Exhibit 10.9(b)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the
"Agreement") is entered into by and between KAYNAR TECHNOLOGIES INC., a
Delaware corporation, (the "Company") ____________ and ("Employee"), as of
the 9th day of December, 1998.
WHEREAS, the Company and Employee entered into an Employment
Agreement dated as of May 6, 1997 under which the Employee has been employed as
______________________________________________________________________________
__________ (the "Original Agreement"); and
WHEREAS, the Company and Employee now believe that it is in their
mutual best interests to amend and restate the Original Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto, intending
to be legally bound, do hereby agree to amend the Original Agreement, pursuant
to Section XV thereof and to restate the Original Agreement, as amended, in its
entirety, as follows:
I. EMPLOYMENT.
The Company hereby employs Employee and Employee hereby accepts
such employment, upon the terms and conditions hereinafter set forth.
II. TERMS.
This Agreement shall be effective from the date hereof to
December 31, 1998; provided, however, that on June 30, 1997, eighteen months
before expiration and every six months thereafter ("Renewal Date"), this
Agreement shall be extended for two additional years unless, at least 30 days
prior to the Renewal Date (which shall be either June 30 or December 31), the
Company shall have delivered to Employee or Employee shall have delivered to the
Company written notice that the Agreement shall not be so extended.
III. DUTIES.
A. Employee shall serve during the course of his employment as
Chairman of the Board of Directors, President and Chief Executive Officer of the
Company, and shall have such other duties and responsibilities as the Board of
Directors of the Company shall determine from time to time.
B. Employee agrees to devote substantially all of his time,
energy and ability to the business of the Company. Nothing herein shall prevent
Employee, upon approval of the Board of Directors of the Company, from serving
as a director or trustee of other corporations or businesses which are not in
competition with the business of the Company or in competition with any present
or future affiliate of the Company, provided such service does not materially
interfere with Employee's duties hereunder.
IV. COMPENSATION.
A. The Company will pay to Employee a base salary at the rate of
__________ per year. Such salary shall be earned monthly and shall be payable in
periodic installments no less frequently than monthly in accordance with the
Company's customary practices. Amounts payable shall be reduced by standard
withholding and other authorized deductions. The Company will review Employee's
salary at least annually. The Company may in its discretion increase Employee's
salary but it may not reduce it during the term of this Agreement.
B. ANNUAL BONUS, INCENTIVE, SAVINGS AND RETIREMENT PLANS.
Employee shall be entitled to participate in all annual bonus, incentive, stock
incentive, savings and retirement plans, defined contribution plans, practices,
policies and programs applicable generally to other executives of the Company.
C. WELFARE BENEFIT PLANS. Employee and/or his family, as the case
may be, shall be eligible for participation in and shall receive all benefits
under welfare benefit plans, practices, policies and programs provided by the
Company (including, without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, accidental death and
travel accident insurance plans and programs) to the extent such plan,
practices, and programs are applicable generally to executives of the Company,
such as Employee.
D. EXPENSES. Employee shall be entitled to receive prompt
reimbursement for all reasonable employment expenses incurred by him in
accordance with the policies, practices and procedures as in effect generally
with respect to other executives of the Company.
E. FRINGE BENEFITS. Employee shall be entitled to fringe benefits
in accordance with the plans, practices, programs and policies as in effect
generally with respect to other executives of the Company.
F. VACATION. Employee shall be entitled to paid vacation time in
accordance with the plans, policies, programs and practices as in effect with
respect to other employees of the Company.
G. PLAN AMENDMENTS. The Company reserves the right to modify,
suspend or discontinue any and all of its employee plans, practices, policies
and programs at any time without recourse by Employee so long as such action is
taken generally with respect to other similarly situated executives and does not
single out Employee.
V. TERMINATION.
A. DEATH OR DISABILITY. Employee's employment shall terminate
automatically upon Employee's death. If the Company determines in good faith
that a Disability of Employee has occurred (as Disability is defined below), it
may give to Employee written notice in accordance with Section XX of its
intention to terminate Employee's employment. In such event, Employee's
employment with the Company shall terminate effective on the 30th day after
receipt of such notice by Employee, provided that, within the 30 days after such
receipt, Employee shall not have returned to full-time performance of his
duties. For purposes of this Agreement, "Disability" shall mean the absence of
Employee from his duties with the Company
2
on a full-time basis (1) for a period of two consecutive months as a result of
incapacity due to mental or physical illness which is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable
to Employee or his legal representative (such agreement as to acceptability not
to be withheld unreasonably) or (2) for shorter periods aggregating 130 or more
business days in any twelve (12) month period. "Incapacity" as used herein shall
be limited only to such Disability which substantially prevents the Company from
availing itself of the services of Employee or substantially impairs the
Employee's ability to perform services to the standard reasonably expected by
the Company for Employee's office.
