Exhibit 10.6
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Second Amended and Restated Employment Agreement
("Agreement") made as of the 1st day of May, 1998, between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Executive") and Lone Star Industries, Inc.,
a Delaware corporation having its principal office at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ and its successors and
assigns ("Lone Star" or the "Company").
W I T N E S S E T H:
WHEREAS, the Company and the Executive are parties to
an Amended and Restated Employment Agreement dated as of February
1, 1996, as amended effective August 1, 1996 (the "Superseded
Employment Agreement"), and desire to amend and restate the
Superseded Employment Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual
promises, agreements and covenants hereby made, the mutual
benefits to be derived from this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree to amend and
restate the Superseded Employment Agreement as follows:
1. Lone Star hereby employs Executive, and Executive
hereby accepts employment by Lone Star, on the terms and
conditions set forth in this Agreement for an initial term of
twenty-six (26) consecutive months commencing as of the date
hereof and ending on June 30, 2000 (the "Initial Term"), as
President and Chief Executive Officer, with such duties as are
specified in the By-Laws of Lone Star and such other duties
customary to the position as may be assigned to Executive from
time to time by the Board of Directors of Lone Star. Unless
terminated pursuant to the other terms hereof, this Agreement
shall continue in full force and effect after the Initial Term
for successive terms of two years (each such term, and the
Initial Term, a "Term").
2. Lone Star shall pay Executive a salary ("Salary")
at the rate of $400,000 per annum until the effective date of
termination of this Agreement. Salary shall continue to be paid
to Executive on the currently established pay periods of Lone
Star. The Compensation and Stock Option Committee (or such other
Board committee as shall then be responsible for making such
decisions or, if none, the full Board of Directors) may in its
discretion consider increases in the Executive's Salary from time
to time, and upon any such increase "Salary" for purposes hereof
shall thereafter mean the Executive's salary as so increased,
notwithstanding any purported subsequent reduction thereof by any
such committee or the Board. In addition, the Compensation and
Stock Option Committee (or such other Board committee as shall
then be responsible for making such decisions, or if none, the
full Board of Directors) may in its discretion consider granting
to the Executive from time to time such bonuses, stock options or
other incentive compensation as it deems appropriate.
3. (a) (i) Either party, by written notice to the
other at least six months prior to the expiration of the then
current Term, may terminate this Agreement effective at the
expiration of such Term. (ii) Lone Star, by written notice which
sets forth the effective date of termination (which shall not be
earlier than six (6) months after receipt of the written notice),
may terminate this Agreement at any time for reasons (including
without limitation, disability of the Executive) other than Cause
(as hereinafter defined).
(b) In the event that this Agreement is
terminated by the Executive pursuant to Section 4 below or Lone
Star terminates this Agreement pursuant to Section 3(a) above,
Executive shall be entitled to a severance payment in an amount
equal to Executive's Salary for the period from the effective
date of the termination through the date one year (18 months, in
the case of a termination pursuant to Section 4) after the
effective date of the termination (the "Severance Period").
Severance shall be paid in lump sum on the effective date of the
termination. In addition, the Executive shall continue to
receive life insurance and medical insurance under the Company's
Executive Medical Plan for Active Employees (as in effect as of
the date of this Agreement and described in Article III of the
Supplemental Agreement) during the Severance Period (which is in
addition to, and not in lieu of, benefit continuation under the
Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA")). Severance pay pursuant to this Section shall be in
lieu of severance pay pursuant to any other Lone Star severance
policy.
(c) Lone Star shall have the right to terminate
this Agreement for Cause during the Initial Term and thereafter
and (subject to Section 6 below) Executive shall not be entitled
to receive severance pay pursuant to this Section or any other
policy or agreement of Lone Star. Cause shall be construed to
mean:
(1) The willful and continued failure
by the Executive to substantially perform his duties with Lone
Star (other than any such failure resulting from his disability
due to physical or mental illness) after a written demand for
performance is delivered which specifically identifies the manner
in which he has not substantially performed his duties, or
(2) the willful engaging by Executive
in gross misconduct materially and demonstrably injurious to the
Company, monetarily or otherwise, or
(3) conviction of fraud, theft or
embezzlement.
For purposes of this Section, no act, or failure
to act, shall be considered "willful" unless done, or omitted to
be done, not in good faith or without reasonable belief that the
action or omission was in the best interest of the Company.
