EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Agreement is made as of the 27th day of November, 1996 between Statia
Terminals Group N. V., a Netherlands Antilles corporation, having a registered
office at L.B. Xxxxxxxxxx 0, Xxxxxxx, Xxxxxxxxxxx Antilles (the "Company");
Statia Terminals, Inc., a Delaware corporation, with offices at 000 Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx Xxxxx, Xxxxxxx 00000 (the "Subsidiary"); and Xxxx X.
Xxxxxxxx, an individual with an address of 0000 Xxxxxx Xx., Xx. Xxxxxxxxxx, XX
00000 (the "Employee").
R E C I T A L S
WHEREAS, the Company has entered into a certain Amended and Restated Stock
Purchase and Sale Agreement dated as of November 4, 1996, among the Company and
certain other corporations (the "Purchase and Sale Agreement") pursuant to which
the Company shall, directly or indirectly, acquire all of the issued and
outstanding shares of the common stock of the Subsidiary;
WHEREAS, the Employee has been and is presently in the employ of the
Subsidiary and is presently serving as Vice President, Marine Fuels of the
Subsidiary;
WHEREAS, the Employee possesses an intimate knowledge of the business and
affairs of the Subsidiary and its policies, procedures, methods and personnel;
WHEREAS, the Company desires to secure the continued services and
employment of the Employee on behalf of the Subsidiary, and the Employee desires
to be employed by the Subsidiary, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. Employment. The Company hereby agrees to cause the Subsidiary to employ
and continue to employ the Employee as Vice President, Marine
EXHIBIT 10.9
Page 2
Fuels of the Subsidiary and the Subsidiary hereby agrees to employ and continue
to employ the Employee as Vice President, Marine Fuels, and the Employee accepts
such employment for the term of the employment specified in Section 3 hereof
(the "Employment Term"). During the Employment Term, the Employee shall serve as
the Vice President, Marine Fuels of the Subsidiary, performing such duties and
having such authority as shall be reasonably required of an executive-level
employee of the Subsidiary, reporting only to the President and Chief Executive
Officer and the Board of Directors of the Subsidiary (the "Board"), and shall
have such other powers and perform such other additional executive duties as may
from time to time be assigned to him by the President and Chief Executive
Officer or the Board. Such duties being performed and such authority being
exercised shall be at least commensurate with the duties being performed and
authority being exercised by the Employee immediately prior to the date of this
Agreement.
2. Performance. The Employee will serve the Subsidiary faithfully and to
the best of his ability and will devote substantially all of his time, energy,
experience and talents during regular business hours and as otherwise reasonably
necessary to such employment, to the exclusion of all other business activities;
provided however, that such exclusion shall not prohibit the Employee from
attending to the Employee's personal matters and/or financial and investment
affairs (which financial or investment affairs shall not conflict with the
business of the Subsidiary or the Company and is subject to the provisions of
Section 12 hereof) during regular business hours as may from time-to-time be
reasonably necessary so long as attendance to such matters and affairs does not
interfere with the performance of the Employee's duties hereunder.
3. Employment Term. Subject to earlier termination pursuant to Section 7
hereof the Employment Term shall (i) begin on the date of this Agreement and
continue until December 31, 1999 and (ii) be automatically renewed for
successive two-year periods thereafter, unless, at least 90 days before the end
of the initial term or any subsequent two-year period, either party gives notice
to the other of his or its desire to terminate this Agreement, in which case it
shall terminate as of the end of such term or period. Notwithstanding the
foregoing, if after December 31, 1997, there is a Change in Control (as
hereinafter defined) which occurs during the Employment Term, the Employment
Term shall be extended automatically for a period of two years from and after
the date of such Change in Control and shall not be automatically renewed
thereafter.
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EXHIBIT 10.9
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4. Compensation.
(a) Salary. During the Employment Term, the Company shall cause the
Subsidiary to pay the Employee a base salary, payable in equal bi-weekly
installments, subject to withholding and other applicable taxes, at an
annual rate of not less than Ninety-Four Thousand Nine Hundred Sixty-Seven
U.S. Dollars ($94,967). Such base salary shall be reviewed in January,
1997, and at least annually thereafter.
