EXHIBIT 10.13
EMPLOYMENT AGREEMENT
This Employment Agreement is entered into as of January 13, 2005 among
Tarpon Industries, Inc., a Michigan corporation ("Tarpon") , and Xxxxxx Welding
Co., a Michigan corporation and a wholly-owned subsidiary of Tarpon ("EWCO") and
together with Tarpon, the "Companies"), and J. Xxxxx Xxxxxxxx ("Employee"), but
shall be effective as of August 20, 2004.
In consideration of the mutual covenants contained in this Agreement, the
Companies and Employee agree as follows:
1. Employment.
During the term of this Agreement (as defined in Sections 2 and 4), the
Companies shall employ Employee, and Employee hereby accepts such employment by
the Companies, in accordance with the terms and conditions set forth in this
Agreement.
(a) Position and Duties. Employee shall serve as President, Chief
Executive Officer and Secretary of the Companies or in such other position with
the Companies, as the Boards of Directors of the Companies shall, from time to
time, specify. Employee shall perform all duties, services and responsibilities
and have such authority and powers for, and on behalf of, the Companies as are
customary and appropriate for such position designated by the Board and as are
established from time to time by, or in accordance with procedures established
by, the Companies' Boards of Directors.
(b) Performance. Employee shall perform the duties called for
under this Agreement to the best of his ability and shall devote an appropriate
amount of his business time, energies, efforts and skill to such duties during
the term of his employment and shall not accept employment with any other
employer or business or engage in any other business of any nature whatsoever,
in any capacity whatsoever, unless approved in writing in advance by the Boards
of Directors of the Companies . For purposes of clarifications, Employee's
current employment with FCL Builders, Inc. does not violate this Section 1(b).
2. Term.
The term of Employee's employment under this Agreement shall begin on the
date of this Agreement shall continue until the second anniversary of the date
of this Agreement, at which time it shall terminate, unless terminated earlier
pursuant to Section 4.
3. Compensation, Expenses and Benefits.
As full compensation for Employee's performance of his duties pursuant to
this Agreement, the Companies shall pay Employee during the term of this
Agreement, and Employee shall accept as full payment for such performance, the
following aggregate amounts and benefits:
(a) Salary. As salary for Employee's services to be rendered under
this Agreement, the Companies shall pay Employee an aggregate annual salary of
$100,000. Such
salary shall be payable semi-monthly in arrears, or at such other interval, not
less frequent than monthly, as the Companies shall designate.
(b) Business Expenses. The Companies shall pay or reimburse
Employee for all reasonable, ordinary and necessary travel, entertainment,
meals, lodging, and other out-of-pocket expenses incurred by Employee in
connection with the Companies' businesses, for which Employee submits
appropriate receipts and which are consistent with Companies policy or have been
authorized by the Companies' Boards of Directors.
(c) Options. Tarpon will grant Employee an option to purchase
50,000 common shares, which will be issued pursuant to the Tarpon's Stock Option
Plan ("Option Shares"), subject to vesting restrictions determined by the Board
of Directors; provided that the vesting of such option shall accelerate so that
it becomes 100% exercisable immediately upon termination of Employee's
employment under this Agreement by the Companies without cause pursuant to
Section 4(d).
(d) Benefits. Employee shall be eligible to participate in all
fringe benefits, currently including major medical and dental insurance, a
401(k) plan and other employee benefit plans, applicable to other similar
employees of Tarpon and EWCO, when and if adopted and made available during the
term of this Agreement to employees with similar periods of service, subject to
any eligibility or other requirements for participating in such fringe benefits
and to the actual existence of the respective plans.
(e) Indemnification; Directors and Officers Insurance. The
Companies shall, to the fullest extent authorized or permitted by the Michigan
Business Corporation Act, defend, indemnify and hold Employee, his heirs,
executors, administrators and other legal representatives, harmless from and
against any and all claims, suits, debts, causes of action, proceedings or other
actions, at law or in equity, including costs and reasonable attorney fees which
any person or entity may have had, now has or may in the future have with
respect to Employee's service to the Companies as an officer, director, employee
or agent thereof. This provision shall survive the termination of this
agreement. In addition, the Companies will use their best efforts to obtain
appropriate insurance for its directors and officers which provides coverage of
not less than $5,000,000 prior to the closing of the initial public offering of
the common share of Tarpon.
(f) Future Events. The Companies and Employee hereby acknowledge
and agree that the parties may from time-to-time review the terms and conditions
contained in this Agreement and engage in discussions regarding possible
amendments to this Agreement; provided, however, no party hereto shall be
obligated to amend this Agreement at any time.
4. Termination
(a) Death. Employee's employment under this Agreement shall
terminate immediately upon Employee's death.
