EXHIBIT 10.1
EXECUTION COPY
EMPLOYMENT AGREEMENT
THIS AGREEMENT, (the "Agreement") dated and effective as of the signing
date indicated on the signature page below (the "Effective Date") is made by and
between Dayton Superior Corporation, an Ohio corporation (the "Company"), and
Xxxxxx X. Xxxxxx (the "Executive").
RECITALS:
WHEREAS, the Company desires to employ the Executive and the Executive
desires to be employed by the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which consideration are hereby acknowledged, the parties agree as
follows:
1. Certain Definitions.
(a) "Annual Base Salary" shall have the meaning set forth in
Section 4(a).
(b) "Board" shall mean the Board of Directors of the Company.
(c) The Company shall have "Cause" to terminate the Executive's
employment hereunder upon the Executive's:
(i) willful or gross misconduct or material failure in
the performance of his duties and responsibilities hereunder (or in the
event of any termination pursuant to Section 7(a)(ii) hereof, duties
and responsibilities commensurate with the Executive's position), other
than any such failure resulting from the Executive's Disability, which
misconduct or failure continues beyond 14 days after the company
notifies the Executive, in writing, of the Company's finding of such
misconduct or failure; or
(ii) conviction of or plea of guilty or nolo contendre to,
a felony, or a crime involving moral turpitude; or
(iii) fraud or personal dishonesty involving the Company's
assets.
(d) "Change in Control" shall mean a change in ownership or
control of the Company effected through a transaction or series of transactions
(other than an offering of Common Stock to the general public through a
registration statement filed with the Securities and Exchange Commission)
whereby any "person" or related "group" of "persons" (as such terms are used in
Sections 13(d) and 14(d)(2) of the Exchange Act) (other than the Company, any of
its subsidiaries, an employee benefit plan maintained by the Company or any of
its subsidiaries, a Principal Stockholder or a "person" that, prior to such
transaction, directly or indirectly controls, is controlled by, or is under
common control with, the Company or a Principal Stockholder)
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directly or indirectly acquires beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of securities of the Company possessing more than
fifty percent (50%) of the total combined voting power of the Company's
securities outstanding immediately after such acquisition.
(e) "Common Stock" shall mean the Class A common shares of the
Company, without par value.
(f) "Company" shall have the meaning set forth in the preamble
hereto.
(g) "Compensation Committee" shall mean the Compensation Committee
of the Board.
(h) "Date of Termination" shall mean (i) if the Executive's
employment is terminated by reason of his death, the date of his death, and (ii)
if the Executive's employment is terminated pursuant to Sections 5(a)(ii) -
(vi), the date specified in the Notice of Termination.
(i) "Disability" shall mean the inability of the Executive to
perform his duties and responsibilities as an officer or employee of the Company
or any of its subsidiaries on a full-time basis for more than six months within
any 12-month period because of a physical, mental or emotional incapacity
resulting from injury, sickness or disease.
(j) "EBITDA" with respect to any period of determination shall
mean the sum of the following (without duplication): (i) consolidated net income
(or loss) of the Company and, if applicable, its subsidiaries for such period
(exclusive of the effect of extraordinary items), as determined by the Company's
independent certified public accountants in accordance with generally accepted
accounting principles consistently applied, as such principles are in effect at
the date hereof, plus (ii) amounts deducted from net revenues in determining
such net income (or loss) on account of (w) depreciation and amortization, (x)
interest expense (net of interest income), (y) all taxes on income and (z) any
management or acquisition fee charged to the Company by the Principal
Stockholder.
(k) "Effective Date" shall have the meaning set forth in the
recitals hereto.
(l) "Employment Date" shall have the meaning set forth in Section
2.
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(n) "Executive" shall have the meaning set forth in the preamble
hereto.
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(o) "Management Stockholders' Agreement" shall mean that certain
Management Stockholders' Agreement to be entered into by and among the Company,
Odyssey Investment Partners Fund, LP, the Executive and the other employee
stockholders party thereto, effective as of June 16, 2000, as amended from time
to time.
