(d)(23)
EMPLOYMENT AGREEMENT
THIS AGREEMENT (this "Agreement") is entered into as of December 5,
2000, by and between UMSI Acquisition Co., a Delaware corporation (the
"Company"), and Xxxx X. X'Xxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive upon the terms and
conditions set forth herein;
WHEREAS, the Executive is willing and able to accept such employment on
such terms and conditions; and
WHEREAS, the Company and the Executive intend that this Agreement shall
supersede and replace in its entirety any prior agreement relating to the terms
of employment of the Executive with any predecessor in interest to the Company
(a "Prior Agreement") and that, on and after the date hereof, any such Prior
Agreement shall be of no further force or effect.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Company and the Executive hereby agree as follows:
1. Effective Date; Employment Period; Prior Agreement.
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(a) Subject to the provisions of this Section 1 and the provisions of
Section 4 hereof, the term of this Agreement shall commence as of
the consummation date of the Asset Purchase Agreement (the "Asset
Purchase Agreement") by and among Union Espanola de Explosivos
S.A., Union Espanola de Explosivos-MSI International, S.A., the
Company, and Mining Services International Corporation (the
"Effective Date") and shall end on the second anniversary thereof,
provided that, subject to Section 4 hereof, commencing on the
second anniversary of the Effective Date, and on each anniversary
of the Effective Date thereafter, the term of this Agreement shall
automatically be extended for an additional year unless, not later
than ninety (90) days prior to each such date, the Company or the
Executive shall have given notice not to extend the term of this
Agreement. This Agreement will become effective only upon the
consummation of the Asset Purchase Agreement. Until this Agreement
becomes effective, this Agreement will have no force and effect,
and no party shall have any right, interest, duties, obligations
or liabilities hereunder. If the Asset Purchase Agreement is not
consummated, this Agreement will be null and void and have no
force and effect, and no party shall have any right, interest,
duties, obligations or liabilities hereunder. The obligations of
the Company and the Executive under this Agreement which by their
nature may require either partial or total performance after the
expiration of the term of this Agreement shall survive such
expiration. All periods during which the Executive is employed
hereunder shall hereinafter be referred to as the "Employment
Period."
(b) Effective as of the Effective Date, this Agreement shall supersede
and replace any Prior Agreement, and any Prior Agreement shall be
of no further force or effect.
2. Positions and Duties.
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(a) During the Employment Period, the Company will employ the
Executive, and the Executive agrees to serve and accept
employment, as the General Manager of the O'Brien Design
Associates division of the Company, reporting directly to the
Chief Executive Officer of the Company or other ultimate executive
authority of the Company or such person as the CEO delegates (the
"CEO"). However, at a future time and at the discretion of the
CEO, the Executive will concentrate his activities on the
technology and operations portions of the O'Brien Design
Associates division of the Company. As General Manager of O'Brien
Design Associates, the Executive shall perform the customary
duties of such position, subject to the direction and control of
the CEO, and shall perform such other duties, not inconsistent
with such position, as the CEO or the Board of Directors of the
Company (the "Board") may require. The Executive's
responsibilities shall include overseeing, developing, and
supervising the business of the O'Brien Design Associates division
of the Company. The Executive shall have a position on the Board
of O'Brien Design Associates.
(b) During the Employment Period, the Executive shall devote all of
his working time to such employment, shall devote his best efforts
to advance the interests of the Company and shall not engage in
any other business activities except as set forth in Exhibit A, as
an employee, director, consultant or in any other capacity,
whether or not he receives any compensation therefor, without the
prior written consent of the Board. It shall not be a violation of
this Agreement for the Executive to serve on civic or charitable
boards or committees, or on those corporate boards or committees
on which the Executive is serving as of the Effective Date (each
of which have been disclosed by the Executive to the Company in
writing and are attached hereto as Exhibit B), provided that such
activities do not materially interfere with the performance of the
Executive's duties hereunder. It shall also not be a violation of
this Agreement for the Executive to have passive investments in
entities that do not in any way compete with the Company provided
that such activities do not materially interfere with the
performance of the Executive's duties hereunder.
(c) During the Employment Period, the Executive shall not cause the
Company to enter into any contract with any related party without
the prior written consent of the CEO. For purposes of this
subsection (c), a related party is any entity in which the
Executive or his immediate family has any ownership interest. For
purposes of this Agreement immediate family members are an
individual's parents, spouse, children and other dependents living
in the individual's home.