The written demand in Section (c)(1) shall be
delivered to the Executive by the Board of Directors and shall
set forth a reasonable period (not shorter than 30 business days)
in which Executive is expected to comply with said demand. If
Executive does not comply thereafter, Lone Star shall have the
right to terminate this Agreement upon seven (7) days' written
notice to Executive.
4. (a) Lone Star hereby agrees not to: (i) change
the Executive's duties so that a reasonable man would interpret
the change to be a demotion; or (ii) direct the Executive to
relocate his office to a new location which is either in a State
other than Indiana or more than twenty-five (25) miles from
Indianapolis, Indiana (excluding any relocation occurring prior
to a Change in Control, as defined below, of the Executive's
office (A) as a result of a relocation of Lone Star's operations
presently located in Indianapolis, Indiana and (B) applicable to
substantially all officers of Lone Star operating out of such
location). In the event Lone Star breaches its obligations in
the immediately preceding sentence, Executive, at his option (and
without limiting his remedies), can (if such demotion or
direction to relocate is not rescinded or corrected by the
Company within 30 days after written notice by Executive to the
Company, reasonably identifying, in the case of a demotion, the
change in duties complained of) declare himself terminated for
"Good Reason" by giving written notice to Lone Star, and Lone
Star shall pay Executive severance pay and benefits as provided
in Section 3(b) of this Agreement. In no event shall Executive
be required to perform duties or to suffer relocation prohibited
by this Section 4.
(b) In the event of the Executive's physical or
mental incapacity, the Executive may declare himself terminated
for "Incapacity" by giving written notice to Lone Star, Lone Star
shall pay Executive severance pay and benefits as provided in
Section 3(b) of this Agreement. "Physical or mental incapacity"
shall mean the inability of Executive by reason of a physical or
mental illness to perform his duties hereunder for a period of 90
consecutive days or a total of 120 days in any twelve month
period and such incapacity is determined by a physician selected
by Executive (or his legal representatives) and reasonably
acceptable to the Company to be such as prevents Executive from
performing adequately his normal duties to the Company. During
any period that the Executive is unable to perform his duties by
reason of physical or mental incapacity, Executive shall continue
to receive his full compensation and benefits hereunder.
5. Executive shall participate in Lone Star's 401(k)
savings plan and vacation and holiday programs and other benefits
in the same manner as other executive salaried employees of Lone
Star and in accordance with the terms thereof; provided that
Executive shall not participate in any short term disability
insurance plan, long term disability insurance plan or the
Company's Supplemental Executive Retirement Plan dated July 16,
1996.
6. Following a Change in Control, as defined below,
the Executive, on thirty days written notice (which notice must
be delivered within twelve months after the Company gives the
Executive notice of the Change in Control or the Executive has
actual knowledge of such Change in Control), may terminate his
employment with the Company. Upon any such termination, the
Executive shall be entitled to lump sum severance pay in an
amount equal to thirty months' Salary. In addition, the
Executive shall continue to receive life insurance and medical
insurance under the Company's Executive Medical Plan for Active
Employees (as in effect as of the date of this Agreement and
described in Article III of the Supplemental Agreement) during
the Severance Period (which is in addition to, and not in lieu
of, benefit continuation under COBRA). Severance pay pursuant to
this Section shall be in lieu of severance pay pursuant to any
Lone Star policy or other agreement and all other obligations of
the Company for severance pay under this Agreement. For purposes
of this Agreement a "Change in Control" shall be deemed to have
occurred upon the occurrence of any of the following events:
(i) Any acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934 (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of shares of common
stock of the Company (the "Common Stock") and/or other voting
securities of the Company entitled to vote generally in the
election of directors ("Outstanding Company Voting Securities")
after which acquisition such individual, entity or group is the
beneficial owner of twenty percent (20%) or more of either (A)(1)
the then outstanding shares of Common Stock or (2) the
Outstanding Company Voting Securities; excluding, however, the
following: (1) any acquisition by the Company, (2) any
acquisition by an employee benefit plan (or related trust)
sponsored or maintained by the Company or (3) any acquisition by
any corporation pursuant to a reorganization, merger,
consolidation or similar corporate transaction (in each case, a
"Corporation Transaction"), if, pursuant to such Corporate
Transaction, the conditions described in clauses (1), (2) and (3)
of paragraph (iii) of this Section 6 are satisfied; or (B) any
transaction in which the Executive and the Chairman of the
Company (both as of the date of this Agreement and subject to
health related availability) (1) retain their current positions
with the Company immediately after such transaction and (2) will
immediately after such transaction beneficially own an aggregate
(for both such executives), directly or indirectly (including,
without limitation, ownership by family members, trusts or
foundations for or controlled by family members), more than 5% of
either the (a) then outstanding shares of common stock of the
Company and/or (b) the other voting securities of the Company
entitled to vote generally in the election of directors (any
transaction under this clause (B) hereinafter referred to as a
"Management Event").
