EXHIBIT 10.1
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EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is entered into by and
between North American Galvanizing & Coatings, Inc., a Delaware corporation
("Employer"), and Xxxxxx X. Xxxxx ("Employee"), to be effective on April 1, 2007
(the "Effective Date").
WITNESSETH:
WHEREAS, Employer is desirous of employing Employee pursuant to the terms
and conditions and for the consideration set forth in this Agreement, and
Employee is desirous of continuing in the employ of Employer pursuant to such
terms and conditions and for such consideration.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants,
and obligations contained herein, Employer and Employee agree as follows:
ARTICLE 1: EMPLOYMENT AND DUTIES
1.1. Employer agrees to employ Employee, and Employee agrees to be employed
by Employer, beginning as of the Effective Date and continuing for three (3)
years or until March 31, 2010 (the "Term"), subject to the terms and conditions
of this Agreement.
1.2. Employee shall continue to be employed as Chief Executive Officer and
President of Employer. Employee will continue to serve in the assigned position
and to perform diligently and to the best of Employee's abilities the duties and
services pertaining to such position as he has done in the past. Employee also
agrees to continue to serve as a Director on Employer's Board of Directors and
to stand for reelection at the request of the Nominating Committee throughout
the Term.
ARTICLE 2: COMPENSATION AND BENEFITS
2.1. During the Term, Employer shall pay Employee a base salary at an
annual rate of Three Hundred Twenty-five Thousand Dollars ($325,00.00). The base
salary may not be decreased at any time during the Term and may be increased by
Employer's Board of Directors at anytime. The base salary shall be paid in
accordance with Employer's standard payroll practice for its executives or
senior managers.
2.2. Employee shall be eligible to receive incentive bonuses as may be
provided from time to time by Employer's Board of Directors.
2.3. As a Director, Employee shall be eligible to participate in and
receive benefits or compensation pursuant to the Director Stock Unit Program and
to receive any other benefits or compensation that are or may become available
to Directors of Employer's Board of Directors.
2.4. Employee shall be eligible to receive stock options and stock
appreciation rights as provided under the North American Galvanizing & Coatings,
Inc. 2004 Incentive Stock Plan, as amended and restated ("the Incentive Stock
Plan"), pursuant to the terms of the Incentive Stock Plan and as determined by
Employer's Board of Directors.
2.5. Employee shall be entitled to twenty (20) days of paid vacation per
year at the reasonable and mutual convenience of Employer and Employee.
2.6. From and after the Effective Date, Employer shall pay, or reimburse
Employee, for all ordinary, reasonable and necessary expenses which Employee
incurs in performing his duties under this Agreement including, but not limited
to, travel, entertainment, professional dues and subscriptions, and all dues,
fees an expenses associated with membership in various professional, business
and civic associations and societies of which Employee's participation is in the
best interest of Employer.
2.7. During the Term and while Employee is employed by Employer, and in
addition to any group term life insurance otherwise generally provided to
executives or senior managers of Employer, Employer may purchase and maintain at
its expense term life insurance on the life of Employee payable to Employer as a
beneficiary.
2.8. While employed by Employer, Employee shall be allowed to participate,
on the same basis generally as other employees of Employer, in all general
employee benefit plans and programs, including improvements or modifications of
the same, which on the Effective Date or thereafter are made available by
Employer to all or substantially all of Employer's executives or senior
managers. Such benefits, plans, and programs may include, without limitation,
medical health, and dental care, life insurance, disability protection, and
qualified retirement plans. Except as specifically provided herein, nothing in
this Agreement is to be construed or interpreted to provide greater rights,
participation, coverage, or benefits under such benefit plans or programs than
provided to executives or senior managers pursuant to the terms and conditions
of such benefit plans and programs.
