EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT 10.4
This
Executive Employment Agreement (“Agreement”) is entered into
by and between North American Galvanizing & Coatings, Inc., a Delaware
corporation (“Employer”), and Xxxxxx X. Xxxxx (“Employee”), to be effective on
April 1, 2007 (the “Effective Date”).
WITNESSETH:
WHEREAS,
Employer is desirous of employing Employee pursuant to the terms and conditions
and for the consideration set forth in this Agreement, and Employee is desirous
of continuing in the employ of Employer pursuant to such terms and conditions
and for such consideration.
NOW,
THEREFORE, for and in consideration of the mutual promises, covenants, and
obligations contained herein, Employer and Employee agree as
follows:
ARTICLE
1 : EMPLOYMENT
AND DUTIES
1.1. Employer
agrees to employ Employee, and Employee agrees to be employed by Employer,
beginning as of the Effective Date and continuing for three (3) years or until
March 31, 2010 (the “Term”), subject to the terms and conditions of
this Agreement.
1.2. Employee
shall continue to be employed as Chief Executive Officer and President of
Employer. Employee will continue to serve in the assigned position
and to perform diligently and to the best of Employee's abilities the duties and
services pertaining to such position as he has done in the
past. Employee also agrees to continue to serve as a Director
on Employer’s Board of Directors and to stand for reelection at the request of
the Nominating Committee throughout the Term.
ARTICLE
2 : COMPENSATION
AND BENEFITS
2.1. During
the Term, Employer shall pay Employee a base salary at an annual rate of Three
Hundred Twenty-five Thousand Dollars ($325,00.00). The base salary
may not be decreased at any time during the Term and may be increased by
Employer’s Board of Directors at anytime. The base salary shall be
paid in accordance with Employer's standard payroll practice for its executives
or senior managers.
2.2. Employee
shall be eligible to receive incentive bonuses as may be provided from time to
time by Employer’s Board of Directors.
2.3. As a
Director, Employee shall be eligible to participate in and receive benefits or
compensation pursuant to the Director Stock Unit Program and to receive any
other benefits or compensation that are or may become available to Directors of
Employer’s Board of Directors.
2.4. Employee
shall be eligible to receive stock options and stock appreciation rights as
provided under the North American Galvanizing & Coatings, Inc. 2004
Incentive Stock
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Plan, as
amended and restated (“the Incentive Stock Plan”), pursuant to the terms of the
Incentive Stock Plan and as determined by Employer’s Board of
Directors.
2.5. Employee
shall be entitled to twenty (20) days of paid vacation per year at the
reasonable and mutual convenience of Employer and Employee.
2.6. From and
after the Effective Date, Employer shall pay, or reimburse Employee, for all
ordinary, reasonable and necessary expenses which Employee incurs in performing
his duties under this Agreement including, but not limited to, travel,
entertainment, professional dues and subscriptions, and all dues, fees an
expenses associated with membership in various professional, business and civic
associations and societies of which Employee's participation is in the best
interest of Employer.
2.7. During
the Term and while Employee is employed by Employer, and in addition to any
group term life insurance otherwise generally provided to executives or senior
managers of Employer, Employer may purchase and maintain at its
expense term life insurance on the life of Employee payable to
Employer as a beneficiary.
2.8. While
employed by Employer, Employee shall be allowed to participate, on the same
basis generally as other employees of Employer, in all general employee benefit
plans and programs, including improvements or modifications of the same, which
on the Effective Date or thereafter are made available by Employer to all or
substantially all of Employer's executives or senior managers. Such
benefits, plans, and programs may include, without limitation, medical health,
and dental care, life insurance, disability protection, and qualified retirement
plans. Except as specifically provided herein, nothing in this
Agreement is to be construed or interpreted to provide greater rights,
participation, coverage, or benefits under such benefit plans or programs than
provided to executives or senior managers pursuant to the terms and conditions
of such benefit plans and programs.
2.9. Employer
may withhold from any compensation , benefits, or amounts payable under this
Agreement all federal, state, city, or other taxes as may be required pursuant
to any law or governmental regulation or ruling.
