EXHIBIT 10.2
EXECUTION COPY
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EMPLOYMENT AND NON-COMPETITION AGREEMENT
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Xxxx X. Xxxxxxx
This EMPLOYMENT AND NON-COMPETITION AGREEMENT (this "Agreement"), dated as
of November 5, 1997, is between Elgin National Industries, Inc., a Delaware
corporation, and all related and affiliated entities, successors and assigns now
in existence or hereinafter created ("ENI"), and Xxxx X. Xxxxxxx ("Xxxxxxx").
WHEREAS, Xxxxxxx is currently employed pursuant to an employment agreement
as the Chairman and Chief Executive Officer of ENI;
WHEREAS, as a result of a recapitalization, ENI will be merged into ENI
Holding Corp., ("recapitalization"), and Xxxxxxx will be, either directly or
through entities controlled by him, one of three partners of SHC Investment
Partnership ("Partnership"), which partnership shall, in turn, own the common
stock of ENI Holding Corp.; and
WHEREAS, in connection with the foregoing, ENI wishes to employ Xxxxxxx as
the Chairman and Chief Executive Officer of ENI, and Xxxxxxx wishes to work as
the Chairman and Chief Executive Officer of ENI, on the terms set forth below.
NOW, THEREFORE, it is hereby agreed as follows:
(S)1. EMPLOYMENT. ENI hereby employs Xxxxxxx as the Chairman and Chief
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Executive Officer of ENI and Xxxxxxx hereby accepts such employment, upon the
terms and subject to the conditions hereinafter set forth.
(S)2. DUTIES. While Xxxxxxx is employed by ENI, he shall serve as its
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Chairman and Chief Executive Officer. In such capacity, Xxxxxxx shall have such
executive responsibilities and duties as are assigned by ENI's Board of
Directors (the "Board") as are consistent with his position as Chairman and
Chief Executive Officer of ENI. Xxxxxxx agrees that, while he is employed by
ENI, he shall devote his full time and best efforts to the performance of his
duties for ENI. Xxxxxxx will have such authority and power as are inherent to
the undertakings applicable to his positions and necessary to carry out his
responsibilities and the duties required of him hereunder.
Subject to the foregoing provisions of this Section 2, while Xxxxxxx is
employed by ENI, Xxxxxxx may engage in activities other than those required
under this Agreement, such as activities involving professional, charitable,
educational, religious and similar types of organizations, speaking engagements,
membership on the boards of directors of other
organizations, and similar type activities to the extent that such other
activities do not inhibit or prohibit the performance of Xxxxxxx'x duties under
this Agreement, or conflict in any material way with the business of ENI.
Subject to the terms of this Agreement, Xxxxxxx shall not be required to
perform services under this Agreement during any period that he is Disabled (as
defined in Section 6(a)(i)).
(S)3. TERM. The initial term of employment of Xxxxxxx hereunder shall be
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a five (5) year period commencing on the date of the closing of the
recapitalization and ending five (5) years thereafter (the "Initial Term"),
unless earlier terminated pursuant to Section 6. The term of Xxxxxxx'x
employment hereunder shall be automatically renewed for additional successive
one (1) year terms (the Initial Term and each such additional one (1) year
terms, hereinafter referred to collectively as, the "Term") unless either party
hereto delivers written notice of its intent to terminate Xxxxxxx'x employment
hereunder at least one hundred eighty (180) days prior to the last day of the
Term. Such notice from ENI will require the written consent of Common Partners
representing at least 66% of the Common Percentage of the Partnership (as such
terms are defined in the SHC Partnership Agreement).
(S)4. COMPENSATION AND BENEFITS. In consideration for the services of
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Xxxxxxx hereunder, ENI shall compensate Xxxxxxx as follows:
(a) BASE SALARY. During the Term of the Agreement, ENI shall pay
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Xxxxxxx a base salary (the "Base Salary"), which shall be paid periodically in
accordance with ENI's then current payroll practices. The Base Salary will be
paid at an annual rate of $303,876 until December 31, 1997, and shall be
increased at the commencement of each calendar year during the term of Xxxxxxx'x
employment hereunder by the greater of:
(i) five percent (5%) of Base Salary for the preceding year, or
(ii) the percentage increase in the consumers price index for the
preceding four (4) calendar quarters for which information has been
published by the U.S. Department of Commerce over the comparable prior four
(4) calendar quarters.