B. CAUSE, ETC. The Company also may terminate such employment, at
any time, whether before or after a Change in Control, for Employee's breach of
the provisions of Sections VIII (Noncompetition), IX (Antisolicitation) or XII
(Confidential Information) or as set forth in paragraph A above. Following a
Change in Control, as defined in Section VI below, during the term of this
Agreement remaining after such Change in Control, the parties agree that the
Company may terminate Employee's employment only for Cause, as "Cause" is
defined below. Prior to the occurrence of a Change in Control (and so long as
such termination is not made in connection therewith) the Company may terminate
Employee's employment, at any time, with or without Cause. For purposes of this
Agreement, "Cause" shall mean that the Company, acting in good faith based upon
the information then known to the Company, determines that Employee has: (1)
repeatedly failed to perform in a material respect his obligations under the
Agreement without proper reason and has not cured such failure in a reasonable
time after receiving notice from the Company, (2) been convicted of a felony, or
(3) committed a material act of fraud or dishonesty which is materially
injurious to the Company. Sections VII through XII will continue in effect in
the event this Employee's employment is terminated for Cause.
C. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
1. DEATH OR DISABILITY. If Employee's employment is terminated by
reason of Employee's Death or Disability, this Agreement shall
not be subject to any further extension pursuant to Section II
hereof.
2. CAUSE, ETC. If Employee's employment is terminated by the
Company pursuant to Section V-B, this Agreement shall terminate
without further obligations to Employee other than for (a)
payment of the sum of Employee's annual base salary through the
date of termination and any accrued vacation pay to the extent
not theretofore paid, which shall be paid to Employee or his
estate or beneficiary, as applicable, in a lump sum in cash
within 30 days of the date of termination; (b) payment of any
compensation previously earned and deferred by Employee (together
with any accrued interest or earnings thereon), which shall be
paid to Employee or his estate or beneficiary at the times
provided in, and pursuant to terms of, the plan or agreement
under which such compensation was deferred; and (c) payment to
Employee or his estate or beneficiary, as applicable, any amounts
due pursuant to the terms of any applicable welfare benefit
plans. The payments described in clauses (a) and (b) shall
hereinafter be referred to as the "Accrued Obligations." If it is
subsequently determined that the Company did not have the right
to terminate Employee under Section V-B, then the Company's
3
decision to terminate shall be deemed to have been made under
Section V-C-3 and the amounts payable thereunder shall be the
only amounts Employee may receive for his termination.
3. OTHER. If the Company breaches this Agreement by terminating
Employee's employment other than pursuant to Sections V-A or V-B,
the Company (a) shall continue paying the Employee's base salary
in effect immediately prior to Employee's termination of
employment, less standard withholdings and other authorized
deductions, for the next two years and payable in customary
periodic amounts and (b) shall timely pay to Employee the Accrued
Obligations. Employee shall have no duty to mitigate damages and
none of the payments provided in this Section V-C-3 shall be
reduced by any amounts earned or received by Employee from a
third party at any time. Employee shall be bound by the
provisions of Sections VII through XII of this Agreement only for
so long as Employee continues to receive payments from the
Company hereunder.
4. EXCLUSIVE REMEDY. Employee agrees that the payments
contemplated by this Agreement shall constitute the exclusive and
sole remedy for any termination of his employment and Employee
covenants not to assert or pursue any other remedies, at law or
in equity, with respect to any termination of employment.
