EMPLOYMENT AGREEMENT
Exhibit 10.9
EXECUTION COPY
This
EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into as of
this 29th day of October 2007, by and between TECO Transport Corporation, a Florida
corporation (the “Company”), and Xxxx X. XxXxxxx (the
“Employee”).
WITNESSETH:
WHEREAS, Employee is currently employed by the Company; and
WHEREAS, Employee is a party to a Retention and Contingent Separation
Agreement with the Company, dated March 29, 2007 (the “Prior Agreement”);
WHEREAS, in connection with the transactions contemplated by the Acquisition
Agreement, the Company will become a wholly-owned subsidiary of the Parent; and
WHEREAS, if the transactions contemplated by the Acquisition Agreement are
completed, Employee will become eligible to receive certain retention payments under
the Prior Agreement; and
WHEREAS, the Company desires to enter into an agreement embodying the terms of
Employee’s employment from and after the Closing Date, and Employee desires to enter
into this Agreement and to accept such employment, subject to the terms and
provisions of this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and sufficiency of
which are mutually acknowledged, the Company and Employee hereby agree as follows:
Section 1.
Definitions.
(a) “Accrued Obligations” shall mean (i) all accrued but unpaid Base
Salary through the date of termination of Employee’s employment, (ii) any unpaid or
unreimbursed expenses incurred in accordance with Section 7 below, and (iii) any
benefits provided under the Company’s employee benefit plans upon a termination of
employment, including payment in lieu of any accrued but unused vacation time, in
accordance with the terms contained therein.
(b) “Acquisition Agreement” shall mean that certain Membership
Interest Purchase Agreement by and among TECO Diversified, Inc., GS Maritime Holding LLC, and TECO Energy, Inc., dated as of
October 29, 2007.
(c)
“Annual Bonus” shall have the meaning set forth in Section 4(b) below.
(d) “Base Salary” shall mean the salary provided for in Section
4(a) below or any increased salary granted to Employee pursuant to Section 4(a).
(e)
“Board” shall mean the Board of Directors of the Parent.
(f) “Cause” shall mean (i) Employee’s act(s) of gross negligence or
willful misconduct in the course of Employee’s employment hereunder that is or could
reasonably be expected to be materially injurious to the Company or any other member
of the Company Group, (ii) willful failure or refusal by Employee to perform in any
material respect his duties or responsibilities, not measured by economic
performance, (iii) misappropriation by Employee of any assets or business opportunities
of the Company or any other member of the Company Group, (iv) embezzlement or fraud
committed by Employee, or at his direction, (v) Employee’s conviction of, indictment
for, or pleading “guilty” or “no contest” to,
(x) a felony or (y) any other criminal
charge that has, or could be reasonably expected to have, an adverse impact on the
performance of Employee’s duties to the Company or any other member of the Company
Group or otherwise result in material injury to the reputation or business of the
Company or any other member of the Company Group, (vi) any material violation of the
policies of the Company, including, but not limited to those relating to sexual
harassment, business conduct or otherwise set forth in the manuals or statements of
policy of the Company, or (vii) Employee’s material breach of Section 3(b) hereof or
a breach of any of the restrictive covenants contained in Section 9 hereof.
(g) “Closing Date” shall have the meaning set forth in the
Acquisition Agreement.
(h)
“Code” shall mean the Internal Revenue Code of 1986, as amended.
(i)
“Company” shall have the meaning set forth in the preamble hereto.
(j) “Company Group” shall mean the Parent together with any direct
or indirect subsidiary of the Parent.
(k) “Compensation Committee” shall mean the committee of the Board
designated to make compensation decisions relating to senior executive officers of
the Company Group. Prior to any time that such a committee has been designated, the
Board shall be deemed the Compensation Committee for purposes of this Agreement.
(l) “Competitive Activities” shall mean any business
activities in which the Company or any other member of the Company Group
engages (or has committed plans to engage) during the Term of Employment.
(m) “Confidential Information” shall mean confidential or proprietary
trade secrets, client lists, client identities and information, information
regarding service providers, investment methodologies, marketing data or plans,
sales plans, management organization information, operating policies or manuals,
business plans or operations or techniques, financial records or data, or other
financial, commercial, business or technical information (i) relating to the Company
or any other member of the Company Group, or (ii) that the Company or any other
member of the Company Group may receive belonging to suppliers, customers or others
who do business with the Company or any other member of the Company Group, but shall
exclude any information that is in the public domain or hereafter enters the public
domain, in each case without the breach by Employee of Section 9(a) below.
