EXHIBIT 10.3
August 13, 2003
Xxxxxxx Xxxxxxxxxxx
00000 Xxxx Xxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxxx 00000
Dear Ray:
This letter (this "Letter") will acknowledge our agreement and
understanding with respect to certain terms of your employment. This Letter is
signed on the date indicated herein, but will be effective immediately upon the
expiration of your Employment Agreement, as defined below.
As you know, on March 13, 2003, the Dayton Superior Corporation (the
"Company") provided you with a notice that your employment agreement signed on
January 19, 2000 (the "Employment Agreement") was not being renewed. In
accordance with the Employment Agreement and the letter agreement signed by you
and the Company on May 13, 2002, you will become an employee at will with the
Company upon the termination of your Employment Agreement on June 16, 2003.
This Letter sets forth the terms of your employment with the Company.
We have agreed to the following:
1. Employee at Will. You are an employee at will with the
Company. The Company may terminate your employment at any time
for any legal reason, at its discretion. Likewise, you may
resign from your employment with the Company at any time for
any reason, by giving the Company 30 days advance written
notice.
2. Termination. If the Company terminates your employment, it
will do so for Cause or Without Cause. The Company may
terminate you for Cause upon your:
(a) willful or gross misconduct or material failure in
the performance of your duties and responsibilities
for the Company, other than any such failure
resulting from your Disability (as defined below),
which misconduct or failure continues 14 days after
the Company notifies you in writing of the Company's
finding of such misconduct or failure; or
(b) conviction of or plea of guilty or nolo contendre to
a felony or a crime involving moral turpitude; or
(c) fraud or personal dishonesty involving the Company's
assets.
Xxxxxxx Xxxxxxxxxxx
August 13, 2003
Page 2
If the Company terminates your employment for any reason other
than Cause, it shall be a termination Without Cause.
"Disability" in this Letter shall mean your inability to
perform your duties and responsibilities as an officer or
employee of the Company or any of its subsidiaries on a
full-time basis for more than 6 months within any 12-month
period because of a physical, mental or emotional incapacity
resulting from injury, sickness or disease.
3. Severance. If the Company terminates your employment Without
Cause, or if you die while employed by the Company, the
Company shall:
(a) For the year in which the termination occurs, pay you
or your estate a prorated amount of bonus, in
accordance with the Company's regular bonus payment
practice, based on the Company's Executive Annual
Bonus Plan as in effect at that time, corresponding
to the time period from January 1 of that year until
the date of your termination;
(b) For the 36 month period following the date of your
termination (the "Severance Period"), pay to you or
your estate, in accordance with the Company's regular
payroll practice, either the average of your annual
base salary for the three years prior to your
termination, or your then current annual base salary,
whichever is greater;
(c) For the Severance Period, pay to you or your estate,
in accordance with the Company's regular bonus
payment practice, the average of your annual bonus
payment for the three years prior to your
termination, prorated for the number of calendar days
the Severance Period applies to each particular
calendar year.
(d) For the Severance Period, pay to you or your estate
your car allowance in effect at the time of your
termination; and
(e) Continue in place until you reach the age of 65, your
and your spouse's coverage under the Company's
medical and dental plans and programs, including your
group life insurance coverage, in which you are
entitled to participate immediately prior to your
termination (or, if we amend, replace or terminate
any such plan or program following your termination,
our medical and dental plans provided to employees
similarly situated to you), as if you were an active
employee during such time, subject to standard
employee contributions by you as you are required
under such plans. Post-employment coverage under such
plans shall be co-extensive with COBRA continuation
coverage required by federal (and where applicable by
state) law, and shall cease if you become eligible
for coverage under another employer's plans.
Xxxxxxx Xxxxxxxxxxx
August 13, 2003
Page 3
If the Company terminates your employment for Cause, you will
not be entitled to any severance benefits.
4. Resignation. If you resign or retire from the Company, you
will be entitled to accrued, vested benefits under the
Company's applicable employee benefit plans, programs and
arrangements, as provided therein. You will not be entitled to
any severance benefits if you resign or retire from the
Company.
