EMPLOYMENT AGREEMENT
Exhibit 10.12
This EMPLOYMENT AGREEMENT (the “Agreement”) is made effective September 21, 2008, by and
between (i) GLOBE SPECIALTY METALS INC., a Delaware corporation (the “Company”), with its principal
place of business currently at 0 Xxxx Xxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000 and (ii) XXXXXXX X.
XXXXXXXXX (the “Executive”), 00 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000. Certain other capitalized terms
used herein are defined in Section 9 below.
In consideration of the mutual covenants and promises contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Term of Employment. The Company hereby agrees to employ the Executive, and the
Executive hereby accepts employment with the Company, upon the terms set forth in this Agreement,
for a term of three (3) years that commences on September 21, 2008 (the “Effective Date”), and that
ends, unless sooner terminated in accordance with Section 4, on September 20, 2011. The period
during which the Executive is employed pursuant to this Agreement shall be referred to herein as
the “Employment Period.”
2. Title; Capacity.
(a) During the Employment Period, the Executive shall serve as the Chief Financial Officer of
the Company and shall have all authorities, duties and responsibilities customarily exercised by an
individual serving in that position at an entity of the size and nature of the Company, as from
time to time reasonably modified by the Board of Directors of the Company (the “Board”) on notice
to the Executive. During the Employment Period, the Executive shall report directly to the Chief
Executive Officer.
(b) The Executive hereby accepts such employment, agrees to undertake the duties and
responsibilities of Chief Financial Officer of the Company in accordance herewith, and to perform
such other executive duties and responsibilities, consistent herewith, as the Board shall from time
to time reasonably assign to him. The Executive agrees to devote substantially all of his business
time, attention and energies to the business and interests of the Company during the Employment
Period; provided, however, that nothing in this Agreement shall preclude the
Executive from: (i) engaging in charitable and professional activities and community affairs
provided that such activities and community affairs do not impact negatively upon the image of the
Company, and (ii) managing his personal investments and affairs. The Executive’s principal place of
employment shall be at the Company’s headquarters, which are currently located at the address for
the Company set forth above. Unless otherwise traveling on Company business, the Executive shall
generally work at the Company’s headquarters in New York, New York.
3. Compensation and Benefits.
3.1 Salary. In accordance with the normal payroll practices of the Company, the
Company shall pay the Executive an annual base salary (the “Base Salary”) of Three
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Hundred Thousand ($300,000.00) Dollars in respect of his services during the Employment
Period, subject to annual review by the Board for increase.
3.2 Bonus. In addition to the Executive’s Base Salary, the Executive shall be eligible
to receive an annual cash bonus in such amount as shall be determined by the Board. For the fiscal
year during the Employment Period commencing on July 1, 2008 and ending June 30, 2009, subject to
Section 4 hereof, the Executive shall receive a cash bonus of at least $96,575.00. Payment of the
bonus shall be made at such time as determined by the Board; provided, however, that such bonus
must be paid on or before July 31 immediately following the end of the fiscal year for which such
bonus is payable.
3.3 Stock Options. To induce the Executive to enter into this Agreement, the Company
hereby grants to the Executive stock options (the “Stock Options”) on the Company common stock upon
the terms and conditions set forth on Annex A hereto.
3.4 Fringe Benefits. The Executive shall be entitled to participate in all perquisite
and benefit programs that the Company makes available to its senior executives, if any, to the
extent that the Executive’s position, tenure, salary, age, health and other qualifications make him
eligible under the terms of the applicable program (as amended from time to time) to participate,
including without limitation (i) long-term disability insurance paid by the Company, (ii) business
travel accident insurance and (iii) reimbursement (in accordance with Section 3.5 hereof) of all
expenses. The Executive shall be entitled to four (4) weeks of paid vacation per calendar year
(prorated for any partial year) plus Federal holidays.