(n)
“Developments” shall have the meaning set forth in Section 9(e) below.
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(o) “Disability” shall mean any physical or mental disability or
infirmity that prevents the performance of Employee’s duties for a period of (i) ninety
(90) consecutive days or (ii) one hundred twenty (120) non-consecutive days during any
twelve (12) month period. Any question as to the existence, extent or potentiality of
Employee’s Disability upon which Employee and the Company cannot agree shall be
determined by a qualified, independent physician selected by the Company and
approved by Employee (which approval shall not be unreasonably withheld). The
determination of any such physician shall be final and conclusive for all purposes of this
Agreement.
(p) “Employee” shall have the meaning set forth in the preamble hereto.
(q) “Good Reason” shall mean, without Employee’s consent, (i) a
material diminution in Employee’s title, duties or responsibilities, (ii) the
relocation of Employee’s principal place of employment (as set forth in Section 3(c)
hereof) more than fifty (50) miles from its current location, or (iii) the failure
of the Company to pay any compensation owing to the Employee pursuant to Section 4 when
such compensation is due. Notwithstanding the foregoing, during the Term of
Employment, in the event that the Board reasonably believes that Employee may have
engaged in conduct that could constitute Cause hereunder, the Board
may, in its sole and
absolute discretion, suspend Employee from performing his duties
hereunder, and any such
suspension shall in no event constitute an event pursuant to which Employee may
terminate employment with Good Reason; provided, that no such suspension shall alter the Company’s obligations
under this Agreement during such period of suspension. Any such suspension shall end
after thirty (30) days except with the written consent of the Employee, which may be
renewed from time to time.
(r) “Interfering Activities” shall mean (i) encouraging, soliciting,
or including, or in any manner attempting to encourage, solicit, or induce, any
individual employed by, or individual or entity providing consulting services to,
the Company or any other member of the Company Group to terminate such employment or
consulting services; provided, that the foregoing shall not be violated by general
advertising not targeted at employees or consultants of the Company or any other member
of the Company Group; (ii) hiring any individual who was employed by the Company or
any other member of the Company Group within the six (6) month period prior to the date of
such hiring; or (iii) encouraging, soliciting or inducing, or in any manner
attempting to encourage, solicit or induce any customer, supplier, licensee or other
business relation of the Company or any other member of the Company Group to cease
doing business with or materially reduce the amount of business conducted with the
Company or any other member of the Company Group, or in any way interfere with the
relationship between any such customer, supplier, licensee or business relation and the
Company or any other member of the Company Group.
(s) “Parent” shall mean GS Maritime Holding LLC, a Delaware limited
liability company and ultimate parent of the Company.
(t) “Person” shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company, trust
(charitable or non-charitable), unincorporated organization or other form of
business entity.
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(u) “Prior Agreement” shall have the meaning set forth in the
preamble hereto.
(v) “Release Expiration Date” shall mean the date which is
twenty-one (21) days following the Employee’s termination of employment, or, in the
event that such termination of employment is “in connection with an exit incentive
or other employment termination program” (as such phrase is defined in the Age
Discrimination in Employment Act of 1967), the date which is forty-five (45) days
following the Employee’s termination of employment.
(w) “Restricted Area” shall mean any State of the United States of
America or any other jurisdiction in which the Company or any other member of the
Company Group engages (or has committed plans to engage) in business during the Term of Employment.
(x) “Restricted Period” shall mean the period commencing on the
Closing Date and extending to the two (2) year anniversary of Employee’s
termination of employment for any reason.
(y) “Severance Term” shall mean the two (2) year period following
Employee’s termination by the Company without Cause (other than by reason of death
or Disability), by Employee for Good Reason, or following the expiration of the
Term of Employment.
(z) “Term of Employment” shall mean the period specified in
Section 2 below.
(aa) “Transaction Documents” shall mean the Acquisition Agreement,
that certain Limited Liability Company Agreement of the Parent, and any other
ancillary documents entered into in connection with the Acquisition Agreement.
Section 2. Acceptance and Term of Employment.
The Company agrees to employ Employee and Employee agrees to serve the Company
on the terms and conditions set forth herein. The Term of Employment shall commence
on the Closing Date and shall continue until the three (3) year anniversary of the
Closing Date, unless terminated earlier as provided in Section 8 hereof.
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Section 3. Position, Duties and Responsibilities; Place of Performance.
(a) During the Term of Employment, Employee shall be employed and serve
as the Vice President, Ocean, of the Company (together with such other position or
positions consistent with Employee’s title as the Board shall specify from time to
time) and shall have such duties typically associated with such title. Employee also
agrees to serve as an officer and/or director of any parent or subsidiary of the
Company, in each case without additional compensation.