The Base Salary shall be in addition to the other benefits set forth herein.
(b) ANNUAL MANAGEMENT INCENTIVE BONUS. During the Term of this
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Agreement, ENI shall pay Xxxxxxx each fiscal year a management incentive bonus
(the "Incentive Bonus") in accordance with this Section 4(b). For the fiscal
years of ENI from 1997 through 2002, Xxxxxxx shall be entitled to receive an
Incentive Bonus equal to 1.50% of ENI's EBITA (as defined below) for such fiscal
year. Ninety percent (90%) of the Incentive Bonus for each fiscal year shall be
paid within thirty (30) days after the end of the fiscal year. The remaining
amount of the bonus shall be paid upon completion of ENI's audited financial
statements for such fiscal year. As used in this Agreement, "EBITA" means, with
respect to any fiscal year, the sum of the consolidated net income (or loss) of
ENI and its Subsidiaries, if any, for such fiscal year,
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calculated in accordance with generally accepted accounting principles
consistently applied but excluding any extraordinary items of income or loss or
proceeds of life insurance, plus all amounts deducted in the computation thereof
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on account of (A) income taxes, (B) interest expense, (C) amortization, and (D)
the amount of any Incentive Bonus paid to Xxxxxxx hereunder or any like amount
paid to Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxx under their respective employment
agreements with ENI.
(c) INSURANCE; OTHER BENEFITS. Except as otherwise expressly provided
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in this Agreement, during the Term of the Agreement Xxxxxxx shall be provided
with pension benefits, welfare benefits and other fringe benefits, including
without limitation, vacations and holidays, to the same extent and on the same
terms as those benefits are provided by ENI from time to time to Common Partners
in the Partnership of ENI (including spouse and dependent coverage); provided,
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that Xxxxxxx shall, at all times while he is employed by ENI, be provided with a
commercially reasonable level of accident, life and health benefit coverage;
and, provided further, that, subject to the annual review and approval by Common
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Partners representing at least 66% of the Common Percentages of the Partnership,
ENI shall maintain disability income replacement coverage or another acceptable
arrangement for Xxxxxxx, which will provide replacement of income at a
commercially reasonable rate during any period in which Xxxxxxx is Disabled if
the disability arose during Xxxxxxx'x employment with ENI.
(d) OFFICERS LIABILITY. ENI shall maintain directors and officers
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liability insurance in commercially reasonable amounts (as reasonably determined
by the Board), and Xxxxxxx shall be covered under such insurance to the same
extent as the other Common Partners of the Partnership of ENI. Xxxxxxx shall be
eligible for indemnification by ENI under the terms of its by-laws. ENI agrees
that it shall not adopt or modify its by-laws in any respect which could
effectively reduce or limit Xxxxxxx'x rights to such indemnification.
(S)5. EXPENSES. During his employment, Xxxxxxx is authorized to incur
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reasonable expenses, chargeable to ENI, in connection with his services and
employment hereunder, including expenses for travel, entertainment and similar
items. Such expenses shall be reimbursed by ENI in accordance with its
practices and policies for the Common Partners in the Partnership.
(S)6. TERMINATION.
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(a) REASONS FOR TERMINATION. Xxxxxxx'x employment hereunder shall
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commence on the Commencement Date and continue until the expiration of the Term,
except that Xxxxxxx'x employment hereunder shall be terminated upon the
occurrence of any of the events set forth below:
(i) DEATH OR DISABILITY. Upon the death of Xxxxxxx during the
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Term of his employment hereunder or, at the option of ENI, in the event of
Xxxxxxx'x disability, upon thirty (30) days' written notice from ENI.
