EXHIBIT 10.2
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EXECUTION COPY
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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This Amended and Restated Employment Agreement (the "Agreement") is
entered into effective on November 24, 2008 (the "Effective Date") by and
between XXXXXX X. XXXXXX (the "Executive") and DAYTON SUPERIOR CORPORATION, a
Delaware corporation, and any of its subsidiaries and affiliates as may employ
Executive from time to time (collectively, and together with any successor
thereto, the "Company").
RECITALS
A. The predecessor of the Company and the Executive entered into
an Employment Agreement dated as of July 29, 2003 (the "Prior
Agreement") under which the Executive was employed to perform
services for the Company.
B. The Company and the Executive now desire to amend and restate
the Prior Agreement in certain respects.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below the parties hereto agree as follows:
1. Certain Definitions
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"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with,
such Person where "control" shall have the meaning given such term under Rule
405 of the Securities Act.
"Agreement" shall have the meaning set forth in the preamble hereto.
"Annual Base Salary" shall have the meaning set forth in Section 3(a).
"Annual Bonus Plan" shall mean the Company's annual bonus plan as
maintained by the Company and administered by the Compensation Committee.
"Board" shall mean the Board of Directors of the Company.
"Cause." The Company shall have "Cause" to terminate the Executive's
employment hereunder upon:
(a) the Executive's willful failure to substantially
perform the duties set forth in this Agreement (other
than any such failure resulting from the Executive's
Disability) which is not remedied within 30 days
after receipt of written notice from the Company
specifying such failure;
(b) the Executive's willful failure to carry out, or
comply with, in any material respect any lawful and
reasonable directive of the Board not inconsistent
with the terms of this Agreement, which is not
remedied within 30 days after receipt of written
notice from the Company specifying such failure;
(c) the Executive's commission at any time of any act or
omission that results in, or that may reasonably be
expected to result in, a conviction, plea of no
contest or imposition of unadjudicated probation for
any felony or crime involving moral turpitude;
(d) the Executive's unlawful use (including being under
the influence) or possession of illegal drugs on the
Company's premises or while performing the
Executive's duties and responsibilities under this
Agreement; or
(e) the Executive's commission at any time of any act of
fraud, embezzlement, misappropriation, material
misconduct, or breach of fiduciary duty against the
Company (or any predecessor thereto or successor
thereof).
"Change of 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 an "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) 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 50% of the total combined voting
power of the Company's securities outstanding immediately after such
acquisition.
"Common Stock" shall mean the common stock, $.01 par value per share,
of the Company.
"Company" shall have the meaning set forth in the preamble hereto.
"Compensation Committee" means the Compensation Committee of the Board.
"Date of Termination" shall mean (i) if the Executive's employment is
terminated by his death, the date of his death; (ii) if the Executive's
employment is terminated pursuant to Section 4(a)(ii) -- (iv) either the date
indicated in the Notice of Termination or the date specified by the Company
pursuant to Section 4(b), whichever is earlier; (iii) if the Executive's
employment is terminated pursuant to Section 4(a)(v) or Section 4(a)(vi), the
expiration of the then-applicable Term. The Company and the Executive shall take
all steps necessary (including with regard to any post-termination services by
the Executive) to ensure that any termination constitutes a "separation from
service" within the meaning of Section 409A, and notwithstanding anything
contained herein to the contrary, the date on which such separation takes place
shall be the "Date of Termination."
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"Disability" shall mean the absence of the Executive from the
Executive's duties with the Company on a full-time basis for a total of three
months during any six-month period as a result of incapacity due to mental or
physical illness.
"Effective Date" shall have the meaning set forth in the preamble
hereto.
"Executive" shall have the meaning set forth in the preamble hereto.
"Extension Term" shall have the meaning set forth in Section 2(b).
"Initial Term" shall have the meaning set forth in Section 2(b).
"Notice of Termination" shall have the meaning set forth in Section
4(b).