5. Change of Control. "Change in Control" shall mean the
occurrence of any of the following:
(a) a change in ownership or control of the Company
effected through a transaction or series of
transactions whereby any "person" or related "group"
of "persons" (as such terms are used in Sections
13(d) and 14(d)(2) of the Exchange Act) (other than
the Company, any of its subsidiaries, an employee
benefit plan maintained by the Company or any of its
subsidiaries, a Principal Stockholder or a "person"
that, prior to such transaction, directly or
indirectly controls, is controlled by, or is under
common control with, the Company or a Principal
Stockholder) directly or indirectly acquires
beneficial ownership (within the meaning of Rule
13d-3 under the Exchange Act) of securities of the
Company possessing more than 50% of the total
combined voting power of the Company's securities
outstanding immediately after such transaction or
series of transactions;
(b) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or
consolidation), in one or a series of related
transactions, of all or substantially all of the
assets of the Company, or the Company and its
Subsidiaries taken as a whole, to any "person" (as
defined above); or
(c) any consolidation or merger of the Company with or
into any other corporation or entity or "person" (as
defined above) in which the stockholders of the
Company prior to such consolidation or merger own
less than fifty percent (50%) of the Company's voting
power immediately after such consolidation or merger,
excluding any consolidation or merger affected
exclusively to change the domicile of the Company.
If there is a Change in Control while you are employed by the
Company, then the Severance Period shall convert from 36
months to 24 months.
6. Non-Competition.
(a) You shall not engage in any Prohibited Competition,
as defined below, at any time during your employment
with the Company and the 36 months following your
departure from the Company (the "Non-Competition
Xxxxxxx Xxxxxxxxxxx
August 13, 2003
Page 4
Period"); provided, however, that the Company's Board
of Directors may, at its discretion, waive your
obligation to abide by the non-competition provisions
set forth in this Letter. If the Company's Board of
Directors waives your non-competition obligations in
this Letter, it reserves the right to subsequently
enforce the non-competition provisions during the
Non-Competition Period in the event that your
employment changes. You agree to notify the Company
immediately if your employment changes during the
Non-Competition Period. Your rights to the severance
benefits described in this Letter shall be unchanged
whether or not the Company's Board of Directors
elects to waive these non-competition provisions. If
there is a Change in Control while you are employed
by the Company, then the Non-Competition Period shall
convert from 36 months to 24 months.
(b) For purposes of this Letter, you shall be considered
to engage in prohibited competition ("Prohibited
Competition") if you shall: directly or indirectly,
engage in or own, manage, join, operate or control,
or participate in the ownership, management,
operation or control of, or be connected as a
director, officer, employee, partner, consultant or
otherwise with, or permit his name to be used by or
in connection with, any business or organization
which produces, designs, conducts research on,
provides, sells, leases, distributes or markets
accessories, chemicals, forming and related products
used in concrete and masonry construction (the
"Business") which, directly or indirectly, competes
with the Business conducted by Company and its
subsidiaries in North America, South America and
Europe, it being understood that the foregoing shall
not limit you from making passive investments of less
than 5% of the outstanding equity securities in any
entity listed for trading on a national stock
exchange or quoted on any recognized automatic
quotation system.
(c) In the event any of the terms of this paragraph 6
shall be determined by any court of competent
jurisdiction to be unenforceable by reason of
extending for too great a period of time or over too
great a geographical area or by reason of being too
extensive in any other respect, it will be
interpreted to extend only over the maximum period of
time for which it may be enforceable, and/or over the
maximum geographical area as to which it may be
enforceable and/or to the maximum extent in all other
respects as to which it may be enforceable, all as
determined by such court in such action.
7. Nondisclosure of Proprietary Information.
(a) Except as required in the faithful performance of
your duties hereunder or pursuant to subsection 7(c),
you shall, in perpetuity, maintain in
Xxxxxxx Xxxxxxxxxxx
August 13, 2003
Page 5
confidence and shall not directly, indirectly or
otherwise, use, disseminate, disclose or publish, or
use for his benefit or the benefit of any person,
firm, corporation or other entity any confidential or
proprietary information or trade secrets, and any
other information that would be protected under the
Uniform Trade Secrets Act in Ohio, of or relating to
the Company, including, without limitation,
information with respect to the Company's operations,
processes, products, inventions, business practices,
business strategy, business development, finances,
principals, vendors, distributors, suppliers,
customers, potential customers, manufacturing
methods, sales methods, marketing methods, costs,
prices, contractual relationships, information
systems, regulatory status, compensation paid to
employees or other terms of employment, or deliver to
any person, firm, corporation or other entity any
document, record, notebook, computer program or
similar repository of or containing any such
confidential or proprietary information or trade
secrets. The parties hereby stipulate and agree that
as between them the foregoing matters are important,
material and confidential proprietary information and
trade secrets and affect the successful conduct of
the businesses of the Company (and any successor or
assignee of the Company). The parties hereto agree
that "confidential or proprietary information" shall
not include information that (i) is a matter of
public knowledge (other than by act of you in
violation hereof); (ii) was provided to you (without
breach of any obligation of confidence owed to the
Company) by a third party which is not an affiliate
of the Company or (iii) is required to be disclosed
by law or judicial or administrative process.
