EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") dated as of March 15, 2002
("Agreement Date") by and between Amcol International Corporation, a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxxxx ("Executive"), a resident of
Illinois. In consideration of the mutual agreements contained herein, the
Company and Executive agree as follows:
Article I.
DEFINITIONS
The terms set forth below have the following meanings (such meanings to
be applicable to both the singular and plural forms, except where otherwise
expressly indicated):
1.1 "Accrued Annual Bonus" means the amount of any Annual Bonus earned
but not yet paid with respect to any Fiscal Year ended prior to the Date of
Termination.
1.2 "Accrued Base Salary" means the amount of Executive's Base Salary
which is accrued but not yet paid as of the Date of Termination.
1.3 "Affiliate" means any Person that directly or indirectly controls,
is controlled by, or is under common control with, the applicable Person. For
the purposes of this definition, the term "control" when used with respect to
any Person means the power to direct or cause the direction of management or
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise.
1.4 "Agreement" - see the introductory paragraph of this Agreement.
1.5 "Agreement Date" -- see the introductory paragraph of this
Agreement.
1.6 "Anniversary Date" means any annual anniversary of the Agreement
Date.
1.7 "Annual Bonus" - see Section 4.2.
1.8 "Annualized Bonus" means, as of any date, the greatest of the
following amounts that is determinable and applicable: (i) the Target Annual
Bonus for the Fiscal Year during which the Date of Termination occurs; and (ii)
the average of the Annual Bonuses paid or payable to Executive in respect of the
three most recent Fiscal Years ended on or before such date; provided that, in
subsection (ii) above, annual bonuses paid in respect of Executive prior to the
Agreement Date shall be included in such computation if, as of such date, three
years have not elapsed since the Agreement Date; and further provided that if
the Executive has not been employed by the Company for three full Fiscal Years
ended on or before the Date of Termination, any bonus payable in respect of a
partial Fiscal Year shall be annualized and the
average of the annual bonuses shall be determined based upon such annualized
bonus and the bonuses paid or payable to the Executive in respect of any other
full Fiscal Years.
1.9 "Base Salary" -- see Section 4.1.
1.10 "Beneficial Owner" means such term as defined in Rule 13d-3 (or
any successor rule) of the SEC under the Exchange Act.
1.11 "Beneficiary" - see Section 9.6.
1.12 "Board" means the Board of Directors of the Company.
1.13 "Cause" means any of the following:
(a) Executive's commission of a felony or misdemeanor that
involves fraud, dishonesty or moral turpitude,
(b) Executive's willful or intentional material breach of this
Agreement, or
(c) willful or intentional material misconduct by Executive in
the performance of his duties under this Agreement.
For purposes of clauses (b) and (c) of the preceding sentence, Cause shall not
include bad judgment or negligence which results from the Executive's good faith
efforts to perform his duties.
1.14 "Change of Control" means any one or more of the following:
(a) any person (as such term is used in Rule 13d-5 under the
Exchange Act) or group (as such term is defined in Section 3(a)(9) and
13(d)(3) of the Exchange Act), other than a Subsidiary, any employee
benefit plan (or any related trust) of the Company or any of its
Subsidiaries or any Excluded Person, becomes the Beneficial Owner of
50.1% or more of the common stock of the Company or of Voting
Securities representing 50.1% or more of the combined voting power of
the Company (such a person or group, a "50.1% Owner"), except that (i)
no Change of Control shall be deemed to have occurred solely by reason
of such beneficial ownership by a corporation with respect to which
both more than 49.9% of the common stock of such corporation and Voting
Securities representing more than 49.9% of the aggregate voting power
of such corporation are then owned, directly or indirectly, by the
persons who were the direct or indirect owners of the common stock and
Voting Securities of the Company immediately before such acquisition in
substantially the same proportions as their ownership, immediately
before such acquisition, of the common stock and Voting Securities of
the Company, as the case may be and (ii) such corporation shall not be
deemed a 50.1% Owner; or
(b) the Incumbent Directors (determined using the Agreement
Date as the baseline date) cease for any reason to constitute at least
one-half of the directors of the Company then serving; or
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(c) immediately prior to the consummation by the Company of a
merger, reorganization, consolidation, or similar transaction, or a
plan or agreement for the sale or other disposition of all, or
substantially all of, the consolidated assets of the Company or a plan
of liquidation of the Company (any of the foregoing transactions, a
"Reorganization Transaction") which is not an Exempt Reorganization
Transaction (provided however, there shall be no Change of Control
unless the Reorganization Transaction is actually consummated); or
(d) the approval by the stockholders of the Company of a plan
of liquidation of the Company which, based on information included in
the proxy and other written materials distributed to the Company's
stockholders in connection with the solicitation by the Company of such
stockholder approval, is not expected to qualify as an Exempt
Reorganization Transaction; or
(e) if the Executive's primary responsibility is being the
President of a Subsidiary, the sale by the Company of all of its stock
in the Subsidiary or the sale or other disposition of all of the assets
of the Subsidiary.
Notwithstanding the occurrence of any of the foregoing events, a Change of
Control shall not occur with respect to a Executive if, in advance of such
event, the Executive agrees in writing that such event shall not constitute a
Change of Control.
1.15 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
1.16 "Company" -- see the introductory paragraph to this Agreement.