Xxxxxxx shall be deemed "Disabled" if an independent medical doctor
(selected by ENI's health or disability insurer) certifies that
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Xxxxxxx has for four (4) consecutive months in any twelve (12) month period
been disabled in a manner which seriously interferes with his ability to
perform his responsibilities under this Agreement. Any refusal by Xxxxxxx
to submit to a medical examination for the purpose of certifying disability
under this Section 6(a)(i) shall be deemed to constitute conclusive
evidence of Xxxxxxx being Disabled.
(ii) FOR CAUSE. For "Cause" upon written notice by ENI to Xxxxxxx,
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which notice sets forth in reasonable detail the facts and circumstances
claimed to constitute "Cause". For purposes of this Agreement, the term
"Cause" shall mean (A) with respect to ENI's business, Xxxxxxx shall have
embezzled or misappropriated funds or other property of ENI or offered,
paid, solicited or accepted any unlawful bribe or kickback; or (B) any of
the following actions or omissions which has a material adverse effect on
ENI:
(w) Xxxxxxx shall have committed a willful violation of a fiduciary duty
owed by Xxxxxxx to ENI.
(x) the willful and continued failure by Xxxxxxx to substantially
perform his duties to ENI (other than any such failure resulting
from Xxxxxxx being Disabled), within a reasonable period of time
after a written demand for substantial performance is delivered to
Xxxxxxx by the Board, which demand specifically identifies the
manner in which the Board believes that Xxxxxxx has not
substantially performed his duties; or
(y) Xxxxxxx shall have breached the provisions of paragraph 10 of this
Agreement.
For purposes of this paragraph (ii), no act, or failure to act, on
Xxxxxxx'x part shall be deemed "willful" unless done, or omitted to be
done, by Xxxxxxx not in good faith and knowing that such act or failure to
act was in violation of this Agreement.
(iii) BREACH BY ENI. In the event that Xxxxxxx (x) provides written
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notice to ENI of the occurrence of a material breach of this Agreement by
ENI, which specifically identifies the manner in which Xxxxxxx believes
that such material breach has occurred; (y) ENI fails to correct such
material breach within thirty (30) days after such notice; and (z) Xxxxxxx
resigns within the 120-day period following the end of the 30 day period at
clause (y) above, then, for purposes of this Agreement, such resignation by
Xxxxxxx shall be considered to have been involuntary. A material breach of
this Agreement by ENI shall include, without limitation:
(I) assignment by ENI of duties to Xxxxxxx that are inconsistent
in any substantial respect with the position, authority, or
responsibilities associated with the position of Chairman and
Chief Executive Officer of ENI;
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(II) the failure by ENI to accord to Xxxxxxx the title, authority
and responsibilities of Chief Executive Officer of ENI;
(III) the failure of ENI to provide any portion of the compensation
or benefits required under the terms of this Agreement within
thirty (30) days of the date such compensation is due.
Notwithstanding any provision of this Section 6(a)(iii) to the contrary, no
action or omission taken by ENI with the approval of Xxxxxxx as a director
of ENI shall constitute a material breach of this Agreement.
(iv) OPTIONAL TERMINATION. On the last day of any Term, in the
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event that either party hereto delivers a notice to the other party to the
effect that such party wishes to terminate Xxxxxxx'x employment hereunder
(a "Termination Notice") on or before one hundred eighty (180) days prior
to the last day of such Term.
(v) SALE OF SHARES. This Agreement shall automatically terminate
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upon the sale or transfer of Xxxxxxx'x direct or indirect interest in the
common stock of ENI or the equity interest in the Partnership, in either
case that is not permitted by the SHC Partnership Agreement.
(b) RIGHTS AND REMEDIES ON TERMINATION. Upon termination, Xxxxxxx
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shall be entitled to the following payments:
(i) Upon the termination of Xxxxxxx pursuant to this Sections
6(a)(i) or (iii), ENI shall remain obligated to Xxxxxxx, or to his estate
in the event of his death, during the Initial Term of this Agreement, or
the remainder of a successive one (1) year term if the termination occurs
during such one year term, for the payments and benefits set forth in
Sections 4(a), (b), (c), (d) herein, and for expense reimbursements
outstanding at the time of termination.