(b) Cash Incentive Bonus. For the calendar year 1997 and for each
subsequent calendar year, or portion thereof, during the Employment Term, a
reasonable target EBITDA (as defined below) for each calendar year and a
target bonus for the Employee for such calendar year shall be established
by the Board in its discretion after receiving the recommendation of the
management of the Subsidiary, and as soon as practicable after the end of
each such calendar year as the actual EBITDA achieved for such calendar
year has been determined, the Company shall cause the Subsidiary to pay to
the Employee a lump sum bonus determined as follows:
-------------------------------------------------------------------------
% of Target EBITDA Achieved
% of Target Bonus to be Paid
--------------------------------------------
At Least But Less Than
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- 85 None
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85 90 85
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90 95 90
-------------------------------------------------------------------------
95 100 95
-------------------------------------------------------------------------
100 105 100
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105 110 105
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110 115 110
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115 120 115
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120 125 120
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125 and above - 125
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EXHIBIT 10.9
Page 4
If during the course of any calendar year, the Company shall sell or
otherwise dispose of five percent (5%) or more of the total assets of the
Company and its subsidiaries, the Board shall establish a revised EBITDA
target for such calendar year after receiving management's recommendation.
"EBITDA" shall mean for any period, the (a) net income (or net loss)
of the Company and its subsidiaries plus (b) the sum of (i) interest
expense, (ii) income tax expense, (iii) depreciation expense, (iv)
amortization expense, and (v) extraordinary or unusual losses deducted in
calculating net income (or net loss) less (c) extraordinary or unusual
gains added in calculating net income (or net loss), in each case
determined in accordance with generally accepted accounting principles at
the end of each such calendar year for the Company and its subsidiaries on
a consolidated basis, and plus (d) any fees paid to or expenses incurred by
the Company pursuant to the Management Agreement between the Company and an
Affiliate (as hereinafter defined) of a stockholder of the Company dated
November __, 1996.
(c) Employee Benefits. The Employee shall be entitled to and shall
receive employee benefits or participate in plans and programs maintained
by or on behalf of the Subsidiary which are otherwise made available to
employees of the Subsidiary, including but not limited to, medical, health,
accident and disability plan, cafeteria plan and 401(k) plan.
(d) Additional Benefits. In addition to the other compensation payable
to the Employee hereunder, during the Employment Term, the Company shall
cause the Subsidiary to furnish at its expense an automobile, or a
reasonable allowance in lieu thereof at the option of the Subsidiary,
office, reasonable secretarial services, and such other supplies,
equipment, facilities, services and emoluments appropriate to such
Employee's position.
(e) Paid Time Off. Employee shall be entitled to paid vacation,
holidays, and sick leave during each calendar year of employment in
accordance with policies of the Subsidiary. Vacation may only be taken at
times mutually convenient for the Subsidiary and the Employee. The
Subsidiary may elect to pay out all accrued and unused vacation time as of
December 31 of any calendar year in January of the following calendar year.
Such pay out will be at the then prevailing rate of annual compensation. No
more than four weeks vacation time may be accrued at any time.
EXHIBIT 10.9
Page 5
5. Expenses. The Employee shall be entitled to be reimbursed by the
Subsidiary for all reasonable expenses incurred by him in connection with the
performance of his duties hereunder in accordance with policies established by
the Board from time to time and upon receipt of appropriate documentation.
6. Secret Processes and Confidential Information. For the Employment Term
and thereafter (a) the Employee will not divulge, transmit or otherwise disclose
(except as legally compelled by court order, and then only to the extent
required, after prompt notice to both the Company and the Subsidiary of any such
order), directly or indirectly, other than in the regular and proper course of
business of the Company and/or the Subsidiary, any confidential knowledge or
information with respect to the operations or finances of the Subsidiary or the
Company or any of their subsidiaries or Affiliates, or with respect to
confidential or secret processes, services, techniques, customers or plans with
respect to the Company and/or the Subsidiary, and (b) the Employee will not use,
directly or indirectly, any confidential information for the benefit of anyone
other than the Company and/or the Subsidiary; provided, however, that the
Employee has no obligation, express or implied, to refrain from using or
disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than through disclosure by the
Employee.
To the greatest extent possible, any Work Product (as hereinafter defined)
shall be deemed to be "work made for hire" (as defined in the Copyright Act, 17
U.S.C.A. ss. 101 et seq., as amended) and owned exclusively by the Subsidiary.
The Employee hereby unconditionally and irrevocably transfers and assigns to the
Subsidiary all right, title and interest the Employee may currently have or in
the future may have by operation of law or otherwise in or to any Work Product,
including, without limitation, all patents, copyrights, trademarks, service
marks and other intellectual property rights. The Employee agrees to execute and
deliver to the Subsidiary any transfers, assignments, documents or other
instruments which the Company may deem necessary or appropriate to vest complete
title and ownership of any Work Product, and all rights therein, exclusively in
the Subsidiary.
