal
files and phone books, (ii) information showing your compensation or relating
to
reimbursement of expenses, (iii) information that you reasonably believe may
be
needed for tax purposes and (iv) copies of plans, programs relating to your
employment, or termination thereof, with Xxxxx, provided that you shall provide
Genco with a list and, to the extent related to the Genco Group’s business,
copies of the foregoing upon request (in which event Genco will keep your
confidential personal information confidential in accordance with its customary
business practice).
(d) The
provisions of this Section 13 shall survive the termination of the
Term.
14. As
part
of the consideration for the compensation and benefits paid to you under this
Agreement; and to protect the confidential and proprietary information that
will
be disclosed and entrusted to you, the business good will of the Genco Group
that exists and will be developed, and the business opportunities that will
be
disclosed or entrusted to you by the Genco Group; and as an additional incentive
for Genco to enter into this Agreement, the parties agree as
follows:
(a) During
the period of your employment, and for two (2) years thereafter, (the
“Non-Competition Period”), you agree that you will not, directly or indirectly,
have any interest in, manage, operate or be employed in any capacity by any
person, firm, corporation, partnership or business (whether as an employee,
director, officer, partner, investor, advisor, consultant or otherwise) that
engages in the leasing, sale, or chartering of ocean going drybulk
vessels.
(b) During
the period of your employment, and for two (2) years thereafter, you agree
not
to:
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(i)
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with
respect to deals or transactions under consideration at the time
you leave
the employ of Genco, solicit, induce or encourage any existing or
potential client or counterparty of the Genco Group to forego the
proposed
deal or transaction or to consummate the deal or transaction instead
with
another firm, company, business, partnership or enterprise, whether
you
are employed by that entity or not;
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10
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(ii)
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solicit,
or induce or encourage any customer of the Genco Group which
accounted for more than 5% of its revenues during the preceding fiscal
year to cease doing business with the Genco Group or reduce the amount
of
business it does with the Genco
Group;
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|
(iii)
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hire,
solicit, recruit, induce, procure or attempt to hire, solicit, recruit,
induce or procure, directly or indirectly, any person who is an employee
of the Genco Group or who was such an employee at any time during
the
final year of your employment;
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(iv)
|
assist
in hiring any such person by any other individual, sole proprietorship,
firm, company, business, partnership, or other enterprise;
or
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(v)
|
encourage
any such person to terminate his or her employment, without the express
written consent of Xxxxx.
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(c) You
acknowledge that the foregoing limitations are reasonable under the
circumstances and you represent that your fulfillment of the obligations set
forth in this Section shall not cause you any substantial economic hardship
or
render you unemployable within the applicable
industry. Notwithstanding anything to the contrary in this Agreement,
it is agreed that the provisions of Section 14(a) shall not be effective in
the
event of (i) a Change of Control or (ii) a termination of your
employment by the Company without Cause or by you for Good Reason.
(d) The
provisions of this Section 14 shall survive the termination of the
Term.
15. You
acknowledge that the Company would sustain irreparable injury in the event
of a
violation by you of any of the provisions of Sections 13 or 14 hereof, and
by
reason thereof you consent and agree that if you violate any of the provisions
of said Sections 13 or 14, in addition to any other remedies available, the
Company shall be entitled to a decree specifically enforcing such provisions,
and shall be entitled to a temporary and permanent injunction restraining you
from committing or continuing any such violation, from any arbitrator duly
appointed in accordance with the terms of this Agreement or any court of
competent jurisdiction, without the necessity of proving actual damages, posting
any bond, or seeking arbitration in any forum.
16. You
agree
that, during the Term, the Genco Group will have the right to obtain and
maintain life insurance on your life, at its expense, and for its benefit,
subject to such aggregate coverage limitation as you and the Company shall
agree, your consent not to be unreasonably withheld. You agree to cooperate
fully with the Genco Group in obtaining such life insurance, to sign any
necessary consents, applications and other related forms or documents and to
take any required medical examinations..