1.17 "Date of Termination" means the date of the receipt of the Notice
of Termination by Executive (if such Notice is given by the Company) or by the
Company (if such Notice is given by Executive), or any later date, not more than
15 days after the giving of such Notice, specified in such notice; provided,
however, that:
(i) if Executive's employment is terminated by reason of
death, the Date of Termination shall be the date of Executive's death;
and
(ii) if Executive's employment is terminated by reason of
Disability, the Date of Termination shall be the 30th day after
Executive's receipt of the physician's certification of Disability,
unless, before such date, Executive shall have resumed the full-time
performance of Executive's duties; and
(iii) if Executive terminates his employment without Good
Reason or if the Company terminates Executive's employment without
Cause, the Date of Termination shall be the 90th day after the giving
of such Notice; and
(iv) if no Notice of Termination is given, the Date of
Termination shall be the last date on which Executive is employed by
the Company.
1.18 "Disability" means a mental or physical condition which renders
Executive unable or incompetent to carry out the material job responsibilities
which such Executive held or
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the material duties to which Executive was assigned at the time the disability
was incurred, which has existed for at least six months and which in the
certified opinion of a physician mutually agreed upon by the Company and
Executive (which agreement neither party shall unreasonably withhold) is
expected to be permanent or to last for an indefinite duration or a duration in
excess of six months.
1.19 "Employment Period" - see Section 3.1.
1.20 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.21 "Excluded Person" means any of the Xxxx Xxxxxxxx Trust, Xxxxxxx X.
Xxxxxx, Xxxxxxx X. Xxxxxx or any Named Executive, any Affiliates or Family
Member of any of the foregoing and any group (as such term is defined in Section
3(a)(9) and 13(d)(3) of the Exchange Act) of which any of the foregoing is a
member.
1.22 "Executive" - see the introductory paragraph of this Agreement.
1.23 "Exempt Reorganization Transaction" means a Reorganization
Transaction which results in (i) the Persons who were the direct or indirect
owners of the outstanding common stock and Voting Securities of the Company
immediately before such Reorganization Transaction becoming, immediately after
the consummation of such Reorganization Transaction, the direct or indirect
owners of both more than 49.9% of the then-outstanding common stock of the
Surviving Corporation and Voting Securities representing more than 49.9% of the
aggregate voting power of the Surviving Corporation, in substantially the same
respective proportions as such Persons' ownership of the common stock and Voting
Securities of the Company immediately before such Reorganization Transaction; or
(ii) the Excluded Person owning 50% or more of the common stock of the Surviving
Corporation or Voting Securities representing 50% or more of the combined voting
power of the Surviving Corporation.
1.24 "Family Member" means, with respect to the applicable Person, a
spouse, ancestor, lineal descendant, or spouse of a lineal descendant, including
without limitation descendants by adoption.
1.25 "Fiscal Year" means the fiscal year used in connection with the
preparation of the consolidated financial statements of the Company.
1.26 "Good Reason" means the occurrence of any one of the following
events unless Executive specifically agrees in writing that such event shall not
be Good Reason:
(a) any material breach of the Agreement by the Company,
provided, however, that no breach of this Agreement shall constitute
Good Reason unless Executive gives the Company 30 days' prior written
notice of such breach and the Company fails to cure such breach within
the 30-day period;
(b) the failure of either the Company to assign this Agreement
to a successor of the Company or failure of a successor of the Company
to expressly assume and agree to be bound by the Agreement; or
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(c) a Termination of Employment by Executive for any reason or
no reason during the 30-day period commencing six months after a Change
of Control.
In the event of the occurrence or omission constituting Good Reason other than
an event described in subsection (c) above, Executive may within 90 days after
such event occurs notify the Company of the events constituting such Good Reason
by a Notice of Termination. In the event of the occurrence constituting Good
Reason in subsection (c) above, Executive may within the 30 day period
commencing six months after a Change of Control notify the Company of the events
constituting such Good Reason by a Notice of Termination.
1.27 "including" means including without limitation.
1.28 "Incumbent Directors" means, as of any specified baseline date,
individuals then serving as members of the Board who were members of the Board
as of the date immediately preceding such baseline date; provided that any
subsequently-appointed or elected member of the Board whose election, or
nomination for election by stockholders of the Company or the Surviving
Corporation, as applicable, was approved by a vote or written consent of at
least one-half of the directors then comprising the Incumbent Directors shall
also thereafter be considered an Incumbent Director, unless the initial
assumption of office of such subsequently-elected or appointed director was in
connection with (i) an actual or threatened election contest, including a
consent solicitation, relating to the election or removal of one or more members
of the Board, (ii) a "tender offer" (as such term is used in Section 14(d) of
the Exchange Act), (iii) a proposed Reorganization Transaction, or (iv) a
request, nomination or suggestion of any Beneficial Owner of Voting Securities
representing 35% or more of the aggregate voting power of the Voting Securities
of the Company or the Surviving Corporation, as applicable.
1.29 "Named Executive" means any individual listed on Exhibit A except
to the extent the individual had a termination of employment not less than 120
days prior to the applicable event potentially constituting a Change of Control
and any other employee or officer of the Company designated by the Board and who
is a party to an agreement substantially in the same form as this Agreement
(with variation in the amount of compensation and benefits payable under the
agreement) and entered into by the employee or officer not less than 120 days
prior to the applicable event potentially constituting a Change of Control.
1.30 "Notice of Termination" means a written notice given in accordance
with Section 9.11 which sets forth (a) the specific termination provision in
this Agreement relied upon by the party giving such notice, (b) in reasonable
detail the specific facts and circumstances claimed to provide a basis for such
Termination of Employment, and (c) if the Date of Termination is other than the
date of receipt of such Notice of Termination, the Date of Termination.
1.31 "Person" means any individual, sole proprietorship, partnership,
joint venture, limited liability company, trust, unincorporated organization,
corporation, institution, public benefit corporation, entity or government
instrumentality, division, agency, body or department.
