Exhibit 10.48
KLN&F DRAFT 6/4/01
[XXXXX X. XXXXXXXXXXXXX]
General Maritime Ship Holdings Ltd.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
____________, 2001
Xxxxx X. Xxxxxxxxxxxxx
000 Xxxx 00xx Xxxxxx #00X
Xxx Xxxx, Xxx Xxxx 00000
Dear Xxxxx:
The undersigned General Maritime Ship Holdings Ltd., a Xxxxxxxx
Islands corporation (to be renamed General Maritime Corporation upon completion
of its initial public offering, the "Company"), desires to employ you with the
Company in the capacities of Vice President, Chief Financial Officer and
Secretary from and after the closing date of the Company's initial public
offering (the "Closing Date"), and you desire to be so employed by the Company,
subject to the terms and conditions set forth in this letter agreement
("Agreement"). As used in this Agreement, the term the "GenMar Group" means and
includes the Company and each of its subsidiaries and controlled affiliates and
ventures from time to time.
Accordingly, in consideration of the mutual covenants hereinafter
set forth and intending to be legally bound, the Company and you hereby agree as
follows:
1. EMPLOYMENT; TERM. The Company hereby employs you, and you hereby
accept such employment and agree to serve the GenMar Group, upon the terms and
conditions hereinafter set forth, for a term commencing on the Closing Date and
(unless sooner terminated as hereinafter provided) expiring on the first
anniversary of such date. Upon expiration of this Agreement, if you and the
Company do not enter into a new written agreement or a written extension of this
Agreement, you shall become an employee at will.
2. POSITION; CONDUCT.
(a) During your term of employment, you will hold the titles
and offices of, and serve in the positions of, Vice President, Chief Financial
Officer and Secretary of the Company and/or such other positions of an executive
nature as the Company's CEO (the "CEO") or President (the "President") shall
assign to you. You shall report to the CEO and the President or such other
persons as the CEO may name and shall perform such specific duties and services
of an executive nature (including service as an officer, director or equivalent
position of any subsidiary, affiliated company or venture of the GenMar Group,
without additional compensation) as the CEO and/or the President shall request
consistent with your position.
(b) During your term of employment, you shall (i) devote your
full business time and attention to the business and affairs of the GenMar Group
and faithfully
perform, to the best of your ability, all of your duties and responsibilities;
and (ii) abide by all applicable policies of the GenMar Group from time to time
in effect.
(c) Without limiting any obligation of the Company to you,
your service hereunder shall be for the benefit of the members of the GenMar
Group and the Company shall allocate the cost of these arrangements among such
members of the GenMar Group as it determines is appropriate.
3. SALARY; ADDITIONAL COMPENSATION; PERQUISITES AND BENEFITS.
(a) During your term of employment, the Company will pay you a
base salary at an annual rate of not less than Two Hundred and Fifty Thousand
Dollars ($250,000), subject to annual review by the Board of Directors or an
appropriate committee thereof and, in the discretion of such committee, increase
from time to time. Such salary shall be paid in installments in accordance with
the Company's standard practice, but not less frequently than monthly.
(b) For fiscal year 2001 and thereafter for each fiscal year
throughout your term of employment, you will be eligible to earn a bonus as
determined by the Board of Directors or an appropriate committee thereof based
upon actual performance as measured against goals set by the Board or such
committee. You will be entitled to participate in the Company's incentive bonus
program for senior executives with a target bonus for Fiscal Year 2001 of 35% of
your base salary. The terms and conditions of this bonus opportunity will be in
the discretion of the Board of Directors or a committee thereof.
(c) During your term of employment, you will be eligible to
participate in all benefit programs as are from time to time made generally
available to other senior executives of the GenMar Group.
(d) The Company will reimburse you, in accordance with its
standard policies from time to time in effect, for such reasonable and necessary
out-of-pocket business expenses as may be incurred by you during your term of
employment in the performance of your duties and responsibilities under this
Agreement. You will provide documentation of such expenses as reasonably
required under standard Company policies from time to time.
(e) You shall be entitled to a vacation period to be credited
and taken in accordance with GenMar Group policy from time to time in effect, of
four weeks per annum.
(f) You shall be eligible to receive stock option grants from
time to time pursuant to the Company's 2001 Stock Incentive Plan in accordance
with the terms and conditions thereof.
(g) In addition to any other compensation that you are
entitled to under this Agreement, following the Closing Date, the Company will
pay you a one-time special bonus of Fifty Thousand Dollars ($50,000).
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4. TERMINATION.
