EXHIBIT 10.1
EMPLOYMENT AND CONSULTING AGREEMENT
This EMPLOYMENT AND CONSULTING AGREEMENT ("Agreement") is by and
between Xxxxxxx X. Xxxxx ("Executive") and Compass Minerals International, Inc.
and its subsidiaries and affiliates (collectively "Company") and is effective as
of the date of execution below.
WHEREAS, Executive currently is President and Chief Executive Officer
of Company; and
WHEREAS, Executive has announced his intent to resign from Company as
both an employee and member of the Board of Directors, effective December 31,
2006;
WHEREAS, Executive has agreed to resign from the Board of Directors and
resign his titles of President and Chief Executive Officer upon appointment of a
successor; and
WHEREAS, Company wants to ensure a smooth and orderly transition of
business and to obtain Executive's availability to act as interim President and
Chief Executive Officer, if necessary, and to provide additional consultative
services to Company as needed through his 65th birthday;
NOW, THEREFORE, Company and Executive agree as follows:
1. Continued Employment. Regarding Executive's continued employment
with Company, Executive and Company agree as follows:
A. Executive shall continue as an employee of Company through
December 31, 2006 (the "Continued Employment"). During the Continued
Employment, Executive shall (1) continue to perform his duties and such
other duties Company reasonably assigns to him; (2) receive his current
Base Salary, less applicable deductions and withholdings; (3) be
eligible to participate in Company's bonus and/or other incentive
compensation plans, health and medical plans, and other employee
benefit plans at Executive's current level, subject to generally
applicable changes to such plans; and (4) assist in the smooth and
orderly transition of the President/CEO duties to his successor, at
Company's reasonable request.
B. The Continued Employment shall terminate immediately upon
Executive's death and/or Disability (as defined in paragraph 1.C.), in
the event of either of which Company shall (1) continue Executive's
Base Salary and bonus compensation (less applicable deductions and
withholdings) through the remainder of the Continued Employment and (2)
pay Executive's Base Salary (less applicable deductions and
withholdings) through December 31, 2008 (as provided in paragraph 2.A).
In the event of Executive's death, Company shall provide appropriate
COBRA notification to anyone enrolled in Company's health and medical
benefit plans through Executive. In the event of Executive's
Disability, Company shall allow Executive to continue participating in
its health and medical benefit plans at Executive's then-current level
(subject to generally
applicable changes to such plans) until Executive's 65th birthday or
his death, whichever occurs first. As a condition precedent to
Company's obligations under this paragraph 1.B., Executive and/or
Executive's heirs/assigns must execute an Agreement in a form
acceptable to Company that contains a Release in the form in paragraph
6.
C. As used in paragraph 1.B. and otherwise in this Agreement,
"Disability" occurs when Executive is unable to perform the essential
functions of his position, with or without reasonable accommodation,
for more than thirty (30) consecutive days after reaching maximum
medical improvement.
2. Continued Relationship. From the conclusion of the Continued
Employment through December 31, 2008, Executive shall be on paid administrative
leave (the "Leave Period"). During the Leave Period, the following shall apply:
A. Company shall (1) continue Executive's Base Salary, less
applicable deductions and withholdings and (2) allow Executive to
continue participating in its health and medical benefit plans at
Executive's then-current level (subject to generally applicable changes
to such plans); provided, however, Company's obligations under this
paragraph 2.A. shall cease as provided in paragraphs 4 and 5 or if
Executive is not available as required under paragraphs 2.B.-C and
provided further that Executive's eligibility to participate in
Company's health and medical benefit plans shall cease as of the date
Executive becomes eligible for benefits through another source (other
than through Medicaid or Medicare).
B. Executive shall be available to act as Company's interim
President/CEO upon reasonable notice from Company, for which action
Executive shall receive the Base Salary of the immediately preceding
President/CEO or his last Base Salary, whichever is greater, and be
eligible for bonus compensation on the same terms and conditions of the
immediately preceding President/CEO.