(ii) A change in the composition of the Board of
Directors of the Company (other than in connection with a
Management Event) such that the individuals who, as of the date
hereof, comprise a class of directors of the Board (the members
of each class of directors of the Board as of the date hereof
shall be hereinafter referred to as an "Incumbent Class" and the
members of all of the Incumbent Classes shall be hereinafter
collectively referred to as the "Incumbent Board") cease for any
reason to constitute at least a majority of the class; provided,
however, for purposes of this subsection that any individual who
becomes a member of an Incumbent Class subsequent to the date
hereof whose election, or nomination for election by the
Company's stockholders, was approved in advance or
contemporaneously with such election by a vote of at least a
majority of those individuals who are members of the Incumbent
Board and a majority of those individuals who are members of such
Incumbent Class (or deemed to be such pursuant to this proviso),
shall be considered as though such individual were a member of
the Incumbent Class; but, provided further, that any such
individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such terms
are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board of Directors of the Company or actual or threatened tender
offer for shares of the Company or similar transaction or other
contest for corporate control (other than a tender offer by the
Company) shall not be so considered as a member of the Incumbent
Class; or
(iii) The approval by the stockholders of the Company
of a Corporate Transaction or, if consummation of such Corporate
Transaction is subject, at the time of such approval by stock-
holders, to the consent of any government or governmental agency,
the obtaining of such consent (either explicitly or implicitly);
excluding, however, a Management Event or a Corporate Transaction
pursuant to which (1) all or substantially all of the individuals
and entities who are the beneficial owners, respectively, of the
outstanding shares of Common Stock and Outstanding Company Voting
Securities immediately prior to such Corporate Transaction will
beneficially own, directly or indirectly, more than eighty
percent (80%) of, respectively, the outstanding shares of common
stock of the corporation resulting from such Corporate
Transaction and the combined voting power of the outstanding
voting securities of such corporation entitled to vote generally
in the election of directors, (2) no Person (other than the
Company, any employee benefit plan (or related trust) of the
Company or the corporation resulting from such Corporate
Transaction and any Person beneficially owning, immediately prior
to such Corporate Transaction, directly or indirectly, twenty
percent (20%) or more of the outstanding shares of Common Stock
or Outstanding Company Voting Securities, as the case may be)
will beneficially own, directly or indirectly, twenty percent
(20%) or more of, respectively, the outstanding shares of common
stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the then outstanding
securities of such corporation entitled to vote generally in the
election of directors and (3) individuals who were members of the
Incumbent Board will constitute at least a majority of the
members of board of directors of the corporation resulting from
such Corporate Transaction; or
(iv) The approval of the stockholders of the Company
of (1) a complete liquidation or dissolution of the Company or
(2) the sale or other disposition of all or substantially all of
the assets of the Company; excluding, however, such a sale or
other disposition to a corporation (A) in connection with a
Management Event or (B) with respect to which following such sale
or other disposition, (1) more than eighty percent (80%) of,
respectively, the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally
in the election of directors will be then beneficially owned,
directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the outstanding shares of Common Stock and
Outstanding Company Voting Securities immediately prior to such
sale or other disposition, (2) no Person (other than the Company
and any employee benefit plan (or related trust) of the Company
or such corporation and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or
indirectly, twenty percent (20%) or more of the outstanding
shares of Common Stock or Outstanding Company Voting Securities,
as the case may be) will beneficially own, directly or
indirectly, twenty percent (20%) or more of, respectively, the
then outstanding shares of common stock of such corporation and
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the
election of directors and (3) individuals who were members of the
Incumbent Board will constitute at least a majority of the
members of the board of directors of such corporation.
In the event of any conflict between this Section 6 and
any other Section of this Agreement (other than Section 5), the
terms of this Section 6 shall control so that, without
limitation, the Executive shall be entitled to the payment and
benefits provided under this Section 6 notwithstanding any
purported termination (whether for Cause or otherwise) and
regardless of whether such purported termination precedes or
follows the giving of a notice of termination by the Executive
under this Section 6 by the Company.