(b) Upon termination of your employment with Company for
Cause or Without Cause, and upon the Company's
request, you will promptly deliver to the Company all
correspondence, drawings, manuals, letters, notes,
notebooks, reports, programs, plans, proposals,
financial documents, or any other documents
concerning, without limitation, the Company's
operations, processes, products, inventions, business
practices, business strategy, business development,
finances, principals, vendors, distributors,
suppliers, customers, potential customers,
manufacturing methods, sales methods, marketing
methods, costs, prices, contractual relationships,
information systems, regulatory status, compensation
paid to employees or other terms of employment and/or
which contain proprietary information or trade
secrets.
(c) You may respond to a lawful and valid subpoena or
other legal process but shall give the Company the
earliest possible notice thereof, shall, as much in
advance of the return date as possible, make
available to the Company and its counsel the
documents and other information sought and shall
assist such counsel in resisting or otherwise
responding to such process.
Xxxxxxx Xxxxxxxxxxx
August 13, 2003
Page 6
8. Injunctive Relief. You recognize and acknowledge that your
breach of the covenants contained in Sections 6 and 7 will
cause irreparable damage to the Company and its goodwill, the
exact amount of which will be difficult or impossible to
ascertain, and that the remedies at law for any such breach
will be inadequate. Accordingly, you agree that in the event
of a breach of any of the covenants contained in Sections 6
and 7, in addition to any other remedy which may be available
at law or in equity, the Company shall be entitled to specific
performance and injunctive relief.
9. Binding on Successors. This Letter shall be binding upon and
inure to the benefit of the Company, you and their respective
successors, assigns, personnel and legal representatives,
executors, administrators, heirs, distributees, devisees, and
legatees, as applicable.
10. Governing Law. This Letter shall be governed, construed,
interpreted and enforced in accordance with the substantive
laws of the State of Ohio.
11. Notices. Any notice, request, claim, demand, document or other
communication hereunder to any party shall be effective upon
receipt (or refusal of receipt) and shall be in writing and
delivered personally or sent by telex, telecopy, or certified
or registered mail, postage prepaid, as follows, or at any
other address as any party shall have specified by notice in
writing to the other party in accordance with this Paragraph
11:
If to the Company, to:
Dayton Superior Corporation
0000 Xxxxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Corporate Secretary
Phone: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxx Xxxxxx-Xxxxxx, Esq.
Xxxxx & Xxxxxxxxx LLP
3200 National City Center
0000 X. 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxx Xxxxxxxxxxx
August 13, 2003
Page 7
Odyssey Investment Partners Fund, LP
000 Xxxx Xxxxxx
Xxxx Tower, 38th Floor
New York, New York 10017
Attention: Xxxxxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to you, to the address set forth below under you signature.
12. Counterparts. This Letter may be executed in several
counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same
Letter.
13. Entire Agreement. The terms of this Letter are intended by the
parties to be the final expression of their agreement with
respect to your employment by the Company and may not be
contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend that this Letter shall
constitute the complete and exclusive statement of its terms
and that no extrinsic evidence whatsoever may be introduced in
any judicial, administrative, or other legal proceeding to
vary the terms of this Letter. Notwithstanding any of the
foregoing to the contrary, in the event of a conflict between
the terms of this Letter and any other agreement between the
parties, the terms of this Letter shall govern.
14. Amendments. This Letter may not be modified, amended, or
terminated except by an instrument in writing, signed by you
and the Company's CEO.
15. Arbitration. Any dispute or controversy arising under or in
connection with this Letter shall be settled exclusively by
arbitration, conducted before a panel of three arbitrators in
Dayton, Ohio, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Company shall be
entitled to seek a restraining order or injunction in any
court of competent jurisdiction to prevent any continuation of
any violation of the provisions of Section 6 or 7 of this
Letter and you hereby consent that such restraining order or
injunction may be granted without the necessity of the Company
posting any bond
16. Taxes. All payments to be made to you under this Letter will
be subject to any applicable withholding of federal, state and
local income, employment and other taxes.
Xxxxxxx Xxxxxxxxxxx
August 13, 2003
Page 8
In consideration of the foregoing agreements and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, you and the Company agree to the foregoing terms and conditions
set forth in this Letter. Please indicate your agreement with and acceptance of
the terms and conditions set forth in this Letter by signing below, and return a
copy of this Letter to me at your earliest convenience. If you have any
questions, please feel free to call me.
Very truly yours,
Dayton Superior Corporation
By: ___________________________________
Xxxxxxx X. Xxxxxx
President & Chief Executive Officer
Agreed and accepted:
________________________________________
Xxxxxxx X. Xxxxxxxxxxx
00000 Xxxx Xxxx Xxxx
Xxxx Xxxxxxxxxx, Xxxxxxxx 00000
Date: __________________________________