C. Except when acting as interim President/CEO as provided for
in paragraph 2.B., Executive shall generally be available to provide
services to Company during the Leave Period. For the first forty-five
days of such service, Executive shall not receive any compensation
beyond that provided in paragraph 2.A. For the forty-sixth (46th) and
each successive day of such service, Company shall pay Executive his
last Base Salary plus one thousand dollars ($1,000.00) per day.
D. The Leave Period shall terminate immediately upon
Executive's death and/or Disability, in the event of either of which
Company shall (1) continue Executive's Base Salary (less applicable
deductions and withholdings) through the remainder of the Leave Period.
In the event of Executive's death, Company shall provide appropriate
COBRA notification to anyone enrolled in Company's health and medical
benefit plans through Executive. In the event of Executive's
Disability, Company shall allow Executive to continue participating in
its health and medical benefit plans at Executive's then-current level
(subject to generally applicable changes to such plans) until
Executive's 65th birthday
or his death, whichever occurs first. As a condition precedent to
Company's obligations under this paragraph 2.D., Executive and/or
Executive's heirs/assigns must execute an Agreement in a form
acceptable to Company that contains a Release in the form in paragraph
6.
E. As a condition precedent to commencement of the Leave
Period, Executive must execute an Agreement in a form acceptable to
Company that contains a Release in the form in paragraph 6. Executive's
failure to do so shall render paragraphs 2-3 null and void.
3. Consulting Period. From the conclusion of the Leave Period through
Executive's 65th birthday, Executive shall be available to act as a consultant
to Company up to a maximum of sixty (60) days per year (the "Consulting
Period"). During the Consulting Period, the following shall apply:
A. Company shall (1) pay Executive five hundred dollars
($500.00) per year and (2) allow Executive to continue participating in
its health and medical benefit plans at Executive's then-current level
(subject to generally applicable changes to such plans); provided,
however, Company's obligations under this paragraph 3.A. shall cease as
provided in paragraphs 4 and 5 or if Executive is not available as
required under paragraphs 2.B.-C and provided further that Executive's
eligibility to participate in Company's health and medical benefit
plans shall cease as of the date Executive becomes eligible for
benefits through another source (other than through Medicaid or
Medicare).
B. The provisions of paragraph 2.B.-E. shall apply with
respect to the Consulting Period, subject to the changes in
compensation/benefits described in paragraph 3.A. and provided that,
with respect to paragraph 2.C., Executive shall receive one thousand
dollars ($1,000.00) per day for any work performed during the
Consulting Period.
4. Termination For Cause. Company may terminate the Continued
Employment, the Leave Period, and/or the Consulting Period at any time for
Cause.
A. If Company terminates the Continued Employment, the Leave
Period, and/or the Consulting Period for Cause, then Executive shall
not be entitled to any additional compensation/benefits pursuant to
this or any other Agreement.
B. In addition to Executive's unavailability except due to
death or disability (see paragraphs 2.B.-C. and 3.B.), Cause occurs
when Executive (i) is convicted of or pleads no contest/nolo contendre
to a felony or misdemeanor (other than a minor traffic violation); (ii)
breaches any provision of this Agreement or the Restrictive Covenant
Agreement referenced in paragraph 5, including but not limited to by
acting dishonestly or negligently regarding his performance hereunder;
(iii) fails to perform his duties (other than for reasons related to
illness, injury, or temporary disability); (iv) violates Company's
policies and/or practices applicable to employees at Executive's level,
including but not limited to its employment policies and practices; (v)
takes any intentional action or intentionally fails to act, which
action/inaction results in significant financial or
reputational harm to Company or its customers/clients/employees; and/or
(vi) fails to comply with any reasonable and lawful oral or written
request or directive of Company.
5. Executive's Obligations. In addition to any obligations otherwise
provided for in this Agreement, Executive hereby agrees:
A. Coincidental with his signature on this Agreement,
Executive will execute a Restrictive Covenant Agreement in the form
attached hereto.
B. During the Continued Employment, the Leave Period, and/or
the Consulting Period, Executive shall not accept Full-Time employment
with any other employer.