7. Immediately upon the occurrence of a Change in
Control, the Company shall establish a grantor trust on behalf of
the Executive, subject to the claims of the Company's creditors
(commonly referred to as a "Rabbi Trust"). The Company shall
contribute to the Rabbi Trust an amount sufficient to provide for
the severance benefits and payment of all other benefits under
this Agreement. Any payments made to the Executive under this
Agreement shall be made from such Rabbi Trust. The Rabbi Trust
shall terminate and any remaining assets shall be returned to the
Company no sooner than July 1, 2005, unless the Executive has
provided written notice of an unsatisfied claim to the trustee of
the Rabbi Trust, in which case the Rabbi Trust shall not
terminate until such claim is resolved pursuant to paragraph 12.
8. Upon presentation to Lone Star of appropriate
documentation, Executive will be entitled to reimbursement within
guidelines established by Lone Star for all reasonable and
necessary business expenses incurred by him for entertainment,
travel and similar items.
9. Executive agrees that during his period of
employment by Lone Star and thereafter he shall hold in
confidence and not disclose to any unauthorized person any
knowledge or information acquired and possessed by him of a
confidential nature or any trade secret with respect to the
business of Lone Star, and not to disclose, publish or make use
of the same without the prior express consent of Lone Star.
Executive shall be free to disclose such information, knowledge
or trade secret in the ordinary course of his carrying out his
duties as an officer of Lone Star, and shall be free to disclose
such information, knowledge or trade secret during his period of
employment by Lone Star and thereafter if such matters become
public or if compelled by legal process.
10. Executive agrees that during the term of his
employment he will not without the consent of Lone Star, in any
manner, directly or indirectly, own, manage, be employed by,
operate, join, control, participate in, be connected with, engage
in, or become interested in any business of the same or similar
nature to, or competitive with, that carried on by Lone Star
during the Executive's employment by Lone Star, in those parts of
the world where Lone Star does business. Ownership of publicly
traded securities of a business of the same or similar nature to,
or competitive with, that carried on by Lone Star, shall not
violate this paragraph, provided the Executive does not acquire
more than 5% of the voting stock of any such corporation.
11. The Executive agrees that any copyright or
patentable invention that he may conceive, make, invent, suggest
or reduce to practice during the period of his employment with
Lone Star (whether individually or jointly with any other person
or persons), relating in any way to the business of Lone Star
shall be the sole, exclusive and absolute property of Lone Star.
12. Any dispute hereunder shall be resolved in the
same manner as is provided in Section 4.1 of the Supplemental
Agreement. Any amounts not paid by the Company hereunder within
five business days after the date they are due shall be paid with
interest from its due date at the rate announced from time to
time by Citibank, N.A. as its prime or similar rate plus 3%.
13. Nothing contained in this Agreement (including,
without limitation, any of the terms and conditions of the last
sentence of Section 3(b), Section 5, Section 6 and this Section
13) shall affect the force and effect of (i) the Second Amended
and Restated Agreement, of even date herewith, between the
Company and the Executive relating to certain supplemental
retirement, medical insurance, disability and other benefits and
rights, a copy of which is attached hereto as Exhibit A (the
"Supplemental Agreement"); (ii) the Company's Executive Incentive
Plan as in effect from time to time or his right to receive
benefits thereunder (including, without limitation, his right to
any bonus thereunder upon a Change in Control or otherwise) or
(iii) any indemnification agreements or arrangements including
those set forth in the Company's Certificate of Incorporation or
By-laws. This Agreement and the Supplemental Agreement
constitute the entire agreement between the parties as to matters
covered hereby and thereby and may not be changed or modified
except by an agreement in writing signed by Lone Star and the
Executive. This Agreement supersedes the Superseded Employment
Agreement.