ARTICLE
3 : TERMINATION
PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH TERMINATION:
3.1. Employee's
employment with Employer shall be terminated (i) upon the death of Employee,
(ii) upon Employee's permanent disability (permanent disability being defined as
Employee's physical or mental incapacity to perform his usual duties with such
condition likely to remain continuously and permanently); provided, however,
that in such event, Employee's employment shall be continued hereunder for a
period of not less than one year from the date of such disability with
Employee's base salary during such period to be reduced by any Employer-financed
disability benefits.
3.2. If
Employee's employment is terminated by reason of a “Voluntary Termination” (as
hereinafter defined) or by the Employer for “Cause” (as hereinafter defined),
all future compensation to which Employee is otherwise entitled and all future
benefits for
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which
Employee is eligible shall cease and terminate as of the date of
termination. If Employee’s employment is terminated by reason of a
Voluntary Termination or for Cause, Employee shall be entitled to pro rata base
salary through the date of such termination and shall be entitled to any
individual bonuses or individual incentive compensation not yet paid but due
under Employer's plans but shall not be entitled to any other payments by or on
behalf of Employer except for those which may be payable pursuant to the terms
of Employer's employee benefit plans. For purposes of this Section
3.2, a “Voluntary Termination” of the employment relationship by Employee prior
to expiration of the Term shall be a termination of Employment in the sole
discretion of and at the election of Employee, other than (i) a termination of
Employee's employment because of a breach by Employer of any material provision
of this Agreement which remains uncorrected for thirty (30) days following
written notice of such breach by Employee to employer; (ii) a
termination by either Employer or Employee of Employee's employment within six
(6) months of a reduction in Employee’s rank or responsibility with Employer or
a “Change in Control” (as hereinafter defined); or (iii) a termination by
Employee of Employee’s employment due to Employer’s request or demand that
Employee relocate his business office or residence to a location more than
fifteen (15) miles from Employee’s current business office. For
purposes of this Section 3.2, the term “Cause” shall mean any of (i) Employee's
gross negligence or willful misconduct in the performance of the duties and
services required of Employee pursuant to this Agreement; (ii) Employee's final
conviction of a felony; or (iii) Employee's material breach of any material
provision of this Agreement which remains uncorrected for thirty (30) days
following written notice to Employee by Employer of such breach.
3.3. If
Employee's employment is terminated for any reason other than for
Cause, permanent disability (as described in Sections 3.1 and 3.2
above) or a Change in Control, Employer shall pay to Employee (or his estate)
1.0 times his annual base salary, as it exists at the time of termination of
employment. Nothing contained in this Section 3.3 shall
be construed to be a waiver by Employee of any benefits accrued for or due
Employee under any employee benefit plan (as such term is defined in the
Employee's Retirement Income Security Act of 1974, as amended) maintained by
Employer.
3.4. Should
Employee or Employer decide to end the employment relationship due to a Change
in Control, Employer shall pay Employee 2.99 times his
annual base salary, as it exists at the time of termination of
employment. A Change of Control means a change in control of
Employer of a nature that would be required to be reported in response to item
6(e) of Schedule 14A of Regulation 14A promulgated under
the Securities Exchange Act of 1934, as amended (“the 1934 Act”), as
in effect at the time of such “Change in Control”, provided that such a Change
in Control shall be deemed to have occurred at such time as:
(i) any
“person” (as that term is used in Sections 13(d) and 14(d)(2) of the 1934 Act),
is or becomes the beneficial owner (as defined in Rule 13d-3 under the 0000 Xxx)
directly or indirectly, of securities representing 30% or more of the combined
voting power for election of Directors of the then outstanding
securities of Employer or any successor to Employer;
(ii) during
any period of two consecutive years or less, individuals who at the beginning of
such period constitute the Board of Directors of Employer cease, for any
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reason,
to constitute at least a majority of the Board of Directors, unless the election
or nomination for election of each new Director was approved by a vote of at
least two-thirds of the Directors then still in office who were Directors at the
beginning of the period; or
(iii) the
shareholders or the Board of Directors of Employer approve any reorganization,
merger, consolidation or share exchange as a result of which the common stock of
Employer shall be sold, changed, converted or exchanged into or for securities
of another corporation or any dissolution or liquidation of Employer or any sale
or the disposition of 50% or more of the assets or business of
Employer.