(b) Employee shall devote his full business time, attention, and skill to
the performance of his duties under this Agreement and shall not engage in any other
business or occupation during the Term of Employment, including, without limitation,
any activity that
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(x) conflicts with the interests of the Company or any other member of the Company Group, (y)
interferes with the proper and efficient performance of his duties for the Company, or (z)
interferes with the exercise of his judgment in the Company’s best interests. Notwithstanding the
foregoing, nothing herein shall preclude Employee from (i) serving, with the prior written consent
of the Board, as a member of the board of directors or advisory board (or their equivalents in the case of a non-corporate entity) of non-competing
businesses and charitable organizations, (ii) engaging in charitable activities and community
affairs, and (iii) managing personal investments and affairs; provided, however, that Employee
shall notify the Company writing prior to participating in any of the activities set out in clauses
(i), (ii) and (iii) (or as of the date hereof with respect to such activities in which Employee is
already participating), and Employee’s participation in such activities shall be limited by
Employee so as not to materially interfere, individually or in the aggregate, with the performance
of his duties and responsibilities hereunder. In the event the Company believes such activities are
interfering with his duties and responsibilities and provided Employee has properly notified the
Company of his participation such activities as provided above, the Company shall send Employee a
written notice specifying such activities, and Employee shall have thirty (30) days to limit such
activities so as to comply with the proviso in the preceding sentence.
(c) Employee’s principal place of employment shall be in Tampa, Florida,
although Employee understands and agrees that he may be required to travel from
time to time for business reasons.
Section 4. Compensation. During the Term of Employment, Employee shall be
entitled to the following compensation:
(a) Base Salary. Employee shall be paid an annualized Base Salary,
payable in accordance with the regular payroll practices of the Company, of not
less than $190,000. Employee’s Base Salary shall be reviewed each year by the Board
or the Compensation Committee, which may increase (but not decrease) Employee’s
Base Salary.
(b) Annual Bonus. Employee shall be eligible for an annual incentive
bonus award determined by the Board in consultation with the Chief Executive Officer
in respect of each fiscal year during the Term of Employment (the
“Annual Bonus”).
The target Annual Bonus range for each fiscal year shall be from 45% to 120% of Base
Salary, with the actual Annual Bonus payable being based upon the level of
achievement of annual Company and individual performance objectives for such fiscal
year, as determined by the Board or the Compensation Committee after meeting with
the Chief Executive Officer and communicated to Employee. The Annual Bonus shall be
paid to Employee at the same time as annual bonuses are generally payable to other
senior executives of the Company.
(c) Parachute Payment. In the event that any payment or benefit
received or to be received by Employee in connection with the termination of his
employment (whether pursuant to the terms of this Agreement or any other plan,
arrangement, or agreement with the Company or any person affiliated with the Company
(collectively, the “Parachute Payments”) would not be deductible (in whole or in
part) by the Company, an affiliate, or other person making such payment or providing
such benefit, as a result of Section 280G of the Code, at Employee’s election,
either (i) the Parachute Payments shall be reduced until no portion of the
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Parachute Payments is not deductible, (ii) Employee shall pay the excise tax payable pursuant to
Section 4999 of the Code with respect to the “excess parachute payment” (as defined in Section 280G
of the Code), or (iii) Employee shall agree to waive all or a portion of the Parachute Payments and
allow the Company to request the approval of the waived payments by its shareholders in accordance
with Section 280G and the Treasury Regulations promulgated thereunder.
Section 5. Employee Benefits.
During the Term of Employment, Employee shall be entitled to participate in
health, insurance, retirement and other benefits provided to other senior executives
of the Company. Employee shall also be entitled to the same number of holidays,
vacation, sick days and other benefits as are generally allowed to senior executives
of the Company in accordance with the Company policy in effect from time to time.
Section 6. Key-Man Insurance.
At any time during the Term of Employment, the Company shall have the right to
insure the life of Employee for the sole benefit of the Company, in such amounts,
and with such terms, as it may determine. All premiums payable thereon shall be the
obligation of the Company. Employee shall have no interest in any such policy, but
agrees to cooperate with the Company in taking out such insurance by submitting to
physical examinations, supplying all information required by the insurance company,
and executing all necessary documents, provided that no financial obligation is
imposed on Employee by any such documents.
Section 7. Reimbursement of Business Expenses.