During the term of this Agreement and thereafter, Employee shall not take
any action to disparage or criticize to any third parties any of the services of
the Company and/or the Subsidiary or to commit any other action that injures or
hinders the business relationships of the Company and/or the Subsidiary.
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EXHIBIT 10.9
Page 6
All files, records, documents, memorandums, notes or other documents
relating to the business of Company and/or the Subsidiary, whether prepared by
Employee or otherwise coming into his possession in the course of the
performance of his services under this Agreement, shall be the exclusive
property of Company and shall be delivered to Company and not retained by
Employee upon termination of this Agreement for any reason whatsoever.
7. Termination.
(a) Mutual Agreement. The employment of the Employee hereunder may be
terminated at any time by the mutual agreement of the parties hereto.
(b) Termination for Substantial Cause. The Subsidiary may at any time
upon thirty (30) days prior written notice to the Employee, terminate the
employment of the Employee for Substantial Cause (as hereinafter defined).
(c) Termination by the Employee. The Employee shall be entitled to
terminate his employment without being in violation of any provision of
this Agreement upon 30 days prior written notice to the Subsidiary (i) for
Good Reason; (ii) upon retirement pursuant to the CBI Pension Plan, as
amended effective August 1, 1996, or pursuant to any other plan or policy
of the Subsidiary; or (iii) at any time and for any reason after the
Employee has attained the age of sixty-five (65) years.
(d) Termination by Death or Disability. The employment of the Employee
shall terminate upon the death of the Employee or the inability of the
Employee to perform his duties as a result of physical or mental disability
for an aggregate of 90 days in any 180 day period, as determined in good
faith by the Board ("Disability").
8. Definitions. For purposes of this Agreement:
(a) "Business" shall mean the business of owning, leasing or operating
petroleum and other bulk liquid blending, trans-shipment, storage or
processing facilities or providing related terminaling services such as
supply of bunker fuel for vessels, emergency and spill response services;
brokering of product trades and vessel representation.
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EXHIBIT 10.9
Page 7
(b) "Substantial Cause" shall mean:
(i) Conviction of the Employee of a crime constituting a felony
in the jurisdiction in which committed, or for any other criminal act
against the Subsidiary or the Company involving dishonesty or willful
misconduct intended to injure the Subsidiary or the Company or any
Affiliate of either of them in any substantial way (whether or not a
felony and whether or not criminal proceedings are initiated);
(ii) Failure or refusal of the Employee in any material respect
to perform his obligations under this Agreement or the duties of his
employment or to follow the lawful and proper directives of the Board,
other than by reason of a Disability provided such duties or
directives are consistent with this Agreement, and such failure or
refusal continues uncured for a period of sixty (60) days after
written notice thereof from the Subsidiary to the Employee which
specifies (i) the nature of such failure or refusal, and (ii) the
reasonable action of the Employee necessary for cure;
(iii) Any willful or intentional misconduct of the Employee
committed for the purpose, or having the reasonably foreseeable
effect, of injuring in a substantial way the Company, the Subsidiary,
or any Affiliate of either of them, or their respective businesses or
reputations; or
(iv) Any conduct by Employee that causes the Subsidiary or any of
its Affiliates to violate any state or federal law relating to the
workplace environment or any violation of any written policy of the
Subsidiary providing for termination in the event of violation of such
policy.
(a) "Good Reason" shall mean:
(i) a significant reduction in the authorities, duties, or
responsibilities of Employee other than as a result of sales of assets
as contemplated by the Purchase and Sale Agreement;
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EXHIBIT 10.9
Page 8
(ii) assignment to an office location which is more than 100
miles from the office location of the Employee as of the date of this
Agreement; or
(iii) material breach of this Agreement by the Subsidiary or the
Company which is not cured within thirty (30) days after written
notice of such breach is given by the Employee to the Company and the
Subsidiary.