3.5. Termination
of the employment relationship does not terminate those obligations imposed by
this Agreement which are continuing obligations, including, without limitation,
Employee’s
obligations under Articles 4 and 5.
ARTICLE
4 : OWNERSHIP
AND PROTECTION OF INTELLECTUAL PROPERTY AND CONFIDENTIAL
INFORMATION:
4.1. All
information, ideas, concepts, improvements, discoveries, and inventions, whether
patentable or not, which are conceived, made developed or acquired by Employee,
individually or in conjunction with others, during Employee’s employment by
Employer (whether during business hours or otherwise and whether on Employer’s
premises or otherwise) which relate to Employer’s business, products or services
(including, without limitation, all such information relating to corporate
opportunities, research, financial and sales data, pricing and training terms,
evaluations, opinions, interpretations, acquisition prospects, the identity of
customers or their requirements, the identity of key contacts within the
customer’s organizations or within the organization of acquisition prospects, or
marketing and merchandising techniques, prospective names, and marks), and all
writings or materials of any type embodying any of such items, shall be
disclosed to Employer and are and shall be the sole and exclusive property of
Employer.
4.2. Employee
acknowledges that the businesses of Employer and its affiliates are highly
competitive and that their strategies, methods, books, records, and documents,
their technical information concerning their products, equipment, services and
processes, procurement procedures and pricing techniques, the names of an other
information (such as credit and financial data) concerning their customers and
business affiliates, all comprise confidential business information and trade
secrets which are valuable, special, and unique assets which Employer, or its
affiliates use in their business to obtain a competitive advantage over their
competitors. Employee further acknowledges that protection of such
confidential business information and trade secrets against unauthorized
disclosure and use is of critical importance to Employer, and its affiliates in
maintaining their competitive position. Employee hereby agrees that
Employee will not at any time during or after his employment by Employer, make
any unauthorized disclosure of any confidential business information or trade
secretes of Employer, or its affiliates, or make any use thereof, except in the
carrying out of his employment responsibilities hereunder. The above
notwithstanding, a disclosure shall not be unauthorized if (i) it is required by
law or by a court of competent jurisdiction or (ii) it is in connection with any
judicial or other legal proceeding in which Employee’s legal rights and
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obligations
as an employee or under this Agreement are at issue; provided, however, that
Employee shall, to the extend practicable and lawful in any such events, give
prior notice to employer of his intent to disclose any such confidential
business information in such context so as to allow Employer an opportunity
(which Employee will not oppose) to obtain such protective order or similar
relief with respect thereto as it may deem appropriate.
4.3. All
written materials, records, and other document made by, or coming into the
possession of, Employee during the period of Employee’s employment by Employer
which contain or disclose confidential business information or trade secretes of
employer, or its affiliates shall be and remain the property of Employer, or its
affiliates, as the case may be. Upon termination of Employee’s
employment by Employer, for any reason, Employee promptly shall deliver the
same, and all copies thereof, to Employer.
ARTICLE
5 :
POST-EMPLOYMENT AND NON-COMPETITION OBLIGATIONS:
5.1. As part
of the consideration of the compensation and benefits to be paid to Employee
hereunder, and as an additional incentive for Employer to enter into this
Agreement, Employer and Employee agree to the non-competition provisions of this
Article 5. Employee agrees that during the period of Employee’s
non-competition obligations hereunder, Employee will not, directly or indirectly
for Employee or for others, in any geographic area or market where Employer or
any of their affiliated companies are conducting any business (other than de
minimis business operations) as of the date of termination of the Employment
relationship or have during the previous twelve months conducted any business
(other than de minimis business operations):
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(i)
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Engage
in any business directly competitive with any business (other than de
minimis business operations) conducted by Employer or any of Employer’s
affiliates;
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(ii)
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render
advice or services to, or otherwise assist, any other person, association,
or entity who is engaged, directly or indirectly, in any business directly
competitive with any business (other than de minimis business operations)
conducted by Employer or any of
Employer
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(iii)
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induce
any employee of Employer or any of its affiliates (other than Employee’s
person secretary or administrative assistant) to terminate his employment
with Employer, or its affiliates, or hire or assist in the hiring of any
such induced employee by any person, association, or entity not affiliated
with Employer.
