Exhibit 10.17
EMPLOYMENT AGREEMENT
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This Employment Agreement (this "Agreement") is made as of January 1,
1993 by and between OM Group, Inc., a Delaware corporation ("Employer"), and
Xxxxxxx X. Xxxxx of S. Euclid, Ohio ("Executive").
WHEREAS, Employer and Executive desire to enter into this Agreement to
provide for Executive's continued employment with Employer and Xxxxxx Chemicals,
Inc. ("MCI").
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. Employer agrees to continue to employ Executive and
Executive accepts such continued employment upon the terms and subject to the
conditions set forth in this Agreement.
(a) SERVICES. For the term set forth in Section 1(b),
Executive shall serve as General Counsel and Secretary and shall render such
services of an executive and administrative character to Employer and MCI as
Executive provided to MCI prior to the date of this Agreement (the "Effective
Date"). In no event shall Employer affect, or Executive be required to perform
services that involve, a material decrease in the level of responsibility or
authority maintained or exercised by Executive at Employer and its subsidiaries
prior to the Effective Date. For as long as Executive is so employed, he shall
devote his full productive time, energy and ability to his duties, except for
incidental attention to the management of his personal investments. Executive
may serve on the board of directors of other companies or organizations so long
as such participation does not conflict with the interests or business of
Employer or its subsidiaries or materially interfere with the performance of his
duties hereunder.
(b) TERM. Unless earlier terminated pursuant to the provisions
of Section 7, the Initial Term of this Agreement shall commence on the date
hereof and shall expire on December 31, 1995. If the Initial Term has been
renewed pursuant to the provisions of Section 8 (the "Renewal Term"), the term
of this Agreement shall extend through the expiration of any Renewal Term then
in effect, unless earlier terminated pursuant to the provisions of Section 7.
All references herein to the "term of this Agreement" shall be deemed to refer
to the Initial Term as well as any Renewal Term then in effect if the Initial
Term has been extended pursuant to Section 8.
(c) BASE COMPENSATION. The base compensation to be paid
Executive by Employer for his services under this Agreement shall be at the
annual rate of $110,000 for the remainder of 1993, payable in equal installments
every calendar month. Thereafter, Executive's base compensation shall be
reviewed annually by Employer's Board of Directors and may in the sole
discretion of Employer's Board of Directors be increased (but not decreased)
after giving due consideration to the amounts paid to executives in comparable
positions with comparable responsibilities and authority.
(d) INCENTIVE COMPENSATION. In addition to the base
compensation provided for in Section 1(c) hereof, Executive shall be entitled to
receive a annual bonus of not less than 25% of the annual base compensation then
in effect under Section 1(c).
(e) FRINGE BENEFITS. In addition to the other compensation
payable to Executive pursuant to this Section 1, Executive shall be entitled to
receive for the term of this Agreement substantially the same types and level of
fringe benefits as Executive enjoyed prior to the Effective Date, including, but
not limited to, health insurance, disability insurance, group life insurance,
club memberships, education and seminar allowances, profit sharing, automobile
allowances, annual physical examinations, and other similar benefits. The
benefits to which Executive shall be entitled pursuant to this Section 1(e)
shall be approved by the Board of Directors of Employer or otherwise in
accordance with those benefits generally offered by Employer to its executives
and shall be reasonably related to the business of Employer and its
subsidiaries.
(f) VACATION. Executive shall be entitled to vacation benefits
substantially as provided by the Employer and its subsidiaries to then
executives of comparable stature and employment prior to the date hereof. For
these purposes, Executive's past employment with Employer and its subsidiaries
shall be considered employment hereunder.
2. COVENANT NOT TO COMPETE.
(a) BASIC TERM. During the term of this Agreement and for a
period of one (1) year thereafter, Executive shall not, directly or indirectly,
within the United States, Western Europe or Southeast Asia engage in any type of
business in which either Employer or its subsidiaries are then actively engaged;
provided that Executive may, without violating this Section 2, own directly or
indirectly not more than five percent (5%) of the outstanding capital stock of
any public company regardless of the business in which such public company is
engaged.