2.9. Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
ARTICLE 3: TERMINATION PRIOR TO EXPIRATION OF TERM AND EFFECTS OF SUCH
TERMINATION:
3.1. Employee's employment with Employer shall be terminated (i) upon the
death of Employee, (ii) upon Employee's permanent disability (permanent
disability being defined as Employee's physical or mental incapacity to perform
his usual duties with such condition likely to remain continuously and
permanently); provided, however, that in such event, Employee's employment shall
be continued hereunder for a period of not less than one year from the date of
such disability with Employee's base salary during such period to be reduced by
any Employer-financed disability benefits.
3.2. If Employee's employment is terminated by reason of a "Voluntary
Termination" (as hereinafter defined) or by the Employer for "Cause" (as
hereinafter defined), all future compensation to which Employee is otherwise
entitled and all future benefits for which Employee is eligible shall cease and
terminate as of the date of termination. If Employee's employment is terminated
by reason of a Voluntary Termination or for Cause, Employee shall be entitled to
pro rata base salary through the date of such termination and shall be entitled
to any individual bonuses or individual incentive compensation not yet paid but
due under Employer's plans but shall not be entitled to any other payments by or
on behalf of Employer except for those which may be payable pursuant to the
terms of Employer's employee benefit plans. For purposes of this Section 3.2, a
"Voluntary Termination" of the employment relationship by Employee prior to
expiration of the Term shall be a termination of Employment in the sole
discretion of and at the election of Employee, other than (i) a termination of
Employee's employment because of a breach by Employer of any material provision
of this Agreement which remains uncorrected for thirty (30)
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days following written notice of such breach by Employee to employer; (ii) a
termination by either Employer or Employee of Employee's employment within six
(6) months of a reduction in Employee's rank or responsibility with Employer or
a "Change in Control" (as hereinafter defined); or (iii) a termination by
Employee of Employee's employment due to Employer's request or demand that
Employee relocate his business office or residence to a location more than
fifteen (15) miles from Employee's current business office. For purposes of this
Section 3.2, the term "Cause" shall mean any of (i) Employee's gross negligence
or willful misconduct in the performance of the duties and services required of
Employee pursuant to this Agreement; (ii) Employee's final conviction of a
felony; or (iii) Employee's material breach of any material provision of this
Agreement which remains uncorrected for thirty (30) days following written
notice to Employee by Employer of such breach.
3.3. If Employee's employment is terminated for any reason other than for
Cause, permanent disability (as described in Sections 3.1 and 3.2 above) or a
Change in Control, Employer shall pay to Employee (or his estate) 1.0 times his
annual base salary, as it exists at the time of termination of employment.
Nothing contained in this Section 3.3 shall be construed to be a waiver by
Employee of any benefits accrued for or due Employee under any employee benefit
plan (as such term is defined in the Employee's Retirement Income Security Act
of 1974, as amended) maintained by Employer.
3.4. Should Employee or Employer decide to end the employment relationship
due to a Change in Control, Employer shall pay Employee 2.99 times his annual
base salary, as it exists at the time of termination of employment. A Change of
Control means a change in control of Employer of a nature that would be required
to be reported in response to item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended ("xxx 0000
Xxx"), as in effect at the time of such "Change in Control", provided that such
a Change in Control shall be deemed to have occurred at such time as:
(i) any "person" (as that term is used in Sections 13(d) and 14(d)(2) of
the 1934 Act), is or becomes the beneficial owner (as defined in Rule 13d-3
under the 0000 Xxx) directly or indirectly, of securities representing 30%
or more of the combined voting power for election of Directors of the then
outstanding securities of Employer or any successor to Employer;
(ii) during any period of two consecutive years or less, individuals who at
the beginning of such period constitute the Board of Directors of Employer
cease, for any reason, to constitute at least a majority of the Board of
Directors, unless the election or nomination for election of each new
Director was approved by a vote of at least two-thirds of the Directors
then still in office who were Directors at the beginning of the period; or
(iii) the shareholders or the Board of Directors of Employer approve any
reorganization, merger, consolidation or share exchange as a result of
which the common stock of Employer shall be sold, changed, converted or
exchanged into or for securities of another corporation or any dissolution
or liquidation of Employer or any sale or the disposition of 50% or more of
the assets or business of Employer.