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17. (a) The
Company agrees that if you are made a party to, are threatened to be made a
party to, receive any legal process in, or receive any discovery request or
request for information in connection with, any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a “Proceeding”), by
reason of the fact that you are or were a director, officer, employee,
consultant or agent of the Company or are or were serving at the request of,
or
on behalf of, the Company or any member of the Genco Group as a director,
officer, member, employee, consultant or agent of another corporation, limited
liability corporation, partnership, joint venture, trust or other entity,
including service with respect to employee benefit plans and service with
respect to any member of the Genco Group, whether or not the basis of such
Proceeding is your alleged action in an official capacity while serving as
a
director, officer, member, employee, consultant or agent of the Company, any
other member of the Genco Group, or other entity, you shall be indemnified
and
held harmless by the Company and any other member of the Genco Group to the
fullest extent permitted by such entities’ corporate documents, including but
not limited to, the Company’s articles of incorporation or by-laws in effect as
of the Effective Date (provided that you shall have the benefit of any
amendments to such documents after the Effective Date that are favorable to
you)
and applicable law, against any and all costs, expenses, liabilities and losses
(including, without limitation, attorneys’ fees reasonably incurred, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement and any reasonable costs and fees incurred in enforcing your rights
to indemnification or contribution) incurred or suffered by you in connection
therewith, and such indemnification shall continue as to you even though you
have ceased to be a director, officer, member, employee, consultant or agent
of
the Company, any other member of the Genco Group or other entity and shall
inure
to the benefit of your heirs, executors and administrators. The
Company shall advance to you all costs and expenses (including, without
limitation, attorneys’ fees) reasonably incurred by you in connection with any
Proceeding within 20 business days after receipt by the Company of a written
request for such reimbursement and appropriate documentation associated with
these expenses. Such request shall include an undertaking by you to
repay the amount of such advance to the extent required by law.
(b) Neither
the failure of the Company (including its Board of Directors, independent legal
counsel or stockholders) to have made a determination prior to the commencement
of any Proceeding concerning payment of amounts claimed by you under
Section 17(a) above that indemnification of you is proper because you have
met the applicable standard of conduct, nor a determination by the Company
(including its Board of Directors, independent legal counsel or stockholders)
that you have not met such applicable standard of conduct, shall create a
presumption or inference that you have not met the applicable standard of
conduct.
(c)
The Company agrees to continue and maintain a directors’ and officers’
liability insurance policy covering you at a level, and on terms and
conditions, no less favorable to you than the coverage the Company provides
other similarly-situated executives so long as such coverage is
available from the carrier and does not increase the cost of such policy by
more
than 10% per annum until the fifth anniversary of the Termination
Date.
(d)
Nothing in this Section 17 shall be construed as reducing or waiving any right
to indemnification, or advancement of expenses, you would otherwise have under
the corporate documents of the Company or any affiliate, including, but not
limited to, the Company’s articles of incorporation or by-laws, or under
applicable law.
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18. Subject
to your other personal and business commitments and to the extent not
inconsistent with your legal position, you agree that both during and after
your
employment you shall, at the request of the Company, render all reasonable
and
lawful assistance and perform all reasonable and lawful acts that the Company
considers necessary or advisable in connection with any litigation,
investigation, proceeding, claim or dispute involving the Company or any
director, officer, employee, shareholder, agent, representative, consultant,
client or vendor of the Company (“Claims”) to the extent such Claim arose during
your employment and relates to the Company. The Company agrees to
reimburse you for your reasonable out-of-pocket expenses (including reasonable
travel expenses and attorneys’ fees if you reasonably determine that the matter
is of a nature which indicates that you should have separate
representation).
19. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to principles of conflicts of
laws. If any dispute should arise concerning this Agreement, the
interpretation of the terms of the Agreement or otherwise relating in any way
to
the terms and conditions of your employment or its termination, including any
claim of statutory discrimination, the parties agree to submit the dispute
to
arbitration before a panel of three (3) neutral arbitrators at the American
Arbitration Association (the “AAA”) in New York, New York, except that in the
event of any controversy relating to any violation or alleged violation of
any
provision of Section 13 or 14 hereof, the Company in its sole discretion shall
be entitled to seek injunctive relief from a court of competent jurisdiction
in
accordance with Section 15 hereof without any requirement to seek arbitration
for such injunction. For injunctive relief, it is agreed
that any court of competent jurisdiction also may entertain an application
by
either party. The parties further agree that no demand for punitive
damages shall be made in any such arbitration proceeding and that the
arbitrators shall not have the power to award punitive damages in any such
proceeding. Any award of the arbitrators shall be final and binding,
subject only to such right of review as may be provided under applicable
law. The parties hereto agree that any arbitral award may be
enforced against the parties to an arbitration proceeding or their assets
wherever they may be found. The Company consents to the personal
jurisdiction of the Courts of the State of New York (including the United States
District Court of New York) for purpose of enforcing any arbitral award and
the
Company further agrees not to interpose any objection for improper venue in
any
such proceeding. In the event that you prevail in any claim or
proceeding between you and the Company or any affiliate in relation to this
Agreement, the Company shall reimburse you for your reasonable costs and
expenses (including reasonable attorneys’ fees) incurred by you in pursuing such
claim or proceeding.