"Permitted Assignee" shall mean: (i) the Odyssey Investment Partners
Fund, LP and Odyssey Coinvestors, LLC (together the "Odyssey Stockholders"),
(ii) any general or limited partner or member of any Odyssey Stockholder (an
"Odyssey Partner"), (iii) any corporation, partnership, limited liability
company or other entity that is an Affiliate of any Odyssey Stockholder or of
any Odyssey Partner (collectively, the "Odyssey Affiliates"), (iv) any managing
director, member, general partner, director, limited partner, officer or
employee of (a) any Odyssey Stockholder, (b) any Odyssey Partner or (c) any
Odyssey Affiliate, or the heirs, executors, administrators, testamentary
trustees, legatees or beneficiaries of any of the foregoing Persons referred to
in this clause (iv) (collectively, the "Odyssey Associates"), (v) any trust, the
beneficiaries of which, or corporation, limited liability company or
partnership, the stockholders, members or general or limited partners of which,
include only Odyssey Stockholders, Odyssey Partners, Odyssey Affiliates, Odyssey
Associates, their spouses or their lineal descendants, and (v) a voting trustee
for one or more Odyssey Stockholders, Odyssey Affiliates, Odyssey Partners or
Odyssey Associates.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Principal Stockholder" shall mean Odyssey Investment Partners Fund, LP
and any of its Permitted Assignees.
"Section 409A" shall mean Section 409A of the Internal Revenue Code of
1986, as amended.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Term" shall have the meaning set forth in Section 2(b).
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2. Employment
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(a) The Company shall continue to employ the Executive, and the
Executive shall continue to be employed by the Company, for
the period set forth in Section 2(b), in the position set
forth in Section 2(c), and upon the other terms and conditions
herein provided.
(b) The initial term of the Executive's employment under this
Agreement (the "Initial Term") commenced on the effective date
of the Prior Agreement and shall continue until December 31,
2010. The employment term hereunder shall automatically be
extended for successive periods of one calendar year each
(each, an "Extension Term" and, collectively with the Initial
Term, "Term") unless either party gives notice of
non-extension to the other no later than 90 days prior to the
expiration of the Initial Term or the then-applicable
Extension Term.
(c) Position and Duties. The Executive shall serve as Executive
Vice President and 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 of the Company. Such duties,
responsibilities and authority may include services for one or
more subsidiaries or affiliates of the Company. The Executive
shall report to the Chief Executive 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. The Executive agrees to observe and comply
with the Company's rules and policies as adopted by the
Company from time to time. The Executive's principal place of
employment shall be the Company's offices in Dayton, Ohio.
3. Compensation and Related Matters
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(a) Annual Base Salary. During the Term, the Executive shall
receive a base salary at a rate of $345,000 per annum, which
shall be paid in accordance with the customary payroll
practices of the Company, subject to increase as determined by
the Compensation Committee (the "Annual Base Salary").
(b) Annual Bonus. With respect to each of the Company's fiscal
years that end during the Term, the Executive shall be
eligible to receive an annual performance-based bonus in
accordance with terms of the Annual Bonus Plan. The
Executive's annual target-level bonus under the Annual Bonus
Plan shall be equal to 75% of his Annual Base Salary.
(c) Benefits. During the Term, the Executive shall be entitled to
participate in employee benefit plans, programs and
arrangements of the Company now (or, to the extent determined
by the Board or the Compensation Committee, hereafter) in
effect which are applicable to the executives of the Company
in accordance with their terms.
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(d) 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 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.
(e) Expenses. During the Term, the Company shall reimburse the
Executive for all reasonable travel and other business
expenses incurred by him in the performance of his duties to
the Company in accordance with the Company's expense
reimbursement policy. To the extent required to comply with
Section 409A, any reimbursement of eligible expenses that are
taxable to the Executive shall be paid to the Executive within
30 days following the Executive's written request for
reimbursement; provided that the Executive provides written
request no later than 45 days prior to the last day of the
calendar year following the calendar year in which the expense
was incurred. The amount of expenses eligible for
reimbursement during any calendar year shall not affect the
amount of expenses eligible for reimbursement during any other
calendar year, and the right to reimbursement shall not be
subject to liquidation or exchange for another benefit.