3.5 Reimbursement of Expenses. The Company shall reimburse the Executive for all
reasonable travel, entertainment, communication technologies (i.e., laptop computer, cell phone and
Blackberry) and other expenses incurred or paid by the Executive in connection with, or related to,
the performance of his duties, responsibilities or services under this Agreement, upon presentation
by the Executive of documentation, expense statements, vouchers and/or such other supporting
information as the Company may reasonably request.
3.6 Indemnification. If the Executive is made a party or is threatened to be made a
party to any Proceeding (as defined in Section 9 below) by reason of the fact that he is or was a
director or officer of the Company or any of its affiliates or is or was serving at the request of
the Company or any of its affiliates, or in connection with his service hereunder, as a director or
officer of another person, or if any Claim (as defined in Section 9 below) is made or is threatened
to be made that arises out of or relates to the Executive’s service in any of the foregoing
capacities, then the Executive shall promptly be indemnified and held harmless to the fullest
extent permitted or authorized by the Articles of Incorporation or Bylaws of the Company, or if
greater, by applicable law, against any and all reasonable costs, reasonable expenses, liabilities
and losses (including, without limitation, reasonable attorneys’ and other professional fees and
charges, judgments, interest, reasonable expenses of investigation, penalties, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement) incurred or suffered by the
Executive in connection therewith or in connection with seeking to enforce his rights under this
Section 3.6, and such indemnification shall continue as to the Executive even if he has ceased to
serve in any such capacity, and shall inure to the benefit of his heirs, executors and
administrators. The Executive shall be entitled to prompt reimbursement of
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any and all costs and expenses (including, without limitation, reasonable attorneys’ and other
professional fees and charges) reasonably incurred by him in connection with any such Proceeding or
Claim, or in connection with seeking to enforce his rights under this Section 3.6, any such
reimbursement to be made within 30 days after the Executive gives written notice, supported by
reasonable documentation, requesting such reimbursement, and in all cases not later than March 15
of the calendar year following the calendar year in which such expenses were incurred. Such notice
shall include an undertaking by the Executive to promptly repay the amount paid if he is ultimately
determined not to be entitled to indemnification against such costs and expenses; provided that
repayment shall occur no later than 60 days following the applicable determination. Nothing in this
Agreement shall operate to limit or extinguish any right to indemnification, reimbursement of
expenses, or contribution that the Executive would otherwise have (including, without limitation,
by agreement or under applicable law).
4. Employment Termination. Notwithstanding Section 1, the Executive’s employment under this
Agreement shall terminate upon the occurrence of any of the following:
4.1 at the election of the Company, for Cause (as defined in Section 9 below), immediately
with notice by the Company to Executive;
4.2 upon the death of, or 30 days’ after written notice upon the Disability (as defined in
Section 9 below) of, the Executive;
4.3 at the election of the Executive, for Good Reason (as defined in Section 9 below), upon 30
days’ written notice by the Executive to the Company; and
4.4 in the event that none of Sections 4.1, 4.2 and 4.3, at the election of either party, upon
30 days’ written notice to the other party.
5. Effect of Termination.
5.1 Termination by Company for Cause or by Executive Voluntarily. If the Executive’s
employment hereunder is terminated by the Company for Cause in accordance with Section 4.1 above,
or if the Executive terminates his employment hereunder in accordance with Section 4.4 above, the
Executive shall receive the benefits described in Section 5.4 below. Subject to the foregoing, the
Company shall have no further obligations to the Executive hereunder.
5.2 Termination by Company Without Cause or by Executive for Good Reason. If the
Executive’s employment hereunder is terminated by the Company in accordance with Section 4.4 above,
or if the Executive terminates his employment hereunder for Good Reason in accordance with Section
4.3 above:
(i) the Company shall pay to the Executive an amount equal to the Executive’s then Base
Salary and any accrued bonus as of the Termination Date, payable in equal monthly
installments due on the first business day of each month during the twelve (12) month period
immediately following such termination; provided, however, that if such termination occurs
during the first twelve (12) months of
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Executive’s employment, Executive shall be entitled to an additional $10,416.66
included in each of the twelve (12) monthly installments.