(b) AGREEMENT AS TO SCOPE. If, at the time of enforcement of
any provision of Section 2(a), a court of competent jurisdiction holds that the
restrictions stated therein are unreasonable under circumstances then existing,
the parties agree that the maximum period, scope, or geographical area
reasonable under such circumstances shall be substituted for the period, scope
or geographical area stated therein.
3. NON-SOLICITATION. Executive agrees that, during the term of this
Agreement and for a period of one (1) year thereafter, he will not knowingly,
either directly or indirectly, for himself or for any other person or entity,
divert, call on, solicit, or take away, or attempt to divert, call on, solicit
or take away present or actively solicited prospective employees or, with
respect to competitive products or services, any present or actively solicited
prospective suppliers (including, without limitation, cobalt suppliers) or
customers of Employer, or any of its controlled subsidiaries.
4. CONFIDENTIAL INFORMATION. Executive acknowledges that during the
course of his employment under this Agreement he will make use of, acquire and
add to confidential information of a special and unique nature and value
relating to such matters as trade secrets,
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systems, procedures, manuals, confidential reports and lists of suppliers,
customers and other business contacts of Employer and its subsidiaries, as well
as the nature and type of services rendered to such persons. Executive agrees
that he will not disclose to an unauthorized person or use for his own account
any of such information without the prior written consent of the Board of
Directors of Employer, unless and to the extent that the aforementioned matters
become generally known to and available for use by the public other than as a
result of Executive's acts or omissions to act.
5. INVENTIONS AND PATENTS. Executive agrees that any inventions,
innovations or improvements in Employer's or its subsidiaries' method of
conducting their business (including new contributions, improvements, ideas and
discoveries, whether patentable or not) conceived or made by him during his
employment pursuant to this Agreement belong to Employer or its subsidiaries, as
the case may be. Executive shall perform any actions reasonably requested by the
Board of Directors of Employer to establish and confirm such ownership.
Executive shall not claim any right, title or interest of any kind with respect
to such inventions, innovations or improvements.
6. REMEDY FOR BREACH. In the event of a breach by Executive of any of
the provisions of Sections 2, 3, 4 or 5, Employer or its subsidiaries, as the
case may be, may, in addition to other rights and remedies existing in their
favor, apply to any court of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions thereof.
7. TERMINATION.
(a) TERMINATION FOR CAUSE. Employer may terminate the
employment of Executive for cause at any time prior to the expiration of the
term of this Agreement. For purposes of this Agreement, "cause" shall mean
Executive's (i) conviction of a felony, (ii) willful misconduct or gross
negligence in the conduct of his duties hereunder that continues after written
notice thereof to Executive, or (iii) willful act of fraud or theft. In the
event of the termination for cause under this Section 7(a), Executive shall be
entitled to receive (X) his base compensation provided for in Section 1(c)
hereof through the date of termination of his employment, and (Y) all other
amounts due him hereunder to the extent already earned and not theretofore paid
(including any bonus payable under Section 1(d) for any fiscal year previously
ended to the extent not theretofore paid).
(b) TERMINATION WITHOUT CAUSE. Employer may in its sole
discretion, terminate the employment of Executive for any reason upon written
notice to Executive, which termination shall become effective immediately upon
delivery of such notice. In the event of termination without cause under this
Section 7(b), Executive shall be entitled to continue to receive all
compensation and benefits described in Sections 1(c), 1(d) and 1(e) until the
later of (i) the expiration of the Initial Term or a Renewal Term then in
effect, or (ii) the one (1) year anniversary of the delivery of notice of
termination of employment under this Section 7(b).
(c) TERMINATION BY EXECUTIVE. Executive may, in his sole
discretion, terminate his employment for any reason upon six (6) months' prior
written notice to Employer, which termination shall become effective upon the
earlier of (i) the expiration of the six-month
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period following the delivery of such notice, or (ii) any earlier date
designated by Employer in a written notice to Executive. In the event of
termination by Executive under this Section 7(c), Executive shall be entitled
(X) to receive his base compensation provided for in Section 1(c) through the
effective date of termination of his employment, (Y) to receive his base
compensation provided for in Section 1(c) for three (3) months following the
effective date of termination of his employment, and (Z) to receive all other
amounts due him hereunder to the extent already earned and not theretofore paid
(including a bonus payable under Section 1(d) for any fiscal year previously
ended to the extent not theretofore paid).