(f) Stock Option. Concurrently with the execution of this
Agreement, the Company is granting to the Executive a stock
option to purchase 190,000 shares of Common Stock of the
Company.
4. Termination
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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:
(a) Circumstances.
(i) Death. The Executive's employment hereunder shall
terminate upon his death.
(ii) Disability. If the Executive has incurred a
Disability, the Company may give the Executive
written notice of its intention to terminate the
Executive's employment, provided, however, that such
notice shall not be effective prior to the earlier to
occur of (A) the first anniversary of the date the
Executive incurred the Disability or (B) the
expiration of short-term disability benefits pursuant
to any applicable Company benefit plan. In that
event, the Executive's employment with the Company
shall terminate effective on the later to occur of
(X) the 30th day after the receipt of such notice by
the Executive or (Y) the earlier to occur of the
events described in subparagraphs (A) or (B) of this
Section 4(a)(ii), provided that prior to the
effective date of such termination, the Executive
shall not have returned to full-time performance of
his duties.
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(iii) Termination for Cause. The Company may terminate the
Executive's employment for Cause.
(iv) Termination without Cause. The Company may terminate
the Executive's employment without Cause.
(v) Non-extension of Term by the Company. The Company may
give notice of non-extension to the Executive
pursuant to Section 2(b).
(vi) Non-extension of Term by the Executive. The Executive
may give notice of non-extension to the Company
pursuant to Section 2(b).
(b) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive under this
Section 4 (other than termination pursuant to paragraph
(a)(i)) shall be communicated by a written notice to the other
party hereto 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 which, if
submitted by the Executive, shall be at least 30 days
following the date of such notice (a "Notice of Termination")
provided, however, that the Company may, in its sole
discretion, change the Date of Termination to any date
following the Company's receipt of the Notice of Termination.
A Notice of Termination submitted by the Company may provide
for a Date of Termination on the date the Executive receives
the Notice of Termination, or any date thereafter elected by
the Company in its sole discretion. The failure by the Company
to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Cause shall not
waive any right of the Company hereunder or preclude the
Company from asserting such fact or circumstance in enforcing
the Company's rights hereunder.
(c) Company Obligations upon Termination. Upon termination of the
Executive's employment, the Executive (or the Executive's
estate) shall be entitled to receive (i) except in the event
of the Executive's Disability, any amount of the Executive's
Annual Base Salary through the Date of Termination not
theretofore paid, (ii) any expenses owed to the Executive
under Section 3(e), (iii) any accrued vacation pay owed to the
Executive pursuant to Section 3(d), and (iv) any amount
arising from the Executive's participation in, or benefits
under any employee benefit plans, programs or arrangements
under Section 3(c). The amounts described in clauses (i), (ii)
and (iii) above shall be paid to the Executive within 30 days
after the Date of Termination. The amounts described in clause
(iv) shall be payable in accordance with the terms and subject
to the conditions of the employee benefit plans, programs or
arrangements under Section 3(c) including, if applicable, any
death benefits. In the event of the Executive's Disability, in
lieu of Annual Base Salary during such period of Disability,
Executive shall be entitled to receive any applicable
short-term disability benefits pursuant to any applicable
Company benefit plan.
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5. Severance Payments
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(a) Termination due to Death or Disability. If the Executive's
employment shall terminate pursuant to Section 4(a)(i) due to
the Executive's death, or pursuant to Section 4(a)(ii) due to
Executive's Disability, then the Company shall pay to the
Executive (or Executive's estate) a prorated amount of the
Executive's Annual Bonus based on the Company's year-to-date
performance through the Date of Termination in relation to the
performance targets set forth in the Annual Bonus Plan (such
amount to be determined in good faith by the Compensation
Committee and payable at such time as the Executive's Annual
Bonus would otherwise have been payable pursuant to the Annual
Bonus Plan).