3.5. Termination of the employment relationship does not terminate those
obligations imposed by this Agreement which are continuing obligations,
including, without limitation, Employee's obligations under Articles 4 and 5.
ARTICLE 4: OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY AND CONFIDENTIAL
INFORMATION:
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4.1. All information, ideas, concepts, improvements, discoveries, and
inventions, whether patentable or not, which are conceived, made developed or
acquired by Employee, individually or in conjunction with others, during
Employee's employment by Employer (whether during business hours or otherwise
and whether on Employer's premises or otherwise) which relate to Employer's
business, products or services (including, without limitation, all such
information relating to corporate opportunities, research, financial and sales
data, pricing and training terms, evaluations, opinions, interpretations,
acquisition prospects, the identity of customers or their requirements, the
identity of key contacts within the customer's organizations or within the
organization of acquisition prospects, or marketing and merchandising
techniques, prospective names, and marks), and all writings or materials of any
type embodying any of such items, shall be disclosed to Employer and are and
shall be the sole and exclusive property of Employer.
4.2. Employee acknowledges that the businesses of Employer and its
affiliates are highly competitive and that their strategies, methods, books,
records, and documents, their technical information concerning their products,
equipment, services and processes, procurement procedures and pricing
techniques, the names of an other information (such as credit and financial
data) concerning their customers and business affiliates, all comprise
confidential business information and trade secrets which are valuable, special,
and unique assets which Employer, or its affiliates use in their business to
obtain a competitive advantage over their competitors. Employee further
acknowledges that protection of such confidential business information and trade
secrets against unauthorized disclosure and use is of critical importance to
Employer, and its affiliates in maintaining their competitive position. Employee
hereby agrees that Employee will not at any time during or after his employment
by Employer, make any unauthorized disclosure of any confidential business
information or trade secretes of Employer, or its affiliates, or make any use
thereof, except in the carrying out of his employment responsibilities
hereunder. The above notwithstanding, a disclosure shall not be unauthorized if
(i) it is required by law or by a court of competent jurisdiction or (ii) it is
in connection with any judicial or other legal proceeding in which Employee's
legal rights and obligations as an employee or under this Agreement are at
issue; provided, however, that Employee shall, to the extend practicable and
lawful in any such events, give prior notice to employer of his intent to
disclose any such confidential business information in such context so as to
allow Employer an opportunity (which Employee will not oppose) to obtain such
protective order or similar relief with respect thereto as it may deem
appropriate.
4.3. All written materials, records, and other document made by, or coming
into the possession of, Employee during the period of Employee's employment by
Employer which contain or disclose confidential business information or trade
secretes of employer, or its affiliates shall be and remain the property of
Employer, or its affiliates, as the case may be. Upon termination of Employee's
employment by Employer, for any reason, Employee promptly shall deliver the
same, and all copies thereof, to Employer.
ARTICLE 5: POST-EMPLOYMENT AND NON-COMPETITION OBLIGATIONS:
5.1. As part of the consideration of the compensation and benefits to be
paid to Employee hereunder, and as an additional incentive for Employer to enter
into this Agreement, Employer and Employee agree to the non-competition
provisions of this Article 5. Employee agrees that during the period of
Employee's non-competition obligations hereunder, Employee will not, directly or
indirectly for Employee or for others, in any geographic area or market where
Employer or any of their affiliated companies are conducting any business (other
than de minimis business operations) as of the date of
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termination of the Employment relationship or have during the previous twelve
months conducted any business (other than de minimis business operations):
(i) Engage in any business directly competitive with any business (other
than de minimis business operations) conducted by Employer or any of
Employer's affiliates;
(ii) render advice or services to, or otherwise assist, any other person,
association, or entity who is engaged, directly or indirectly, in
any business directly competitive with any business (other than de
minimis business operations) conducted by Employer or any of
Employer
(iii) induce any employee of Employer or any of its affiliates (other than
Employee's person secretary or administrative assistant) to
terminate his employment with Employer, or its affiliates, or hire
or assist in the hiring of any such induced employee by any person,
association, or entity not affiliated with Employer.