Employee is authorized to incur reasonable business expenses in carrying
out his duties and responsibilities under this Agreement and the Company shall
promptly reimburse him for all such reasonable business expenses incurred in
connection with carrying out the business of the Company, subject to documentation
in accordance with the Company’s policy, as in effect from time to time. The Company
shall also reimburse the Employee for reasonable legal fees incurred by him in
connection with the preparation of this Agreement, up to $30,000 in the aggregate,
subject to the Company’s requirements with respect to reporting and documentation of
expenses.
Section 8. Termination of Employment.
(a) General. The Term of Employment shall terminate earlier
than as provided in Section 2 above upon the earliest to occur of (i) Employee’s
death, (ii) a termination by reason of a Disability, (iii) a termination by the
Company with or without Cause, and (iv) a termination by Employee with or
without Good Reason. Upon any termination of Employee’s employment for any
reason, except as may otherwise be requested by the Company in writing and agreed
upon in writing by Employee, Employee shall resign from any and all directorships,
committee memberships or any other positions Employee holds with the Company or any
other member of the Company Group. Nothing contained in this Section 8 shall
diminish Employee’s rights under any Transaction Documents.
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(b) Termination due to Death or Disability. Employee’s employment shall
terminate automatically upon his death. The Company may terminate Employee’s
employment immediately upon the occurrence of a Disability, such termination to be
effective upon Employee’s receipt of written notice of such termination. In the
event Employee’s employment is terminated due to his death or Disability, Employee
or his estate or his beneficiaries, as the case may be, shall be entitled to:
(i) The Accrued Obligations; and
(ii) Any unpaid Annual Bonus in respect to any completed fiscal year
which has ended prior to the date of such termination, which amount shall be
paid at such time annual bonuses are paid to other senior executives of the
Company.
Following such termination of Employee’s employment by the reason of death or Disability, except as
set forth in this Section 8(b), Employee shall have no further rights to any compensation or any
other benefits under this Agreement.
(c) Termination by the Company for Cause. The Company may terminate
Employee’s employment at any time for Cause, effective upon Employee’s receipt of
written notice of such termination. In the event the Company terminates Employee’s
employment for Cause, he shall be entitled only to the Accrued Obligations.
Following such termination of Employee’s employment for Cause, except as set forth
in this Section 8(c), Employee shall have no further rights to any compensation or
any other benefits under this Agreement.
(d) Termination
by the Company without Cause. The Company may terminate
Employee’s employment at any time without Cause, effective upon Employee’s receipt
of written notice of such termination. In the event Employee’s employment is
terminated by the Company without Cause (other than due to death or Disability),
Employee shall be entitled to:
(i) The Accrued Obligations;
(ii) Any unpaid Annual Bonus in respect to any completed fiscal year
which has ended prior to the date of such termination, which amount shall be paid at such time annual bonuses are
paid to other senior executives of the Company;
(iii) Annual Bonus for the fiscal year of termination, to the extent
applicable performance conditions are achieved for such fiscal year, such
amount to be paid in a lump sum at the same time the Annual Bonus would
otherwise have been paid pursuant to Section 4(b) above had such termination
not occurred;
(iv) Continuation of payment of Base Salary during the Severance Term,
payable in accordance with the Company’s regular payroll practices, it being
agreed that each installment of Base Salary payable hereunder shall be
deemed to be a separate payment for purposes of Section 409A of the Code;
and
(v) Continuation, during the Severance Term, of the medical benefits
provided to Employee and his covered dependants under the Company’s health
plans in effect as of the date of such termination, it being understood and
agreed that (A)
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Employee shall be required to pay that portion of the cost of such medical
benefits as Employee was required to pay (including through customary deductions from
Employee’s paycheck) as of the date of Employee’s termination of employment with the
Company, and (B) notwithstanding the foregoing, the Company’s obligation to provide such
continuation of benefits shall terminate prior to the expiration of the Severance Term in
the event that Employee becomes eligible to receive any such or similar benefits while
employed by or providing service to, in any capacity, any other business or entity during
the Severance Term.
Notwithstanding the foregoing, the Severance Term shall expire, the payments and benefits described
in clauses (ii), (iii), (iv), and (v) above shall immediately terminate, and the Company shall have
no further obligations to Employee with respect thereto, in the event that Employee breaches any
provision of Section 9 hereof. Following such termination of Employee’s employment by the Company
without Cause, except as set forth in this Section 8(d), Employee shall have no further rights to
any compensation or any other benefits under this Agreement.