(b) Termination without Cause or non-extension of the Term by the
Company. If the Executive's employment shall terminate without
Cause pursuant to Section 4(a)(iv) or pursuant to
non-extension of the Term by the Company pursuant to Section
4(a)(v), the Company shall, subject to the Executive's
execution of a general waiver and release of claims agreement
in the Company's customary form ("Release"), and the Release
becoming effective and irrevocable in accordance with its
terms, within 52 days after the Date of Termination:
(i) Pay to Executive an amount equal to (i) his Annual
Base Salary, if termination occurs before a Change of
Control, payable in equal installments in accordance
with the Company's regular payroll practices during
the period commencing on the first payroll period
immediately following the date that the Release
becomes effective and irrevocable and ending on the
12 month anniversary of that first payroll period; or
(ii) 2.0 times his Annual Base Salary, if termination
occurs on or after a Change of Control, payable in
equal installments in accordance with the Company's
regular payroll practices during the period
commencing on the first payroll period immediately
following the date that the Release becomes effective
and irrevocable and ending on the second anniversary
of that first payroll period. It is expressly
understood that the Company's payment obligations
under this Section 5(b)(i) shall cease in the event
the Executive violates any covenant contained in
Section 6 or 7.
(ii) Pay to the Executive a prorated amount of the
Executive's Annual Bonus based on the Company's
year-to-date performance through the Date of
Termination in relation to the performance targets
set forth in the Annual Bonus Plan (such amount to be
determined in good faith by the Compensation
Committee and payable within 90 days after the date
the Release becomes effective and irrevocable, but in
no event later than two and one half months following
the end of the fiscal year in which the Date of
Termination occurs).
(iii) Continue for twelve months after the Date of
Termination coverage under the medical and dental
plans and programs in which the Executive was
entitled to participate immediately prior to the Date
of Termination. To the extent required to comply with
Section 409A, the continued medical and dental
benefits shall be subject to the following
requirements: (x) any reimbursement of eligible
expenses shall be paid within 30 days following the
Executive's written request for reimbursement;
provided that the Executive provides written request
no later than 45 days prior to the last day of the
calendar year following the calendar year in which
the expense was incurred; (y) the amount of expenses
eligible for reimbursement, or benefits provided,
during any calendar year shall not affect the amount
of expenses eligible for reimbursement, or benefits
to be provided, during any other calendar year; and
(z) the right to reimbursement or benefits shall not
be subject to liquidation or exchange for another
benefit.
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(c) Survival. The expiration or termination of the Term shall not
impair the rights or obligations of any party hereto, which
shall have accrued prior to such expiration or termination.
6. Non-Competition; Non-Solicitation
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(a) The Executive shall not, at any time during the Term or during
the twelve-month (or, if longer, the period during which
payments are made by the Company pursuant to Section 5(b)(i))
period following the Date of Termination (the "Restricted
Period") engage in any Prohibited Competition. 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 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.
(b) During the Restricted Period, the Executive will not, and will
not permit any of his affiliates to, directly or indirectly,
recruit or otherwise solicit or induce any employee, customer,
subscriber or supplier of the Company to terminate its
employment or arrangement with the Company, otherwise change
its relationship with the Company, or establish any
relationship with the Executive or any of his affiliates for
any business purpose deemed competitive with the business of
the Company.
(c) In the event the terms of this Section 6 shall be determined
by any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or over
too great a geographical area or by reason of its 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, over the maximum geographical area as to which
it may be enforceable, 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.
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(d) As used in this Section 6, the term "Company" shall include
the Company, its parent, related entities, and any of its
direct or indirect subsidiaries.
(e) The provisions contained in Section 6(a) and Section 6(b) may
be altered and/or waived with the prior written consent of the
Board or the Compensation Committee.