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1.32 "Prorata Annual Bonus" means the product of (i) the Annual Bonus
that Executive would have earned for the Fiscal Year during which the
Executive's Date of Termination occurs based upon the Company's achievement of
the Target Annual Goals during such Fiscal Year, multiplied by (ii) a fraction
of which the numerator is the number of days which have elapsed in such Fiscal
Year through the Date of Termination and the denominator of which is 365.
1.33 "Prorata Annualized Bonus" means the product of (i) the
Executive's Annualized Bonus, multiplied by (ii) a fraction of which the
numerator is the number of days which have elapsed in such Fiscal Year through
the Date of Termination and the denominator of which is 365.
1.34 "Reorganization Transaction" -- see the definition of "Change of
Control."
1.35 "Subsidiary" means, with respect to any Person, (a) any
corporation of which more than 50% of the Voting Securities are at the time,
directly or indirectly, owned by such Person, and (b) any partnership or limited
liability company in which such Person has a direct or indirect interest
(whether in the form of voting or participation in profits or capital
contribution) of more than 50%.
1.36 "Surviving Corporation" means the corporation resulting from a
Reorganization Transaction or, if securities representing more than 50% of the
aggregate Voting Power of such resulting corporation are directly or indirectly
owned by another corporation, such other corporation.
1.37 "Target Annual Bonus" -- see Section 4.2.
1.38 "Target Annual Goals" -- see Section 4.2.
1.39 "Tax Gross-Up Payment" means an amount payable to Executive such
that after payment of Taxes on such amount there remains a balance sufficient to
pay the Taxes being reimbursed.
1.40 "Taxes" means the incremental federal, state, local and foreign
income, employment, excise and other taxes payable by Executive with respect to
any applicable item of income.
1.41 "Termination For Good Reason" means a Termination of Employment by
Executive for a Good Reason.
1.42 "Termination of Employment" means a termination by the Company or
Executive of Executive's employment.
1.43 "Termination Without Cause" means a Termination of Employment by
the Company for any reason other than Cause or Executive's death or Disability.
1.44 "Transitional Services Period" - see Section 6.3.
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1.45 "Voting Securities" of a corporation means securities of such
corporation that are entitled to vote generally in the election of directors of
such corporation, but not including any other class of securities of such
corporation that may have voting power by reason of the occurrence of a
contingency.
Article II.
DUTIES
2.1 Duties. During the Employment Period, the Company shall employ
Executive as President of American Colloid Company, and in connection therewith,
the Executive shall perform such duties and responsibilities as may be assigned
to him from time to time by, or under the authority of, the Board, the Chief
Executive Officer of the Company or any of their designees, and in the absence
of such assignment, such duties customary to such office as is necessary to the
operations of the Company. Executive shall devote all of his business time,
attention and effort during normal business hours, excluding any periods of
disability, vacation, or sick leave to which Executive is entitled, to the
affairs of the Company and shall use his best efforts to promote the interests
of the Company.
2.2 Other Activities. Executive may serve on civic or charitable boards
or committees, deliver lectures, fulfill speaking engagements or teach at
educational institutions, and manage personal investments; provided that such
activities do not significantly interfere with the performance of Executive's
duties under this Agreement. Executive may serve on corporate board or
committees with the prior written consent of the Board.
Article III.
EMPLOYMENT PERIOD
3.1 Employment Period. Subject to the termination provisions
hereinafter provided, the term of Executive's employment under this Agreement
(the "Employment Period") shall begin on the Agreement Date and end on the
Anniversary Date which is three years after such date or, if later, such later
date to which the Employment Period is extended pursuant to the following
sentence. On the date which is two and one-half years after the Agreement Date
and thereafter, the Employment Period (assuming that an Expiration Notice to the
effect that the Agreement shall expire on the Anniversary Date which is three
years after the Agreement Date has not been delivered by the Executive or
Company to the other prior to the date which is two and one-half years after the
Agreement Date) shall be automatically extended each day by one day to create a
new six month term until, at any time after the date which is two and one-half
years after the Agreement Date the Company delivers written notice (an
"Expiration Notice") to Executive or Executive delivers an Expiration Notice to
the Company, in either case, to the effect that the Agreement shall expire on a
date specified in the Expiration Notice (the "Expiration Date") that is not less
than 6 months after the date the Expiration Notice is delivered to the Company
or the Executive, respectively. The Employment Period shall end prior to the end
of the Employment Period as described above upon the Executive's Date of
Termination even if the Executive continues to provide the services described in
Section 6.3(e). The
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employment of Executive by the Company shall not be terminated other than in
accordance with Article VI.
Article IV.
COMPENSATION
4.1 Salary. During the Employment Period, the Company shall pay or
cause to be paid to Executive in accordance with its normal payroll practices
(but not less frequently than monthly) an annual salary at a rate of $ 196,000
per year ("Base Salary"). During the Employment Period, the Base Salary shall be
reviewed at least annually and may be increased from time to time as shall be
determined by the Company. After any such increase, the term "Base Salary" shall
thereafter refer to the increased amount. Any increase in Base Salary shall not
limit or reduce any other obligation of the Company to Executive under this
Agreement. Base Salary shall not be reduced at any time without the express
written consent of Executive.
4.2 Annual Bonus.
(a) The Company shall pay or cause to be paid to Executive an
annual cash bonus ("Annual Bonus") in accordance with the terms hereof
for each Fiscal Year which begins or ends during the Employment Period.