(p) "Notice of Termination" shall have the meaning set forth in
Section 5(b).
(q) "Option Agreements" shall mean any written agreements between
the Company and the Executive pursuant to which the Executive holds or is
granted options to purchase Common Stock.
(r) "Option Plan" shall mean the 2000 Stock Option Plan of Dayton
Superior Corporation, as amended from time to time.
(s) "Principal Stockholder" shall mean Odyssey Investment Partners
Fund, LP and any of its Permitted Assignees (as such term is defined in the
Management Stockholders' Agreement).
(t) "Prohibited Competition" shall have the meaning set forth in
Section 7(b).
(u) "Purchased Stock" Shall have the meaning set forth in Section
4(d).
(v) "Signing Bonus" Shall have the meaning set forth in Section
4(b)(ii).
(w) "Term" shall have the meaning set forth in Section 2.
2. Employment.
The Company shall continue to employ the Executive and the Executive
shall remain in the employ of the Company, for the period set forth in this
Section 2, in the positions set forth in Section 3 and upon the other terms and
conditions herein provided. The initial term of employment under this Agreement
(the "Initial Term") shall be for the period beginning on August 11, 2003 (the
"Employment Date") and ending on the second anniversary thereof unless earlier
terminated as provided in Section 5; provided, however, that the Agreement shall
automatically be extended, beginning on the second anniversary of the Employment
Date, for successive one-year periods (each, an "Extension Term") unless so
earlier terminated under Section 5 or unless the Executive or the Company shall
give written notice to the other of his or its intention not to renew this
Agreement no less than 120 days prior to the scheduled expiration of the Initial
Term or the then applicable Extension Term (the Initial Term and any Extension
Term shall collectively be referred to hereunder as the "Term").
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3. Position, Duties and Location.
(a) During the Term, the Executive shall serve as the Chief
Financial Officer of the Company, with such customary responsibilities, duties
and authority as may from time to time be assigned to the Executive by the Chief
Executive Officer. During the Term, the Executive will report to the Chief
Executive Officer. During the period of the Executive's employment as Chief
Financial Officer, the Executive shall devote substantially all his working time
and efforts to the business and affairs of the Company; provided, that it shall
not be considered a violation of the foregoing for the Executive to (i) with the
prior consent of the Board (which consent shall not unreasonably be withheld),
serve on corporate, industry, civic or charitable boards or committees and (ii)
manage his personal investments, so long as none of such activities
significantly interferes with the Executive's duties hereunder.
(b) The Executive's principal place of employment shall be the
Company's offices in Dayton, Ohio. The Executive shall promptly, and in no event
later than December 31, 2003, relocate his household from the Union, Kentucky
area to the Dayton, Ohio area.
4. Compensation and Related Matters.
(a) Annual Base Salary. During the Term, Company shall pay to the
Executive a base salary at a rate that is no less than $250,000 per annum (the
"Annual Base Salary"), payable in accordance with the Company's normal payroll
practices. The rate of the Annual Base Salary shall be reviewed by the
Compensation Committee on or prior to each anniversary of the Employment Date
during the Term and may be increased, but not decreased, upon such review.
(b) Bonuses.
(i) Annual Bonus. For each fiscal year during the Term,
the Executive shall be eligible to participate in the Company's annual
cash bonus plan in accordance with terms and provisions which shall be
consistent with the Company's executive bonus policy in effect as of
the Effective Date. Notwithstanding the foregoing, the Executive's
annual bonus for the 2003 fiscal year shall be at least $125,000,
payable in accordance with normal payment terms of the bonus policy.
(ii) Signing Bonus. No later than five business days
following the Executive's receipt of his first paycheck in accordance
with the Company's normal payroll practices, the Company shall pay to
the executive a one-time signing bonus of $175,000 (the "Signing
Bonus"). If for any reason the Executive fails to relocate his
household to the Dayton, Ohio area in accordance with the terms of
Section 3(b), then the Executive shall immediately, upon such failure,
return the full amount of the Signing Bonus to the Company.