(e) Termination by Employee with Good Reason. Employee may terminate
his employment with Good Reason by providing the Company ten
(10) days’ written
notice setting forth in reasonable specificity the event that constitutes Good
Reason, which written notice, to be effective, must be provided to the Company
within sixty (60) days of the occurrence of such event. During such ten (10) day
notice period, the Company shall have a cure right (if curable), and if not cured
within such period, Employee’s termination will be effective upon the expiration of
such cure period, and Employee shall be entitled to the same payments and benefits as provided in Section 8(d) above for a termination by the Company
without Cause, subject to the same conditions on payment and benefits as described
in Section 8(d) above. Following such termination of Employee’s employment by
Employee with Good Reason, except as set forth in this Section 8(e), Employee shall
have no further rights to any compensation or any other benefits under this
Agreement.
(f) Termination by Employee without Good Reason. Employee may
terminate his employment without Good Reason by providing the Company thirty (30)
days’ written notice of such termination. In the event of a termination of
employment by Employee under this Section 8(f), Employee shall be entitled only to
the Accrued Obligations. In the event of termination of Employee’s employment under
this Section 8(f), the Company may, in its sole and absolute discretion, by written
notice accelerate such date of termination and still have it treated as a
termination without Good Reason. Following such termination of Employee’s employment
by Employee without Good Reason, except as set forth in this
Section 8(f), Employee
shall have no further rights to any compensation or any other benefits under this
Agreement.
(g) Expiration of the Term of Employment. To the extent Employee’s
employment has not terminated earlier as set forth in Section 8(a) hereof,
Employee’s employment shall terminate upon the expiration of the Term of Employment.
Upon termination of Employee’s employment due to the expiration of the Term of
Employment, the Employee shall be entitled to:
(i) The Accrued Obligations;
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(ii) Any unpaid Annual Bonus in respect to any completed fiscal year
which has ended prior to the date of expiration of the Term of Employment,
which amount shall be paid at such time annual bonuses are paid to other
senior executives of the Company;
(iii) Annual Bonus for the fiscal year of termination, to the extent
applicable performance conditions are achieved for such fiscal year, such
amount to be paid in a lump sum at the same time the Annual Bonus would
otherwise have been paid pursuant to Section 4(b) above had such termination
not occurred;
(iv) Continuation of payment of Base Salary during the Severance Term,
payable in accordance with the Company’s regular payroll practices, it being
agreed that each installment of Base Salary payable hereunder shall be
deemed to be a separate payment for purposes of Section 409A of the Code;
and
(v) Continuation, during the Severance Term, of the medical benefits
provided to Employee and his covered dependants under the Company’s health
plans in effect as of the date of such termination, it being understood and
agreed that (A) Employee shall be required to pay that portion of the cost
of such medical benefits as Employee was required to pay (including through
customary deductions from Employee’s paycheck) as of the date of Employee’s
termination of employment with the Company, and (B) notwithstanding the
foregoing, the Company’s obligation to provide such continuation of benefits
shall terminate prior to the expiration of the Severance Term in the event
that Employee becomes eligible to receive any such or similar benefits while
employed by or providing service to, in any capacity, any other business or
entity during the Severance Term.
Notwithstanding the foregoing, the Severance Term shall expire, the payments and benefits described
in clauses (ii), (iii), (iv), and (v) above shall immediately terminate, and the Company shall have
no further obligations to Employee with respect thereto, in the event that Employee breaches any
provision of Section 9 hereof. Except as otherwise set forth below in this Section 8(g), Employee
shall have no further rights to any compensation or any other benefits under this Agreement.
(h) Release. Notwithstanding any provision herein to the contrary, the
Company may require that, prior to payment of any amount or provision of any benefit pursuant
to subsection (d), (e), or (g) of this Section 8 (other than the Accrued Obligations), Employee
shall have executed, on or prior to the Release Expiration Date, a customary general release in
favor of the Company Group in such form as is reasonably required by the Company, that does not
contain any post-employment restrictions that are in addition to those contained in this Agreement,
and any waiting periods contained in such release shall have expired. Provided that the Company has
delivered such release to Employee promptly following termination, in the event that Employee fails
to execute such release on or prior to the Release Expiration Date, Employee shall not be entitled
to any payments or benefits pursuant to subsection (d), (e), or (g) of this Section 8 (other than
the Accrued Obligations).
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Section 9. Restrictive Covenants. Employee acknowledges and agrees that
the agreements and covenants contained in this Section 9 are (i) reasonable and
valid in geographical and temporal scope and in all other respects, and (ii)
essential to protect the value of the business and assets of the Company Group.
