Exhibit 10.35
AGREEMENT CONCERNING EMPLOYMENT
THIS AGREEMENT CONCERNING EMPLOYMENT (the "Agreement") is made and entered
into this 15th day of January, 1999, at Hastings, Nebraska, by and between
GIBRALTAR PACKAGING GROUP, INC., a Delaware corporation (hereinafter referred to
as "Gibraltar"), and XXXXXXX X. XXXXXXXX, an individual residing at 0000 Xxxxxxx
Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Xxxxxxxx").
RECITALS:
A. Gibraltar has engaged Xxxxxxxx to serve as an employee of Gibraltar,
and has been elected by Gibraltar to the office of President and Xxxxxxxx has
been serving in such capacity.
B. The parties now desire to formalize and modify their understandings
related to certain terms and conditions of Xxxxxxxx'x employment, as set forth
below.
Accordingly, the parties hereto agree as follows:
1. COMPENSATION. During the period of Xxxxxxxx'x employment (the
"Employment Period"), Xxxxxxxx shall receive the following compensation:
(a) A salary which shall be at an annual rate of not less than Two
Hundred One Thousand Dollars ($201,000), payable not less frequently than
semi-monthly.
(b) The right to participate in a stock appreciation rights plan,
pursuant to the terms thereof, a copy of which is attached hereto, and the
related agreement between Gibraltar and Xxxxxxxx;
(c) An opportunity to earn a bonus in an amount not to exceed forty
percent (40%) of the salary paid to Xxxxxxxx during Gibraltar's fiscal year,
with respect to fiscal years ending during the Employment Period, the precise
amount of which shall be determined by the Board of Directors, based upon the
recommendation of the Compensation Committee; provided, however, that a bonus of
thirty percent (30%) will be paid if the base budget is met; and
(d) The right to participate in all corporate employee benefit
programs offered to employees by Gibraltar.
2. DUTIES. During the Employment Period, Xxxxxxxx'x job assignments,
duties and responsibilities shall be consistent with those of presidents of
companies of a size comparable to Gibraltar. Xxxxxxxx will be required to devote
all of his business efforts to Gibraltar.
3. EMPLOYMENT AT WILL. It is understood and agreed that (i) nothing
contained in this Agreement is intended to provide a definite duration for
Xxxxxxxx'x employment at Gibraltar, (ii) that the employment relationship
remains one of "employment at will" (i.e., terminable by either party), except
to the extent that (iii) a termination under the specific circumstances
described in this Agreement may entitle Xxxxxxxx to receive the severance
compensation described below.
4. SEVERANCE COMPENSATION.
(a) If the employment of Xxxxxxxx by Gibraltar should terminate
after a "Change of Control" (as defined in subparagraph (b) below) has occurred
or has been deemed to have occurred, Gibraltar shall pay severance compensation
to Xxxxxxxx, whether such termination is instituted by Xxxxxxxx or by Gibraltar.
The severance compensation shall be the continuing payment to Xxxxxxxx of the
salary described in paragraph 1(a) above, at the rate in effect
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immediately prior to such Change of Control but in no event at a rate lower than
the rate set forth in paragraph 1(a) above, for a period of one (1) year
following the date of termination.
(b) No severance compensation shall be payable under this Agreement
unless and until either (i) a "Change of Control" has occurred or has been
deemed to have occurred, while Xxxxxxxx is still an active employee of Gibraltar
and Xxxxxxxx'x employment with Gibraltar has ended in connection therewith or
within six (6) months thereafter, or (ii) Xxxxxxxx'x employment with Gibraltar
has been terminated in accordance with paragraph 5.
(c) For purposes of this Agreement, a "Change in Control" shall
occur or shall be deemed to have occurred (i) if there occurs any transaction
(which shall include a series of transactions occurring within 60 days or
occurring pursuant to a plan), that has the result that stockholders of
Gibraltar immediately before such transaction cease to own at least 51% of the
voting stock of Gibraltar or of any entity that results from the participation
of Gibraltar in a reorganization, consolidation, merger, liquidation or any
other form of corporate transaction, (ii) if the stockholders of Gibraltar
approve a plan of merger, consolidation, reorganization, liquidation or
dissolution in which Gibraltar does not survive (unless the approved merger,
consolidation, reorganization, liquidation or dissolution is subsequently
abandoned), or (iii) if the stockholders of Gibraltar approve a plan for the
sale, lease, exchange, transfer, assignment or other disposition of all or
substantially all the property and assets of Gibraltar (unless such plan is
subsequently abandoned).
(d) Xxxxxxxx shall not be required to mitigate damages by seeking
other employment or otherwise in order to receive severance compensation
hereunder, nor shall the amount of any payment provided for under this Agreement
be reduced by any compensation
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earned by Xxxxxxxx as the result of employment by another employer after the
termination of his employment pursuant hereto.
5. TERMINATION IN THE ABSENCE OF A CHANGE OF CONTROL.
(a) In the absence of a Change of Control, Xxxxxxxx shall also be
entitled to the compensation provided in paragraph 4 upon the termination of
Xxxxxxxx'x employment, unless such termination is as a result of (i) Xxxxxxxx'x
death, (ii) Xxxxxxxx'x "Disability" (as defined in paragraph 5(b) below), (iii)
Xxxxxxxx'x "Retirement" (as defined in paragraph 5(c) below), or (iv) Xxxxxxxx'x
termination by Gibraltar for "Cause" (as defined in paragraph 5(d) below).