3. Compensation. In consideration of the performance by the Executive of
his duties hereunder, during the Employment Period the Company shall
pay or provide to the Executive the following compensation which the
Executive agrees to accept in full satisfaction for his services, it
being understood that necessary withholding taxes, FICA contributions
and any other standard Company deductions shall be deducted from such
compensation:
(a) Base Salary. The Executive shall receive a base salary equal to
eighty thousand dollars ($80,000) per annum (the "Base Salary"),
which Base Salary shall be paid in accordance with the Company's
generally applicable payroll practices and procedures (or in such
other manner as the Executive and the Company may otherwise
agree). The Base Salary shall be reviewed for adjustment by the
Board annually (commencing on or about January 1, 2002, and on or
about each January 1 thereafter during the Employment Period).
(b) Bonuses. For each fiscal year of the Company beginning on or after
January 1, 2001, the Executive shall be eligible for an annual
bonus of between 0% and 50% of his Base Salary based upon
attainment of reasonable performance goals as follows:
upon achievement of role performance objectives established
for the Executive;
upon achievement of performance objectives established for
the Company as a whole; and
upon the extent of the Executive's contributions to the
creation of long-term Company shareholder value.
The performance goals shall be established (and the determination
of whether the goals have been attained shall be made) in good
faith by the CEO, in his sole discretion after consultation with
the Executive, and shall be based on reasonable objective targets
consistent with the Company's business plan. Any amount payable to
the Executive for a year pursuant to this subsection (b) shall be
paid on or before March 15 of the following year.
(c) Employee Benefits. The Executive shall be entitled to participate
in the retirement, health and life insurance and other welfare and
fringe benefit plans and programs that are generally made
available by the Company to its executive officers from time to
time. For purposes of (i) the Company's 401(k) program, (ii) the
Company's vacation program and (iii) the Company's sick leave
program, the Executive's service as an employee of Mining Services
International shall count as years of service with the Company.
Such benefits shall be, as of the Effective Date, similar to those
provided to the Executive by Mining Services International
immediately before the Effective Time, including without
limitation medical benefits and a "401(k)" savings plan with an
employer matching contribution of at least 3%. In addition to such
benefit plans and programs, the Executive shall have the following
benefits:
(i) Holidays. The Executive shall be entitled to the following 10
(ten) holidays per year:
New Year's Day Day after Thanksgiving
Memorial Day Day before Christmas
Independence Day Christmas Day
Labor Day 2 Floating Holidays (one could
Thanksgiving Day be used for Statehood Day if
desired)
(ii) Medical Insurance. The medical insurance shall be offered through
Blue Cross Blue Shield of Utah (the "Medical Insurance"). The
Executive shall be entitled to choose between the two following
plans: (1) a full plan which has a higher premium to the
individual family and (2) a PPO plan which has lower premiums. The
Executive shall have an additional benefit of up to $3,000 per
year to cover deductibles and other out-of-pocket costs not
covered under the normal plans. The Medical Insurance also covers
a dental plan, life insurance coverage and drug card.
(ii) Automobile Policy. The Executive shall be entitled to either use a
company owned vehicle or receive a vehicle allowance depending on
the circumstances as approved by the CEO. The vehicle dollar
limits are adjusted each year by the CEO.
(iii) Office and Communication Equipment. On a needs basis, the
Executive may be provided a lap top computer, mobile phones and
other technology to enhance work performance.
(d) Expenses. During the Employment Period, the Company shall
reimburse the Executive for reasonable and customary expenses with
respect to vehicle usage, travel, meals, business-related
entertainment, cellular phone usage and similar items incurred in
connection with the Company's business, pursuant to the expense
reimbursement policies of the Company then in effect. Provided he
has valid need the Executive may be authorized for the use of a
Company credit card. The Executive is responsible for paying the
monthly xxxx and maintaining such credit card account.
(e) Vacation. The Executive shall be entitled to four weeks of annual
paid vacation, which shall be forfeited to the extent that it is
not taken in the year for which it is granted (unless the failure
to take the vacation is attributable to the duties of the
Executive with respect to the Company in which case it shall be
carried forward to the next succeeding year). The Executive shall
not be eligible for remuneration for forfeited vacation.
4. Termination.
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(a) Termination by the Company for Cause. The Company shall have the
right at any time to terminate the Executive's employment
hereunder for "Cause". "Termination for Cause" shall mean
termination of the Executive's employment by the Company or any of
its subsidiaries due to (i) the Executive's conviction for a
felony as defined by Applicable Law, (ii) gross negligence in
performance of the Executive's duties, (iii) dishonesty adversely
affecting the Company, (iv) willful failure to perform his duties
and obligations after being given detailed notice of his
inadequate performance and a reasonable opportunity to cure which
will not exceed 30 days, (v) recklessness in performance of the
Executive's duties which results in a material adverse effect on
the Company or (vi) fraud.