(a) The Company may terminate your term of employment under
this Agreement for Cause. As used herein, the term "Cause" means:
(i) Any act or failure to act involving
fraud, material theft or embezzlement;
(ii) Conviction of (or a plea of NOLO CONTENDERE to)
an offense which is a felony in the jurisdiction
involved;
(iii) Your failure or refusal to perform or observe any
of your material duties, responsibilities or obligations
set forth in this Agreement or your failure to follow
the directions of an officer of the GenMar Group to whom
you report or of the Board of Directors; or
(iv) Your engagement in Competitive Activity, as
defined in Section 8 herein.
(b) In the case of Sections 4(a) (iii) or (iv) above you shall
be entitled to written notice of the act or circumstances which would otherwise
constitute Cause hereunder and 10 days after receipt of such notice to cure such
act or circumstances if such act or circumstances are curable.
(c) Your term of employment will terminate forthwith upon your
death or, at the Company's option, upon your Disability. As used herein the term
"Disability" means your inability to perform your duties and responsibilities as
contemplated under this Agreement for a period of more than 180 consecutive
days, or for a period aggregating more than 180 days, whether or not continuous,
during any 180-day period, due to physical or mental incapacity or impairment. A
determination of Disability will be made by a physician satisfactory to both you
and the Company; provided that if you and the Company cannot agree as to a
physician, then each will select a physician and these two together will select
a third physician, whose determination as to Disability will be binding on you
and the Company. You, your legal representative or any adult member of your
immediate family shall have the right to present to the Company and such
physician such information and arguments on your behalf as you or they deem
appropriate, including the opinion of your personal physician. Should your
employment be terminated due to Disability, all base salary and other
compensation otherwise due to you hereunder shall be continued through the date
on which your employment is terminated for Disability.
5. SEVERANCE. In the event that your employment is terminated prior
to the expiration date provided in Section 1 (including prior to the expiration
date for any renewal term), you shall be entitled only to any incurred expenses
through the date of termination required to be reimbursed under Section 3(d) and
the following compensation and benefits:
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(a) In the event that your term of employment is terminated
for Cause, the Company will pay to you an amount equal to your accrued but
unpaid base salary through the date of such termination.
(b) Subject to Section 5(c) below, in the event that your term
of employment is terminated (other than upon your death or Disability) during
your term of employment by the Company other than for Cause, then the Company
shall pay to you an amount equal to your accrued but unpaid base salary and
bonus through the date of such termination and shall also pay to you, in
substantially equal monthly installments an amount equal to one year's base
salary at the rate of your base salary per annum in effect on the date of
termination. In the event such termination occurs after a Change of Control has
occurred, you shall also be entitled to a bonus equal to your bonus for one year
based on your average annual bonus during the preceding five years beginning
with the year ending December 31, 2001 or such shorter time as you were employed
by the Company (using, if such termination occurs before December 31, 2001, your
target bonus under Section 3(b) for the year ending December 31, 2001 as if it
were your actual bonus for that year).
(c) As used herein, "Change of Control" shall mean the
occurrence of any of the following:
(i) (x) any person or "group" (within the meaning of Section
13(d)(3) of the Exchange Act), other than Xxxxx X.
Xxxxxxxxxxxxx or entities which he directly or indirectly
controls (as defined in Rule 12b-2 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")),
acquiring "beneficial ownership" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of thirty
percent (30%) or more of the aggregate voting power of the
capital stock ordinarily entitled to elect directors of the
Company if such person or group so beneficially owns more of
such voting power than Oaktree Capital Management, LLC and its
affiliates (as defined under such Rule 12b-2, collectively,
"Oaktree") or (y) Oaktree so acquiring more than 50% of such
voting power.
(ii) the sale of all or substantially all of the Company's
assets in one or more related transactions to a person other
than such a sale to a subsidiary of the Company which does not
involve a change in the equity holdings of the Company or to
Xxxxx X. Xxxxxxxxxxxxx or entities which he directly or
indirectly controls; or
(iii) any merger, consolidation, reorganization or similar
event of the Company or any of its subsidiaries, as a result
of which the holders of the voting stock of the Company
immediately prior to such merger, consolidation,
reorganization or similar event do not directly or indirectly
hold at least fifty-one percent (51%) of the aggregate voting
power of the capital stock of the surviving entity.
(d) In the event that your term of employment is terminated on
account of your death or Disability, the Company will pay to you or your estate
an amount equal to your accrued but unpaid base salary and bonus through the
date of such termination and shall
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continue to make base salary payments to you or your estate, at the rate in
effect as of the date of your death or Disability, for a period of twelve months
from and after such date.
(e) You shall have no duty to mitigate the severance amounts
or any other amounts payable to you hereunder, and such amounts shall not be
subject to reduction for any compensation received by you from employment in any
capacity or other source following the termination of your employment with the
GenMar Group.