(ii) the Executive shall be entitled to continued participation pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) in all
insurance and benefit plans providing medical coverage, to the extent such plans are then
provided by the Company, at the same benefit level which is provided to other executives of
the Company until the last day of the coverage period mandated by COBRA, provided,
that, during the twelve (12) month period commencing on the Termination Date, the
premium cost of the coverage provided pursuant to this Section 5.2(ii) shall be paid in full
by the Company;
(iii) the Executive shall receive the benefits described in Section 5.4 below.
5.3 Termination Upon Death or Disability or Expiration of Employment Period. If the
Executive’s employment hereunder is terminated as a result of his death or because of his
Disability as determined pursuant to Section 4.2 above, or upon expiration of the Employment
Period, the Company shall provide to the Executive the benefits described in Section 5.4 below.
5.4 Other Accrued Benefits. Upon any termination of the Executive’s employment
hereunder, he shall be entitled to:
(i) any unpaid Base Salary through the Termination Date;
(ii) subject to the terms of the applicable award or arrangement, the balance of any
annual incentive award earned in respect to any full fiscal year ending on or prior to the
Termination Date, or payable (but not yet paid) on or prior to the Termination Date;
(iii) subject to the terms of the actual award or arrangement and provided that
Executive is not terminated for Cause or does not terminate his employment without Good
Reason, any amounts payable with respect to the fiscal year in which termination occurs
under any annual incentive award (prorated for the portion of the year Executive was
employed by the Company);
(iv) any other benefits accrued as of the Termination Date in accordance with the terms
of the applicable plans, programs and arrangements of the Company (including, without
limitation, benefits under Section 10.9); and
(v) payment in accordance with the payroll practices of the Company, of all amounts due
in connection with the termination, such payments to be made by wire transfer of same-day
funds to the extent reasonably requested by the Executive.
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Any amounts payable pursuant to this Section 5.4 shall be paid no later than 60 days after the
Termination Date, unless an alternative payment schedule is provided for under this Agreement or
the applicable plan, award or arrangement.
5.5 Miscellaneous. In the event of any termination of the Executive’s employment
hereunder, the Executive shall be under no obligation to seek other employment or otherwise
mitigate the obligations of the Company under this Agreement, and there shall be no offset against
amounts or benefits due the Executive under this Agreement or otherwise on account of any
remuneration or other benefit earned or received after such termination. Any amounts due to the
Executive under this Section 5 are considered to be reasonable by the Company and are not in the
nature of a penalty.
6. Restrictions.
6.1 Non-Solicitation and Non-Competition. During the Employment Period and for one (1)
years thereafter, the Executive will not directly or indirectly, alone or in association with
others, other than in connection with performing his duties for the Company:
(i) (A) recruit, solicit or induce any employee or consultant of the Company or any of its
affiliates to terminate his or her employment with, or otherwise cease his or her relationship
with, the Company or any of its affiliates, or (B) employ or retain any employee of the Company or
any of its affiliates within six (6) months of the date that such employee or individual ceases
providing services to the Company or any of its affiliates;
(ii) solicit, divert or take away the business or patronage of any customer, supplier or other
business relation of the Company or any of its affiliates who have done business with the Company
during the twelve month period prior to the Termination Date or who are a potential customer,
supplier or other business relation with which the Company or any of its affiliates is currently
attempting to establish a relationship at the time of the Termination Date; or
(iii) own, manage, operate, sell, control or participate in the ownership, management,
operation, sales or control of, be involved with the development efforts of, serve as a technical
advisor to, license intellectual property to, provide services to or in any manner engage in any
business that competes with any business in which the Company or any of its affiliates is engaged
as of the Termination Date; provided, however, that Executive may own as a passive investor up to
5.0% of any class of an issuer’s publicly traded securities.