(b) Disability. Employee's employment under this Agreement shall
terminate, at Tarpon's or EWCO's option, immediately upon notice to Employee
given after Employee's "total disability", but no earlier than the later of (i)
the day after 6 consecutive months during which
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Employee suffers from a "total disability", and (ii) the day that Employee is
eligible to begin receiving disability benefits under the insurance policy or
its equivalent. "Total disability" shall mean Employee's physical or mental
condition entitling him to disability benefits, after the passage of time,
pursuant to the insurance policy, assuming such condition continues, all, if
permitted by such insurance policy or its equivalent, as determined by a doctor
chosen by Tarpon or EWCO and a doctor chosen by Employee, and, if necessary, a
doctor mutually chosen by such doctors. Employee shall continue to receive
compensation pursuant to Section 3 during the period prior to termination of
Employee's employment pursuant to this Section 4(b), if Employee's employment is
not otherwise terminated pursuant to this Agreement, less any disability
benefits Employee receives pursuant to the insurance policy with respect to such
period. There shall be no such deduction for disability benefits received by
Employee if Employee pays the premiums on such disability insurance policy.
(c) With Cause. Tarpon and EWCO shall each have the right, upon
written notice to Employee, to terminate Employee's employment under this
Agreement for "Cause." Such termination shall be effective immediately upon
Employee's receipt of such written notice. "Cause" means (1) material breach by
Employee of this Agreement, (2) any material breach by Employee of his fiduciary
duties to Tarpon or EWCO, (3) material failure to perform his duties under this
Agreement continuing for 30 days following written notice by Tarpon of such
material failure which notice shall specify the act or omission constituting
such material failure, gross neglect, abuse of office amounting to a breach of
trust, fraud, any willful violation of any law, rule or regulation (other than
traffic violations and similar offenses), which violation shall have a material
adverse effect upon Tarpon or EWCO, or (4) any act of theft or dishonesty by
Employee.
(d) Without Cause. Tarpon, EWCO and Employee shall each have the
right, upon written notice to the other, to terminate Employee's employment
under this Agreement without cause. Such termination shall be effective 30 days
after such notice is deemed given pursuant to Section 15(a).
5. Effects of Expiration or Termination
(a) If this Agreement expires or Employee's employment under this
Agreement is terminated pursuant to Sections 4(a), (b) or (c), or if Employee
resigns pursuant to Section 4(d), Tarpon's and EWCO's obligations under this
Agreement, including obligations under Section 3, shall end except for Tarpon's
and EWCO's joint and several obligation to: (i) reimburse Employee (or his
estate) for all out-of-pocket expenses incurred and unpaid pursuant to Section
3(b) and other benefits actually due pursuant to Sections 3(d), accrued and
unpaid through the date of termination; (ii) pay to Employee (or his estate) any
salary compensation, pursuant to Sections 3(a), actually earned, accrued and
unpaid through the date of termination and (iii) indemnify employee as provided
under section 3 (e).
(b) Except as otherwise provided in Section 5(b)(i), if Employee's
employment under this Agreement is terminated by Tarpon or EWCO pursuant to
Section 4(d), in addition to its obligations under Section 5(a), Tarpon and
EWCO, jointly and severally, shall be obligated to pay to Employee an amount
equal to aggregate compensation paid to Employee during the 12 month period
preceding the effective date of such termination ("General Severance Payment").
Such General Severance Payment shall be payable in equal installments over a
period of 12 months
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beginning on the effective date of such termination. During such 12 month
period, Employee shall continue his medical and dental benefits set forth in
Section 3(d) and the Companies shall pay the premiums related thereto.
(i) Notwithstanding the foregoing, in the event that Employee is
terminated pursuant to Section 4(d) within 6 months after a Change
of Control of Tarpon, Tarpon and EWCO, jointly and severally, shall
be obligated to pay to Employee, in lieu of the General Severance
Payment, an amount equal to 2 times the aggregate compensation paid
to Employee during the 12 month period preceding the effective date
of such termination ("CIC Severance Payment"). Such CIC Severance
Payment shall be payable in equal installments over a period of 24
months beginning on the effective date of such termination. During
such 24 month period, Employee shall continue his medical and dental
benefits set forth in Section 3(d) and the Companies shall pay the
premiums related thereto. For purposes of this Agreement, the term
"Change in Control of Tarpon" shall mean an event in which any
person or entity has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor rule
or regulation promulgated under the Securities and Exchange Act) of
securities of Tarpon representing a majority of the then-outstanding
securities entitled to vote generally in the election of directors
of Tarpon.