14. (a) Anything in this Agreement or the
Supplemental Agreement to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by
the Company (including any made from plans sponsored by the
Company, through annuities, Rabbi Trusts or otherwise) to or for
the benefit of Executive, whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement
(including this Section 14), the Supplemental Agreement, the
Company's Executive Incentive Plan or otherwise (any such
payments or distributions being individually referred to herein
as a "Payment", and any two or more of such payments or
distributions being referred to herein as "Payments"), would be
subject to the excise tax imposed by Section 4999 of the Internal
Revenue Code of 1986, as amended ("Code") (such excise tax,
together with any interest thereon, any penalties, additions to
tax, or additional amounts with respect to such excise tax, and
any interest in respect of such penalties, additions to tax or
additional amounts, being collectively referred herein to as the
"Excise Tax"), then Executive shall be entitled to receive and
the Company shall make an additional payment or payments
(individually referred to herein as a "Gross-Up Payment," and any
two or more of such additional payments being referred to herein
as "Gross-Up Payments") in an amount such that after payment by
the Executive of all Taxes (as defined in Section 14(e)) imposed
upon all Gross-Up Payments, Executive retains an amount of such
Gross-Up Payments equal to the Excise Tax imposed upon the
Payments.
(b) Subject to the provisions of Section 14(c)
and (d), any determination required to be made under Section
14(a) including whether Gross-Up Payments are required and the
amount of such Gross-Up Payments, shall initially be made, at the
Company's expense, by nationally recognized tax counsel retained
to represent the Executive by the Company, such counsel to be
mutually acceptable to the Company and the Executive ("Tax
Counsel"). Tax Counsel shall provide detailed supporting legal
authorities, calculations and documentation both to the Company
and the Executive within 15 business days after the termination
of the Executive's employment, if applicable, and such other time
or times as is reasonably requested by the Company or the
Executive. If Tax Counsel makes the initial determination that
no Excise Tax is payable by the Executive with respect to a
Payment or Payments, it shall furnish the Executive with an
opinion that no Excise Tax will be imposed with respect to any
such Payment or Payments. As a result of the uncertainty in the
application of Sections 4999 and 280G of the Code, it is possible
that Gross-Up Payments (or portions thereof) which will not have
been made by the Company should have been made, and if upon any
reasonable written request from the Executive, the Company or Tax
Counsel, Tax Counsel thereafter determines that the Executive is
required to make a payment of any Excise Tax or any additional
Excise Tax, as the case may be, Tax Counsel shall, at the
Company's expense, determine the amount of the underpayment that
has occurred and any such underpayment (together with any
additional Taxes resulting from the Payment or resulting from the
underpayment of Excise Tax) shall be promptly paid by the Company
to Executive.
(c) The Company shall defend (by the Tax Counsel
or by other nationally recognized tax counsel acceptable to the
Executive), hold harmless and indemnify the Executive on a fully
grossed-up after Tax basis from and against any and all Excise
Tax, other Taxes, claims, losses, liabilities, obligations,
damages, impositions, assessments, demands, judgments,
settlements, fines, interest, costs and expenses (including
reasonable attorneys', accountants', and experts' fees and
expenses) (collectively, "Costs") with respect to any claim made
against the Executive by the Internal Revenue Service, any other
governmental agency or any other person or entity, for any Excise
Tax.
(d) Pending the outcome of any such claim, the
Company shall advance to Executive on an interest-free basis, the
total amount of the Excise Tax or other Taxes claimed in order
for Executive to pay or cause to be paid the Excise Tax or other
Taxes claimed. Executive shall, at the Company's reasonable
request and at the Company's sole cost and expense, file a claim
for refund of such Excise Tax and/or other Taxes and ▇▇▇ for a
refund of such Taxes if such claim for refund is disallowed by
the appropriate taxing authority (it being understood and agreed
by the parties hereto that the Company shall only be entitled to
▇▇▇ for a refund and the Company shall not be entitled to
initiate any proceeding in, for example, United States Tax Court)
and shall indemnify and hold Executive harmless, on a fully
grossed-up after Tax basis, from any Tax imposed with respect to
such advance or with respect to any imputed income with respect
to such advance. Within ten (10) days after the Company is
notified of a claim against the Executive for Excise Tax, whether
such notice is provided by the Executive or otherwise, the
Company (i) shall notify the Executive in writing (a "Defense
Notice") that the Company is defending and indemnifying the
Executive for such claim pursuant to Section 14(c), and
thereafter (ii) shall control the defense or prosecution, at its
sole cost, expense and risk, of such claim by all appropriate
proceedings, which proceedings shall be defended or prosecuted
diligently by the Company to a final determination; provided,
however, that (i) the Company shall not, without Executive's
prior written consent, enter into any compromise or settlement of
such claim that would adversely affect Executive, (ii) any
request from the Company to the Executive regarding any extension