(b) Termination by the Company for Death or Disability. The
Executive's employment hereunder shall terminate automatically
upon the death of the Executive. The Company shall have the right
at any time to terminate the Executive's employment hereunder upon
the Executive's "Disability" or "Death". "Termination Due to
Disability" shall mean termination of the Executive's employment
by the Company or any of its subsidiaries because the Executive
has been incapable for a six month period of substantially
fulfilling the positions, duties, responsibilities and obligations
set forth in his/her employment agreement because of physical,
mental or emotional incapacity resulting from injury, sickness or
disease. "Termination Due to Death" shall mean a termination of
the Executive's employment by the Company or any of its
subsidiaries because the Executive has died.
(c) Termination by the Company without Cause. The Company shall have
the right at any time to terminate the Executive's employment
hereunder without Cause. "Termination Without Cause" shall mean
any termination by the Company or any of its subsidiaries of the
Executive's employment other than (i) Termination Due to
Disability, (ii) Termination Due to Death, (iii) Termination Due
to Retirement or (iv) Termination for Cause.
(d) Termination by the Executive Without Good Reason. The Executive
shall be entitled voluntarily to terminate his employment
hereunder "Without Good Reason" upon no less than ninety (90)
days' prior written notice to the Company. "Termination Without
Good Reason" shall mean any termination of the Executive's
employment with the Company or any of its subsidiaries by the
Executive other than (i) a Termination Due to Death, (ii) a
Termination Due to Retirement, (iii) a Termination for Good
Reason, (iv) Termination for Failure to Relocate or (v) a
Termination Due to Disability. "Termination Due to Retirement"
shall mean termination of the Executive's employment with the
Company or any of its subsidiaries by the Executive because the
Executive has reached or surpassed (i) the age of 65 or (ii) the
age of 60 provided that the Executive has been employed by the
Company for at least five years from the Effective Date.
(e) Termination by the Executive for Good Reason. The Executive shall
be entitled voluntarily to terminate his employment for "Good
Reason" upon no less than ninety (90) days' prior written notice
to the Company, provided that the Company does not cure the
condition providing the basis for Good Reason within thirty (30)
days following the provision for the Executive's Notice of
Termination in accordance with subsection (g), below. "Termination
for Good Reason" shall mean termination of the Executive's
employment with the Company or any of its subsidiaries by the
Executive due to (i) a material reduction in the Executive's
responsibilities, duties and positions, (ii) a material reduction
of the Executive's annual base salary and bonus potential, (iii) a
material breach by the Company of this Agreement, (iv) a willful
and intentional request by the Company that the Executive violate
the Foreign Corrupt Practices Act or (v) a Change of Control (as
hereafter defined), and if, not later than the date of the Change
of Control, the Executive is not offered a similar position with
the Company for at least one year with compensation and
responsibilities substantially similar to those of the Executive's
for the eighteen (18) months preceding the Change of Control.
(f) Termination by the Executive for Failure to Relocate. The
Executive shall be entitled voluntarily to terminate his
employment for "Failure to Relocate" upon no less than ninety (90)
days' prior written notice to the Company. "Termination for
Failure to Relocate" shall mean termination of the Executive's
employment with the Company or any of its subsidiaries by the
Executive through his refusal to relocate from his current
geographic location of employment to another geographic location
more than fifty miles from the current location upon such request
by the Company or any of its affiliates.
(g) Notice of Termination. Any termination of the Executive's
employment hereunder (other than upon the death of the Executive)
shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 9 hereof. For purposes of
this Agreement, a "Notice of Termination" shall mean a written
notice which (i) indicates the specific termination provision in
this Agreement relied upon, (ii) if the termination is by the
Company for Cause or by the Executive for Good Reason, sets forth
in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment, and
(iii) sets forth the date on which such termination shall be
effective (the "Date of Termination"). The failure by the Company
to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Cause shall not waive any right
of the Company hereunder or preclude the Company from asserting
such fact or circumstance in enforcing its rights hereunder.
5. Effect of Termination of Employment.
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(a) For Cause. If the Executive's employment hereunder is Terminated
for Cause, the Executive's Base Salary and other benefits
specified in Section 3 hereof (other than any bonus) shall be paid
or provided through but not after the Date of Termination, and the
Company shall have no further obligations under this Agreement.