(c) Termination of Employee's employment under this Agreement
shall not affect any party's rights and obligations under Sections 3 (subject to
the limitations set forth in Sections 5(a) and (b)), 5, 7, 8, 9, 10 and 11, such
rights and obligations shall continue and survive the termination of Employee's
employment and this Agreement, for any reason, notwithstanding any breach of
this Agreement by Employee or by Tarpon or EWCO.
6. Conflicts of Interest.
While employed by the Companies, Employee shall not, directly or
indirectly:
(a) participate in any way in the benefits of transactions between
the Companies, its subsidiaries and their suppliers or customers, or have
personal financial transactions with any of the Companies' or their
subsidiaries' suppliers or customers, including, without limitation, having a
financial interest in the Companies' or its subsidiaries' suppliers or
customers, or making loans to, or receiving loans from, the Companies' or their
subsidiaries' suppliers or customers;
(b) realize a personal gain or advantage from a transaction in
which the Companies or their subsidiaries have an interest or use information
obtained in connection with Employee's employment with the Companies for
Employee's personal advantage or gain; or
(c) accept any offer to serve as an officer, director, partner,
consultant, agent or manager with, or to be employed in a sales or technical
capacity by, a person or entity which does business with the Companies or their
subsidiaries.
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7. Solicitation of Employees and Consultants.
Upon expiration of this Agreement or termination of Employee's employment
with the Companies under this Agreement, with or without cause, by either the
Companies or Employee, Employee shall not for a period of one year following the
date of such termination, directly or indirectly:
(a) solicit or attempt to hire any person who is then employed by,
or is a consultant to, the Companies or their subsidiaries or who, to Employee's
knowledge, was employed by, or was a consultant to, the Companies or their
subsidiaries at any time during the year before the termination of Employee's
employment with the Companies under this Agreement; or
(b) encourage any such person to terminate his or her employment
or consultation with the Companies or their subsidiaries.
8. Covenant Not to Compete.
During the term of Employee's employment under this Agreement and for a
period of one year following expiration of this Agreement or the termination of
Employee's employment with the Companies under this Agreement pursuant to
Section 4, Employee shall not, directly or indirectly, himself, or through or
for an individual, person or entity wherever located:
(a) engage in any activities, perform any services in connection
with any products, or sell any products, which are similar to the activities or
services performed by, or products sold by, the Companies or their subsidiaries
during the term of Employee's employment under this Agreement; or
(b) be employed by, consult with, own any capital stock of, or
have any financial interest of any kind in, any individual, person or entity,
wherever located, which conducts a business reasonably similar to the Companies'
or subsidiaries' business; provided, that Employee may own, for investment
purposes only, up to 3% of the stock of any such publicly traded company whose
stock is either listed on a national stock exchange or on The Nasdaq National
Market (if Employee is not otherwise affiliated with such business).
9. Solicitation of Companies Customers.
Upon expiration of this Agreement or termination of Employee's employment
with the Companies under this Agreement, with or without cause, by either the
Companies or Employee, Employee shall not, directly or indirectly, at any time
within one year after the date of such termination, solicit any entity that, to
Employee's knowledge, was a customer of the Companies or their subsidiaries
within the year before the date of such termination, to perform services or
supply products for such customer of a similar nature to those services
performed or products provided by the Companies or their subsidiaries to such
customer during the term of such employment under this Agreement.
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10. Return of Documents.
Upon expiration of this Agreement or termination of Employee's employment
with the Companies for any reason, all documents, procedural manuals, guides,
specifications, plans, drawings, designs and similar materials, diaries,
records, customer lists, notebooks, and similar repositories of or containing
confidential information, including all copies thereof, then in Employee's
possession or control, whether prepared by Employee or others, shall be left
with, or forthwith returned by Employee to, the Companies.
11. Companies' Remedies.
Employee acknowledges and agrees that the covenants and undertakings
contained in Sections 1(b), 6, 7, 8, 9 and 10 of this Agreement relate to
matters which are of a special, unique and extraordinary character and that a
violation of any of the terms of such Sections will cause irreparable injury to
the Companies, the amount of which will be difficult, if not impossible, to
estimate or determine and which cannot be adequately compensated. Therefore,
Employee agrees that the Companies, in addition to any other available remedies
under applicable law, shall be entitled, as a matter of course, to an
injunction, restraining order or other equitable relief from any court of
competent jurisdiction, restraining any violation or threatened violation of any
such terms by Employee and such other persons as the court shall order.
12. Employee's Remedies.
Employee's remedy against the Companies for breach of this Agreement is
the collection of any compensation due him as provided in Section 3 and such
other remedies available to Employee under law or in equity.