VI. CHANGE IN CONTROL.
A. Notwithstanding anything to the contrary in this Agreement, if
a Change in Control (as defined below) of the Company occurs during the term of
this Agreement, and if within one year following such Change in Control either
the Company terminates Employee's employment without Cause, or if employee
terminates his employment for Good Reason (as defined below), the Company shall
pay to Employee by cashier's check immediately upon Employee's termination of
employment with the Company an amount equal to two times the sum of (1) the
amount of the highest annual base salary paid to Employee during the three most
recent calendar years ending prior to the year in which the Change in Control
occurs and (2) the amount of the highest bonus (or bonuses) paid to Employee for
any calendar year ending prior to the year in which the Change in Control
occurs. This payment shall be in lieu of the payment otherwise payable under
Section V-C-3(a), but shall be in addition to the timely payment of the Accrued
Obligations. In addition, the Company shall continue to provide all benefits
under the welfare benefit plans as set forth in Section IV-C until the earlier
of (1) Employee's reciept of benefits substantially similar in scope and nature
from another employer or (2) two years after the most recent Renewal Date.
Employee shall have no duty to mitigate damages and none of the payments
provided in this Section VI-A shall be reduced by any amounts earned or received
by Employee from a third party at any time. Notwithstanding anything to the
contrary in this Section IV, if, in connection with a Change in Control
transaction, Employee voluntarily enters a new written employment agreement with
the Company or its successor, Employee may no longer rely upon the provisions of
this Section VI.
B. Notwithstanding anything in this Agreement to the contrary,
any "parachute payments" to be made to or for Employee's benefit, whether
pursuant to this
4
Agreement or otherwise, shall be modified to the extent necessary so that the
requirements of one of the two subparagraphs below are satisfied:
1. The aggregate "present value" of all "parachute payments"
payable to Employee or for Employee's benefit, whether pursuant
to this Agreement or otherwise, shall be less than three (3)
times Employee's "base amount"; or
2. Each "parachute payment" payable to Employee or for Employee's
benefit, whether pursuant to this Agreement or otherwise, shall
be in an amount which does not exceed the "reasonable
compensation" allocable to such "parachute payment."
C. For purposes of this Section VI:
1. A "Change in Control" of the Company means any of the
following:
(1) Approval by the shareholders of the Company of the
dissolution or liquidation of the Company;
(2) Approval by the shareholders of the Company of an agreement
to merge or consolidate, or otherwise reorganize, with or into one or more
entities that are not subsidiaries or other affiliates, as a result of which
less than 40% of the outstanding voting securities of the surviving or resulting
entity immediately after the reorganization are, or will be, owned, directly or
indirectly, by shareholders of the Company immediately before such
reorganization (assuming for purposes of such determination that there is no
change in the record ownership of the Company's securities from the record date
for such approval until such reorganization and that such record owners hold no
securities of the other parties to such reorganization, but including in such
determination any securities of the other parties to such reorganization held by
affiliates of the Company);
(3) Approval by the shareholders of the Company of the sale of
substantially all of the Company's business and/or assets to a person or entity
which is not a subsidiary or other affiliate; or
(4) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Exchange Act") but excluding
any person described in and satisfying the conditions of Rule 13d-1(b)(1)
thereunder), other than General Electric Capital Corporation and its affiliates,
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing more
than 40% of the combined voting power of the Company's then outstanding
securities entitled to then vote generally in the election of directors of the
Company; or
(5) During any period not longer than two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company cease to constitute at least a majority thereof, unless
the election, or the nomination for election by the Corporation's shareholders,
of each new Board member was approved by a vote of at least three-fourths of the
Board members then still in office who were Board members at the beginning of
5
such period (including for these purposes, new members whose election or
nomination was so approved).
2. "Good Reason" shall mean, without obtaining Employee's prior
written consent thereto, (a) an adverse and significant change in Employee's
position, duties, responsibilities, or status with the Company, (b) a change in
Employee's office location to a point more than 50 miles from Employee's office
immediately prior to a Change in Control, (c) the taking of any action by the
Company to eliminate benefit plans without providing substitutes which, in
overall, provide a substantially similar aggregate value of benefits, to reduce
benefits thereunder or to substantially diminish the aggregate value of
incentive awards or other fringe benefits, (d) any reduction in Employee's base
salary or (e) breach of this Agreement by the Company. "Good Reason" shall also
mean and include, without limitation, any termination by the Employee of his
employment with the Company at any time within one year following a Change in
Control, whether with or without reason.