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(c) Long Term Incentive Compensation. During the Term, the
Executive shall be entitled to participate in the Option Plan or any successor
plan thereto.
(d) Stock Purchase.
(i) Not more than three (3) business days after the
Executive receives the Signing Bonus, the Executive shall purchase from
the Company 1,042 shares of Common Stock (the "Purchased Stock") at the
price of $24.00 per share. Such shares shall be subject to the terms
of, and such purchase shall be contingent upon, the Executive's
execution of, the Management Stockholders' Agreement. As of the date
the Executive purchases the Purchased Stock from the Company, the
Executive shall deliver to the Company as consideration for the
Purchased Stock the sum of $25,008 in cash. In addition, the parties
shall enter into a subscription agreement or other similar agreement
evidencing the purchase and sale of the Purchased Stock, containing
customary terms and conditions consistent with the Company's past
practices.
(ii) Not more than three (3) business days after the
Executive receives his annual cash bonus for fiscal years 2003 and
2004, the Executive shall purchase in each year an additional $12,500
worth of Common Stock at the then current fair market value of the
Common Stock. Such shares shall be subject to the terms of the
Management Shareholders' Agreement. As of the dates the Executive
purchases the additional shares, the Executive shall deliver to the
Company the sum of $12,500 in cash, and the parties shall enter into a
subscription agreement or other similar agreement evidencing the
purchase and sale of the additional shares.
(e) Benefits. During the Term, the Executive shall be entitled to
participate in the employee benefit plans, programs and arrangements of the
Company in effect as of the date hereof (or, to the extent determined by the
Board or Compensation Committee, in effect hereafter) which are applicable to
the senior officers of the Company generally, subject to and on a basis
consistent with the terms, conditions and overall administration thereof.
Furthermore, during the Term, the benefits provided under such employee benefit
plans, programs and arrangements (other than any stock option, restricted stock
or other equity based plan) shall, in the aggregate, be substantially equivalent
to the benefits provided by the Company as of the Effective Date (other than
pursuant to any stock option, restricted stock or other equity based plan).
(f) Expenses. Pursuant to the Company's customary policies in
force at the time of payment, the Executive shall be reimbursed for all expenses
properly incurred by the Executive on the Company's behalf in the performance of
the Executive's duties hereunder.
(g) Vacation. During the Term, the Executive shall be entitled to
twenty (20) vacation days annually, and to compensation in respect of earned but
unused vacation days in accordance with the Company's vacation policy as in
effect as of the Effective Date. The Executive shall
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also be entitled to paid holidays in accordance with the Company's practices
with respect to same as in effect as of the Effective Date.
(h) Automobile. During the Term, the Company shall provide the
Executive with an annual personal automobile allowance of $13,800. In addition
to such annual allowance, upon furnishing of adequate documentation, the Company
shall reimburse the Executive for reasonable, documented fuel and maintenance
expenses incurred by the Executive with respect to such personal automobile.
(i) Club Membership. During the Term, the Company shall pay on
behalf of the Executive, or reimburse the Executive for, membership fees payable
in connection with the Executive's membership in one country, alumni, or social
club of the Executive's choice, provided that such costs to the Company shall
not in the aggregate exceed $6,000 per year. The Company shall pay on behalf of
the Executive, or reimburse the Executive for, the actual cost of an initiation
fee, if any, for such country, alumni or social club up to $5,000.
(j) Relocation Expenses.
(i) Upon furnishing of adequate documentation, the
Company shall reimburse the Executive for reasonable, customary,
documented, out-of-pocket expenses, not to exceed $100,000, associated
with the relocation of the Executive and his family from the Union,
Kentucky area to the Dayton, Ohio area. Such expenses shall include
moving expenses, meals, closing costs, real estate commissions,
attorney's fees, and other similar expenses incurred in connection with
the relocation of his household and the sale of his principal
residence.