(b) Without Cause/For Good Reason. If the Executive's employment
hereunder is Terminated Without Cause or Terminated for Good
Reason, (i) the Executive's Base Salary and other benefits
specified in Section 3 hereof (other than any bonus) shall be paid
or provided through the Date of Termination, (ii) the Company
shall pay the Executive, within ten days following the Date of
Termination, (x) a cash amount equal to 100% of his then Base
Salary and, (y) the Earned Bonus (as defined below), if any,
provided that (1) a full calendar year has been completed (the
"Prior Year") and the Executive has already earned his full bonus
for the Prior Year (the "Earned Bonus") and (2) the Executive's
employment is terminated by the Company without Cause or by the
Executive for Good Reason in the year after the Prior Year but
before the Earned Bonus has been paid to the Executive.
(c) Failure to Relocate. If the Executive's employment hereunder is
Terminated for Failure to Relocate, (i) the Executive's Base
Salary and other benefits specified in Section 3 hereof (other
than any bonus) shall be paid or provided through the Date of
Termination, (ii) the Company shall pay the Executive, within ten
days following the Date of Termination, (x) a cash amount equal to
100% of his then Base Salary and, (y) the Earned Bonus, if any,
provided that (1) a Prior Year has been completed and the
Executive has already earned the Earned Bonus and (2) the
Executive's employment is terminated by the Executive for Failure
to Relocate in the year after the Prior Year but before the Earned
Bonus has been paid to the Executive.
(d) Without Good Reason. If the Executive's employment hereunder is
Terminated Without Good Reason, the Executive's Base Salary and
other benefits specified in Section 3 hereof (other than any
bonus) shall be paid or provided through but not after the Date of
Termination, and the Company thereafter shall have no further
obligations under this Agreement.
(e) Due to Death or Due to Disability. If the Executive's employment
hereunder is Terminated Due to Death or Terminated Due to
Disability, the Executive's Base Salary and other benefits
specified in Section 3 hereof shall be paid or provided to the
Executive (or the Executive's estate, if applicable) through but
not after the Date of Termination, and the Company shall have no
further obligations under this Agreement.
(f) In addition to the benefits provided to the Executive pursuant to
the foregoing provisions of this Section 5, unless the Company
elects to waive the provisions of Sections 6(b) through 6(d),
below, the Company shall pay to the Executive following the
termination of the Executive's employment (for any reason other
than death, by reason of Disability or Termination for Cause (as
defined in the Stockholders Agreement) one (1) times his Base
Salary (as determined as of his Date of Termination) for each year
of the Non-Competition Period (as hereafter defined) as such
period shall be selected by the Company. The payments shall be
made within twenty (20) days following the first and second, as
applicable, anniversary of his Date of Termination.
6. Confidential Information; Restrictive Covenants.
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(a) The Executive acknowledges that the non-public information,
knowledge and data (including any trade secrets or similar
proprietary information) obtained by him during the course of his
employment with the Company, concerning the business or affairs of
the Company and its affiliates (the "Business Entities") are the
property of the Company. Therefore, the Executive will not at any
time (whether during or after his employment with the Company)
disclose or use for his own benefit or purposes or the benefit or
purposes of any other person, entity or enterprise, other than a
Business Entity, any trade secrets, information, data, or other
confidential information relating to customers, development
programs, costs, marketing, trading, investment, sales activities,
promotion, credit and financial data, manufacturing or other
processes, financing methods, plans or the business and affairs of
any Business Entity; provided that the foregoing shall not apply
to information which is not proprietary to the Business Entities
or which has become public other than as a result of the
Executive's breach of this covenant. The Executive agrees that,
during the Employment Period, he will use his best efforts to
maintain in good condition all memoranda, books, papers, plans,
information, letters and other data, and all copies thereof or
therefrom, in any way relating to the business of the Business
Entities, and that upon termination of his employment with the
Company for any reason, he will return all such materials
(together with any other property of the Company) to the Company
immediately. The Executive shall not at any time (whether during
or after his employment with the Company), without the prior
written consent of the CEO, participate in any public conference,
publish any document, or otherwise make any public statement that
could reasonably be expected to affect the image of the Business
Entities. The Company acknowledges that all information related to
the STS Technology and the Detotec Technology, as those terms are
defined in Exhibit A attached hereto, is not the property of the
Company and is not subject to this Agreement. The Company also
acknowledges that the Executive possesses certain knowledge and
experience that the Executive has obtained through prior education
and employment (other than his employment by MSI or O'Brien Design
Associates) (the "Executive's Information"). Except as the
Executive and the Company may at a future date agree to in
writing, nothing in this Agreement or any other agreement or
document entered into between the Executive and the Company or any
of its affiliates in connection with the transactions of which
this Agreement is a part shall prevent the Executive from using
the Executive's Information either (i) during his employment by
the Company and during any Non-Competition Period after his
employment, whether as an employee, consultant, owner, part-owner,
officer, director or in any other capacity, for or on behalf of
Detotec, Inc., a Delaware corporation ("DNA"), or Shock Tube
Systems, Inc., a Delaware corporation ("STS", and together with
Detotec, the "Existing Businesses"), or (ii) after his employment
by the Company and after the lapse of the Non-Competition Period
as set forth in this Section 6, whether as an employee,
consultant, owner, part-owner, officer, director or in any other
capacity, for or on behalf of the Existing Businesses or for any
other business or entity, provided, however, that in each such
case the Executive may not be required by such relationship to
reveal, infringe upon, base judgment upon or otherwise use in any
manner or form any confidential or proprietary information of the
Company or any of its affiliates or O'Brien Design Associates,
Inc.