3. The term "base amount" shall have the meaning ascribed to it
under Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code");
4. The term "parachute payment" shall have the meaning ascribed
in Section 280G(b)(2)(A) of the Code, without regard to Section
280G(b)(2)(A)(ii) of the Code but with regard to Section 280G(b)(4)(A);
5. "Present value" shall be determined in accordance with Section
280G(d)(4) of the Code;
6. The term "reasonable compensation" shall have the meaning
ascribed to it under Section 280G(b)(4)(B) of the Code (for personal services
actually rendered before the date of the Change in Control of the Company); and
7. The portion of the "base amount" and the amount of "reasonable
compensation" allocable to any "parachute payment" shall be determined in
accordance with Section 280G(b)(3) of the Code and Section 280G(b)(4)(B) of the
Code, respectively.
D. In the event the amount of any of "parachute payments" which
would be payable to Employee or for Employee's benefit without regard to this
Section must be modified to comply with this Section VI, Employee shall direct
which "parachute payments" are to be a waived or modified; provided, however,
that no change in timing of the payments shall be made without the consent of
the Company.
E. All determinations required by this Section VI, including
without limitation the determination of whether any benefit or payment would
constitute a parachute payment, the calculation of the value of any parachute
and whether any benefit or payment constitutes reasonable compensation, shall be
made by an independent accounting firm (other than the Company's outside
auditing firm) having nationally recognized expertise in such matters selected
by the Compensation Committee of the Board of Directors of the Company and
acceptable to Employee. Any such determination by such accounting firm shall be
binding on the Company and Employee.
6
F. Payment of amounts pursuant to this Agreement shall not,
unless directed by Employee, be delayed pending determination of the status of a
payment as a "parachute payments" by the Internal Revenue Service, court or
similar body of competent jurisdiction.
VII. ARBITRATION.
Any controversy or claim arising out of or relating to this
Agreement, its enforcement or interpretation, or because of an alleged breach,
default, or misrepresentation in connection with any of its provisions, shall be
submitted to arbitration, to be held in Orange County, California in accordance
with the Voluntary Labor Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitration may be entered
in any court in the State of California, or in any other court of competent
jurisdiction. In the event either party institutes arbitration under this
Agreement arising prior to a Change in Control of the Company, the party
prevailing in any such litigation shall be entitled, in addition to all other
relief, the reasonable attorneys' fees relating to such arbitration, and the
nonprevailing party shall be responsible for all costs of the arbitration,
including but not limited to, the arbitration fees, court reporter fees, etc. In
the case of any arbitration or subsequent judicial proceedings arising after a
Change in Control of the Company, Employee shall be awarded his costs, including
attorneys' fees.
VIII. NONCOMPETITION.
A. Employee agrees that, during the term of this Agreement, and
for a period of one year thereafter, he will not, directly or indirectly,
without the prior written consent of the Board of Directors of the Company,
provide consultative service with or without pay, own, manage, operate, join,
control, participate in, or be connected as a stockholder, partner, or otherwise
with, any business, individual, partner, firm, corporation, or other entity
which is then in the business of producing metal fasteners (or related products)
for the aerospace industry anywhere (including both in the United States and
abroad). However, this Section VIII-A will not apply if Employee's only
relationship to such business is by ownership of less than 4% of the outstanding
voting securities of a publicly-traded company.
B. It is expressly agreed that the Company will or would suffer
irreparable injury if Employee were to compete with the business of the Company
or any subsidiary of the Company in violation of this Agreement and that the
Company would by reason of such competition be entitled to injunctive relief in
a court of appropriate jurisdiction. Employee consents and stipulates to the
entry of such injunctive relief in such a court prohibiting him from competing
with the Company or any subsidiary of the Company in violation of this
Agreement.
IX. ANTISOLICITATION.
Employee promises and agrees that during the term of this
Agreement, and for a period of one year thereafter, he will not influence or
attempt to influence customers of the Company or any of its present
subsidiaries, either directly or indirectly, to divert their business to any
individual, partnership, firm, corporation or other entity then in competition
with the business of the Company, or any subsidiary of the Company.
7
X. JOINING FORMER COMPANY EMPLOYEES.
Employee promises and agrees that for one year following his
termination of employment, other than pursuant to Section V-C or VI above or
Disability above or expiration of this Agreement, he will not enter business or
work with any person who was employed with the Company, and who earned annually
$80,000 or more as a Company employee during the last six months of his or her
own employment, in any business, partnership, firm, corporation or other entity
then in competition with the business of the Company or any subsidiary of the
Company.