20. No
failure by either party at any time to give notice of any breach by the other
party, or to require compliance with any condition or provision of this
Agreement shall be deemed a waiver of a similar or dissimilar provision or
condition at the time or at any prior or subsequent time. Any waiver
to be effective must be in writing and be signed by the party against whom
it is
being enforced.
21. Upon
the
expiration of the Term, the respective rights and obligations of the parties
shall survive such expiration pursuant to the express terms of this Agreement
and to the extent necessary to carry out the intentions of the parties as
embodied in such rights and obligations.
13
This
Agreement shall continue in effect until there are no further rights or
obligations of the parties outstanding hereunder or until terminated by the
consent of both parties.
22. Each
of
the covenants and agreements set forth in this Agreement are separate and
independent covenants, each of which has been separately bargained for and
the
parties hereto intend that the provisions of each such covenant shall be
enforced to the fullest extent permissible. Should the whole or any
part or provision of any such separate covenant be held or declared invalid
by a
court of competent jurisdiction, such invalidity shall not in any way affect
the
validity of any other such covenant or of any part or provision of the same
covenant not also held or declared invalid. If any covenant shall be found
to be
invalid by a court of competent jurisdiction but would be valid if some part
thereof were deleted or the period or area of application reduced, then such
covenant shall apply with such minimum modification as may be necessary to
make
it valid and effective.
23. You
agree
to keep this Agreement confidential and not to disclose its terms to any third
parties unless required to do so by law or regulation, without the prior written
consent of Genco. You may, however, disclose the details of your
employment and compensation arrangements to your immediate family and to your
tax, accounting and legal advisors, provided that you receive their assurance
in
advance that they will not disclose those matters to any third
party. Nothing in this Agreement, however, shall preclude you from
disclosing to potential subsequent employers the existence of this Agreement
and
the restrictions set forth in Sections 13 and 14.
24. This
Agreement and all rights and obligations hereunder shall be binding upon and
shall inure to the benefit of your heirs, executors, representatives and
administrators and any successors in interest which may acquire or succeed
to
all or substantially all of the business and assets of Genco by any means or
its
assigns. In that regard, you understand that this Agreement may
subsequently be assigned by Xxxxx. Because of the personal nature of
the services to be rendered by you, you may not assign, transfer, pledge, or
hypothecate your rights or obligations under this Agreement without the prior
written consent of Genco, except that your rights to compensation and benefits
may be transferred by will, operation of law, in accordance with applicable
law
or any applicable plan, policy, program or agreement of the Company or any
other
member of the Genco Group or in accordance with this Section 24. In
the event of your death or a judicial determination of your incompetence, the
compensation, entitlements and benefits due you under this Agreement or
otherwise shall be paid to your estate or legal representative or your
designated beneficiary or beneficiaries.
25. This
Agreement contains the entire understanding between the parties on the subjects
covered herein and supersedes all prior agreements, arrangements and
understandings, whether written or oral. You represent that you have
not relied on any statements, oral or written, not contained in this
Agreement. This Agreement may not be amended or otherwise changed
orally, but only in a writing signed by both parties.
26. This
Agreement may be signed in separate counterparts, both of which together shall
constitute an original instrument. The parties agree to accept a
signed facsimile counterpart of this Agreement as a fully binding
original.
27. You
understand that the terms and conditions of your employment by Genco are
governed by standard Genco policies.
14
Please
indicate your acceptance of this Agreement by signing and returning a copy
of
this letter to the undersigned.
Very
truly
yours,
GENCO
SHIPPING &
TRADING LIMITED
By: ___________________________________________
Xxxxxx
Xxxxxx
Xxxxxxxx
President
ACCEPTED
AND AGREED TO:
_____________________________________
Xxxx
X.
Xxxxxxxxxx
_____________________________________
Date
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