Executive shall be eligible for an Annual Bonus based upon target
performance goals (the "Target Annual Goals"), as determined by the
Compensation Committee of the Board on an annual basis, which provides
for a payment of at least 60.0% of Executive's Base Salary ("Target
Annual Bonus") upon the Executive's achievement of the Target Annual
Goals. The Target Annual Goals shall be set as described above no later
than February 28 of each Fiscal Year except that in the case of the
2001 Fiscal Year if the Target Annual Goals have not been set prior to
the Agreement Date, the Target Annual Goals shall be set within the
first 60 days after the Agreement Date.
(b) The Company shall pay or cause to be paid the entire
Annual Bonus that is payable with respect to a Fiscal Year in cash as
soon as practicable after the Company can determine whether and the
degree to which Target Annual Goals have been achieved following the
close of such Fiscal Year. Any such Annual Bonus shall in any event be
paid within 90 days after the end of the Fiscal Year.
Article V.
OTHER BENEFITS
5.1 Stock Option, Restricted Stock and Other Equity Incentive Plans. In
addition to Base Salary and an Annual Bonus, Executive shall be eligible to
participate during the Employment Period in all stock option, restricted stock
and other equity incentive plans, practices, policies and programs of the
Company, in accordance with their terms as in effect from time to time. If a
Change of Control occurs during the Employment Period (or, if applicable, the
Transitional Services Period), all outstanding stock options, restricted stock
and
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other equity compensation granted to Executive (whether before, on or after the
Agreement Date) shall become fully vested and exercisable.
5.2 Incentive, Savings and Retirement Plans. In addition to Base Salary
and Annual Bonus, Executive shall be entitled to participate during the
Employment Period in all incentives (other than those provided for in Section
5.1), savings and retirement plans, practices, policies and programs that are
from time to time applicable to any other comparable senior executive of the
Company including any supplemental executive retirement plan, in accordance with
their terms as in effect from time to time.
5.3 Welfare Benefits. During the Employment Period, Executive and his
family shall be eligible to participate in, and shall receive all benefits
under, welfare benefit plans, practices, policies and programs provided by the
Company (including medical, prescription, dental, disability, salary
continuance, employee life, group life, dependent life, accidental death and
travel accident insurance plans and programs) applicable to any other comparable
senior executive of the Company, in accordance with their terms as in effect
from time to time.
5.4 Fringe Benefits. During the Employment Period, Executive shall be
entitled to fringe benefits applicable to any other comparable senior executive
of the Company, in accordance with their terms as in effect from time to time.
5.5 Vacation. During the Employment Period, Executive shall be entitled
to paid vacation time in accordance with the plans, practices, policies, and
programs applicable to any other comparable senior executive of the Company, in
accordance with their terms as in effect from time to time, but in no event
shall such vacation time be less than four weeks per calendar year.
5.6 Expenses. During the Employment Period, Executive shall be entitled
to receive prompt reimbursement for all reasonable employment-related expenses
incurred by Executive upon the receipt by the Company of an accounting in
accordance with practices, policies, and procedures applicable to any comparable
senior executive of the Company, in accordance with their terms as in effect
from time to time.
Article VI.
TERMINATION BENEFITS
6.1 Termination for Cause or Other than for Good Reason, etc. If the
Company terminates Executive's employment for Cause or Executive terminates his
employment other than for Good Reason, death or Disability, the Company shall
pay to Executive immediately after the Date of Termination an amount equal to
the sum of Executive's Accrued Base Salary and Accrued Annual Bonus and
Executive shall not be entitled to receive any severance payment.
6.2 Termination for Death or Disability Prior to Change of Control or
More than Seven Months after a Change of Control. If Executive's employment
terminates due to his death or Disability prior to a Change of Control or more
than seven months after a Change of Control, the Company shall pay to Executive
or his Beneficiaries, as the case may be, (i) immediately
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after the Date of Termination an amount which is equal to the sum of Executive's
Accrued Base Salary and Accrued Annual Bonus, and (ii) at the time described in
Section 4.2(b), an amount which is equal to the Executive's Prorata Annual
Bonus.
6.3 Termination Without Cause or for Good Reason Prior to Change of
Control. In the event of a Termination Without Cause or a Termination for Good
Reason prior to a Change of Control, Executive shall receive the following:
(a) immediately after the Date of Termination, a lump sum
amount in immediately available funds equal to the sum of Executive's
Accrued Base Salary and Accrued Annual Bonus;
(b) at the time described in Section 4.2(b), an amount which
is equal to the Executive's Prorata Annual Bonus;
(c) Base Salary payable on the same basis as in effect
immediately prior to the Date of Termination for eighteen months
following the Executive's Date of Termination;
(d) immediately after the Date of Termination, a lump-sum
amount in immediately available funds of any amount then payable to
Executive pursuant to Article VIII;
(e) during the period (the "Transitional Services Period")
beginning on the Executive's Date of Termination and ending on the
earliest of (i) eighteen months after the Executive's Date of
Termination (ii) the date on which the Executive accepts a position
with another employer, (iii) the date on which Executive breaches any
of the provisions of Sections 7.1 and 7.2, and (iv) the date on which
the Executive terminates his employment with the Company, the Executive
shall remain an employee of the Company and shall only perform such
transitional assignments for the Company as may be assigned to him from
time to time by the Chief Executive Officer;
(f) the benefits specified in Sections 5.2 (other than those
provided by tax-qualified plans), 5.3 and 5.4 to which Executive is
entitled as of the Date of Termination during the Transitional Services
Period; provided that any coverage required by the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended, ("COBRA") shall begin
after the end of the Transitional Services Period; and
(g) for purposes of the Company's stock option plans,
restricted stock plans and other equity compensation plans, the
Executive shall be considered an employee of the Company for all
purposes under such plans through the end of the Transitional Services
Period except Executive shall not be eligible for new grants under such
plans.