7. Nondisclosure of Proprietary Information; Non-Disparagement
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(a) Except as required in the faithful performance of the
Executive's duties hereunder or pursuant to Section 7(c), the
Executive shall, during the Term and after the Date of
Termination, maintain in confidence and shall not directly or
indirectly, 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 of or relating to the Company, including,
without limitation, information with respect to the Company's
operations, processes, protocols, products, inventions,
business practices, finances, principals, vendors, suppliers,
customers, potential customers, marketing methods, costs,
prices, contractual relationships, regulatory status,
compensation paid to employees or other terms of employment
("Proprietary Information"), or deliver to any person, firm,
corporation or other entity any document, record, notebook,
computer program or similar repository of or containing any
such Proprietary Information. The Executive's obligation to
maintain and not use, disseminate, disclose or publish, or use
for his benefit or the benefit of any person, firm,
corporation or other entity any Proprietary Information after
the Date of Termination will continue so long as such
Proprietary Information is not, or has not by legitimate means
become, generally known and in the public domain (other than
by means of the Executive's direct or indirect disclosure of
such Proprietary Information) and is continued to be
maintained as Proprietary Information by the Company. The
parties hereby stipulate and agree that as between them, the
Proprietary Information identified herein is important,
material and affects the successful conduct of the businesses
of the Company (and any successor or assignee of the Company).
(b) Upon termination of the Executive's employment with the
Company for any reason, 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 the
Company's customers, business plans, marketing strategies,
products or processes.
(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.
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(d) The Executive agrees not to disparage the Company, any of its
products or practices, or any of its directors, officers,
agents, representatives, stockholders or affiliates, either
orally or in writing, at any time; provided, that, the
Executive may confer in confidence with his legal
representatives and make truthful statements as required by
law.
(e) The Company agrees to instruct the members of the Board and
the executive officers of the Company not to disparage the
Executive, either orally or in writing, at any time; provided,
that, the Company may confer in confidence with its legal
representatives and make truthful statements as required by
law.
(f) As used in this Section 7, the term "Company" shall include
the Company, its parent, related entities, and any of its
direct or indirect subsidiaries.
8. Injunctive Relief
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It is recognized and acknowledged by the Executive that a breach of the
covenants contained in Sections 6 and 7 will cause irreparable damage to 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 6 and 7, in addition to any other remedy which
may be available at law or in equity, the Company will be entitled to specific
performance and injunctive relief.
9. Assignment and Successors,
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The Company may assign its rights and obligations under this Agreement
to any entity, including any successor to all or substantially all the assets of
the Company, by merger or otherwise, and may assign or encumber this Agreement
and its rights hereunder as security for indebtedness of the Company and its
affiliates. The Executive may not assign his rights or obligations under this
Agreement to any individual or entity. 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.
10. Governing Law
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This Agreement shall be governed, construed, interpreted and enforced
in accordance with the substantive laws of the state of Ohio, without reference
to the principles of conflicts of law of Ohio or any other jurisdiction, and
where applicable, the laws of the United States.
11. Validity
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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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12. Notices
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Any notice, request, claim, demand, document and 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:
Dayton Superior Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000 Xxxxxx, XX 00000
Attention: Corporate Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxx LLP
0000 Xxxxxxxxxx Xxxxx, X.X.
Xxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) If to the Executive, to the address set forth on the signature
page hereto or at any other address as any party shall have
specified by notice in writing to the other party.
13. Counterparts
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This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original, but all of which together will constitute one
and the same Agreement.
14. Entire Agreement
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The terms of this Agreement 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 (including without limitation any Term Sheet or
similar agreement entered into between the Company and the Executive). The
parties further intend that this Agreement shall constitute the complete and
exclusive statement of their 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.
15. Amendments; Waivers
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This Agreement may not be modified, amended, or terminated except by an
instrument in writing, signed by the Executive and a duly authorized officer of
Company. By an instrument in writing similarly executed, the Executive or a duly
authorized officer of 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 preclude any other or further exercise of any other right,
remedy, or power provided herein or by law or in equity.
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16. No Inconsistent Actions
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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.