(ii) The Executive shall promptly sell his principal
residence in Union, Kentucky in a commercially reasonable manner. The
Company shall reimburse the Executive for the positive difference, if
any, between the market value (as determined below) of his current
residence and the sale price of such residence. The market value of the
Executive's home shall be determined by a nationally recognized
appraisal firm retained by the Company. The Company shall pay the
expenses for such appraisal.
5. Termination.
(a) The Executive's employment hereunder may be terminated by the
Company or the Executive, as applicable, without any breach of this Agreement
only under the following circumstances and in accordance with subsection (b):
(i) Death. The Executive's employment hereunder shall
terminate upon his death.
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(ii) Disability. If the Company determines in good faith
that the Executive has incurred a Disability, the Company may give the
Executive written notice of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company
shall terminate effective on the 30th day after receipt of such Notice
of Termination by the Executive, provided that within such 30 day
period the Executive shall not have returned to full-time performance
of his duties.
(iii) Termination for Cause. The Company may terminate the
Executive's employment hereunder for Cause.
(iv) Termination without Cause. The Company may terminate
the Executive's employment hereunder without Cause.
(v) Resignation. The Executive may resign his employment
hereunder at any time for any reason.
(b) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive under this Section 5 (other than
termination pursuant to subsection (a)(i)) shall be communicated by a written
notice from the Board or the Executive to the other, indicating the specific
termination provision in this Agreement relied upon, setting forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated, and specifying a
Date of Termination (a "Notice of Termination"). For purposes of this Agreement,
the "Date of Termination" shall be (i) with respect to any termination by reason
of the Executive's Disability, 30 days following the receipt of the notice
described in Section 5(a)(ii); (ii) with respect to the Executive's termination
for Cause, the date of the Notice of Termination, and (iii) with respect to the
Executive's termination of employment for any other reason, at least 30 days
following the date of the Notice of Termination. The Executive shall continue to
receive his Annual Base Salary, annual bonus and all other compensation and
perquisites referenced in Section 4 through the Date of Termination.
6. Severance Payments.
(a) Termination for any Reason. In the event the Executive's
employment with the Company is terminated for any reason, the Company shall pay
the Executive (or his beneficiary in the event of his death) any unpaid Annual
Base Salary that has accrued as of the Date of Termination, any unreimbursed
expenses due to the Executive and an amount for accrued but unused vacation
days. The Executive shall also be entitled to accrued, vested benefits under the
Company's benefit plans and programs as provided therein. The Executive shall be
entitled to the additional payments and benefits described below only as set
forth herein.
(b) Termination without Cause or Termination by Reason of Death or
Disability. In the event of the Executive's Termination without Cause (pursuant
to Section 5(a)(iv)) or
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termination by reason of Death or Disability (pursuant to Section 5(a)(i) or
(ii), respectively), in each case during the Term (including any Extension
Term), the Company shall pay to the Executive the amounts described in
subsection (a) and, subject to the Executive's compliance with Sections 7 and 8
and the Executive's execution of a general waiver and release of claims
agreement in the Company's customary form:
(i) pay to the Executive, for the twelve month period
following the Date of Termination, in accordance with its regular
payroll practice, his Annual Base Salary as in effect on the Date of
Termination; and
(ii) for the year in which the termination occurs, pay to
the Executive a pro-rated amount of bonus based on the Company's
executive annual bonus plan as in effect at that time; and
(iii) continue for one year the Executive's coverage under
the Company medical and dental plans and programs in which the
Executive was entitled to participate immediately prior to the Date of
Termination (or, if the Company amends, replaces or terminates any such
plan or program following such Date of Termination, the Company medical
and dental plans provided to employees similarly situated to
Executive), as if the Executive were an active employee during such
time, subject to standard employee contributions by the Executive as
are required under such plans, and further subject to the Executive's
election of "COBRA" continuation coverage during such period. All
post-employment coverage under such plans shall be co-extensive with
COBRA continuation coverage required by federal (and where applicable
by state) law, and shall cease if the Executive becomes eligible for
coverage under another employer's plans.