(b) The Executive agrees that during the Non-Competition Period, he
will not, directly or indirectly, alone or as a partner, joint
venturer, officer, director, employee, consultant, agent,
independent contractor or stockholder of any company or business,
engage (for anyone other than the Company) in any Competitive
Enterprise. For the purpose hereof, a "Competitive Enterprise"
shall mean any company, corporation or other entity with any
activities directly or indirectly related to the civil explosives
business or the initiation systems business. Ownership of less
than two percent of the total outstanding equity securities by the
Executive of shares of stock of any corporation having a class of
equity securities actively traded on a national securities
exchange or on The NASDAQ Stock Market shall not be deemed, in and
of itself, to violate the prohibitions of this subsection (b)
provided that the Executive own less than two percent of such
class of equity securities. The "Non-Competition Period", if any,
is either one (1) or two (2) years from the Date of Termination at
the option of the Company.
(c) The Executive agrees during the Non-Competition Period not to
knowingly take any action having the purpose or effect of
interfering with or otherwise damaging in any material respect the
Company's business relationship with any of its principal
suppliers and customers.
(d) The Executive agrees that during the Non-Competition Period, he
shall not, other than in connection with employment for the
Company, directly or indirectly, employ, or knowingly permit any
company or business organization directly or indirectly controlled
by the Executive to employ any person who is employed by the
Company, or in any manner seek to induce any such person to leave
his or her employment with the Company.
(e) If the Executive materially breaches any of the provisions of this
Section 6 (the "Restrictive Covenants"), (A) the Executive shall
be required to pay to the Company, within five (5) days following
written demand by the Company, any amount paid to the Executive
pursuant to Section 5(f) hereof, and (B) the Company shall have
the following additional rights and remedies, each of which rights
and remedies shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in
addition to, and not in lieu of, any other rights and remedies
available to the Company under law or equity:
(i) the right and remedy to have the Restrictive Covenants
specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any
such breach or threatened breach will cause irreparable
injury to the Company and that money damages will not
provide an adequate remedy to the Company; and
(ii) the right to discontinue the payment of any amounts or
benefits owing to the Executive under this Agreement.
(f) The Executive hereby acknowledges and agrees that all of the
Restrictive Covenants are reasonable and valid.
(g) If any court determines that any of the Restrictive Covenants, or
any part thereof, is invalid or unenforceable, the remainder of
the Restrictive Covenants shall not thereby be affected and shall
be given full effect, without regard to the invalid portion. In
addition, if any court construes any of the Restrictive Covenants,
or any part thereof, to be unenforceable because of the duration
of such provision or the area covered thereby, such court shall
have the power to reduce the duration or area of such provision
and, in its reduced form, such provision shall then be enforceable
and shall be enforced. The Executive agrees that the Restrictive
Covenants, as so amended, shall be valid and binding as though any
invalid or unenforceable provision had not been included herein.
(h) For purposes of this Section 6 and Section 7 hereof, the "Company"
refers to the Company and any of its parents, subsidiaries,
subdivisions or affiliates.