(ii) Upon termination of Xxxxxxx'x employment pursuant to Section
6(a)(ii) or the voluntary resignation of Xxxxxxx, ENI shall be obligated to
Xxxxxxx as follows:
(A) payment of any portion of his Base Salary owed with
respect to the period prior to his termination,
(B) payment of any expense reimbursements under Section 5
hereof for expenses incurred in the performance of his duties prior
to his termination, and payment for any accrued and unused vacation
days for such fiscal year, and
(C) an "Incentive Bonus" payment equal to the amount of the
Incentive Bonus which would have been due to Xxxxxxx with respect to
such fiscal year but for the termination of his employment
multiplied by a fraction the numerator of
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which is the number of days elapsed in such fiscal year prior to the
termination of employment and the denominator of which is 365.
Payment of any prorated Incentive Bonus owed pursuant to this
Section 6(b)(ii)(C) shall be made as and when the corresponding
payments of such Incentive Bonus would have been made to Xxxxxxx
pursuant to Section 4(b) hereto had Xxxxxxx not been terminated.
(iii) If Xxxxxxx'x employment is terminated in accordance with
Section 6(a)(iv) and 6(a)(v), then, in addition to the amounts payable in
accordance with Sections 6(b)(i) and 6(b)(ii), and in consideration of
Xxxxxxx'x non-competition obligations set forth in Section 10 hereof,
Xxxxxxx shall receive from ENI for a period of one (1) year from of the
date of his termination, severance payments at a rate equal to his then
current Base Salary, in monthly or more frequent installments as is
required under Section 4(a). ENI's obligation to make severance payments at
the annual rate of Xxxxxxx'x Base Salary under this Section 6(b)(iii) shall
cease as of the date, if any, of a material breach by Xxxxxxx of the
provisions of Sections 9 or 10 hereof.
(iv) Xxxxxxx shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or
otherwise, and ENI shall not be entitled to set off against the amounts
payable to Xxxxxxx under this Agreement any amounts owed to ENI by Xxxxxxx,
any amounts earned by Xxxxxxx in other employment after termination of his
employment with ENI, or any amounts which might have been earned by Xxxxxxx
in other employment had he sought such other employment.
Upon termination, Xxxxxxx shall not be entitled to severance or other
compensation based on termination except as provided in this Agreement.
(S)7. GUARANTEED FUNDING. Within thirty (30) days of the date of this
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Agreement, ENI will acquire and maintain during the period Xxxxxxx is employed
and during any period of disability pursuant to this Agreement and for a period
of twelve (12) months following Xxxxxxx'x voluntary resignation or expiration
of the Term of this Agreement or the sale, transfer or assignment of Fern
Limited Partnership's interest in the Partnership of his shares not permitted by
the SHC Partnership Agreement, whichever occurs first, an insurance policy or
policies providing coverage payable to ENI in the event of the death of Xxxxxxx
("Insurance Policies"). The terms and issuers of the Insurance Policies shall be
subject to the annual review and approval by Common Partners representing at
least 66% of the Common Percentage of the Partnership. Subject to such annual
review and approval of the Partnership, the Insurance Policies for Xxxxxxx shall
initially provide $20,000,000 of coverage, and shall thereafter increase each
year in an amount equal to the increases in (a) Fern Limited Partnership's
Common Percentage in the Partnership, (b) accrued and unpaid dividends on, and
liquidation value of Fern Limited Partnership's preferred stock and preferred
stock units in ENI and (c) Fern Limited Partnership's Unrealized Preferred
Capital Contribution and unpaid Preferred Return (each as defined in the SHC
Partnership Agreement). The Company agrees to use the proceeds of such life
insurance in accordance with the redemption provisions of the SHC Partnership
Agreement, to the extent permitted by the Indenture (defined at Section 12(i)
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below). The Company agrees to effect the redemption transactions contemplated
in the SHC Partnership Agreement, subject to any restrictions in the Indenture.