(a) Confidential Information. At any time during and after the end of
the Term of Employment, without the prior written consent of the Board, except to the extent required by an order of a court having
jurisdiction or under subpoena from an appropriate government agency, in which
event, Employee shall use his best efforts to consult with the Board prior to
responding to any such order or subpoena, and except as required in the performance
of his duties hereunder, Employee shall not disclose to or use for the benefit of
any third party any Confidential Information.
(b) Non-Competition. Employee covenants and agrees that during the
Restricted Period, Employee shall not, directly or indirectly, individually or
jointly, own any interest in, operate, join, control or participate as a partner,
director, principal, officer, or agent of, enter into the employment of, act as a
consultant to, or perform any services for any Person (other than the Company or any
other member of the Company Group), that engages in any Competitive Activities
within the Restricted Area. Notwithstanding anything herein to the contrary, this
Section 9(b) shall not prevent Employee from acquiring as an investment securities
representing not more than three percent (3%) of the outstanding voting securities
of any publicly-held corporation.
(c) Non-Solicitation; Non-Interference. During the Restricted
Period, Employee shall not, directly or indirectly, for his own account or for the
account of any other Person, engage in Interfering Activities.
(d) Return of Documents. In the event of the termination of
Employee’s employment for any reason, Employee shall deliver to the Company all
of (i) the property of the Company and any other member of the Company Group and (ii)
the documents and data of any nature and in whatever medium of the Company and any
other member of the Company Group, and he shall not take with him any such property,
documents or data or any reproduction thereof, or any documents containing or
pertaining to any Confidential Information.
(e) Works for Hire. Employee agrees that the Company shall own all
right, title and interest throughout the world in and to any and all inventions,
original works of authorship, developments, concepts, know-how, improvements or
trade secrets, whether or not patentable or registrable under copyright or similar
laws, which Employee may solely or jointly conceive or develop or reduce to
practice, or cause to be conceived or developed or reduced to practice during the
Term of Employment, whether or not during regular working hours, provided they
either (i) relate at the time of conception or development to the actual or
demonstrably proposed business or research and development activities of any member
of the Company Group; (ii) result from or relate to any work performed for the
Company or any member of the Company Group; or (iii) are developed through the use
of Confidential Information and/or Company resources or in consultation with any
personnel of the Company or any other member of the Company Group (collectively
referred to as “Developments”). Employee hereby assigns all fight, title and interest in and to any and all of
these Developments to the Company.
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Employee agrees to assist the Company, at the Company’s expense, to further evidence, record and
perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights
specified to be so owned or assigned. Employee hereby irrevocably designates and appoints the
Company and its agents as attorneys-in-fact to act for and on Employee’s behalf to execute and file
any document and to do all other lawfully permitted acts to further the purposes of the foregoing
with the same legal force and effect as if executed by Employee. In addition, and not in
contravention of any of the foregoing, Employee acknowledges that all original works of authorship
which are made by him (solely or jointly with others) within the scope of employment and which are
protectable by copyright are “works made for hire,” as that term is defined in the United States
Copyright Act (17 U.S.C. Sec. 101). To the extent allowed by law, this includes all rights of
paternity, integrity, disclosure and withdrawal and any other rights that may be known as or
referred to as “moral rights.” To the extent Employee retains any such moral rights under
applicable law, Employee hereby waives such moral rights and consents to any action consistent with
the terms of this Agreement with respect to such moral rights, in each case, to the full extent of
such applicable law. Employee will confirm any such waivers and consents from time to time as
requested by the Company.
(f) Blue Pencil. If any court of competent jurisdiction shall at any
time deem the duration or the geographic scope of any of the provisions of this
Section 9 unenforceable, the other provisions of this Section 9 shall nevertheless
stand and the duration and/or geographic scope set forth herein shall be deemed to
be the longest period and/or greatest size permissible by law under the
circumstances, and the parties hereto agree that such court shall reduce the time
period and/or geographic scope to permissible duration or size.
Section 10. Injunctive Relief.
Without limiting the remedies available to the Company, Employee acknowledges
that a breach of any of the covenants contained in Section 9 hereof may result in
material irreparable injury to the Company Group for which there is no adequate
remedy at law, that it will not be possible to measure damages for such injuries
precisely and that, in the event of such a breach or threat thereof, the Company (or
any other member of the Company Group) shall be entitled to obtain a temporary
restraining order and/or a preliminary or permanent injunction, without the
necessity of proving irreparable harm or injury as a result of such breach or
threatened breach of Section 9 hereof, restraining Employee from engaging in
activities prohibited by Section 9 hereof or such other relief as may be required
specifically to enforce any of the covenants in Section 9 hereof. Notwithstanding
any other provision to the contrary, the Restricted Period shall be tolled during
any period of violation of any of the covenants in Section 9(b) or (c) hereof and
during any other period required for litigation during which the Company (or any
other member of the Company Group) seeks to enforce such covenants against Employee if it is
ultimately determined that Employee was in breach of such covenants.