6.2 Business Scope and Geographical Limitation. Executive acknowledges (i) that the
business of the Company and its affiliates is, and is expected to remain, international in scope
and without geographical limitation; (ii) notwithstanding the state of incorporation or principal
office of the Company or any of its affiliates, or any of their respective executives or employees
(including Executive), it is expected that the Company and its affiliates will have business
activities and have valuable business relationships within its industry throughout the world; and
(iii) as part of his responsibilities, Executive will travel around the world in furtherance of the
Company’s and its affiliates’ businesses and their relationships. Accordingly, the restrictions set
forth in this Section 6 shall be effective in all cities, counties and states of the
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United States and all countries in which the Company or any of its affiliates has an office as
of the Termination Date.
6.3 Additional Acknowledgments. Executive acknowledges that the provisions of this
Section 6 are in consideration of employment with the Company and the additional good and valuable
consideration as set forth in this Agreement.
7. Confidential Information.
7.1 Obligation to Maintain Confidentiality. Executive acknowledges that the
information and data obtained by him during the course of his performance under this Agreement
concerning the business and affairs of the Company and its affiliates are the property of the
Company or such affiliates, including information concerning acquisition opportunities in the
Company’s or any of its affiliates’ industry of which Executive becomes aware during the Employment
Period (such information or data, the “Confidential Information”). Therefore, Executive agrees that
he will not disclose to any unauthorized person or use for his own account any of the Confidential
Information without the prior written consent of the Board, unless, and then only to the extent
that, the aforementioned Confidential Information (i) becomes generally known to the public other
than as a result of Executive’s acts or omissions to act, (ii) was already known to the Executive
prior to his employment hereunder, (iii) became known to the Executive from a third party owing no
duty of confidentiality to the Company, or (iv) is required to be disclosed under law, in which
case Executive shall cooperate to obtain an administrative protective order or its equivalent.
Executive agrees to destroy or to deliver to the Company upon termination of employment any and all
property belonging to the Company and its affiliates in his possession or under his control
including, but not limited to, any memoranda, notes, plans, records, reports, documents, discs and
other data storage media (and any copies thereof).
7.2 Ownership of Property. Executive expressly understands and agrees that any and all
right, title or interest he has or obtains in any documentation, trade secrets, technical
specifications, data, know-how, inventions, concepts, ideas, techniques, innovations, discoveries,
improvements, developments, methods, processes, programs, designs, analyses, drawings, reports,
memoranda, marketing plans, and all similar or related information (whether or not patentable)
conceived, devised, developed, contributed to, made, reduced to practice or otherwise had or
obtained by Executive (either solely or jointly with others) during the Employment Period that
relate to the Company’s or any of its affiliates’ actual or anticipated business, research and
development, or existing or future products or services, or that arise out of Executive’s
employment with the Company or any of its affiliates (including any of the foregoing that
constitutes any proprietary information or records) (“Work Product”) belong to the Company or the
respective affiliate, and Executive hereby assigns, and agrees to assign, all of the above Work
Product to the Company or to such affiliate. Any copyrightable work prepared in whole or in part by
Executive in the course of his work for any of the foregoing entities shall be deemed a “work made
for hire” under the copyright laws, and the Company or such affiliate shall own all rights therein.
To the extent that any such copyrightable work is not a “work made for hire,” Executive hereby
assigns, and agrees to assign, to the Company or the respective affiliate all of his right, title
and interest in and to such copyrightable work. Executive shall promptly disclose such Work Product
and copyrightable work to the Board and perform all actions reasonably requested by the Board
(whether during or after the Employment Period) to establish and confirm the Company’s
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or the respective affiliate’s ownership therein (including executing and delivering any
assignments, consents, powers of attorney and other instruments).
7.3 Third Party Information. Executive understands that the Company and its affiliates
will receive from third parties confidential or proprietary information (“Third Party Information”)
subject to a duty on the Company’s and such affiliates’ part to maintain the confidentiality of
such information and to use it only for certain limited purposes. During the Employment Period and
thereafter, and without in any way limiting the provisions of Section 7.1 above, Executive will
hold Third Party Information in the strictest confidence and will not disclose to anyone (other
than in the ordinary course of Executive’s duties for the benefit of the Company or any subsidiary
or affiliate of the Company) or use, except in connection with his work for the Company or such
affiliates, Third Party Information without the prior written consent of the Board, other than as
required by law.