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(S)8. INVENTIONS; ASSIGNMENT. All rights to discoveries, inventions,
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improvements and innovations (including all data and records pertaining thereto)
related to ENI whether or not patentable, copyrightable, registrable as a
trademark, or reduced to writing, that Xxxxxxx may discover, invent or originate
during the Term of his employment hereunder, either alone or with others and
whether or not during working hours or by the use of the facilities of ENI,
which result from work which Xxxxxxx may do for or at the request of ENI
("Inventions"), shall be the exclusive property of ENI. Xxxxxxx shall promptly
disclose all Inventions to ENI, shall execute at the request of any of ENI any
assignments or other documents such as ENI may deem necessary to protect or
perfect its rights therein, and shall assist ENI, at the expense of ENI, in
obtaining, defending and enforcing the rights of any of ENI therein. Xxxxxxx
hereby appoints ENI as his attorney-in-fact to execute on his behalf any
assignments or other documents deemed necessary by any of ENI to protect or
perfect its rights to any Inventions.
(S)9. CONFIDENTIAL INFORMATION. Xxxxxxx recognizes and acknowledges that
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certain assets of ENI, including without limitation information regarding
customers, pricing policies, methods of operation, proprietary computer
programs, sales, products, profits, costs, markets, key personnel, formulae,
product applications, technical processes, and trade secrets (hereinafter called
"Confidential Information") are valuable, special, and unique assets of ENI.
Xxxxxxx shall not, during his term of employment and the Period of Restriction
as provided in Section 10 hereof, disclose any or any part of the Confidential
Information to any person, firm, corporation, association, or any other entity
for any reason or purpose whatsoever, directly or indirectly, except as may be
required pursuant to his employment hereunder, unless and until such
Confidential Information becomes publicly available other than as a consequence
of the breach by Xxxxxxx of his confidentiality obligations hereunder. In the
event of the termination of his employment, whether voluntary or involuntary and
whether by ENI or Xxxxxxx, Xxxxxxx shall deliver to ENI all documents and data
pertaining to the Confidential Information and shall not take with him any
documents or data of any kind or any reproductions (in whole or in part) or
extracts of any items relating to the Confidential Information.
(S)10. NON-COMPETITION. Xxxxxxx acknowledges that the covenants and
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agreements in this Section 10 are in consideration of Xxxxxxx'x employment with
ENI under this Agreement and Xxxxxxx'x opportunity to increase his direct and
indirect shareholdings in ENI as a result of the recapitalization, and are
necessary to protect the legitimate interests of ENI, its employees, and the
other shareholders of ENI. During the Period of Restriction (as hereinafter
defined), Xxxxxxx will not (a) engage, directly or indirectly, anywhere in North
America, alone or as a shareholder (other than as a holder of less than five
percent (5%) of the common stock of any publicly traded corporation), partner,
officer, director, employee or consultant of any other business organization
that is engaged or becomes engaged in a business the Designated Industry (as
hereinafter defined), (b) divert to any competitor of ENI, any customer of ENI,
or (c) solicit or encourage any officer, key employee or consultant of ENI to
leave its employ for alternative employment in the Designated Industry. For
purposes of this Section 10, the term "Designated Industry" shall mean any
business activity that ENI is conducting at the time of the termination of
Xxxxxxx'x employment with ENI or of which Xxxxxxx has or should have knowledge
that ENI then proposes to conduct, including but not limited to (i) engineering,
procurement and construction management services relating to coal processing
facilities, mineral processing facilities or environmental projects to the
extent that such services are competitive with any
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services offered or provided by ENI, (ii) the design or manufacture of machinery
and equipment for use in coal processing or the processing of other minerals to
the extent that such machinery or equipment would be competitive with any
machinery and equipment designed, manufactured or distributed by ENI, and (iii)
the design, manufacture or distribution of any industrial threaded fasteners or
similar products that are competitive with any products designed, manufactured
or distributed by ENI.
For purposes of this Agreement, the "Period of Restriction" shall be the
period commencing on the Commencement Date and ending three (3) years from the
last day of the Term of this Agreement.