6. Executive's Release.
A. By signing below, Executive (on behalf of Executive and
anyone claiming through or on behalf of Executive) releases Company (as
defined herein) and its successors, assigns, officers, employees, and
agents, without limitation ("Company Affiliates") from any and all
claims, demands, and causes of action ("claims"), known or unknown,
suspected or unsuspected, that Executive has or may have had against
any of them before the date Executive signs this Agreement, to the
maximum extent permitted by law and without limitation. This release
includes, but is not limited to, the following: claims related to or
concerning Executive's employment with Company; claims sounding in
contract and/or tort; claims for discrimination/harassment/retaliation
under local, state, or federal law, including but not limited to Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Americans with Disabilities Act, the Age Discrimination in Employment
Act, and any other federal, state, or local law; claims under the
Employee Retirement Income Security Act; claims under the Family and
Medical Leave Act; claims under any Company policy and/or practice; and
all other claims, whether common law or contract, all to the maximum
extent permitted by law and without limitation.
B. Regarding the foregoing Release, Executive agrees as
follows: he had twenty-one (21) calendar days to consider it, Company
advised him/hereby advises him to consult with an attorney before
agreeing to such Release, and he may revoke such Release within seven
(7) calendar days after he signs this Agreement by returning written
revocation in that time to Compass Minerals International, Inc. (Attn:
Xxxxxxxx Xxxxxx, Vice President, Human Resources); provided, however,
that this Agreement shall be null and void in the event of such
revocation.
7. Miscellaneous Provisions.
A. Governing Law and Consent to Jurisdiction. This Agreement
and all disputes relating to the interpretation/enforcement of this
Agreement shall be subject to, governed by, and construed in accordance
with the laws of the State of Kansas, notwithstanding any authority to
the contrary. Executive hereby expressly submits and consents to the
exclusive personal jurisdiction and exclusive venue of
the federal and state courts of competent jurisdiction in the State of
Kansas, irrespective of the fact that one or both of the parties now is
or may become a resident of a different state and notwithstanding any
authority to the contrary.
B. Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to this subject matter and
supersedes all prior agreements or understandings, if any, between the
parties with respect to such matters. This Agreement may be modified or
amended only by an agreement in writing signed by both parties.
C. No Waiver. The failure of either party to insist on the
performance of any of the terms or conditions of this Agreement, or
failure to enforce any of the provisions of this Agreement, shall not
be construed as a waiver or a relinquishment of any such provision. Any
waiver or failure to enforce on any one occasion is effective only in
that instance, and the obligations of either party with respect of any
provision in this Agreement shall continue in full force and effect.
D. Board Approval. This Agreement is subject to approval by
Company's Board of Directors and shall not become effective and/or
enforceable unless and until such approval.
E. Construction of Agreement. This Agreement is the product of
negotiation by and between the parties and shall not be strictly
construed or otherwise interpreted against either party. In construing
this Agreement, any court of competent jurisdiction/arbitrator shall
give effect to the intent of the parties.
F. Notice. For purposes of this Agreement, all notices and
other communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given when delivered or
five (5) days after deposit in the United States mail, certified and
return receipt requested, postage prepaid, addressed as follows:
If to Executive:
------------------------------------------
If to the Company: Compass Minerals International, Inc.
0000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx XX 00000
Attention: Vice President, Human Resources
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notices of change
of address shall be effective only upon receipt.
G. Taxability. Company hereby agrees to work with Executive
regarding the tax implications of any payment made under this
Agreement, to the maximum extent Company believes it may do so in good
faith and in compliance
with applicable law. Additionally, in the event any payment to be made
under this Agreement is determined to constitute "deferred
compensation" subject to Section 409A of the Internal Revenue Code, and
the Executive is determined to be a specified employee (as defined in
Section 409A), such payment or distribution shall not be made before
the date that is six months after the termination of Executive's
employment (or, if earlier, the date of the Executive's death).
Dated: November 3, 2005 /s/ XXXXXXX X. XXXXX
-------------------- ----------------------------------
Xxxxxxx X. Xxxxx
For Company:
Dated: November 3, 2005 By: /s/ XXXXX X'XXXXXX,
-------------------- Compensation Committee Chairman
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Approved by the Board of Directors on November 3, 2005.