8. Representations.
(a) As an inducement to the Company to enter into this Agreement, the Executive represents and
warrants that there exists no contractual impediment on the Executive’s power, right or ability to
enter into this Agreement and to perform the Executive’s duties and obligations hereunder, other
than restrictions whose breach results solely in forfeiture of benefits to which the Executive
might otherwise be entitled.
(b) The Company represents and warrants that (i) it is fully authorized by action of its Board
to enter into this Agreement and to perform its obligations under it, (ii) the execution, delivery
and performance of this Agreement by it does not violate any applicable law, regulation, order,
judgment or decree or any agreement, arrangement, plan or corporate governance document to which it
is a party or by which it is bound and (iii) upon the execution and delivery of this Agreement by
the parties, this Agreement shall be its valid and binding obligation, enforceable against it in
accordance with its terms, except to the extent that enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally.
9. Certain Definitions. For purposes of this Agreement, the following terms shall have
the meanings specified in this Section 9:
“Cause” means: (i) perpetration by the Executive of act involving fraud with respect to
the Company or any of its affiliates; (ii) substantial failure on the part of the Executive
in his performance of his duties as reasonably directed by the Board, after notice to
Executive and a reasonable opportunity to cure referencing Section 4.1 describing the nature
of such breach and the method of remedy and providing a reasonable opportunity to cure,
provided that the foregoing failure shall not be “Cause” if Executive in good faith believes
that such direction is illegal or unethical under the applicable code of professional
conduct and promptly so notifies the Board; (iii) the engaging in by the Executive of gross
misconduct, or gross negligence in the performance of his duties, which materially injures
the Company, (iv) the material breach by Executive of Sections 6 or 7 of this Agreement,
which materially injures the Company
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or (v) the indictment of the Executive for, or the entry of a pleading of guilty or
nolo contendere by the Executive to, any felony (excluding automobile related offenses).
“Change of Control” shall be deemed to have occurred if any of the following events
occurs after the Effective Date: (i) any person or group (within the meaning of Rule 13d-3
of the rules and regulations promulgated under the Securities Exchange Act) shall become, in
one or a series of transactions, whether through sale of stock, merger, or otherwise, the
beneficial owner of securities of the Company that possesses more than fifty percent (50%)
of the total voting power of the then outstanding securities of the Company, or of any
successor to the Company or to substantially all the business and assets of the Company;
(ii) a merger, consolidation or other transaction in which the Company combines with another
entity and after which the security holders of the Company do not retain, directly or
indirectly, and in respect of voting securities of the Company that they beneficially owned
prior to such transaction, at least a majority of the beneficial interest in the voting
securities of the surviving entity; or (iii) the sale, exchange, or other transfer of all or
substantially all of the Company’s business or assets.
“Claim” means any claim, demand, request, investigation, dispute, controversy, threat,
discovery request, or request for testimony or information.
“Disability” means that the Executive has been unable, due to physical or mental
incapacity, for a period of 90 consecutive days within any 365 consecutive day period to
substantially perform all of the material services contemplated under this Agreement. A
determination of Disability shall be made by the Executive (or his legal representative, if
he is incapable) and the Company each selecting a physician and these two together shall
select a third physician, whose determination as to disability shall be binding on all
parties.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.
“Good Reason” means: (i) any breach by the Company, or any of its affiliates, of any
material provision of this Agreement, which breach has not been cured within 30 days after
notice of such breach, referencing Section 4.3 and describing the nature of such breach, has
been given by the Executive to the Company; (ii) any diminution in the Executive’s title or
Base Salary (iii) any material reduction in benefits provided to Executive pursuant to
Section 3.2 or 3.3, other than in connection with a reduction in benefits generally
applicable to senior executives of the Company; (iii) any substantial diminution in the
Executive’s overall duties and responsibilities or reporting obligations, which diminution
has not been cured within 30 days after notice of such diminution, referencing Section 4.3
and describing the nature of such diminution, has been given by the Executive to the
Company; or (iv) a Change of Control and the surviving entity shall not assume the
obligations of the Company hereunder.