17. Construction
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This Agreement shall be deemed drafted equally by both the parties. Its
language shall be construed as a whole and according to its fair meaning. Any
presumption or principle that the language is to be construed against any party
shall not apply. The headings in this Agreement are only for convenience and are
not intended to affect construction or interpretation. Any references to
paragraphs, subparagraphs, sections or subsections are to those parts of this
Agreement, unless the context clearly indicates to the contrary. Also, unless
the context clearly indicates to the contrary, (a) the plural includes the
singular and the singular includes the plural; (b) "and" and "or" are each used
both conjunctively and disjunctively; (c) "any," "all," "each," or "every" means
"any and all," and "each and every"; (d) "includes" and "including" are each
"without limitation"; (e) "herein," "hereof," "hereunder" and other similar
compounds of the word "here" refer to the entire Agreement and not to any
particular paragraph, subparagraph, section or subsection; and (f) all pronouns
and any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural as the identity of the entities or persons referred
to may require.
18. Arbitration
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Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by arbitration, conducted before an
arbitrator in New York, New York in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitration 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 Sections 6 or 7 of the Agreement and the Executive hereby consents
that such restraining order or injunction may be granted without requiring the
Company to post a bond. Only individuals who are (a) lawyers engaged full-time
in the practice of law; and (b) on the AAA register of arbitrators shall be
selected as an arbitrator. Within 20 days of the conclusion of the arbitration
hearing, the arbitrator shall prepare written findings of fact and conclusions
of law. It is mutually agreed that the written decision of the arbitrator shall
be valid, binding, final and non-appealable, provided however, that the parties
hereto agree that the arbitrator shall not be empowered to award punitive
damages against any party to such arbitration. Each party shall pay 50% of the
arbitrator's fees and expenses and its own attorney's fees and expenses.
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19. Enforcement
-----------
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws effective during the term of this
Agreement, such provision shall be fully severable; this Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a portion of this Agreement; and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from this
Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable
provision there shall be added automatically as part of this Agreement a
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible and be legal, valid and enforceable.
20. Withholding
-----------
The Company shall be entitled to withhold from any amounts payable
under this Agreement any federal, state, local or foreign withholding or other
taxes or charges which the Company is required to withhold. The Company shall be
entitled to rely on an opinion of counsel if any questions as to the amount or
requirement of withholding shall arise.
21. Employee Acknowledgement
------------------------
The Executive acknowledges that he has read and understands this
Agreement, is fully aware of its legal effect, has not acted in reliance upon
any representations or promises made by the Company other than those contained
in writing herein, and has entered into this Agreement freely based on his own
judgment.
22. Section 409A
------------
Section 409A imposes payment restrictions on "separation pay" (i.e.,
payments owed to the Executive upon termination of employment). Failure to
comply with these restrictions could result in negative tax consequences to the
Executive, including immediate taxation, interest and a 20% penalty tax. It is
the Company's intent that this Agreement be exempt from the application of, or
otherwise complies with, the requirements of Section 409A. Specifically, any
taxable benefits or payments provided under this Agreement are intended to be
separate payments that qualify for the "short-term deferral" exception to
Section 409A to the maximum extent possible, and to the extent they do not so
qualify, are intended to qualify for one or more of the separation pay
exceptions to Section 409A, to the maximum extent possible. If neither of these
exceptions applies, then notwithstanding any provision in this Agreement to the
contrary and to the extent required to comply with Section 409A, if the
Executive is a "specified employee" (as defined under Section 409A and
determined under the Company's policy for identifying specified employees) on
the Date of Termination, then all amounts that would otherwise be paid or
provided during the first six months following the Date of Termination shall
instead be accumulated through and paid or provided (together with interest on
any delayed payment at the applicable federal rate under the Internal Revenue
Code), on the first business day that is more than six months after the Date of
Termination.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
COMPANY
DAYTON SUPERIOR CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxxx
President and Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
Residence Address:
0000 Xxxxxxxxxx Xxxxx
Xxxxx, XX 00000
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