Section 11. Representations and Warranties of Employee.
Employee represents and warrants to the Company that he is entering into
this Agreement voluntarily and that his employment hereunder and compliance with the
terms and conditions hereof will not conflict with or result in the breach by him of
any agreement to which he is a party or by which he may be bound.
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Section 12. Taxes.
The Company may withhold from any payments made under this Agreement all
applicable taxes, including but not limited to income, employment and social
insurance taxes, as shall be required by law. Employee acknowledges and represents
that the Company has not provided any tax advice to him in connection with this
Agreement and that he has been advised by the Company to seek tax advice from his
own tax advisors regarding this Agreement and payments that may be made to him
pursuant to this Agreement, including specifically, the application of the
provisions of Section 409A of the Code to such payments.
Section 13. Mitigation.
Employee shall not be required to mitigate the amount of any payment provided
for pursuant to this Agreement by seeking other employment or otherwise.
Section 14. Delay in Payment.
Notwithstanding any provision in this Agreement to the contrary, any payment
otherwise required to be made hereunder to the Employee at any date as a result of
the termination of Employee’s employment (other than any payment made in reliance
upon Treas. Reg. Section 1.409A-1 (19)(9) (Separation Pay Plans) or Treas. Reg.
Section 1.409A-1 (b)(4) (Short-Term Deferrals)) shall be delayed for such period of
time as may be necessary to meet the requirements of Section 409A(a)(2)(B)(i) of the
Code. On the earliest date on which such payments can be made without violating the
requirements of Section 409A(a)(2)(B)(i) of the Code, there shall be paid to the
Employee, in a single cash lump sum, an amount equal to the aggregate amount of all
payments delayed pursuant to the preceding sentence. No payment due under this
Agreement shall be delayed or deferred to a date that would violate Section 409A of
the Code.
Section 15. Successors and Assigns; No Third-Party Beneficiaries; Indemnification.
(a) The Company. This Agreement shall inure to the benefit of the
Company and its respective successors and assigns. Neither this Agreement nor any of
the rights, obligations or interests arising hereunder may be assigned by the
Company without Employee’s prior written consent (which shall not be unreasonably
withheld, delayed or conditioned), to a person or entity other than an affiliate or
parent entity of the Company, or their respective successors or assigns; provided,
however, that, in the event of the merger, consolidation, transfer or sale of all or
substantially all of the assets of the Company with or to any other individual or
entity, this Agreement shall, subject to the provisions hereof, be binding upon and
inure to the benefit of such successor and such successor shall discharge and
perform all the promises, covenants, duties and obligations of the Company
hereunder, it being agreed that in such circumstances, the consent of Employee shall
not be required in connection therewith.
(b) Employee. Employee’s rights and obligations under this
Agreement shall not be transferable by Employee by assignment or otherwise, without
the prior written consent of the Company; provided, however, that if Employee shall
die, all amounts then payable to
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Employee hereunder shall be paid in accordance with the terms of this Agreement to Employee’s
devisee, legatee or other designee or, if there be no such designee, to Employee’s estate.
(c) No Third-Party Beneficiaries. Except as otherwise set forth in
Section 8(b) or Section 15(b) hereof, nothing expressed or referred to in this
Agreement will be construed to give any person or entity other than the Company, the
other members of the Company Group and Employee any legal or equitable right, remedy
or claim under or with respect to this Agreement or any provision of this Agreement.
(d) Indemnification. To the fullest extent permitted by law, the
Company shall indemnify Employee (including the advancement of expenses) for any
judgments, fines, amounts paid in settlement, and reasonable expenses, including
attorneys’ fees, incurred by Employee in connection with the defense of any lawsuit
or other claim to which he is made a party by reason of being an officer or employee
of the Company. During the Term of Employment and for at least six (6) years
thereafter, the Company shall make reasonable best efforts to maintain customary
director and officer liability insurance covering Employee for acts and omissions
during the Term of Employment, which coverage shall include Severable Side A and
Difference in Conditions.
Section 16. Waiver and Amendments.