If at any time the provisions of this Section 10 shall be determined to be
invalid or unenforceable, by reason of being vague or unreasonable as to area,
duration or scope of activity, this Section 10 shall be considered divisible and
shall become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court or
other body having jurisdiction over the matter; and Xxxxxxx agrees that this
Section 10 as so amended shall be valid and binding as though any invalid or
unenforceable provision had not been included herein.
(S)11. TECHNICAL RECORDS. Immediately upon ENI's request and promptly
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upon termination or resignation of Xxxxxxx'x employment hereunder, Xxxxxxx shall
deliver to ENI all memoranda, notes, records, reports, photographs, drawings,
plans, papers or other documents made or compiled by Xxxxxxx or made available
to Xxxxxxx during the course of the provision of services under this Agreement,
and any copies of abstracts thereof, whether or not of a secret or confidential
nature, and all of such memoranda or other documents shall, during and after the
termination of Xxxxxxx'x employment hereunder, be and shall be deemed to be the
property of ENI.
(S)12. GENERAL.
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(a) NOTICES. All notices and other communications hereunder shall be in
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writing or by written telecommunication, and shall be deemed to have been duly
given if delivered personally or if mailed by certified mail, return receipt
requested, postage prepaid or sent by written telecommunication or telecopy, to
the relevant address set forth below, or to such other address as the recipient
of such notice or communication shall have specified to the other party hereto
in accordance with this Section 12(a):
IF TO ENI, TO:
Elgin National Industries, Inc.
0000 Xxxxxxxxxxx Xx.
Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
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WITH A COPY TO:
Xxxx Xxxxxx, Esq.
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
If to Xxxxxxx, to:
Xx. Xxxx X. Xxxxxxx
c/o Elgin National Industries
0000 Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxx 00000-0000
(b) EQUITABLE REMEDIES. Each of the parties hereto acknowledges and
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agrees that upon any breach by the other party of its or his obligations
hereunder, the non-breaching party will have no adequate remedy at law, and
accordingly will be entitled to specific performance and other appropriate
injunctive and equitable relief.
(c) SEVERABILITY. If any provision of this Agreement is or becomes
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invalid, illegal or unenforceable in any respect under any law, the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired.
(d) WAIVERS. No delay or omission by either party hereto in
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exercising any right, power or privilege hereunder shall impair such right,
power or privilege, nor shall any single or partial exercise of any such right,
power or privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
(e) COUNTERPARTS. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) ASSIGNS. This Agreement shall be binding upon and inure to the
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benefit of the heirs and successors of each of the parties hereto.
(g) ENTIRE AGREEMENT. This Agreement contains the entire understanding
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of the parties, supersedes and replaces all prior agreements and understandings
relating to the subject matter hereof, including without limitation the
employment agreement between Xxxxxxx and ENI dated September 24, 1993, and shall
not be amended except by a written instrument hereafter signed by each of the
parties hereto.
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(h) GOVERNING LAW. This Agreement and the performance hereof shall be
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construed and governed in accordance with the laws of the State of Delaware.
(i) LIMITATION. Notwithstanding any contrary provision herein, any
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failure by the Company to make any payment, or incur any cost, to the extent due
to restrictions in the Company's Indenture dated November 5, 1997 and governing
its 11% Senior Notes due 2007, (the "Indenture"), shall not constitute a breach
of or default by the Company under this Agreement.
(j) COUNSEL. Xxxxxxx acknowledges that he has been advised to obtain
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separate legal counsel to review this Agreement and advise him regarding the
legal consequences of the same. Xxxxx, Xxxxx & Xxxxx has drafted this Agreement
as counsel for ENI with Xxxxxxx'x consent. Although Xxxxx, Xxxxx & Xxxxx has
represented Xxxxxxx previously in other matters, Xxxxx, Xxxxx & Xxxxx is not
acting as attorney for Xxxxxxx with respect to this Agreement or the
transactions contemplated herein. Xxxxx, Xxxxx & Xxxxx shall be under no
obligation to maintain the confidentiality from ENI of any matter communicated
to it by Xxxxxxx with respect to this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have caused this Agreement to be duly executed as of the date and year
first above written.
ELGIN NATIONAL INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
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