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These
non-competition obligations shall extend until 12 months after termination of
the employment relationship between Employer and Employee. The above
notwithstanding, nothing in this Section 5.1 shall prohibit Employee from
engaging in or being employed by any entity that engages in the provision of
management consulting or other consulting services to third parties, even where
such entity on occasion renders advice or services to, or otherwise assists, any
other person, association, or entity who is engaged, directly or indirectly, in
any business directly competitive with any business conducted by Employer or any
of Employer’s affiliates,
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so long
as Employee does not personally, directly or indirectly (A) participate in
rendering such advice, services or assistance to any such competing person,
association or entity, (B) provide any information or other assistance to any
other person employed by Employee or by any such consulting entity for use,
directly or indirectly, in rendering such assistance to any competing person,
association or entity or (C) engage in any conduct which would be violative of
the provisions of Article 4 hereof.
ARTICLE
6 : MISCELLANEOUS:
6.1. For
purposes of this Agreement, (i) the terms “affiliates” or “affiliated” means an
entity who directly, or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with Employer or in which Employer
has a 50% or more equity interest, and (ii) any action or omission permitted to
be taken or omitted by Employer hereunder shall only be taken or omitted by
Employer or of any committee of the Board of Directors to which authority over
such matters may have been delegated.
6.2. For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
received by or tendered to Employee or Employer, as applicable, by pre-paid
courier or by United States registered or certified mail, return receipt
requested, postage prepaid addressed as follows:
If to Employer, to North
American Galvanizing & Coatings, Inc.
at its corporate headquarters to
the attention of the Board of Directors
of North American Galvanizing &
Coatings, Inc.
If to Employee, to his last known
personal residence.
6.3. This
Agreement shall be governed in all respects by the laws of the State of Florida,
excluding any conflict-of-law rule or principle that might refer to the laws of
another State or country.
6.4. No
failure by either party hereto at any time to give notice of any breach by the
other party of, or to require compliance with, any condition or provision of
this Agreement shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
6.5. It is a
desire and intent of the parties that the terms, provisions, covenants, and
remedies contained in this Agreement shall be enforceable to the fullest extent
permitted by law. If any such term, provision, covenant, or remedy of
this Agreement or the application thereof to any person, association, or entity
or circumstances shall, to any extent, be construed to be invalid or
unenforceable in whole or in part, then such term, provision, covenant, or
remedy shall be construed in a manner so as to permit its enforceability under
the applicable law to the fullest extent permitted by law. In any
case, the remaining provisions of this Agreement or the application thereof to
any person, association, or entity or circumstances other than those to which
they have been held invalid or unenforceable, shall remain in full force and
effect.
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6.6. This
Agreement shall be binding upon and inure to the benefit of Employer and any
other person, association, or entity which may hereafter acquire or succeed to
all or substantially all of the business or assets of Employer by any means
whether direct or indirect, by purchase, merger, consolidation, or
otherwise. Employee’s rights and obligations of Employee shall not be
voluntarily or involuntarily assigned, alienated, or transferred, whether by
operation of law or otherwise, without the prior written consent of Employer,
other than in the case of death or incompetence of Employee.
6.7. This
Agreement replaces and merges any previous agreements and discussions pertaining
to the subject matter covered herein. This Agreement constitutes the
entire agreement of the parties with regard to such subject matter, and contains
all of the covenants, promises, representations, warranties, and agreements
between the parties with respect such subject matter. Each party to
this Agreement acknowledges that no representation, inducement, promise, or
agreement, oral or written, has been made by either party with respect to such
subject matter, which is not embodied herein, and that no agreement, statement,
or promise relating to the employment of Employee by Employer that is not
contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is in writing and
signed by each party whose rights hereunder are affected thereby.
IN WITNESS WHEREOF, Employer and
Employee have duly executed this Agreement at Greenwich, Connecticut in multiple
originals to be effective on the date first stated above.
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NORTH
AMERICAN GALVANIZING & COATINGS,
INC.
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By:
/s/ Xxxxxx X. Xxxxxx
Chairman
of Board of Directors
Employee
/s/ Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx |
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