EXHIBIT 10.2
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
Xxxxxxx 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)
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 here-
to.
(o) The Executive shall have "Good Reason" to resign hereunder if (i)
the Executive's title hereunder is materially diminished or (ii) the Company
requires the Executive to report to any individual or group other than the full
Board, in either case without his written
2
consent and provided that the Executive has provided the Company with notice
thereof and a reasonable opportunity to cure.
(p) "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.
(q) "Notice of Termination" shall have the meaning set forth in Section
5(b).
(r) "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.
(s) "Option Plan" shall mean the 2000 Stock Option Plan of Dayton
Superior Corporation, as amended from time to time.
(t) "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).
(u) "Prohibited Competition" shall have the meaning set forth in
Section 7(b).
(v) "Purchased Stock" Shall have the meaning set forth in Section 4(d).
(w) "Signing Bonus" Shall have the meaning set forth in Section
4(b)(ii).
(x) "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 July 15, 2002 (the
"Employment Date") and ending on the fourth anniversary thereof unless earlier
terminated as provided in Section 5; provided, however, that the Agreement shall
automatically be extended, beginning on the fourth 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").
3
3. Position, Duties and Location.
(a) During the Term, the Executive shall serve as the Chief Executive
Officer of the Company and, subject to his election thereto, as a member of the
Board, with such customary responsibilities, duties and authority as may from
time to time be assigned to the Executive by the Board. During the Term, the
Executive will report to the entire Board, and not to any individual or any
sub-committee of the Board. During the period of the Executive's employment as
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.
(b) As of the Employment Date, the Principal Stockholders shall cause
the Executive to be appointed or elected to the Board. During the Term, the
Board shall propose the Executive for re-election to the Board and the Principal
Stockholders shall vote all of their shares of Common Stock in favor of such
re-election. If elected or appointed thereto, and only for the duration of such
elected term or appointment, the Executive shall also serve as a director of any
of the Company's subsidiaries and/or in one or more executive offices of any
entities owned by the Company.
(c) The Executive's principal place of employment shall be the
Company's offices in Dayton, OH. The Executive shall promptly, and in no event
later than December 31, 2002, relocate his household from the Romeo, Michigan
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 $375,000 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 2002 fiscal year shall be at least $112,000.
4
(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 $100,000 (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(c), then
the Executive shall immediately, upon such failure, return the full
amount of the Signing Bonus to the Company.
(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 two weeks after the Executive receives the
Signing Bonus, the Executive shall purchase from the Company 14,545.45
shares of Common Stock (the "Purchased Stock") at the price of $27.50
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.
(ii) 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 (A) $50,000 in cash and (B) one
or more promissory notes executed by the Executive in favor of the
Company in the aggregate principal amount of $350,000 (which note or
notes shall be fully recourse to the Executive with respect to a
principal amount of no more than $175,000). In addition, the parties
shall enter into any subscription agreement, loan agreement, pledge
agreement, or other similar agreement evidencing the purchase and sale
of the Purchased Stock and/or the loan evidenced by the promissory note
as is reasonably requested by the Company, in each case containing
customary terms and conditions consistent with the Company's past
practice.
(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).
5
(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 20
vacation days, 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.
(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 and Hangar Fees. During the Term, the Company shall
pay on behalf of the Executive, or reimburse the Executive for, (i) membership
fees payable in connection with the Executive's membership in one country,
alumni, or social club of the Executive's choice and/or (ii) hangar fees for the
Executive's personal aircraft, provided that such membership and/or hangar fees
shall not in the aggregate exceed $6,000 per year.
(j) Tax and Financial Planning Assistance. During the Term, the Company
shall, upon submission of proper documentation, pay on behalf of the Executive,
or reimburse the Executive for, reasonable expenses incurred for professional
assistance in planning and preparing his tax returns and managing his financial
affairs, consistent with the Company's practices as in effect on the date of
execution of this Agreement.
(k) 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 Romeo, Michigan
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) Upon furnishing of adequate documentation, the Company
shall reimburse the Executive for reasonable, documented expenses
incurred for up to two house hunting trips to the Dayton, Ohio area to
be taken by the Executive and his spouse.
6
(iii) The Executive shall promptly sell his principal
residence in Romeo, Michigan 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.
(l) Airplane. The Company shall reimburse the Executive for all
reasonable travel and business expenses incurred by him in the use of his
personal aircraft for the performance of his duties to the Company, in
accordance with such procedures as shall be established in good faith by the
Company.
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.
(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 without Good Reason. The Executive may resign
his employment hereunder without Good Reason.
(vi) Resignation for Good Reason. The Executive may resign his
employment hereunder for Good 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,
7
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)) resignation for Good Reason (pursuant to Section 5(a)(vi)
or 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 twenty-four 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 three years 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
8
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 two years 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
(B) (1) The Executive shall not engage in any
Prohibited Competition at any time during the period of two
years following the Termination Date; and
(2) Subject to (x) the Executive's continued
compliance with Sections 7 and 8 hereof throughout
such two-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
twenty-four 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
9
(c) Continue for three years 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 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.
10
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 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.
11
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.
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
00
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
and
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
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:
Xxxxx Xxxxxx-Xxxxxx, Esq.
Xxxxx & Xxxxxxxxx
3200 National City Center
0000 X. 0xx Xxxxxx
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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.
13
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 Chairman of the
Compensation Committee. 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 Cleveland, 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
14
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.
During the Term and so long as the Executive has not 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.
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 Plan or the Management Stockholders'
Agreement, this Agreement shall govern.
[signature page follows]
15
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
DAYTON SUPERIOR CORPORATION
By:_____________________________________________
Name:
Title:
Date:
EXECUTIVE
________________________________________________
Xxxxxxx X. Xxxxxx
________________________________________________
________________________________________________
________________________________________________
Address
Date:
16
Upon the Effective Date, accepted and agreed to for purposes of Section
3(b)
ODYSSEY INVESTMENT PARTNERS FUND, LP
By: ODYSSEY CAPITAL PARTNERS, LLC,
its general partner
By:_____________________________________________
Name:
Title:
Date: __________________________________________
17