7. Competition.
(a) (i) The Executive shall not engage in any Prohibited
Competition (as defined below in Section 7(b)) at any time during the Term, and,
subject to subsection (ii) for a period of one year after the end of the Term.
(ii) Notwithstanding Section (a)(i), in the event that (x)
the Company gives valid notice of non-extension of the Term (y) the
Executive continues to perform services for the Company on an at-will
basis following the expiration of the Initial Term, or, as applicable,
the expiration of any Extension Term and (z) the Company terminates the
Executive's employment following the expiration of the Initial Term or,
as applicable, the expiration of any Extension Term, for any reason
other than for Cause, then, effective as of the date of such
termination (the "Termination Date"), at the Company's option, either:
(A) This Section 7 shall be null and void in all
respects; or
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(B) (1) The Executive shall not engage in any
Prohibited Competition at any time during the period of one
year following the Termination Date; and
(2) Subject to (x) the Executive's continued
compliance with Sections 7 and 8 hereof throughout such
one-year period, and (y) the Executive's execution of a
general waiver and release of claims agreement effective as of
the Termination Date in the Company's customary form, the
Company shall:
(a) Pay to the Executive, for
the twelve month period following the Termination
Date, in accordance with the Company's regular
payroll practice, the Executive's Annual Base Salary
as in effect on the Termination Date; and
(b) For the year in which the
termination occurs, pay to the Executive a pro-rated
amount of his annual bonus based on the Company's
executive annual bonus plan as in effect at that
time; and
(c) Continue for one year the
Executive's coverage under the Company's medical and
dental plans and programs in which he was entitled to
participate immediately prior to the Termination Date
(or, if the Company amends, replaces or terminates
any such plan or program following the Termination
Date, the Company's medical and dental plans provided
to employees similarly situated to the Executive), as
if the Executive was an active employee during such
time, subject to standard employee contributions by
the Executive as are required under such plans, and
further subject to the Executive's election of
"COBRA" continuation coverage during such period. All
post-employment coverage under such plans shall be
co-extensive with COBRA continuation coverage
required by federal (and where applicable by state)
law, and shall cease if you become eligible for
coverage under another employer's plans.
In the event that the Company terminates the Executive's employment
without Cause pursuant to this subsection (ii), the Company will
provide the Executive with written notice on or prior to the 10th
business day following such termination as to whether or not the
Company intends to enforce section (A) or (B) of this subsection (ii).
(b) For purposes of this Agreement, the Executive shall be
considered to engage in prohibited competition ("Prohibited Competition") if the
Executive shall: directly or indirectly, engage in or own, manage, join, operate
or control, or participate in the ownership, management, operation or control
of, or be connected as a director, officer, employee, partner, consultant or
otherwise with, or permit his name to be used by or in connection with, any
business or organization which produces, designs, conducts research on,
provides, sells, leases, distributes or markets accessories, chemicals, forming
and related products used in concrete and masonry
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construction (the "Business") which, directly or indirectly, competes with the
Business conducted by Company and its subsidiaries in North America, South
America and Europe, it being understood that the foregoing shall not limit the
Executive from making passive investments of less than 5% of the outstanding
equity securities in any entity listed for trading on a national stock exchange
or quoted on any recognized automatic quotation system.
(c) In the event any the terms of this Section 7 shall be
determined by any court of competent jurisdiction to be unenforceable by reason
of extending for too great a period of time or over too great a geographical
area or by reason of being too extensive in any other respect, it will be
interpreted to extend only over the maximum period of time for which it may be
enforceable, and/or over the maximum geographical area as to which it may be
enforceable and/or to the maximum extent in all other respects as to which it
may be enforceable, all as determined by such court in such action.