(i) The Executive has disclosed in Exhibit A his relationships with
the Existing Businesses and the other owners, officers and/or
employees of the Existing Businesses. Except as the Executive and
the Company may at a future date agree to in writing, nothing in
this Agreement, or in any other agreement or document entered into
between the Executive and the Company or any of its affiliates in
connection with the transactions of which this Agreement is a
part, shall restrict or prevent, either during or after the
employment of the Executive under this Agreement, the Executive,
from continuing his respective ownership interests, officer
positions, employment, consulting services or other relationships
or involvement with either of the Existing Businesses in the same
manner as currently existing, provided, however, that such actions
shall not interfere with the Executive's employment and
responsibilities with the Company (including the business of
O'Brien Design Associates acquired by the Company). Except as the
Executive and the Company may at a future date agree to in writing
and except for the restrictions on competition agreed to by DNA
and STS pursuant to separate letter agreements with the Company to
be entered into, which the Executive will use his best efforts to
obtain, nothing in this Agreement, or in any other agreement or
document entered into between the Executive and the Company or any
of its affiliates in connection with the transactions of which
this Agreement is a part, shall restrict or prevent, either during
the employment of the Executive under this Agreement or during the
Non-Competition Period, either of the Existing Businesses from
continuing the conduct and development of their businesses and
lines of business in the same manner as they are currently being
conducted, provided, however, that such conduct shall not
interfere with the Executive's employment and responsibilities
with the Company (including the business of O'Brien Design
Associates acquired by the Company).
7. Secret Processes.
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(a) If at any time or times during the Employment Period, the
Executive (either alone or with others) makes, conceives,
discovers or reduces to practice any invention, modification,
discovery, design, development, improvement, process, software
program, work of authorship, documentation, formula, data,
technique, know-how, secret or intellectual property right
whatsoever or any interest therein (whether or not patentable or
registrable under copyright or similar statutes or subject to
analogous protection) (the "Developments") that (i) relates to the
business of the Company or any customer of or supplier to the
Company or any of the products or services being developed,
manufactured or sold by the Company or which may be used in
relation therewith, (ii) results from tasks assigned to the
Executive by the Company or (iii) results from the use of premises
or personal property (whether tangible or intangible) owned,
leased or contracted for by the Company when used for Company
purposes and not for incidental personal purposes, such
Developments and any benefits thereof shall immediately become the
sole and absolute property of the Company and its assigns, and the
Executive shall promptly disclose to the Company (or any persons
designated by it) each such Development or benefit and hereby
assigns any rights the Executive may have or acquire in the
Developments and related benefits and/or rights resulting
therefrom to the Company and its assigns without further
compensation and shall communicate, without cost or delay, and
without publishing the same, all available information relating
thereto (with all necessary plans and models) to the Company.
Upon disclosure of each Development to the Company, the Executive
will, during the Employment Period and at any time thereafter, at
the request and cost of the Company, sign, execute, make and do
all such deeds, documents, acts and things as the Company and duly
authorized agents may reasonably require:
(x) to apply for, obtain and vest in the name of the
Company alone (unless the Company otherwise directs) letters
patent, copyrights or other analogous protection in any country
throughout the world and when so obtained or vested to renew and
restore the same; and
(y) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or
applications for revocation of such letters patent, copyright or
other analogous protection.
In the event the Company is unable, after reasonable effort, to
secure the Executive's signature on any letters patent, copyright
or other analogous protection relating to a Development, whether
because of the Executive's physical or mental incapacity or for
any other reason whatsoever, the Executive hereby irrevocably
designates and appoints the Company and its duly authorized
officers and agents as its agent and attorney-in-fact, to act for
and in the Executive's behalf and stead to execute and file any
such application or applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters
patent, copyright or other analogous protection thereon with the
same legal force and effect as if executed by the Executive;
provided, however, that (subject to resolution of the dispute in
accordance with Section 16 hereof) the Company may not exercise
any rights under this paragraph if the Executive or his designee
notifies the Company, in writing, that the Executive disputes any
claim made by the Company under this Section 7 .
(b) The Executive hereby acknowledges and agrees that the provisions
of this Section 7 are reasonable and valid.
8. Special Provisions Regarding a Change of Control.
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(a) If there is a Change of Control (as defined in subsection (b),
below), and, not later than the date of such Change of Control,
the Executive is not offered a similar position with the Company
(or any successor in interest to the Company) immediately
following the Change of Control for at least a one year term with
compensation and responsibilities substantially similar to those
of the Executive at the Company for the eighteen (18) months
preceding the Change of Control, the Company shall pay to the
Executive with respect to any Change of Control that occurs on or
before the Change of Control a cash amount equal to 100% of his
Base Salary.
(b) For purposes of this Agreement, "Change of Control" shall mean the
acquisition by an entity other than Union Espanola de Explosivos
S.A. or any of its related companies, subsidiaries or affiliates,
of (i) more than 50% of the outstanding equity interests of Union
Espanola de Explosivos-MSI International, S.A., a Spanish S.A.
(the "ETVE") or the Company or (ii) all or substantially all of
the assets of the ETVE or the Company.