Any waiver, alteration, amendment or modification of any of the terms of this
Agreement shall be valid only if made in writing and signed by each of the parties
hereto; provided, however, that any such waiver, alteration, amendment or
modification is consented to on the Company’s behalf by the Board. No waiver by
either of the parties hereto of their rights hereunder shall be deemed to constitute
a waiver with respect to any subsequent occurrences or transactions hereunder unless
such waiver specifically states that it is to be construed as a continuing waiver.
Section 17. Severability.
If any covenants or such other provisions of this Agreement are found to be
invalid or unenforceable by a final determination of a court of competent
jurisdiction: (a) the remaining terms and provisions hereof shall be unimpaired, and
(b) the invalid or unenforceable term or provision hereof shall be deemed replaced
by a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision hereof.
Section 18. Governing Law and Jurisdiction.
This Agreement is governed by and is to be construed under the laws of the
State of New York, without regard to conflict of laws rules. Any dispute or claim
arising out of or relating to this Agreement or claim of breach hereof (other than
claims for injunctive relief, which shall be governed by Section 10 hereof) shall be
brought exclusively in the Federal court in the State of New York. By execution of
the Agreement, the parties hereto, and their respective affiliates, consent to the
exclusive jurisdiction of such court, and waive any right to challenge jurisdiction
or venue in such court with regard to any suit, action, or proceeding under or in
connection with the Agreement. Each party to this Agreement also hereby waives any
right
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to trial by jury in connection with any suit, action or proceeding under or in connection with
this Agreement.
Section 19. Notices.
(a) Every notice or other communication relating to this Agreement shall be
in writing, and shall be mailed to or delivered to the party for whom it is intended
at such address as may from time to time be designated by it in a notice mailed or
delivered to the other party as herein provided; provided that, unless and until
some other address be so designated, all notices or communications by Employee to
the Company shall be mailed or delivered to the Company at its principal executive office,
and all notices or communications by the Company to Employee may be given to
Employee personally or may be mailed to Employee at Employee’s last known address,
as reflected in the Company’s records, with a copy to Employee’s counsel, XxXxxxxx &
English LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxx Xxxxxxx, Esq.,
xxxxxxxx@xxxxxxxx.xxx.
(b) Any notice so addressed shall be deemed to be given: (i) if delivered by
hand, on the date of such delivery; (ii) if mailed by courier or by overnight mail,
on the first business day following the date of such mailing; or (iii) if mailed by
registered or certified mail, on the third business day after the date of such
mailing.
Section 20. Section Headings.
The headings of the sections and subsections of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part thereof, affect the
meaning or interpretation of this Agreement or of any term or provision hereof.
Section 21. Payments under the Prior Agreement.
In connection with the transaction contemplated by the Acquisition Agreement,
and in accordance with the Prior Agreement, Employee shall be eligible to receive
the payments and benefits set forth in Section 4 of the Prior Agreement (it being
understood and agreed that neither the Company nor any member of the Company Group
shall have any obligation to provide, or shall have any liability with respect to,
any retiree medical or dental benefits set forth in Section 4 of the Prior
Agreement), provided that Employee satisfies all applicable requirements of the
Prior Agreement for purposes of becoming entitled to such payments and benefits.
Section 22. Entire Agreement.
This Agreement, together with any exhibits attached hereto, and the Transaction
Documents, constitute the entire understanding and agreement of the parties hereto
regarding the employment of Employee. This Agreement and the Transaction Documents
supersede all prior negotiations, discussions, correspondence, communications,
understandings and agreements between the parties relating to the subject matter of
this Agreement, including, without limitation, the Prior Agreement, except as set
forth in Section 21 hereof.
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Section 23. Survival of Operative Sections.
Upon any termination of Employee’s employment, the provisions of Section 8
through Section 25 of this Agreement (together with any related definitions set
forth in Section 1 hereof) shall survive to the extent necessary to give effect to
the provisions thereof.
Section 24. Conditional Upon Closing of Transactions.
This Agreement shall be conditioned upon the closing of the transactions
contemplated by the Acquisition Agreement. In the event that the Acquisition
Agreement terminated prior to the closing of the transactions contemplated thereby,
this Agreement shall be void ab initio.
Section 25. Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed to be an original but all of which together shall constitute one and the
same instrument. The execution of this Agreement may be by actual or facsimile
signature.
* * *
[Signatures to appear on the following page]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
| TECO TRANSPORT
CORPORATION |
|||||
| By: | /s/ X. Xxxxxxx | ||||
| Title: | President | ||||
| EMPLOYEE |
|||||
| /s/ Xxxx X. XxXxxxx | |||||
| Xxxx X. XxXxxxx | |||||
[Signature Page to XxXxxxx Employment Agreement]