6. CONFIDENTIAL INFORMATION.
(a) The GenMar Group owns and has developed and compiled, and
will own, develop and compile, certain techniques, information, and materials
tangible or intangible, relating to itself, its customers, suppliers and others,
which are secret, proprietary and confidential, and which have great value to
its business (referred to in this Agreement, collectively, as "Confidential
Information"). Confidential Information shall not in any event include
information which (i) was generally known or generally available to the public
prior to its disclosure to you; (ii) becomes generally known or generally
available to the public subsequent to disclosure to you through no wrongful act
of any person or (iii) which you are required to disclose by applicable law or
regulation (provided that you provide the Company with prior notice of the
contemplated disclosure and reasonably cooperate with the Company at the
Company's expense in seeking a protective order or other appropriate protection
of such information). Confidential information includes, but is not limited to,
manuals, documents, computer programs, compilations of technical, financial,
legal or other data, client or prospective client lists, names of suppliers,
specifications, designs, business or marketing plans, forecasts, financial
information, work in progress, and other technical or business information.
(b) You acknowledge and agree that in the performance of your
duties hereunder the GenMar Group will from time to time disclose to you and
entrust you with Confidential Information. You also acknowledge and agree that
the unauthorized disclosure of Confidential Information, among other things, may
be prejudicial to the GenMar Group's interests and an improper disclosure of
trade secrets. You agree that during your term of employment and for three years
thereafter you shall not, directly or indirectly, use, make available, sell,
disclose or otherwise communicate to any corporation, partnership, individual or
other third party, other than during your term of employment in the course of
your assigned duties and for the benefit of the GenMar Group, any Confidential
Information. Upon termination of your term of employment, you shall not retain
or take with you any Confidential Information in a Tangible Form (defined
below), and you shall immediately deliver to the Company any Confidential
Information in a Tangible Form that you then control, as well as all other
property, equipment, documents or things that was issued to you or otherwise
received or obtained during your term of employment with the Company. "Tangible
Form" includes information or materials in written or graphic form, on a
computer disk or other medium, or otherwise stored in or available through
electronic or other form.
(c) The provisions of this Section 6 shall survive the
termination of this Agreement and your term of employment.
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7. NON-SOLICITATION.
(a) You acknowledge and agree (i) that the services to be
rendered by you for the GenMar Group are of a special, unique, extraordinary and
personal character, and (ii) that you have and will continue to develop a
personal acquaintance and relationship with the GenMar Group's employees.
Consequently, you agree that it is fair, reasonable and necessary for the
protection of the business, operations, assets and reputation of the GenMar
Group that you make the covenants contained in this Section 7.
(b) You agree that, during your term of employment hereunder
and for a period of two years thereafter, you shall not, directly or indirectly,
without the prior consent of the Company, solicit or induce or attempt to
solicit or induce (i) any employee of the GenMar Group to leave the employ of
the GenMar Group (but the foregoing shall not apply to the placement of or
responses to general advertising which does not name specific employees or the
Company) or (ii) any customer of the Company which accounted for more than 5% of
its revenues during the preceding fiscal year to cease doing business with the
Company or reduce the amount of business it does with the Company (but the
foregoing shall not prevent your seeking business for other business entities in
activities which do not violate Section 8).
(c) The provisions of this Section 7 shall survive the
termination of this Agreement and your term of employment.
8. CERTAIN COMPETITIVE ACTIVITIES.
(a) You shall not engage in any Competitive Activity (as
defined below) while employed by the Company and for a period of two years
thereafter provided that the provisions of this Section 8 shall be effective
only during a period for which the Company pays you salary under Section 5(b)
pursuant to the requirements of such section or otherwise. Notwithstanding the
preceding sentence, the restrictions against your engaging in a Competitive
Activity shall not be effective following a Change of Control or if the Company
terminates your term of employment without Cause.
(b) As used in this Section 8, "Competitive Activity" means
substantial involvement in the management or operation of tankers transporting
crude oil or other materials wherever such business is located in the world if
such business is a competitor of the Company. Holding more than 50% of the
voting equity of a business shall be deemed to be substantial involvement in its
management or operations. Mere investment in 50% or less of such equity shall
not in and of itself constitute such involvement.
9. SPECIFIC PERFORMANCE. You acknowledge that the Company would
sustain irreparable injury in the event of a violation by you of any of the
provisions of Sections 6, 7 or 8(a) hereof, and by reason thereof you consent
and agree that if you violate any of the provisions of said Sections 6, 7 or
8(a), in addition to any other remedies available, the Company shall be entitled
to a decree specifically enforcing such provisions, and shall be entitled to a
temporary and permanent injunction restraining you from committing or continuing
any such violation, from any arbitrator duly appointed in accordance with the
terms of this Agreement or any court of competent jurisdiction, without the
necessity of proving actual damages, posting any bond, or seeking arbitration in
any forum.