XI. SOLICITING EMPLOYEES.
Employee promises and agrees that he will not, for a period of
one year following termination of his employment or the expiration of this
Agreement, directly or indirectly solicit any of the Company employees who
earned annually $80,000 or more as a Company employee during the last six months
of his or her own employment to work for any business, individual, partnership,
firm, corporation, or other entity then in competition with the business of the
Company or any subsidiary of the Company.
XII. CONFIDENTIAL INFORMATION.
A. Employee shall hold in a fiduciary capacity for the benefit of
the Company all secret or confidential information, knowledge or data relating
to the Company or any of its affiliated companies, and their respective
businesses, which shall have been obtained by Employee during his employment by
the Company or any of its affiliated companies and which shall not be or become
public knowledge (other than by acts by Employee or his representatives in
violation of this Agreement). After termination of Employee's employment with
the Company, he shall not, without the prior written consent of the Company, or
as may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it; PROVIDED, however, that the Employee will not be so bound if
following a Change in Control employee is terminated without Cause or if
employee terminates his employment for Good Reason.
B. Employee agrees that all lists, materials, books, files,
reports, correspondence, records, and other documents ("Company material") used,
prepared, or made available to Employee, shall be and shall remain the property
of the Company. Upon the termination of employment or the expiration of this
Agreement, all Company materials shall be returned immediately to the Company,
and Employee shall not make or retain any copies thereof.
XIII. SUCCESSORS.
A. This Agreement is personal to Employee and shall not, without
the prior written consent of the Company, be assignable by Employee.
B. This Agreement shall inure to the benefit of and be binding
upon the Company and its successors and assigns and any such successor or
assignee shall be deemed substituted for the Company under the terms of this
Agreement for all purposes. As used herein, "successor" and "assignee" shall
include any person, firm, corporation or other business entity which at any
time, whether by purchase, merger or otherwise, directly or indirectly acquires
8
the stock of the Company or to which the Company assigns this Agreement by
operation of law or otherwise.
XIV. WAIVER.
No waiver of any breach of any term or provision of this
Agreement shall be construed to be, nor shall be, a waiver of any other breach
of this Agreement. No waiver shall be binding unless in writing and signed by
the party waiving the breach.
XV. MODIFICATION.
This Agreement may not be amended or modified other than by a
written agreement executed by the Employee and the Company.
XVI. SAVINGS CLAUSE.
If any provision of this Agreement or the application thereof is
held invalid, the invalidity shall not affect other provisions or applications
of the Agreement which can be given effect without the invalid provisions or
applications and to this end the provisions of this Agreement are declared to be
severable.
XVII. COMPLETE AGREEMENT.
This instrument constitutes and contains the entire agreement and
understanding concerning Employee's employment and other subject matters
addressed herein between the parties, and supersedes and replaces all prior
negotiations and all agreements proposed or otherwise, whether written or oral,
concerning the subject matter hereof. This is an integrated agreement.
XVIII. GOVERNING LAW.
This Agreement shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of the
parties hereunder shall be construed and enforced in accordance with, and
governed by, by the laws of the State of California without regard to principles
of conflict of laws.
XIX. CONSTRUCTION.
The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect.
XX. COMMUNICATIONS.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered in
person, by telecopy, telex or equivalent form of written telecommunication or if
sent by registered or certified mail, return receipt requested, postage prepaid,
as follows:
9
To Company: Kaynar Technologies Inc.
000 Xxxxx Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Secretary
With copy to: O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: C. Xxxxx Xxxxx, Esq.
To Employee:
Either party may change the address at which notice shall be given by written
notice given in the above manner. All notices required or permitted hereunder
shall be deemed duly given and received on the date of delivery, if delivered in
person or by telex, telecopy or other written telecommunication on a regular
business day and within normal business hours or on the fifth day next
succeeding the date of mailing, if sent by certified or registered mail.
XXI. EXECUTION.
This Agreement is being executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Photographic copies of such signed
counterparts may be used in lieu of the originals for any purpose.
XXII. LEGAL COUNSEL.
The Employee and the Company recognize that this is a legally
binding contract and acknowledge and agree that they have had the opportunity to
consult with legal counsel of their choice.
10
XXIII. SURVIVAL.
The provisions of this Agreement shall survive the term of this
Agreement to the extent necessary to accommodate full performance of all such
terms.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
-------------------------- -----------------------
KAYNAR TECHNOLOGIES INC.
By
-----------------------
Its
11