8. Nondisclosure of Proprietary Information.
(a) Except as required in the faithful performance of the
Executive's duties hereunder or pursuant to subsection (c), the Executive shall,
in perpetuity, maintain in confidence and shall not directly, indirectly or
otherwise, use, disseminate, disclose or publish, or use for his benefit or the
benefit of any person, firm, corporation or other entity any confidential or
proprietary information or trade secrets, and any other information that would
be protected under the Uniform Trade Secrets Act in Ohio, of or relating to the
Company, including, without limitation, information with respect to the
Company's operations, processes, products, inventions, business practices,
business strategy, business development, finances, principals, vendors,
distributors, suppliers, customers, potential customers, manufacturing methods,
sales methods, marketing methods, costs, prices, contractual relationships,
information systems, regulatory status, compensation paid to employees or other
terms of employment, or deliver to any person, firm, corporation or other entity
any document, record, notebook, computer program or similar repository of or
containing any such confidential or proprietary information or trade secrets.
The parties hereby stipulate and agree that as between them the foregoing
matters are important, material and confidential proprietary information and
trade secrets and affect the successful conduct of the businesses of the Company
(and any successor or assignee of the Company). The parties hereto agree that
"confidential or proprietary information" shall not include information that (i)
is a matter of public knowledge (other than by act of the Executive in violation
hereof); (ii) was provided to the Executive (without breach of any obligation of
confidence owed to the Company) by a third party which is not an affiliate of
the Company or (iii) is required to be disclosed by law or judicial or
administrative process.
(b) Upon termination of the Executive's employment with Company
for any reason and upon the Company's request, the Executive will promptly
deliver to the Company all correspondence, drawings, manuals, letters, notes,
notebooks, reports, programs, plans, proposals, financial documents, or any
other documents concerning, without limitation, the
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Company's operations, processes, products, inventions, business practices,
business strategy, business development, finances, principals, vendors,
distributors, suppliers, customers, potential customers, manufacturing methods,
sales methods, marketing methods, costs, prices, contractual relationships,
information systems, regulatory status, compensation paid to employees or other
terms of employment and/or which contain proprietary information or trade
secrets.
(c) The Executive may respond to a lawful and valid subpoena or
other legal process but shall give the Company the earliest possible notice
thereof, shall, as much in advance of the return date as possible, make
available to the Company and its counsel the documents and other information
sought and shall assist such counsel in resisting or otherwise responding to
such process.
9. Injunctive Relief.
It is recognized and acknowledged by the Executive that a breach of the
covenants contained in Sections 7 and 8 will cause irreparable damage to the
Company and its goodwill, the exact amount of which will be difficult or
impossible to ascertain, and that the remedies at law for any such breach will
be inadequate. Accordingly, the Executive agrees that in the event of a breach
of any of the covenants contained in Sections 7 and 8, in addition to any other
remedy which may be available at law or in equity, the Company shall be entitled
to specific performance and injunctive relief.
10. Survival.
The expiration or termination of the Term shall not impair the rights
or obligations of any party hereto which shall have accrued hereunder prior to
such expiration.
11. Binding on Successors.
This Agreement shall be binding upon and inure to the benefit of the
Company, the Executive and their respective successors, assigns, personnel and
legal representatives, executors, administrators, heirs, distributees, devisees,
and legatees, as applicable.
12. Governing Law.
This Agreement shall be governed, construed, interpreted and enforced
in accordance with the substantive laws of the State of Ohio.
13. Validity.
The invalidity or unenforceability of any provision or provisions of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
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14. Notices.
Any notice, request, claim, demand, document or other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex, telecopy, or
certified or registered mail, postage prepaid, as follows:
(a) If to the Company, to:
Dayton Superior Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Corporate Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Odyssey Investment Partners Fund, LP
000 Xxxx Xxxxxx
Xxxx Tower, 38th Floor
New York, New York 10017
Attention: Xxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Executive, to him at the address set forth below under his
signature, with copies to:
[ ]
or at any other address as any party shall have specified by notice in writing
to the other party in accordance with this Section 14.
15. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same Agreement.
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16. Entire Agreement.