(d) Unless otherwise agreed by the parties hereto in writing, the
provisions contained in this Section 8 shall be valid only with
respect to any Change of Control that occurs on or before December
31, 2005 at which time this Section 8 shall become null and void.
9. Notices. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly given (a) when delivered
personally, (b) upon confirmation of receipt when such notice or other
communication is sent by facsimile or telex, (c) one day after timely
delivery to an overnight delivery courier, or (d) on the fifth day
following the date of deposit in the United States mail if sent first
class, postage prepaid, by registered or certified mail. The addresses
for such notices shall be as follows:
For notices and communications to the Company:
Union Espanola de Explosivos S.A.
Av. Del Partenon, 16-5a Xx.
Xxxxx xx xxx Xxxxxxxx
00000 Xxxxxx, Xxxxx
Attention: Xxxx Xxxxxxxx Xxxxxxx-Xxxxx
and
Xxxxxx Xxxxxxxxxx
Telephone: 00-00-000-0000
Telecopy: 00-00-000-0000
with a copy (which shall not constitute notice) to :
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
and
Xxxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
For notices and communications to the Executive:
Xxxx X. X'Xxxxx
000 Xxxxx Xx.
Xxxxxxxxx, XX 00000
With a copy (which shall not constitute notice) to :
Xxxx XxXxx, Esq.
Murtha, Cullina, Xxxxxxx & Xxxxxx, LLP
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Any party hereto may, by a written notice to the other, change its
address for receipt of notices hereunder.
10. Governing Law; Interpretation. This Agreement shall be construed under
and governed by the laws of the State of Delaware, without reference to
its conflict of laws principles. The captions of this Agreement are not
part of the provisions hereof and shall have no force or effect.
11. Withholding; Payment. Notwithstanding any other provision of this
Agreement, the Company may withhold from amounts payable under this
Agreement (i) all federal, state, local, and foreign taxes that are
required to be withheld by applicable laws or regulations, and (ii) all
standard Company deductions. All cash amounts required to be paid
hereunder shall be paid in United States dollars.
12. Amendment; Waiver. This Agreement may be amended, modified, superseded,
cancelled, renewed or extended, and the terms hereof may be waived,
only by a written instrument executed by the parties hereto or, in the
case of a waiver, by the party waiving compliance. The failure of any
party at any time or times to require performance of any provision
hereof shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of the breach of any term or covenant
contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such breach, or a waiver of the
breach of any other term or covenant contained in this Agreement.
13. Successors and Assigns. This Agreement shall be binding upon the
Executive, without regard to the duration of his employment by the
Company or reasons for the cessation of such employment, and inure to
the benefit of his administrators, executors, heirs and assigns,
although the obligations of the Executive are personal and may be
performed only by him. This Agreement shall also be binding upon and
inure to the benefit of the Company and its subsidiaries, successors
and assigns, including any corporation with which or into which the
Company or its successors may be merged or which may succeed to their
assets or business.
14. Non-Exclusivity of Rights. Except as may otherwise be specifically
provided in this Agreement, nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any plan,
program, policy or practice provided by the Company or any of its
affiliated companies for which the Executive may qualify. Vested
benefits and other amounts that the Executive is otherwise entitled to
receive under any other plan, policy, practice, or program of, or any
contract or agreement with, the Company or any of its affiliated
companies on or after the Date of Termination shall be payable in
accordance with the terms of each such plan, policy, practice, program,
contract, or agreement, as the case may be, except as explicitly
modified by this Agreement.
15. No Mitigation. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this
Agreement, and the amount of any payment or benefit provided for in
this Agreement shall not be reduced by any compensation or benefits
earned by the Executive as the result of employment by another
employer.
16. Settlement of Disputes. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by
arbitration, conducted before one arbitrator in the Executive's state
of residency, except if such state is California in which case it shall
be conducted in New York, in accordance with the commercial arbitration
rules of the American Arbitration Association then in effect. Judgement
may be entered on the arbitrator's award in any court having
jurisdiction. Notwithstanding the foregoing, the Company shall have the
right, without prejudice to any other rights or remedies it might have
under the law, which are reserved, to obtain injunctive relief in a
court of competent jurisdiction to restrain any breach or threatened
breach by the Executive of this Agreement or otherwise to specifically
enforce any provision of this Agreement, including without limitation
Sections 6 and 7 hereof; provided that such right to injunctive relief
does not preclude the Company from seeking monetary damages for a
breach by the Executive of this Agreement; provided further that, in
the event of a breach by the Executive of any representation, warranty,
covenant or agreement contained in this Agreement, the Company shall be
entitled to suspend any payments or benefits under this Agreement not
yet paid or provided to the Executive after providing the Executive
notice of such breach, and the Company shall be permanently relieved of
the Company's obligations in respect thereof if the Executive does not
cure such breach within 30 days of the date the Company provided such
notice to the Executive; and provided further that, in the event the
Company's obligations hereunder are suspended or relieved pursuant to
the preceding proviso, the Company shall not be precluded from seeking
monetary damages from the Executive that exceed the amount of the
Company's obligations hereunder.
17. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original but which together shall
constitute one and the same instrument.
18. Severability. The invalidity or unenforceability of any provision 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.
19. Entire Agreement. This Agreement constitutes the entire understanding
of the parties hereto with respect to the subject matter hereof and
supersedes all prior negotiations, discussions, writings and agreements
between them.
20. Parental Guaranty. In the event the Company fails to fulfill its
payment obligations under this Agreement, the ETVE shall pay the
amounts due by the Company to the Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
UMSI ACQUISITION CO.
By:
Name:
Title:
XXXX X. X'XXXXX
Solely for purposes of
Section 20 hereof
UNION ESPANOLA DE EXPLOSIVOS-MSI
INTERNATIONAL, S.A.,
_______________________________
EXHIBIT A
Shock Tube Systems, Inc. ("STS")
Shock Tube Systems, Inc. is a Delaware corporation with its principal place of
business at 000 Xxxxx Xxxx Xxxx, Xxxxxx, XX 00000. Xxxx and Xxxxx X'Xxxxx own
50% of the shares of STS and Xxxxxxx Xxxxxxxxxxx owns the remaining 50%. Xxxx
X'Xxxxx serves as a member of the Board of Directors of STS. STS manufacturers
explosives products, primarily nonelectric initiators, for the military. STS'
technology is comprised of all technology, information and know-how relating to
the design application (but not production) and sale of shock tubes for
specialized military applications (the "STS Technology"). Its major customers
are the US Army (Picatinny Arsenal) and the US Navy (Naval Surface Warfare
Center, Crane). Products manufactured include shock tube detonator assemblies
for the Army and Navy and cap and fuse assemblies for the Army.
Detotec North America, Inc. ("DNA")
Detotec North America, Inc. is a Delaware corporation with its principal place
of business at 000 Xxxxx Xxxx Xxxx, Xxxxxx, XX 00000. Members of the O'Brien
family own 99% of the DNA's stock. Xxx X'Xxxxx is the President of DNA and Xxxx
X. X'Xxxxx is a member of the Board of Directors of DNA.
DNA designs and manufacturers explosive products and sells these products to the
oil well servicing industry. The primary products manufactured are RDX and HMX
detonating cords with a nylon jacket. The products are sold to Halliburton for
distribution throughout the world. DNA's technology is comprised of all
technology, information and know-how relating to the production and sale of
specialized oil well detonator cords and military detonators (the "Detotec
Technology").
Intercompany Relationships
STS has developed and leases a site in Moosup CT from a local xxxxxx that has
been approved by the Department of Defense for military explosive manufacture.
STS subleases a portion of the site to both DNA and O'Brien Design Associates
("ODA" and together with STS and DNA, the "Related Companies"). The monthly rent
for the site is split equally between the Related Companies. Presently the rent
is $1,000/month for each of the Related Companies. This rent is indexed to the
annual increase in the cost of living index.
DNA and ODA constructed a building on the leased land for detonating cord
manufacture. DNA occupies the rear portion of the building. DNA and ODA pay
equal portions of the utility costs for electricity and propane for heating
purposes. Some common equipment is shared by DNA and ODA in the manufacture of
detonating cord. For example, DNA owns the finished product spooler and
inspection machine and ODA owns the plastic extruder.
STS purchases its requirements for shock tube from ODA. Transfer pricing of
shock tube is based on competitive pricing of similar shock tube from Dyno Nobel
and Austin Powder Company. The typical price for shock tube purchased by STS is
$25.90 per 1,000 feet ($84.95 per 1,000 meters).
Hourly employees are sometimes exchanged between the Related Companies to meet
production needs. The cross billing rate for these activities is the direct
hourly wage multiplied by 1.44 to cover taxes and employee benefits.
EXHIBIT B
Elected member of the Board of Finance for the Town of Stonington, Connecticut.
Serves on subcommittees of the Board of Finance including Police Station
Building Committee, Pension Committee and Audit Committee.
Treasurer of the Stonington Democratic town Committee.