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10. LIFE INSURANCE. You agree that, during your term of employment,
the GenMar Group will have the right to obtain and maintain life insurance on
your life, at its expense, and for its benefit, subject to such aggregate
coverage limitation as you and the Company shall agree, your consent not to be
unreasonably withheld. You agree to cooperate fully with the GenMar Group in
obtaining such life insurance, to sign any necessary consents, applications and
other related forms or documents and to take any required medical examinations.
11. WITHHOLDING. The parties understand and agree that all payments
to be made by the Company pursuant to this Agreement shall be subject to all
applicable tax withholding obligations of the Company.
12. NO CONFLICT. You represent and warrant that you are not party to
or subject to any agreement, contract, understanding, covenant, judgment or
decree or under any obligation, contractual or otherwise, in any way restricting
or adversely affecting your ability to act for the GenMar Group in all of the
respects contemplated hereby.
13. NOTICES. All notices required or permitted hereunder will be
given in writing by personal delivery; by confirmed facsimile transmission; by
express delivery via any reputable express courier service; or by registered or
certified mail, return receipt requested, postage prepaid, in each case
addressed to the parties at the respective addresses set forth above or at such
other address as may be designated in writing by either party to the other in
the manner set forth herein. Notices which are delivered personally, or by
courier as aforesaid, will be effective on the date of delivery. Notices
delivered by mail will be deemed effectively given upon the fifth calendar day
subsequent to the postmark date thereof.
14. MISCELLANEOUS.
(a) The failure of either party at any time to require
performance by the other party of any provision hereunder will in no way affect
the right of that party thereafter to enforce the same, nor will it affect any
other party's right to enforce the same, or to enforce any of the other
provisions in this Agreement; nor will the waiver by either party of the breach
of any provision hereof be taken or held to be a waiver of any prior or
subsequent breach of such provision or as a waiver of the provision itself.
(b) This Agreement is a personal contract calling for the
provision of unique services by you, and your rights and obligations hereunder
may not be sold, transferred, assigned, pledged or hypothecated by you. The
rights and obligations of the Company hereunder will be binding upon and run in
favor of the successors and assigns of the Company.
(c) Each of the covenants and agreements set forth in this
Agreement are separate and independent covenants, each of which has been
separately bargained for and the parties hereto intend that the provisions of
each such covenant shall be enforced to the fullest extent permissible. Should
the whole or any part or provision of any such separate covenant be held or
declared invalid, such invalidity shall not in any way affect the validity of
any other such covenant or of any part or provision of the same covenant not
also held or declared invalid. If any covenant shall be found to be invalid but
would be valid if some part thereof were deleted or
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the period or area of application reduced, then such covenant shall apply with
such minimum modification as may be necessary to make it valid and effective.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
(e) Any controversy arising out of or relating to this
Agreement or the breach hereof shall be settled by arbitration in the City of
New York in accordance with the commercial arbitration rules then obtaining of
the American Arbitration Association and judgment upon the award rendered may be
entered in any court having jurisdiction thereof, except that in the event of
any controversy relating to any violation or alleged violation of any provision
of Section 6, 7 or 8 hereof, the Company in its sole discretion shall be
entitled to seek injunctive relief from a court of competent jurisdiction
without any requirement to seek arbitration. The parties hereto agree that any
arbitral award may be enforced against the parties to an arbitration proceeding
or their assets wherever they may be found. In the event that you prevail in any
claim or proceeding between you and the Company arising in relation to this
Agreement, the Company shall reimburse you for your reasonable costs and
expenses (including reasonable attorneys' fees) incurred by you in pursuing such
claim or proceeding.
(f) This Agreement sets forth the entire understanding between
the parties as to the subject matter hereof and merges and supersedes all prior
agreements, commitments, representations, writings and discussions between the
parties with respect to that subject matter. This Agreement may be terminated,
altered, modified or changed only by a written instrument signed by both parties
hereto.
(g) The Section headings contained herein are for purposes of
convenience only and are not intended to define or list the contents of the
Sections.
(h) Notwithstanding any provision hereof to the contrary, this
Agreement and the provisions hereof shall only become effective upon the Closing
Date; if the Closing Date shall not have occurred by 180 days after the date
hereof, this Agreement shall be deemed void, AB INITIO.
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Please confirm your agreement with the foregoing by signing and
returning the enclosed copy of this letter, following which this will be a
legally binding agreement between us as of the date first written above.
Very truly yours,
General Maritime Ship Holdings Ltd.
By:
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Name:
Title:
Accepted and Agreed:
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Xxxxx X. Xxxxxxxxxxxxx
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