Notwithstanding any provisions of this Section 6.3 to the contrary, if
Executive breaches any or all of the provisions of Sections 7.1 and 7.2, the
payment of the Prorata Annual Bonus pursuant to Section 6.3(b) and the
continuation of Base Salary and benefits pursuant to Sections 6.3(c), 6.3(f)
(other than COBRA), and 6.3(g) shall cease upon such breach. In addition to the
foregoing, and to protect and compensate the Company in the event of such breach
by the
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Executive, the Company shall be entitled to any and all remedies at law and
equitable relief as described in Section 7.3.
6.4 Termination Without Cause or for Good Reason On or After Change of
Control. In the event that the Executive has a Termination Without Cause or a
Termination for Good Reason on or after a Change of Control, the Executive shall
receive the following:
(a) immediately after the Date of Termination, a lump sum
amount in immediately available funds equal to the sum of Executive's
Accrued Base Salary, Accrued Annual Bonus and Prorata Annualized Bonus;
(b) immediately after the Date of Termination, a lump sum
amount in immediately available funds equal to two times the sum of (i)
the Executive's Base Salary and (ii) the Executive's Annualized Bonus;
(c) the benefits specified in Sections 5.2 (other than those
provided by tax-qualified plans), 5.3 and 5.4 to which Executive is
entitled as of the Date of Termination for two years following his Date
of Termination on the same basis as if Executive was employed by the
Company during such two year period; provided, that if any of the
foregoing benefits described in 5.3 cannot be provided by the Company
under the applicable benefit plan, the Executive shall receive in lieu
of such benefits a cash lump sum payment immediately after the Date of
Termination equal to two times the Company's annual contributions and
premiums on behalf of the Executive to such plan (determined based upon
the year in which the Date of Termination occurs) together with a Tax
Gross-Up Payment for any Taxes payable by Executive on such payments;
and further provided that any coverage required by COBRA shall begin
two years after the Date of Termination (or, if earlier, as of the date
on which the Executive's benefit giving rise to COBRA ceases); and
(d) immediately after the Date of Termination, a lump-sum
amount in immediately available funds of any amount then payable to
Executive pursuant to Article VIII.
Notwithstanding any provisions of this Section 6.4 to the contrary, if
Executive breaches any or all of the provisions of Sections 7.1 and 7.2, the
continuation of benefits pursuant to Section 6.4(c) shall cease upon such breach
and, to prevent the Executive's unjust enrichment, the Executive shall
immediately pay the Company an amount equal to (i) the amount that the Executive
received from the Company pursuant to this Section 6.4, multiplied by (ii) a
fraction of which the numerator is the number of days remaining from the date of
the breach through the first anniversary of the Executive's Termination of
Employment and the denominator of which is 365. In addition to the foregoing,
and to protect and compensate the Company in the event of such breach by the
Executive, the Company shall be entitled to any and all remedies at law and
equitable relief as described in Section 7.3.
6.5 Termination for Death or Disability within Seven Months of a Change
of Control. In the event that the Executive has a Termination of Employment due
to death or Disability within seven months after a Change of Control, the
Executive's Beneficiaries shall receive the
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compensation and benefits described in Section 6.4 except that the continued
benefits (or cash in lieu thereof) described in Section 6.4(c) shall be limited
to the welfare benefits specified in Section 5.3.
6.6 Imminent Control Change. If an Imminent Control Change Date (as
defined below) occurs on or within 30 days after the date on which the Company
delivers a Notice of Termination to Executive terminating Executive's employment
not for Cause and if a Change of Control occurs within 180 days after delivery
of the Notice, the Executive's Termination of Employment pursuant to the Notice,
shall be deemed a Termination of Employment Without Cause on or after a Change
of Control and the Executive's rights and obligations shall be determined under
Section 6.4 rather than Section 6.3. Any payments or benefits to be received by
the Executive pursuant to Section 6.4 shall be reduced by any payments or
benefits made or provided pursuant to Section 6.3. If an Imminent Control Change
Date occurs on or within 30 days after the date on which the Executive has a
Termination of Employment due to death or Disability and if a Change of Control
occurs within 180 days after death or Disability, the Executive's Termination of
Employment due to death or Disability shall be deemed a Termination of
Employment due to death or Disability on or after a Change of Control and the
Executive's Beneficiaries' rights and obligations shall be determined under
Section 6.5 rather than Section 6.2. Any payments or benefits to be received by
the Executive's Beneficiaries pursuant to Section 6.5 shall be reduced by any
payments or benefits made or provided pursuant to Section 6.2. "Imminent Control
Change Date" means any date on which occurs (a) a presentation to the Company's
stockholders generally or any of the Company's directors or executive officers
of a proposal or offer for a Change of Control, (b) the public announcement
(whether by advertisement, press release, press interview, public statement, SEC
filing or otherwise) of a proposal or offer for a Change of Control, or (c) such
proposal or offer remains effective and unrevoked.
6.7 Other Rights. This Agreement shall not prevent or limit Executive's
continuing or future participation in any benefit, bonus, incentive or other
plan, program or policy provided by the Company and for which Executive may
qualify, nor shall this Agreement limit or otherwise affect such rights as
Executive may have under any other agreements with the Company. Amounts which
are vested benefits or which Executive is otherwise entitled to receive under
any plan, program or policy and any other payment or benefit required by law at
or after the Date of Termination shall be payable in accordance with such plan,
program or policy or applicable law except as expressly modified by this
Agreement.