These non-competition obligations shall extend until 12 months after termination
of the employment relationship between Employer and Employee. The above
notwithstanding, nothing in this Section 5.1 shall prohibit Employee from
engaging in or being employed by any entity that engages in the provision of
management consulting or other consulting services to third parties, even where
such entity on occasion renders advice or services to, or otherwise assists, any
other person, association, or entity who is engaged, directly or indirectly, in
any business directly competitive with any business conducted by Employer or any
of Employer's affiliates, so long as Employee does not personally, directly or
indirectly (A) participate in rendering such advice, services or assistance to
any such competing person, association or entity, (B) provide any information or
other assistance to any other person employed by Employee or by any such
consulting entity for use, directly or indirectly, in rendering such assistance
to any competing person, association or entity or (C) engage in any conduct
which would be violative of the provisions of Article 4 hereof.
ARTICLE 6: MISCELLANEOUS:
6.1. For purposes of this Agreement, (i) the terms "affiliates" or
"affiliated" means an entity who directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with
Employer or in which Employer has a 50% or more equity interest, and (ii) any
action or omission permitted to be taken or omitted by Employer hereunder shall
only be taken or omitted by Employer or of any committee of the Board of
Directors to which authority over such matters may have been delegated.
6.2. For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when received by or tendered to Employee or Employer, as applicable, by
pre-paid courier or by United States registered or certified mail, return
receipt requested, postage prepaid addressed as follows:
If to Employer, to North American Galvanizing & Coatings, Inc.
at its corporate headquarters to the attention of the Board of Directors of
North American Galvanizing & Coatings, Inc.
If to Employee, to his last known personal residence.
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6.3. This Agreement shall be governed in all respects by the laws of the
State of Florida, excluding any conflict-of-law rule or principle that might
refer to the laws of another State or country.
6.4. No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or
provision of this Agreement shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
6.5. It is a desire and intent of the parties that the terms, provisions,
covenants, and remedies contained in this Agreement shall be enforceable to the
fullest extent permitted by law. If any such term, provision, covenant, or
remedy of this Agreement or the application thereof to any person, association,
or entity or circumstances shall, to any extent, be construed to be invalid or
unenforceable in whole or in part, then such term, provision, covenant, or
remedy shall be construed in a manner so as to permit its enforceability under
the applicable law to the fullest extent permitted by law. In any case, the
remaining provisions of this Agreement or the application thereof to any person,
association, or entity or circumstances other than those to which they have been
held invalid or unenforceable, shall remain in full force and effect.
6.6. This Agreement shall be binding upon and inure to the benefit of
Employer and any other person, association, or entity which may hereafter
acquire or succeed to all or substantially all of the business or assets of
Employer by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations of Employee shall
not be voluntarily or involuntarily assigned, alienated, or transferred, whether
by operation of law or otherwise, without the prior written consent of Employer,
other than in the case of death or incompetence of Employee.
6.7. This Agreement replaces and merges any previous agreements and
discussions pertaining to the subject matter covered herein. This Agreement
constitutes the entire agreement of the parties with regard to such subject
matter, and contains all of the covenants, promises, representations,
warranties, and agreements between the parties with respect such subject matter.
Each party to this Agreement acknowledges that no representation, inducement,
promise, or agreement, oral or written, has been made by either party with
respect to such subject matter, which is not embodied herein, and that no
agreement, statement, or promise relating to the employment of Employee by
Employer that is not contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is in writing and
signed by each party whose rights hereunder are affected thereby.
IN WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
at Greenwich, Connecticut in multiple originals to be effective on the date
first stated above.
NORTH AMERICAN GALVANIZING & COATINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Chairman of Board of Directors
/s/ Xxxxxx X. Xxxxx
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Employee
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