EXHIBIT 10.09
EMPLOYMENT AGREEMENT
AGREEMENT, made as of January 1, 1992, by and between GREAT LAKES
HOLDINGS CORPORATION, a Delaware corporation (the "Company"), and Xxxxxxx Xxxxx
("Executive").
RECITALS
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In order to induce Executive to remain in his current position and to
continue serving as a senior executive officer of the Company, the Company
desires to provide Executive with compensation and other benefits on the terms
and conditions set forth in this Agreement.
Executive is willing to continue his employment and perform services
for the Company on the terms and conditions set forth in this Agreement.
Executive acknowledges that:
(i) this Agreement is the sole existing employment agreement
between Executive and the Company; and
(ii) this Agreement nullifies and supersedes all previous contracts
governing the terms of Executive's employment with the Company.
It is therefore hereby agreed by and between the parties as follows:
1. Employment.
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1.1 Subject to the terms and conditions of this Agreement, the
Company agrees to employ Executive during the term hereof as Senior Vice
President, Chief Engineer of the Company. In that capacity, Executive shall
have the customary powers,
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resposibilities and authority of other persons having a similar position at
corporations of the size, type and nature of the Company, as they exist from
time to time. Executive's principal office shall be at the principal executive
offices of the Company in Oak Brook, Illinois.
1.2 Subject to the terms and conditions of this Agreement, Executive
hereby accepts employment by the Company in the position specified in Section
1.1 hereof and agrees to devote his full working time and efforts, to the best
of his ability, experience and talent, to the performance of services, duties
and responsibilities in connection therewith. Nothing in this Agreement shall
preclude Executive from engaging, consistent with his duties and
responsibilities hereunder, in charitable and community affairs, from
managing his personal investments, from continuing to serve on the boards of
directors of the companies and associations listed on Exhibit A or from serving,
subject to approval of the Board of Directors of the Company, as a member of
boards of directors or as a trustee of other companies, associations or
entities.
2. Term of Employment.
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Executive's term of employment under this Agreement shall commence on
the date hereof and, subject to the terms hereof, shall terminate on the earlier
of (i) the third anniversary of the date hereof (the "Termination Date") or (ii)
termination of Executive's employment pursuant to this Agreement; provided,
however, that on the Termination Date and each anniversary thereof, the
Termination Date shall be extended for a period of one additional year unless
either party shall have
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given written notice to the other party not less than 90 days prior to such date
that the Termination Date shall not be so extended. Upon any such extension,
references to the Termination Date shall be deemed to be references to the
Termination Date as so extended.
3. Compensation.
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The Company shall pay Executive a base salary at an annual rate of
$147,000, which salary shall be automatically increased by five percent (5%) on
the first anniversary of Executive's last increase in base salary. Thereafter,
Executive's base salary shall be reviewed by the Compensation Committee of the
Board of Directors of the Company at least once in every twelve-month period
during the term of this Agreement and, if adjusted, such adjusted amount shall
constitute Executive's base salary.
4. Employee Benefits.
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The Company shall provide Executive during the term of his employment
hereunder coverage (commensurate with his positions in the Company and to the
extent possible under any employee benefit plan) under any bonus plans and other
employee benefit programs, plans and practices (including the cash bonus program
and Company stock option plan), in accordance with the terms thereof, which
the company makes available to its senior executive officers.
5. Expenses.
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Executive is authorized to incur reasonable expenses in carrying out
his duties and responsibilities under this Agreement, including, without
limitation, expenses for travel and
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similar items related to such duties and responsibilities. The Company will
reimburse Executive for all such expenses upon presentation by Executive from
time to time of an itemized account of such expenditures.
6. Termination of Employment.
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6.1 Termination
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The Company may terminate Executive's employment at any time for any
reason, and Executive may terminate his employment at any time upon 30 days
prior written notice to the Company. If prior to the Termination Date, as then
in effect, Executive either (a) resigns for Good Reason (as defined in Section
6.2 hereof) or (b) is terminated by the Company for any reason other than for
Cause (as defined in Section 6.2), death or Permanent Disability (as defined in
Section 6.2), Executive shall be entitled to receive equal monthly installments
for twelve months, in lieu of any other cash compensation provided for herein
but not in substitution for compensation already paid or earned, equal to 8.34
percent multiplied by the sum of (x) Executive's then current base salary and
(y) Executive's current bonus, which shall be a percentage of his then current
base salary equal to (i) the average percentage of Executive's base salary
represented by the bonuses Executive received during the term of this Agreement
prior to his termination or (ii) if employment terminates on or prior to
December 31, 1992, the percentage of Executive's base salary represented by the
bonus Executive received with respect to the 1991 calender year.
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6.2 Certain Definitions.
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For purposes of this Agreement:
(a) "Cause" shall mean:
(i) commission by the Executive of any felony involving moral
turpitude;
(ii) the Executive's willful misconduct as an employee of the Company
involving dishonesty (including the unauthorized disclosure of
confidential or proprietary information of the Company); or
(iii) the Executive's willful failure to render services to the Company
in accordance with his employment.