(d) TERMINATION BY DEATH OR DISABILITY. In the event of
Executive's death or permanent disability while in the employ of Employer, which
disability in the opinion of a physician selected by Employer renders him
incapable of performing the services contemplated under this Agreement, in
addition to other provisions of this Agreement, the following provisions shall
apply:
(i) Employer shall pay to Executive or the estate of
Executive the base compensation which would otherwise be payable to
Executive hereunder for a period of one (1) year after such permanent
disability or death occurs.
(ii) An amount shall be determined equal to the
incentive compensation, if any, to which Executive would have been
entitled if he had lived or remained capable of performing the services
contemplated under this Agreement, and a portion thereof based on the
pro rata part of the year elapsed to the date of his death or permanent
disability shall be paid in a lump sum to Executive, his estate or his
personal representative, as the case may be.
(iii) Either of the benefits provided for in Sections
7(d)(i) or 7(d)(ii) may, at Executive's election, be paid to his
designated beneficiary or beneficiaries in lieu of his personal
representative.
(iv) In addition to other benefits outlined herein,
Executive shall be entitled to all long-term disability pay and death
benefit protection provided through Employer and/or MCI insurance
programs in effect from time to time.
8. RENEWAL. Unless either party gives written notice to the other party
at least six (6) months prior to the expiration of the Initial Term or any
Renewal Term then in effect, this Agreement shall automatically be renewed for
successive one (1) year Renewal Terms upon the same terms and conditions as were
in effect as of the commencement date of such Renewal Term.
9. NO SET-OFF. Neither Employer nor its subsidiaries shall have any
right of set-off or counterclaim, in respect of any claim, debt or obligation,
against the payments or benefits to be made or provided to Executive under this
Agreement.
10. NOTICES. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally or mailed, first
class mail, postage prepaid, return receipt requested, or by any other express
delivery technique calling for receipted delivery, as follows:
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(a) If to Executive:
Xxxxxxx X. Xxxxx
0000 Xxxxxxxxx Xxxx
X. Xxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Telecopy: ______________
(b) If to Employer or its subsidiaries:
OM Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Squire, Xxxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esquire
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or such other address or to the attention of such other person as the recipient
shall have specified by prior written notice to the sending party. Any notice
under this Agreement will be deemed to have been given when so delivered or
mailed.
11. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
12. ENTIRE AGREEMENT. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
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13. COUNTERPARTS. This Agreement may be executed on separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
14. SUCCESSORS AND ASSIGNS. This Agreement is intended to bind and
inure to the benefit of and be enforceable by Executive, Employer, and their
respective successors and assigns; provided that Executive may not assign his
rights or delegate his obligations hereunder without the prior written consent
of Employer. Neither Employer nor its subsidiaries may assign their respective
rights hereunder with respect to the employment of Executive to any person or
entity other than to any of controlled subsidiaries of the Employer.
15. CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of the employment provisions of this Agreement will be
governed by the internal law, and not the law of conflicts, of the State of
Delaware.
16. AMENDMENTS AND WAIVERS. Any provision of this Agreement may be
amended or waived only with the prior written consent of Executive and Employer.
17. ALTERNATIVE DISPUTE RESOLUTION. Any dispute arising out of this
Agreement (except a dispute relating to this Section 17 or Exhibit A attached
hereto) shall be submitted to the Alternative Dispute Resolution procedures
described in Exhibit A attached hereto.
IN WITNESS WHEREOF, Employer has caused this Agreement to be executed
by its duly authorized officer and Executive has executed this Agreement as of
the date first above written.
"EMPLOYER"
OM GROUP, INC.
By:
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Its: President
"EXECUTIVE"
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General Counsel and Secretary
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