6.8 Termination Rights. Executive recognizes and agrees that the
Company has the right to terminate his employment for any reason or no reason
and that upon such termination the Executive's sole right is to receive
compensation and benefits in accordance with the terms of this Agreement.
Article VII.
COVENANTS
7.1 Non-Disclosure and Non-Solicitation. Executive acknowledges that
the successful marketing and development of the Company's products requires
substantial time and
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expense. Such efforts utilize and generate valuable confidential and proprietary
information, of which Executive will obtain knowledge during the course of his
employment with the Company. As used herein, "Confidential Information" means
any information of the Company that the Company considers to be proprietary and
treats as confidential or information of any third party that the Company is
under an obligation to keep confidential, including but not limited to the
following: (i) trade secrets, confidential knowledge, data or other proprietary
information relating to products, processes, know-how, designs, formulas,
developmental or experimental work, (ii) employment status, salaries and other
personnel information, decisions to offer employment, pre-employment testing and
screening results, citizenship status, disability status, performance issues,
executive evaluations, medical problems of executives and executives' families,
garnishments and levies against wages, contents of employment agreements,
statements regarding the financial condition of the Company or any subsidiary or
affiliated entity, payments made to or expenses incurred by the Company or any
of its executives, shareholders or directors, discounts given by the Company,
vendors and other parties, minutes of Board meetings of the Company or any
subsidiary or affiliated entities, contents of contracts, legal matters by or
against the Company or any subsidiary or affiliated entities, business
strategies, plans, proposals, names of customers and potential customers; and
(iii) other information or materials of the Company marked or noticed by the
Company as being confidential, whether constituting a trade secret or not, and
whether proprietary or not, which are of value to the Company. For purposes of
this Agreement, Confidential Information includes the foregoing and other
information protected under the Illinois Trade Secrets Act. Confidential
Information does not include: (i) information that at the time of disclosure is
in the public domain through no fault of Executive; (ii) information received
from a third party outside of the Company that was disclosed without a breach of
any confidentiality obligation; (iii) information approved for public release by
written authorization of the Company; or (iv) information that is required by
law or an order of any court, agency or proceeding to be disclosed. Executive
acknowledges and agrees that the Company shall retain exclusive ownership of all
right, title, and interest in the Confidential Information, including any and
all worldwide copyrights, trade secrets, patent, and confidential and
proprietary information rights. Executive agrees to undertake the following
obligations, which Executive acknowledges to be reasonably designed to protect
the Company's legitimate business interests without unnecessarily or
unreasonably restricting Executive's post-employment opportunities:
(a) Executive agrees that he will not at any time, whether
during or after the cessation of his employment, reveal or permit any
other person or entity to reveal, any of the Confidential Information
to any person or any entity, except, and only to the extent, as may be
required in the ordinary course of performing Executive's assigned
duties as an Executive of the Company, and Executive agrees to keep
secret, and take all necessary precautions against disclosure of, all
Confidential Information and all matters entrusted to him and not to
use or attempt to use any Confidential Information in any manner that
may cause injury or loss, or may be calculated to cause injury or loss,
whether directly or indirectly, to the Company or its customers;
(b) Executive agrees that during and after his employment he
shall not remove, copy, duplicate or otherwise reproduce, use or permit
to be used any notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data, documentation or
other materials of any nature relating to any matter within the
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scope of the business of the Company or concerning any of its dealings
or affairs except as required to perform Executive's duties for the
Company;
(c) Upon cessation of his employment relationship with the
Company, Executive shall immediately deliver to the Company all
Confidential Information and other materials relating to the Company in
his possession or delivered to him by the Company, including computer
programs, files, notes, records, memoranda, reports, lists, drawings,
sketches, specifications, data, charts, and other documents, materials
and things ("Materials"), whether or not containing Confidential
Information, whether or not prepared by Executive, it being agreed that
all Materials shall be and remain the sole and exclusive property of
the Company;
(d) Without limiting the obligations of Section 7.1(c),
Executive agrees that while Executive is employed by the Company prior
to his Date of Termination and for a period of one year following his
Date of Termination he will not, whether alone or as employee, owner,
partner, officer, director, consultant, agent, executive, independent
contractor, or stockholder of any firm, corporation or other commercial
enterprise, directly or indirectly solicit business from: (i) any
customer of the Company with which Executive had contact, participated
in the contact, or about which Executive had knowledge of Confidential
Information by reason of Executive's employment with the Company within
the one year period preceding the Date of Termination, or (ii) any
current customer prospect of the Company for whom Executive directly or
indirectly assisted in the preparation or submission of a proposal made
by the Company to such customer prospect during the one year period
preceding the Date of Termination, unless the Company acknowledges in
writing its intent not to further pursue such customer prospect;
provided, further, that Executive shall, however, be permitted to own
securities of any public company not in excess of 5% of any class of
such securities and to own stock, partnership interests or other
securities of any non-public entity not in excess of 5% of any class of
such securities, and such ownership shall not be considered to be in
competition with the Company; and
(e) Except as may be required in the ordinary course of
performing his duties as an employee of the Company, while employed
prior to his Date of Termination and during the one year period
immediately following the Date of Termination, Executive shall not,
directly or indirectly, solicit or attempt to solicit any employee of
the Company to work for any person, partnership or entity other than
the Company, or engage in any activity that would cause any such
employee to violate any agreement with the Company, or dissuade, or
attempt to dissuade, any such employee from faithfully discharging such
employee's contractual and fiduciary obligations to serve the Company's
interests with undivided loyalty.