(b) "Change in Control" shall mean the occurrence of any of the
following events with respect to the Company or with respect to the
Subsidiary:
(i) a merger, consolidation, combination, reorganization or other
transaction resulting in less than fifty percent (50%) of the combined
voting power of the surviving or resulting entity being owned by the
former shareholders of the Company or the Subsidiary, as applicable;
(ii) the sale or other disposition of all or substantially all of
the assets or business of the Company or the Subsidiary, as applicable
other than to an Affiliate of the Company or the Subsidiary, as
applicable; or
(iii) during any period of two (2) consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
of the Company or of the Subsidiary, as applicable, cease for any
reason to constitute at least a majority of such board, unless the
election, or nomination for the election by the shareholders of the
Company or the Subsidiary, respectively, of each new director was
approved by at least two-thirds of the directors then still in office
who were directors at the beginning of the period;
provided, however, that, the foregoing to the contrary notwithstanding, in no
event shall any Change in Control be deemed to occur, for purposes of this
Agreement, as the direct or indirect result of the occurrence of any of the
transactions contemplated under the Purchase and Sale Agreement.
8
EXHIBIT 10.9
Page 9
(c) "Affiliate" shall mean, with respect to any Person, any entity
that directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with such Person.
(d) "Person" shall mean any corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or other entity or organization.
(e) "Work Product" shall mean work product, property, data
documentation or information of any kind relating to the Business,
prepared, conceived, discovered, developed or created by the Employee for
the Subsidiary or any of the Subsidiary's Affiliates, clients or customers
while the Employee is employed by the Subsidiary.
(f) "Disability" shall have the meaning specified in Section 7(d)
hereof.
9. Directors and Officers Insurance and Indemnification. The Subsidiary
shall provide directors and officers insurance covering the Employee for events
occurring during the Employment Term on terms at least as favorable as coverage
for Directors of the Company, and the Subsidiary shall provide indemnification
to the Employee to the full extent allowed by the law of its jurisdiction of
incorporation.
10. Severance.
(a) If the Employee's employment is terminated by the Subsidiary
without Substantial Cause or by the Employee for Good Reason, then without
further liability of the Subsidiary or the Company the Employee shall be
entitled to (i) medical and dental benefits as provided immediately prior
to the date of termination which shall continue for the Severance Period
(as hereinafter defined) (which shall be terminated sooner to the extent
provided by another employer) and (ii) severance compensation for the
Severance Period following any such termination, payable in equal monthly
installments, subject to withholding and other applicable taxes, at an
annual rate equal to the Employees base rate of pay for the year of
termination. In addition, the Employee will be entitled to a pro rata
portion of the bonus compensation referred to in Section 4(b) hereof for
the year of termination only
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EXHIBIT 10.9
Page 10
as and when ordinarily determined for such year. For the purposes of this
Agreement, "Severance Period" shall mean a period commencing on the date of
any such termination and ending on the expiration of the Employment Term
(determined as of the date of such termination without giving effect to
such termination); provided, however, that the Severance Period shall not
be less than one year.
(b) If the Employee's employment is terminated for any other reason,
then without further liability of the Subsidiary or the Company, the
Employee shall be entitled to the salary, expenses and benefits accrued to
the termination date (excluding the bonus referred to in Section 4(b)
hereof).
11. Notice. Any notices required or permitted hereunder shall be in
writing, signed and shall be deemed to have been given when personally delivered
or when mailed, certified or registered mail, postage prepaid, to the following
addresses:
If to the Employee:
Xxxx X. Xxxxxxxx
0000 Xxxxxx Xx.
Xx. Xxxxxxxxxx, XX 00000
If to the Subsidiary:
Statia Terminals, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
With a copy to:
Xxxxxx Xxxxxx Partners II, L.P.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
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EXHIBIT 10.9
Page 11
and a copy to:
Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
If to the Company:
Statia Terminals Group N. V.
c/o Statia Terminals Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
With a copy to:
Xxxxxx Xxxxxx Partners II, L.P.
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
and a copy to:
Xxxx, Scholer, Fierman,
Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Each of the Employee, the Subsidiary and the Company may change its address
for purposes of this Section by sending notice to the other parties.
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EXHIBIT 10.9
Page 12
12. Non-Competition. The Employee shall not, at any time during the
Employment Term and for a period of eighteen months thereafter, directly or
indirectly, except where specifically contemplated by the terms of his
employment or this Agreement, (a) be employed by, engage in or participate in
the ownership, management, operation or control of, or act in any advisory or
other capacity for, any Competing Entity which conducts its business within the
Territory (as the terms Competing Entity and Territory are hereinafter defined);
provided, however, that notwithstanding the foregoing, the Employee may make
solely passive investments in any Competing Entity the common stock of which is
publicly held and of which the Employee shall not own or control, directly or
indirectly, in the aggregate securities which constitute 5% or more of the
voting rights or equity ownership of such Competing Entity; or (b) solicit or
divert any business or any customer from the Subsidiary or any Affiliate of the
Subsidiary or assist any person, firm or corporation in doing so or attempting
to do so; or (c) cause or seek to cause any person, firm or corporation to
refrain from dealing or doing business with the Subsidiary or any Affiliate of
the Subsidiary or assist any person, firm or corporation in doing so.