(b) "Good Reason" shall mean the resignation of Executive from
employment by the Company as a result of the occurrence of any of the following
events without Executive's express prior written consent:
(i) a material reduction or a material adverse alteration in the
nature of the Executive's position, responsibilities or authorities;
(ii) the Executive's becoming the holder of a lesser office or title
than that previously held;
(iii) any reduction in the aggregate of the Executive's bonus,
compensation and benefits, other than a reduction in bonus or benefits generally
applicable to executive employees;
(iv) the relocation of the Executive's job more than fifty miles from
his present location; or
(v) any material breach of this Agreement by the Company which causes
an adverse change to the terms and conditions of the Executive's employment.
(c) "Permanent Disability" shall mean the inability of the Executive
to perform substantially all his duties and responsibilities to the Company by
reason of a physical or mental disability or infirmity for a continuous period
of six months. The date of such Permanent Disability shall be
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the last day of such six-month period or if later, the day on which the
Executive submits satisfactory medical evidence of such Permanent
Disability.
7. Notices.
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All notices or communications hereunder shall be in writing, addressed
as follows:
To the Company:
Great Lakes Holdings Corporation
0000 Xxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Blackstone Dredging Partners L.P.
000 Xxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
To Executive at the address set forth on the signature page of this
Agreement.
Any such notice or communication shall be sent certified or registered mail,
return receipt requested, postage prepaid, addressed as above (or to such other
address as such party may designate in a notice duly delivered as described
above), and the actual date of mailing shall constitute the time at which notice
was given.
8. Separability; Legal Fees.
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If any provision of this Agreement shall be declared to be invalid or
unenforceable, in whole or in part, such invalidity or unenforceability shall
not affect the remaining provisions hereof, which shall remain in full force and
effect. In addition, the Company shall bear, or reimburse Executive for, all
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reasonable legal fees incurred in connection with entering into this Agreement.
9. Assignment.
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This Agreement shall be binding upon and inure to the benefit of the
heirs and representatives of Executive and the assigns and successors of the
Company, but neither this Agreement nor any rights hereunder shall be assignable
or otherwise subject to hypothecation by Executive (except by will or by
operation of the laws of interstate succession) or by the Company, except that
the Company may assign this Agreement to any successor (whether by merger,
purchase or otherwise) to all or substantially all of the stock, assets or
businesses of the Company.
10. Amendment.
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This Agreement may only be amended by written agreement of the parties
hereto.
11. Nondisclosure of Confidential Information; Non-Competition.
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(a) Executive shall not, without the prior written consent of the
Company, divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity any Confidential Information pertaining
to the business of the Company, except (i) while employed by the Company, in the
business of and for the benefit of the Company, or (ii) when required to do so
by a court of competent jurisdiction or an individual duly appointed thereby, by
any administrative body or legislative body (including a committee thereof)
having supervisory authority over the business of the Company, or by any
administrative body or legislative body (including a committee
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thereof) with jurisdiction to order Executive to divulge, disclose or make
accessible such information. For purposes of this Section 11(a), "Confidential
Information" shall mean non-public information concerning the financial data,
strategic business plans, product development (or other proprietary product
data), customer lists, marketing plans and other non-public, proprietary and
confidential information of the Company and its subsidiaries that is not
otherwise available to the public; provided, however, that Confidential
Information shall also include any information of the type herein described
which has become publicly available through any breach of fiduciary duty.
(b) During the period of his employment hereunder and for a period of
one year thereafter, Executive agrees that, without the prior written consent of
the Company, he will not, directly or indirectly, either as principal, manager,
agent, consultant, officer, stockholder, partner, investor, lender or employee
or in any other capacity, carry on, be engaged in or have any financial interest
in, any business which is in material competition with the business of the
Company and/or its affiliates.
(c) For purposes of this Section 11, a business shall be deemed to be
in competition with the Company if it is principally involved in the purchase,
sale or other dealing in any property or the rendering of any service purchased,
sold, dealt in or rendered by the Company and/or its affiliates as a material
part of the business of the Company and/or its affiliates within the same
geographic areas in which the Company and/or its affiliates principally effect
such purchases, sales or
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dealings or render such services. Nothing in this Section 11 shall be construed
so as to preclude Executive from (i) investing in any publicly held company
provided Executive's beneficial ownership of any class of such company's
securities does not exceed 3% of the outstanding securities of such class.
(d) Executive and the Company agree that this covenant not to
compete is a reasonable covenant under the circumstances, and further agree that
if in the opinion of any court of competent jurisdiction such restraint is not
reasonable in any respect, such court shall have the right, power and authority
to excise or modify such provision or provisions of this covenant as to the
court shall appear not reasonable and to enforce the remainder of the covenant
as so amended. Executive agrees that any breach of the covenants contained in
this Section 11 would irreparably injure the Company. Accordingly, the Company
may, in addition to pursuing any other remedies it may have in law or in equity,
obtain an injunction against Executive from any court having jurisdiction over
the matter, restraining any further violation of this Agreement by Executive.
12. Survivorship.
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The respective rights and obligations of the parties hereunder shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations. The provisions of this
Section 12 are in addition to the survivorship provisions of any other section
of this Agreement.
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13. Governing Law.
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This Agreement shall be construed, interpreted and governed in
accordance with the laws of the State of New York without reference to rules
relating to conflicts of law.
14. Withholding.
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The Company shall be entitled to withhold from payment any amount of
withholding required by law.
15. Counterparts.
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This Agreement may be executed in two or more counterparts, each of
which will be deemed an original.
GREAT LAKES HOLDINGS
CORPORATION
By /s/
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Title:
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Executive's Address:
EXHIBIT A
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Existing Board of Directors Positions of Executive
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