The terms of this Agreement, together with the Management Stockholders'
Agreement, the Option Plan and the Option Agreements, are intended by the
parties to be the final expression of their agreement with respect to the
employment of the Executive by the Company and may not be contradicted by
evidence of any prior or contemporaneous agreement. The parties further intend
that this Agreement, and the aforementioned contemporaneous documents, shall
constitute the complete and exclusive statement of its terms and that no
extrinsic evidence whatsoever may be introduced in any judicial, administrative,
or other legal proceeding to vary the terms of this Agreement. Notwithstanding
any of the foregoing to the contrary, in the event of a conflict between the
terms of this Agreement and the Management Stockholders' Agreement, the terms of
this Agreement shall govern.
17. Amendments; Waivers.
This Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by the Executive and the Chief Executive officer.
By an instrument in writing similarly executed, the Executive or the Company may
waive compliance by the other party or parties with any provision of this
Agreement that such other party was or is obligated to comply with or perform;
provided, however, that such waiver shall not operate as a waiver of, or
estoppel with respect to, any other or subsequent failure. No failure to
exercise and no delay in exercising any right, remedy or power hereunder shall
preclude any other or further exercise of any other right, remedy or power
provided herein or by law or in equity.
18. No Inconsistent Actions.
The parties hereto shall not voluntarily undertake or fail to undertake
any action or course of action inconsistent with the provisions or essential
intent of this Agreement. Furthermore, it is the intent of the parties hereto to
act in a fair and reasonable manner with respect to the interpretation and
application of the provisions of this Agreement.
19. Arbitration.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before a panel
of three arbitrators in Dayton, Ohio, in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that the
Company shall be entitled to seek a restraining order or injunction in any court
of competent jurisdiction to prevent any continuation of any violation of the
provisions of Section 7 or 8 of this Agreement and the Executive hereby consents
that such restraining order or injunction may be granted without the necessity
of the Company's posting any bond; and provided further, that the Executive
shall be entitled to seek specific performance of his right to be paid until the
Date of Termination during the pendency of any dispute or controversy arising
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under or in connection with this Agreement. Each of the parties hereto shall
bear its share of the fees and expenses of any arbitration hereunder.
20. Indemnification and Insurance; Legal Expenses.
So long as the Executive has not been found by a Court to have breached
any of his obligations set forth in Sections 7 and 8, the Company shall
indemnify the Executive to the fullest extent permitted by the laws of the State
of Ohio, as in effect at the time of the subject act or omission, and shall
advance to the Executive reasonable attorneys' fees and expenses as such fees
and expenses are incurred (subject to an undertaking from the Executive to repay
such advances if it shall be finally determined by a judicial decision which is
not subject to further appeal that the Executive was not entitled to the
reimbursement of such fees and expenses) and he shall be entitled to the
protection of any insurance policies the Company shall elect to maintain
generally for the benefit of its directors and officers ("Directors and Officers
Insurance") against all costs, charges and expenses incurred or sustained by him
in connection with any action, suit or proceeding to which he may be made a
party by reason of his being or having been a director, officer or employee of
the Company or any of its subsidiaries or his serving or having served any other
enterprise as a director, officer or employee at the request of the Company
(other than any dispute, claim or controversy arising under or relating to this
Agreement). The Company covenants to maintain during the Term for the benefit of
the Executive (in his capacity as an officer and director of the Company)
Directors and Officers Insurance providing customary benefits to the Executive,
including tail and/or occurrence coverage.
21. Taxes. All payments to be made to the Executive under this Agreement will be
subject to any applicable withholding of federal, state and local income,
employment and other taxes.
22. Conflict. To the extent that there is any conflict between the terms of this
Agreement and the terms of the Option lan or the Management Stockholders'
Agreement, this Agreement shall govern.
[signature page follows]
Puisis Employment Agmt
14
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
DAYTON SUPERIOR CORPORATION
By: _______________________________________
Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
Date:
EXECUTIVE
___________________________________________
Xxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Date:
Puisis Employment Agmt
15