of the statute of limitations relating to assessment, payment or
collection of taxes for the taxable year of Executive with
respect to which the contested issues involved in, and amount of,
the claim relate is limited solely to such contested issues and
amount, and (iii) the Company's control of any contest or
proceeding shall be limited to issues with respect to the claim
and Executive shall be entitled to settle or contest, in his sole
and absolute discretion, any other issue raised by the Internal
Revenue Service or any other taxing authority. So long as the
Company is diligently defending or prosecuting such claim,
Executive shall provide or cause to be provided to the Company
any information reasonably requested by the Company that relates
to such claim, and shall otherwise cooperate (at the Company's
sole cost and expense) with the Company and its representatives
in good faith in order to contest effectively such claim. The
Company shall keep Executive informed of all developments and
events relating to any such claim (including, without limitation,
providing to Executive copies of all written materials pertaining
to any such claim), and Executive or his authorized
representatives shall be entitled, at Executive's expense, to
participate in all conferences, meetings and proceedings relating
to any such claim. If the Company fails to (i) timely deliver a
Defense Notice or (ii) thereafter perform the obligations under
Section 14(c) to the Executive's reasonable satisfaction, then
Executive shall at any time thereafter have the right (but not
the obligation), at his election and in his sole and absolute
discretion, to defend or prosecute, at the sole cost, expense and
risk of the Company, such claim. Executive shall have full
control of such defense or prosecution and such proceedings,
including any settlement or compromise thereof. If requested by
Executive, the Company shall cooperate, and shall cause its
affiliates to cooperate, in good faith with Executive and his
authorized representatives in order to contest effectively such
claim. The Company may attend, but not participate in or
control, any defense, prosecution, settlement or compromise of
any claim controlled by Executive pursuant to this Section 14(d)
and shall bear its own costs and expenses with respect thereto.
In the case of any claim that is defended or prosecuted by
Executive, Executive shall, from time to time, be entitled to
current payment, on a fully grossed-up after Tax basis, from the
Company with respect to Costs incurred by Executive in connection
with, or arising out of, such defense or prosecution.
(e) For purposes of this Section 14, the terms
"Tax" and "Taxes" mean any and all federal, state and local taxes
of any kind whatsoever (including, but not limited to, any and
all Excise Tax, income taxes, FICA taxes and employment taxes),
together with any interest thereon, any penalties, additions to
tax, or additional amounts with respect to such taxes and any
interest in respect of such penalties, additions to tax, or
additional amounts.
15. The Company has purchased and shall maintain in
effect, on behalf of the Executive, (i) an insurance policy to
cover any litigation costs of the Executive (or his spouse)
associated with the enforcement of this Agreement or the
Supplemental Agreement against the Company in an amount of
$250,000 and (ii) an insurance policy to cover certain medical
benefits under the Supplemental Agreement in the event of a
default thereunder by the Company. The Company shall fully
reimburse the Executive for the federal, state and local taxes
incurred by the Executive in connection with the purchase and
maintenance of such policies (the "Reimbursement") and any
federal, state or local taxes on the Reimbursement, based on the
highest marginal tax rate in effect so that the Executive has no
federal, state or local tax liability as a result of this
section.
16. The Company agrees that if the Executive's
employment with the Company is terminated pursuant to this
Agreement during the term of this Agreement, the Executive shall
not be required to seek other employment or to attempt in any way
to reduce any amounts payable to the Executive by the Company
pursuant to this Agreement. Further, the amount of any payment
or benefit provided for in this Agreement shall not be reduced by
any compensation earned by the Executive or benefit provided to
the Executive as the result of employment by another employer or
otherwise. Except as otherwise provided herein and apart from
any disagreement between the Executive and the Company concerning
interpretation of this Agreement or any term or provision hereof,
the Company's obligations to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or
other right which the Company may have against the Executive.
17. This Agreement shall be governed by and construed
in accordance with the laws of the State of Connecticut.
18. This Agreement shall be binding upon and inure to
the benefit of the Company, including any purchaser of all or
substantially all of the assets of the Company and the surviving
entity of any merger or consolidation to which the Company is a
party and the Executive and his heirs, executors, administrators
and legal representatives.
19. Except as provided herein, this Agreement cannot
be assigned by Lone Star or Executive without prior written
consent.
20. All notices, communications, etc., shall be sent
to:
(a) Corporate Secretary
Lone Star Industries, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
LONE STAR INDUSTRIES, INC.
By:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chairman of the Board
- and -
By:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman of the Compensation
and Stock Option Committee
17