7.2 Non Competition. Without limiting the obligation imposed by Section
7.1, and to more fully protect the Confidential Information, Executive hereby
agrees that while he is employed by the Company prior to the Date of Termination
and for a period of one year following the Date of Termination, he will not,
directly or indirectly, anywhere in the world where the Company conducts
business, render services to any Conflicting Organization in any capacity in
which the Confidential Information of the Company would reasonably be considered
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to be useful to the Conflicting Organization; provided, however, that Executive
may render services to a Conflicting Organization whose business is diversified
(and which has separate and distinct divisions), as long as such services are
being rendered to a part of the business that is separate and distinct from the
part of the business that renders such person or entity a Conflicting
Organization.
(a) If, at the time of enforcement of Sections 7.1 and 7.2, a
court shall hold that the duration, scope, area or activity
restrictions stated herein are unreasonable under circumstances then
existing, the parties agree that the maximum duration, scope, area or
activity restrictions reasonable and enforceable under such
circumstances shall be substituted for the stated duration, scope, area
or activity restrictions.
(b) "Conflicting Organization" means for the purposes of this
Section, any person or entity which is engaged in or about to become
engaged in, research, development, production, manufacturing,
importation, marketing, licensing, selling, or servicing of a
Conflicting Product.
(c) "Conflicting Product" means any product, process, system
or service of any person or organization other than the Company or an
Affiliate, in existence or under development, which is the same as or
similar to or competes with a product, process, system or service upon
which Executive works or has worked during the three year period ending
on his Date of Termination, or about which Executive acquired or
acquires Confidential Information.
7.3 Remedies. Executive recognizes and agrees that a breach of any or
all of the provisions of Sections 7.1 and 7.2 will constitute immediate and
irreparable harm to the Company for which damages cannot be readily calculated
and for which damages are an inadequate remedy. Accordingly, Executive
acknowledges that in addition to any and all remedies at law, the Company shall
be entitled to specific performance or injunctive or other equitable relief to
prevent the breach or threatened breach of Executive's obligations under this
Agreement.
7.4 Intellectual Property. During the employment period, Executive
shall disclose immediately to the Company all ideas, inventions and business
plans that he makes, conceives, discovers or develops during the course of his
employment with the Company, including any inventions, modifications,
discoveries, developments, improvements, computer programs, processes, products
or procedures (whether or not protectable upon application by copyright, patent,
trademark, trade secret or other proprietary rights) ("Work Product") that: (i)
relate to the business of the Company or any customer or supplier to the Company
or any of the products or services being developed, manufactured, sold or
otherwise provided by the Company or that may be used in relation therewith; or
(ii) result from tasks assigned to Executive by the Company; or (iii) result
from the use of the premises or personal property (whether tangible or
intangible) owned, leased or contracted for by the Company. Executive agrees
that any Work Product shall be the property of the Company and, if subject to
copyright, shall be considered a "work made for hire" within the meaning of the
Copyright Act of 1976, as amended (the "Act"). If and to the extent that any
such Work Product is found as a matter of law not to be a "work made for hire"
within the meaning of the Act, Executive expressly assigns to the Company all
right, title and
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interest in and to the Work Product, and all copies thereof, and the
copyright, patent, trademark, trade secret and all their proprietary rights in
the Work Product, without further consideration, free from any claim, lien for
balance due or rights of retention thereto on the part of Executive.
(a) To the extent applicable, pursuant to Illinois Executive
Patent Act, the Company hereby notifies Executive that the preceding
paragraph does not apply to any inventions for which no equipment,
supplies, facility, or trade secret information of the Company was used
and which was developed entirely on the Executive's own time, unless:
(i) the invention relates (a) to the Company's business, or (b) to the
Company's actual or demonstrably anticipated research or development,
or (ii) the invention results from any work performed by the Executive
for the Company.
(b) Executive agrees that upon disclosure of Work Product to
the Company, Executive will, during his employment and at any time
thereafter, at the request and cost of the Company all such documents
and perform all such acts as the Company or its duly authorized agents
may reasonably require: (i) to apply for, obtain and vest in the name
of the Company alone (unless the Company otherwise directs) letters
patent, copyrights or other analogous protection in any country
throughout the world, and when so obtained or vested to renew and
restore the same; and (ii) to defend any opposition proceedings in
respect of such applications and any opposition proceedings or
petitions or applications for revocation of such letters patent,
copyright or other analogous protection.
(c) In the event that the Company is unable, after reasonable
effort, to secure Executive's signature on any letters patent,
copyright or other analogous protection relating to Work Product,
whether because of Executive's physical or mental incapacity or for any
other reason whatsoever, Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as his
agent and attorney-in-fact, to act for and on his behalf to execute and
file any such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters
patent, copyright and other analogous protection with the same legal
force and effect as if personally executed by Executive.
Article VIII.
CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY
8.1 Tax Gross-Up Payment. If at any time or from time to time it shall
be determined that any payment to Executive pursuant to this Agreement or any
other payment or benefit from the Company, any Affiliate, any shareholder of the
Company or any other person would be subject to the excise tax imposed by
Section 4999 of the Code or any similar tax payable under any United States
federal, state, local, foreign or other law, then Executive shall receive and
the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to
all such excise taxes and other Taxes. The Tax Gross-Up Payment is intended to
compensate Executive for all such excise taxes and any federal, state, local,
foreign or other income, employment, or excise taxes or other taxes payable by
Executive with respect to the Tax Gross-Up Payment.
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Article IX.
MISCELLANEOUS
9.1 Approvals. The Company represents and warrants to Executive it has
taken all corporate action necessary to authorize this Agreement.