“Proceeding” means any actual or threatened suit or proceeding, whether civil,
criminal, administrative, investigative, appellate, formal, informal or other.
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“Securities Exchange Act” means the United States Securities Exchange Act of 1934, as
amended from time to time.
“Termination Date” means the date that the Executive’s employment under this Agreement
terminates for any reason.
10. Miscellaneous.
10.1 Notices. All notices required or permitted under this Agreement shall be in
writing and shall be deemed effective upon personal delivery (which shall include delivery by
Federal Express or similar service) or upon deposit in the United States Post Office, by registered
or certified mail, return receipt requested, postage prepaid, addressed to the other party at the
address shown above, or at such other address or addresses as either party shall designate to the
other in accordance with this Section 10.1.
10.2 Entire Agreement. This Agreement, together with the documents referred to in it,
constitutes the entire agreement between the parties concerning its subject matter and supersedes
all prior agreements and understandings, whether written or oral, relating to its subject matter.
There shall be no contractual or similar restrictions on the Executive’s activities following the
termination of his employment with the Company, other than as expressly set forth in this
Agreement. In the event of any inconsistency between any provision of this Agreement and any
provision of any handbook, manual, program, policy, agreement, plan, corporate governance document,
or other arrangement of the Company or any of its affiliates, the provisions of this Agreement
shall control unless the Executive otherwise agrees in a writing that expressly refers to the
provision of this Agreement whose control he is waiving.
10.3 Amendment. This Agreement may be amended or modified only by a written instrument
that is executed by both parties and that specifically identifies the provision(s) and/or
Section(s) of this Agreement being amended.
10.4 Waivers. No delay or omission by either party hereto in exercising any right
under this Agreement shall operate as a waiver of that or any other right. No waiver by any person
of any breach of any condition or provision contained in this Agreement shall be deemed a waiver of
any similar or dissimilar breach at the same or any prior or subsequent time. To be effective, any
waiver must be set forth in a writing signed by the waiving person and must specifically refer to
the condition(s) or provision(s) of this Agreement being waived.
10.5 Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors, heirs (in the case of the Executive) and assigns.
(b) No rights or obligations of the Company under this Agreement may be assigned or
transferred by the Company except that such rights and obligations may be assigned or transferred
pursuant to a merger, consolidation or other combination in which the Company is not the continuing
entity, or a sale or liquidation of all or substantially all of the
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business and assets of the Company, provided that the assignee or transferee is the successor
to all or substantially all of the business and assets of the Company and such assignee or
transferee expressly assumes the liabilities, obligations and duties of the Company as set forth in
this Agreement. In the event of any merger, consolidation, other combination, sale of business and
assets, or liquidation as described in the preceding sentence, the Company shall use its best
efforts to cause such assignee or transferee to promptly and expressly assume the liabilities,
obligations and duties of the Company hereunder.
(c) The Executive shall be entitled, to the extent permitted under applicable law and
applicable Company benefit plans, to select and change a beneficiary or beneficiaries to receive
any compensation or benefit hereunder following the Executive’s death by giving written notice
thereof to the Company. In the event of the Executive’s death or a judicial determination of his
incompetence, references in this Agreement to the Executive shall be deemed, where appropriate, to
refer to his beneficiary, estate or other legal representative.
10.6 Governing Law. This Agreement shall be governed, construed, interpreted and
enforced in accordance with its express terms, and otherwise in accordance with the laws of the
State of New York without regard to its conflicts of law principles.
10.7 Arbitration. All disputes concerning the application, interpretation or
enforcement of this Agreement or otherwise arising out of the relationship between Executive, on
the one hand, and the Company, on the other hand, except for those arising under Section 6 or 7 of
this Agreement, shall be resolved exclusively by final and binding arbitration before a single
arbitrator in accordance with the Employment Rules of the American Arbitration Association then in
effect. The arbitration shall be held in New York City, and the arbitrator shall have the authority
to permit the parties to engage in reasonable pre-hearing discovery.