For purposes of this Section 12, (i) the term "Competing Entity" shall mean
any Person which presently or hereafter during the term hereof engages in the
Business; and (ii) the term Territory shall mean the Caribbean and the area
within a three hundred mile radius of (a) the terminal facility operated by an
Affiliate of the Subsidiary at Point Xxxxxx, Nova Scotia and (b) any terminal
hereafter operated by the Subsidiary or any Affiliate of the Subsidiary.
13. General.
(a) Governing Law; Captions. The terms of this Agreement shall be
governed by and construed under the laws of the State of Florida. Paragraph
and Section captions used herein are for convenience of reference only, and
shall not in any way affect the meaning or interpretation of this
Agreement.
(b) Assignability. The Employee may not assign his interest in or
delegate his duties under this Agreement. Notwithstanding anything else in
this Agreement to the contrary, the Subsidiary may assign this Agreement
and all rights hereunder shall inure to the benefit of the assignee or any
person, firm or corporation succeeding to all or substantially all of the
business or assets of the Subsidiary by purchase, merger or consolidation.
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EXHIBIT 10.9
Page 13
(c) Dispute Resolution. With the exception of the Company's or the
Subsidiary's right to elect to seek injunctive relief pursuant to paragraph
(g) of this Section 13, in the event of any dispute between either the
Company or the Subsidiary and the Employee arising out of or relating to
this Agreement or its termination or any other aspect of Employee's
employment, the parties hereby agree to submit such dispute to a
non-binding mediation under the American Arbitration Association's National
Rules for the Resolution of Employment Disputes; Arbitration and Mediation
Rules (the "Rules") within sixty (60) days of notice from any one of the
parties to another. Unless the parties can agree on a mediator within
thirty (30) days of such notice, mediation shall proceed pursuant to the
Rules. In the event any such dispute is not resolved by mediation, any
party hereto may initiate an action or claim to enforce any provision or
term of this Agreement. Each party shall bear its or his own costs and
expenses (including attorney's fees) associated with any mediation, action,
or claim.
(d) Binding Effect. This Agreement is for the employment of Employee,
personally, and the services to be rendered by him must be rendered by him
and no other person. This Agreement shall be binding upon and inure to the
benefit of the Company, the Subsidiary, and the Employee and, as the case
may be, their respective successors and assigns, personal representatives,
heirs and legatees.
(e) Entire Agreement; Modification. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter
hereof and may not be modified or amended in any way except in writing by
the parties.
(f) Duration. Notwithstanding the term of employment hereunder, this
Agreement shall continue for so long as any obligations remain under this
Agreement hereto, including without limitation any obligations of the
Company or the Subsidiary under Sections 9, 10 or 13 of this Agreement.
(g) Survival. The covenants set forth in Sections 6 and 12 of this
Agreement shall survive and shall continue to be binding upon Employee
notwithstanding the termination of this Agreement for any reason
whatsoever. The covenants set forth in Section 6 and Section 12 of this
Agreement shall be deemed and construed as separate agreements independent
of any other provision of this Agreement. The existence of any claim or
cause of action by Employee against Company and/or
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EXHIBIT 10.9
Page 14
Subsidiary, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by Company or Subsidiary of any or
all covenants. It is expressly agreed that the remedy at law for the breach
of any such covenant is inadequate and that injunctive relief shall be
available to prevent the breach or any threatened breach thereof.
(h) Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions hereof will not in any way be
affected or impaired thereby and the parties shall in good faith agree on a
modification of the invalid, illegal or unenforceable provision which
renders it valid, legal or enforceable (as the case may be) and which as
closely as possible reflects the original intent of the parties.
(i) Guaranty of Company. The Company hereby unconditionally guarantees
to Employee the full and timely performance by Subsidiary of its
obligations under this Agreement.
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EXHIBIT 10.9
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
hereunto executed this Agreement the day and year first written above.
Statia Terminals, Inc.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
Statia Terminals Group N. V.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Atorney-in-Fact
EMPLOYEE
/s/ Xxxx X. Xxxxxxxx
------------------------------
Xxxx X. Xxxxxxxx
15