(b) Disability. If, as result of Xxxxxxxx'x incapacity due to
physical or mental illness, Xxxxxxxx shall have been absent from his duties with
Gibraltar on a full-time basis for six months and within thirty (30) days after
written notice of termination is thereafter given by Gibraltar Xxxxxxxx shall
not have returned to the full-time performance of Xxxxxxxx'x duties, Gibraltar
may terminate this Agreement for "Disability".
(c) Retirement. The term "Retirement" as used in this Agreement
shall mean termination by Gibraltar or by Xxxxxxxx of Xxxxxxxx'x employment
after Xxxxxxxx has reached age 65, or such other age as shall have been fixed in
any arrangement established with Xxxxxxxx'x consent with respect to Xxxxxxxx.
(d) Cause. "Cause" shall mean (i) final conviction of Xxxxxxxx of a
felony under the laws of the United States or any state thereof which results or
was intended to result directly or indirectly in gain or personal enrichment by
Xxxxxxxx at the expense of Gibraltar, (ii) participation by Xxxxxxxx as an
employee, officer or holder of more than five percent of the equity in any
business engaged in activities in direct competition with Gibraltar without the
prior
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written consent of Gibraltar, or (iii) Xxxxxxxx'x failure to perform his
duties as an employee at substantially the same level as he had performed those
duties immediately prior to the date of this Agreement; provided, however, that
notwithstanding the foregoing, Xxxxxxxx shall not be deemed to have been
terminated for "Cause" pursuant to subparagraph (d)(iii) unless and until there
shall have been delivered to Xxxxxxxx a written notice setting forth his
deficiencies, an opportunity for Xxxxxxxx to present argument to the contrary to
Gibraltar's Board of Directors at a meeting of the Board at which this subject
is an agenda item (and of which Xxxxxxxx had reasonable notice and at which
Xxxxxxxx had an opportunity to be heard), and the adoption by the Board of a
resolution, approved by the affirmative vote of not less than three-quarters of
the members of the Board present at such meeting, finding that in the good faith
opinion of the Board Xxxxxxxx had failed to perform his duties as an employee at
substantially the same level as he had performed those duties immediately prior
to the date of this Agreement.
(e) Notice of Termination. Any termination by Gibraltar pursuant to
paragraph 5(b), 5(c) or 5(d) shall be communicated by a Notice of Termination.
For purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which identifies the specific termination provisions in this Agreement
relied upon and which sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Xxxxxxxx'x
employment under the provision so identified. For purposes of this Agreement, no
such purported termination by Gibraltar shall be effective without such Notice
of Termination.
(f) Date of Termination. "Date of Termination" shall mean (i) if
this Agreement is terminated by Gibraltar for Disability, thirty (30) days after
Notice of Termination is given to Xxxxxxxx (provided that Xxxxxxxx shall not
have returned to the performance of
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Xxxxxxxx'x duties on a full-time basis during such 30-day period), or (ii) if
Xxxxxxxx'x employment is terminated by Gibraltar for any other reason, the date
on which a Notice of Termination is given.
6. NO EFFECT ON OTHER CONTRACTUAL RIGHTS. The provisions of this
Agreement, and any payment provided for hereunder, are not intended to reduce
any amounts otherwise payable, or in any way diminish Xxxxxxxx'x existing
rights, or rights which would accrue solely as a result of the passage of time,
under any benefit plan, incentive plan, stock option plan, employment agreement
or other contract, plan or arrangement which may presently be in effect, except
to the extent that any such contract, plan or arrangement is directly contrary
to any provision hereof, in which case the terms set forth in this Agreement
shall prevail.
7. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their heirs, representatives and successors.
8. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
9. EFFECT OF CAPTIONS. The captions in this Agreement are included for
convenience only and shall not in any way effect the interpretation or
construction of any provision hereof.
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10. REMEDIES CUMULATIVE; NO WAIVER. All remedies specified herein or
otherwise available shall be cumulative and in addition to any and every other
remedy provided hereunder or now or hereafter available. No waiver or failure
(intentional or unintentional) to act with respect to any breach or default
hereunder shall be deemed to be a waiver with respect to any subsequent breach
or default, whether of a similar or different nature.
11. NOTICES. All notices, requests, demands or other communications
hereunder shall be sent by registered or certified mail to:
To Employer: Gibraltar Packaging Group, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Copy to: Xxxx X. Xxxxx, Esquire
Xxxxxxx Xxxxxxx & Xxxxxx P.L.L.
0000 Xxxx Xxxxx Xxxxxx
20th Floor, Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
To Xxxxxxxx: Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
12. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and
construed in accordance with the substantive law of the State of Delaware. The
parties intend to and hereby do confer jurisdiction upon the courts of any
jurisdiction within the State of Delaware to determine any dispute arising out
of or related to this Agreement, including the enforcement and the breach
hereof.
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13. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between Employer and Xxxxxxxx and supersedes all prior agreements
and understandings relating to the subject matter hereof.
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IN WITNESS WHEREOF, the undersigned have hereunto set their hands on the
date first hereinabove mentioned.
GIBRALTAR PACKAGING GROUP, INC.
("Gibraltar")
By: /s/ Xxxxxx X. Xxxx
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Its: Chairman
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/s/ Xxxxxxx X. Xxxxxxxx
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XXXXXXX X. XXXXXXXX ("Xxxxxxxx")
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