10.8 Jurisdiction. Any Claim arising out of or relating to this Agreement, other than
a Claim covered by Section 10.7, may be brought in the federal or state courts located in New York.
By execution and delivery of this Agreement, each of the parties hereto accepts for himself or
itself and in respect of his or its property, generally and unconditionally, the jurisdiction of
the aforesaid courts and waives any objection it may now or hereafter have as to the venue of any
proceeding brought in any such court in connection herewith or that any such court is an
inconvenient forum.
10.9 Advancement of Costs and Expenses. The Company shall promptly advance to the
Executive (or his beneficiaries, if applicable) any cost (including reasonable attorneys’ fees)
incurred by them in connection with any Claim arising out of or relating to this Agreement, subject
to prompt repayment by the recipient in the event that the Company (and its affiliates, if
applicable) substantially prevails with respect to such Claim. Pending the resolution of any Claim
under Section 10.7 or otherwise, the Executive (and his beneficiaries) shall continue to receive
all payments and benefits due under this Agreement or otherwise.
10.10 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
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ACTIONS OF THE PARTIES TO THIS AGREEMENT IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND
ENFORCEMENT HEREOF.
10.11 Captions. The captions of the sections of this Agreement are for convenience of
reference only and in no way define, limit or affect the scope or substance of any section of this
Agreement.
10.12 Severability. In case any provision of this Agreement shall be invalid, illegal
or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions
shall in no way be affected or impaired thereby.
10.13 Taxes. The Company may withhold from any amount or benefit payable under this
Agreement taxes that it is required to withhold pursuant to any applicable law or regulation.
10.14 Counterparts; Facsimile Signatures. This Agreement may be executed in any number
of counterparts, each of which will be deemed an original, and all of which will constitute one and
the same instrument. Signatures delivered by facsimile or by PDF shall be effective for all
purposes.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the day
and year set forth above.
| Company: GLOBE SPECIALTY METALS INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Chief Executive Officer | |||
| Executive: |
||||
| /s/ Xxxxxxx X. Xxxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxxx | ||||
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ANNEX A
Terms of Stock Options
| • | The Executive will be issued a Stock Option Agreement pursuant to which Executive will receive Stock Options as of the Effective Date which Stock Option Agreement will be consistent with the terms and conditions set forth in this Annex A. The aggregate number of shares of common stock for which the Stock Options granted thereunder is exercisable is 100,000. To the extent possible, the Stock Options shall be classified incentive stock options. In addition, upon a recommendation from the Chief Executive Officer made in his sole discretion, the Compensation Committee of the Board of Directors may consider whether Executive shall be eligible to receive an annual Stock Option grant of 5,000 shares of common stock. | |
| • | The Stock Options shall vest and become exercisable in equal one-third (33.3%) increments on the first, second, and third anniversaries of the Effective Date provided that the Executive is then employed by the Company. At any time when the Executive is employed by the Company, all of the Stock Options will accelerate and immediately become 100% vested in the event of termination of Executive’s employment without Cause or by the Executive for Good Reason. | |
| • | The exercise price of the shares of common stock of the Company covered by the Stock Option Agreement, subject to adjustment as described immediately below, shall be $18.00 per share for the fraction vesting on the first anniversary, $23.00 per share for the first half of fraction vesting on the second anniversary, $28.00 per share for the second half of fraction vesting on the second anniversary, $35.50 per share for the first half of fraction vesting on the third anniversary, and $43.00 per share for the second half of fraction vesting on the third anniversary. | |
| • | In the event that the outstanding shares of stock subject to a Stock Option Agreement are, from time to time, changed into or exchanged for a different number or kind of shares of the Company or other securities of the Company by reason of a merger, consolidation, recapitalization event, reclassification, stock split, stock dividend, combination of shares, or otherwise, the Company’s stock option plan administrator shall make an appropriate and equitable adjustment in the number and kind of shares or other consideration as to which the Executive’s Stock Option, or portions thereof then unexercised, shall be exercisable and the exercise price therefore. |
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