9.2 Full Settlement. The exclusive method for the Company to terminate
its obligations to provide compensation or benefits to Executive pursuant to
Articles IV and V of this Agreement is to terminate Executive's employment in
compliance with all applicable requirements of Sections 6.1, 6.2, 6.3, 6.4 or
6.5 of this Agreement, as applicable, and to make the payments and provide the
benefits specified in such applicable Section.
9.3 No Mitigation. In no event shall Executive be obligated to seek
other employment or take any other action to mitigate the amounts payable to
Executive under any of the provisions of this Agreement, nor shall the amount of
any payment hereunder be reduced by any compensation earned as a result of
Executive's employment by another employer, except that any continued welfare
benefits provided for by Section 6.3(f) or Section 6.4(c) shall not duplicate
any benefits that are provided to Executive and his family by such other
employer and shall be secondary to any coverage provided by such other employer.
9.4 Enforcement.
(a) If Executive incurs legal, accounting, expert witness or
other fees, costs or expenses in an effort to establish entitlement to,
or obtain compensation or benefits or Tax Gross-Up Payment under this
Agreement, the Company shall reimburse Executive for such fees and
expenses if the Executive prevails (after exhaustion of all available
judicial remedies) and provide the Executive with a Tax Gross-Up
Payment for any Taxes payable by Executive on such reimbursements.
(b) If the Company fails to pay any amount provided under this
Agreement when due, the Company shall pay interest on such amount at an
annual rate equal to the lesser of (i) (A) the highest rate of interest
charged by the Company's principal lender on its revolving credit
agreements plus 200 basis points, or (B) in the absence of such a
lender, 200 basis points over the prime commercial lending rate
announced by The Wall Street Journal in effect from time to time during
the period of such nonpayment, or (ii) the highest legally-permissible
interest rate allowed to be charged under applicable law.
9.5 Release. Notwithstanding any provisions of this Agreement to the
contrary, the Company's obligations to make payments and to provide benefits
under Sections 6.3, 6.4 and 6.5, other than the obligation to pay Accrued Base
Salary and Accrued Annual Bonus, are expressly conditioned upon the Executive's
execution of a mutual release and waiver substantially in the form attached
hereto as Exhibit A and the expiration of the Revocation Period as defined in
the release.
9.6 Beneficiary. If Executive dies prior to receiving all of the
amounts payable to him in accordance with the terms and conditions of this
Agreement, such amounts shall be paid
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to the beneficiary ("Beneficiary") designated by Executive in writing to the
Company during his lifetime, or if no such Beneficiary is designated, to
Executive's estate. Such payments shall be made in a lump sum to the extent so
payable and, to the extent not payable in a lump sum, in accordance with the
terms of this Agreement. Such payments shall not be less than the amount payable
to Executive as if Executive had lived to the date of payment and were the
payee. Executive, without the consent of any prior Beneficiary, may change his
designation of Beneficiary or Beneficiaries at any time or from time to time by
submitting to the Company a new designation in writing.
9.7 Assignment; Successors. The Company may not assign its respective
rights and obligations under this Agreement without the prior written consent of
Executive except to a successor of the Company's business. This Agreement shall
be binding upon and inure to the benefit of Executive, his estate and
Beneficiaries, the Company and the successors and permitted assigns of the
Company.
9.8 Non-alienation. Except as is otherwise expressly provided herein,
benefits payable under this Agreement shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution or levy of any kind, either voluntary or
involuntary, prior to actually being received by Executive, and any such attempt
to dispose of any right to benefits payable hereunder shall be void.
9.9 Severability. If all or any part of this Agreement is declared to
be unlawful or invalid, such unlawfulness or invalidity shall not serve to
invalidate any portion of this Agreement not declared to be unlawful or invalid.
Any provision so declared to be unlawful or invalid shall, if possible, be
construed in a manner which will give effect to the terms of such provision to
the fullest extent possible while remaining lawful and valid.
9.10 Amendment; Waiver. This Agreement shall not be amended or modified
except by written instrument executed by the Company and Executive. A waiver of
any term, covenant or condition contained in this Agreement shall not be deemed
a waiver of any other term, covenant or condition, and any waiver of any default
in any such term, covenant or condition shall not be deemed a waiver of any
later default thereof or of any other term, covenant or condition.
9.11 Notices. All notices hereunder shall be in writing and delivered
by hand, by nationally-recognized delivery service that guarantees overnight
delivery, or by first-class, registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Company, to: Chief Executive Officer
Amcol International Corporation
One North Arlington
0000 Xxxx Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxx, XX 00000-0000
If to Executive, to: (at his most recent home address or facsimile
number on file with the Company)
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Either party may from time to time designate a new address by notice given in
accordance with this Section. Notice shall be effective when actually received
by the addressee.
9.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same instrument.
9.13 Captions. The captions of this Agreement are not a part of the
provisions hereof and shall have no force or effect.
9.14 Entire Agreement. This Agreement forms the entire agreement
between the parties hereto with respect to the subject matter contained in the
Agreement and shall supersede all prior agreements, promises and representations
regarding employment, compensation, severance or other payments contingent upon
termination of employment, whether in writing or otherwise, including but not
limited to that certain change of control agreement dated September 22, 2000 by
and between the Company and the Executive.
9.15 Applicable Law. This Agreement shall be interpreted and construed
in accordance with the laws of the State of Illinois, without regard to its
choice of law principles.
9.16 Survival of Executive's Rights. All of Executive's rights
hereunder, including his rights to compensation and benefits, and his
obligations under Article VI and Article VII hereof, shall survive the
termination of Executive's employment or the termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
AMCOL INTERNATIONAL CORPORATION
By:
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Its: Chief Executive Office
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EXECUTIVE
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Xxxx X. Xxxxxxxx
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