13. Assignment.
The Companies shall not be required to make any payment under this
Agreement to any assignee or creditor of Employee, other than to Employee's
legal representative or his estate on death or disability. Employee's
obligations under this Agreement are personal and may not be assigned, delegated
or transferred in any manner and any attempt to do so shall be void. Employee,
or his legal representative, shall have no rights by way of anticipation or
otherwise to assign or otherwise dispose of any right of Employee under this
Agreement. The Companies may assign this Agreement without Employee's consent to
any successor to the Companies' business. This Agreement shall be binding upon,
and shall inure to the benefit of, the Companies, Employee and their permitted
successors and assigns.
14. Companies' Obligations Unfunded.
Except for any benefits under any benefit plan of the Companies that are
required by law or by express agreement to be funded, it is understood that the
Companies' obligations under this Agreement are not funded, and it is agreed
that the Companies shall not be required to set aside or escrow any monies in
advance of the due date of the payment of such monies to Employee.
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15. Notices.
(a) To Employee. Any notice to be given under this Agreement by
the Companies to Employee shall be deemed to be given if delivered to Employee
in person or three business days after mailed to him by certified or registered
mail, postage prepaid, return receipt requested, to:
J. Xxxxx Xxxxxxxx
00000 Xxxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
or at such other address as Employee shall have advised the Companies in
writing.
(b) To the Companies. Any notice to be given by Employee to the
Companies shall be deemed to be given three business days after mailed by
certified or registered mail, postage prepaid, return receipt requested, to:
Tarpon Industries, Inc./Xxxxxx Welding Co.
0000 Xxxxx Xx.
Xxxxxxxxxx, XX 00000
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxx.
Xxxxxxx, Xxxxxxxx 00000-0000
or at such other address as the Companies shall have advised Employee in
writing.
16. Amendments.
This Agreement shall not be amended, in whole or in part, except by an
agreement in writing signed by the Companies and Employee.
17. Entire Agreement.
This Agreement constitutes the entire agreement between the parties with
respect to the subject matter of this Agreement and all prior agreements or
understandings, oral or written, are merged in this Agreement and are of no
further force or effect. The parties acknowledge that they are not relying on
any representations, express or implied, oral or written, (relating to any
aspect of Employee's current or future employment or otherwise), except for
those stated in this Agreement. Employee further acknowledges that his sole
rights and remedies with respect to any aspect of his employment or termination
of his employment are provided for in this Agreement.
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18. Captions.
The captions of this Agreement are included for convenience only and shall
not affect the construction of any provision of this Agreement.
19. Governing Law and Forum.
This Agreement, its construction, and the determination of any rights,
duties or remedies of the parties arising out of or relating to this Agreement,
shall be governed by, and interpreted in accordance with, the laws of the state
of Michigan, except for any provisions of Michigan law which direct the
application of other states' laws, and except that if any provision of this
Agreement would be illegal, void, invalid or unenforceable under such Michigan
laws, then the laws of such other jurisdiction which would render such
provisions valid and enforceable shall govern so far as is necessary to sustain
the validity and enforceability of the terms of this Agreement. Each party
consents to be subject to personal jurisdiction of the courts of Michigan, and
any lawsuit or other court action or proceeding relating to, or arising out of,
this Agreement or Employee's employment with the Companies shall be instituted
only in the state or federal court of proper jurisdiction in the state of
Michigan and those courts shall have exclusive jurisdiction over any case or
controversy arising out of or relating to this Agreement.
20. Severability.
All provisions, agreements, and covenants contained in this Agreement are
severable, and in the event any of them shall be held to be illegal, void or
invalid by any competent court or under any applicable law, such provision shall
be changed to the extent reasonably necessary to make the provision, as so
changed, legal, valid and binding. If any provision of this Agreement is held
illegal, void or invalid in its entirety, the remaining provisions of this
Agreement shall not in any way be affected or impaired, but shall remain binding
in accordance with their terms.
21. No Waiver.
No waiver of any provision of this Agreement shall be valid unless in
writing and signed by the party against whom enforcement of the waiver is
sought. The waiver by either party of any breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach.
22. Consultation with Counsel.
Employee acknowledges that he has been given the opportunity to consult
with his personal legal counsel concerning all aspects of this Agreement and the
Companies have urged Employee to so consult with such counsel.
23. Conflicts.
Employee represents and warrants that his execution, delivery and
performance of this Agreement will not (i) constitute a breach or violation of
any agreement or arrangement to which
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he is a party or by which the is bound; (ii) constitute a violation of any
order, judgment or decree to which he is a party; or (iii) require the consent
of any third party.
IN WITNESS WHEREOF, the Companies and Employee have duly executed this
Agreement as of the date and year first above written.
Tarpon Industries, Inc.
By: /s/ Xxxxx X. House
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Its: CFO
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/s/ Xxxxx Xxxxxxxx
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J. Xxxxx Xxxxxxxx
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