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Exhibit 10.7
EMPLOYMENT AGREEMENT
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This Employment Agreement ("Agreement") is effective as of the 20th day
of May, 1996, between GEO Specialty Chemicals, an Ohio corporation ("GEO" or the
"Company"), and Xxxxxx X. Xxxxxxx (the "Employee").
W I T N E S S E T H:
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WHEREAS, the Company desires to employ the Employee and the Employee
desires to be employed by the Company upon the terms provided in this Agreement;
WHEREAS, in reliance on this employment offer, the Employee will move
from Houston, Texas to Little Rock, Arkansas to accept this position.
NOW, THEREFORE, in consideration of the mutual promises set forth in
this Agreement and intending to be legally bound, the parties agree as follows:
1. EMPLOYMENT. Subject to the terms and conditions set forth herein,
the Company agrees to employ the Employee, and the Employee agrees to be
employed by the Company, as Vice President/General Manager. In such positions,
the Employee agrees to devote his full time and efforts to the business and
affairs of the Company and any company to which Employee is transferred
hereunder, and to perform and discharge such service and duties of equivalent
responsibility and authority of such positions as the Company may from time to
time designate.
2. COMPENSATION. In consideration of the full, prompt and faithful
performance of the services and duties to be rendered by the Employee under this
Agreement, including the attached and related to agreements, the Company shall
pay the Employee as follows:
(a) BASE SALARY. The Company shall pay the Employee an annual
base salary of $115,000 ("Base Salary") in installments of at least
twice a month (the 15th and the last day of the month, "Payday"). After
the first calendar year, starting with the date of execution of this
Agreement, and after each subsequent calendar year ("Anniversary
Date"), the Company agrees to consider Employee for raises to the Base
Salary.
(b) BONUS. In consideration of the full, prompt and faithful
performance of the Position in conformance with the goals for the
Position as defined by the Company in its Management Incentive Program
("MIP"), or any other incentive program established by the Company for
subsequent years, the Company will pay the Employee a bonus in the
amount and under the conditions delineated in the MIP, a copy of which
is attached hereto as Exhibit "A," and incorporated herein by
reference.
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(c) BENEFITS. Employee shall be eligible to participate in the
benefit programs outlined in Exhibit B which is attached hereto and
incorporated herein by reference. The Employee will be eligible for
four (4) weeks paid vacation.
(d) SEVERANCE. If the Employee's employment is terminated for
any reason, the Company agrees to pay the Employee's moving expenses to
any where in the continental United States, under the provisions of the
Company's Moving Policy, as specified in Exhibit B. The Severance
Moving Allowance shall be paid to the Employee within thirty days of
submission of an invoice by the Employee. If the Employee's employment
is terminated for cause as defined under this Agreement, he shall be
entitled to his accrued Base Salary to the date he receives notice of
the termination or the effective date of the termination, whichever is
later, and no other payment under the MIP, except as otherwise provided
by law or under this Agreement. If the Employee's employment is
terminated without cause or in breach, during its initial two year term
of this Agreement, the Company agrees to pay the Employee, on his final
day of employment, his accrued Base Salary and Bonus to the date he
receives notice of the termination or the effective date of the
termination whichever is later, and in consideration for the
Noncompetition Agreement attached hereto as Exhibit C, and incorporated
herein by reference, the Company shall pay the Employee on his final
day of employment, one year of his Base Salary, except as otherwise
provided by law or under this Agreement. Following the initial two year
term, if the Employee continues employment with the Company, and is
terminated without cause or breach of this agreement, he will be
provided with three months severance pay and moving benefits.
3. PARTICIPATION THE MANAGEMENT INCENTIVE PROGRAM. The Employee shall
be guaranteed participation in the Company's Management Incentive Program unless
this Agreement is terminated according to its provisions prior to that time. If
the Company terminates the Management Incentive Program, the Company will
establish another incentive compensation program for the Employee, unless
establishing such an incentive compensation program will cause the Company to
default on any of its loan covenants or other financial obligations.
In addition, in the event that the Employee's employment hereunder is
terminated before the end of any fiscal year of the Company, the bonus for that
fiscal year, if any, shall be reduced pro rata in the same proportion that the
number of days remaining in such fiscal year bears to the total number of days
in such fiscal year. Notwithstanding any provision of this Agreement to the
contrary, the Employee shall not be entitled to receive a bonus for any fiscal
year in which the Employee's employment hereunder terminates and the Employee
has been employed by the Company for less than three months during such fiscal
year. In addition, the Employee shall not be entitled to a bonus if he is
terminated for cause under this Agreement. The terms of the MIP are incorporated
into this Agreement. As used herein, the term "bonus" means a bonus under the
Management Incentive Program or any other incentive compensation program
established by the Company.
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4. REASSIGNMENT. The Company may, at any time, reassign the Employee to
another position of equivalent responsibility and authority with the Company or
any of its subsidiaries. In connection therewith, the Company may change the
position title or job responsibilities of the Employee. Refusal by the Employee
to accept such a reassignment can be grounds for termination for cause under
this Agreement, except in cases of undue hardship to the Employee or other
personal reasons acceptable to the Company.
5. NONCOMPETITION AND PROPRIETARY INFORMATION AGREEMENT. As a condition
of the Employee's employment hereunder, the Employee hereby agrees to the terms
of the Noncompetition and Proprietary Information Agreement attached as Exhibit
C (the "Noncompetition Agreement"), which Agreement is incorporated herein by
reference in its entirety.
6. EMPLOYEE OBLIGATIONS. The Employee agrees that he will manage the
Company's business from Little Rock, Arkansas. The Employee also agrees that he
will devote his full time and efforts to the business and affairs of GEO and any
company to which the Employee is transferred under this Agreement, and to
perform and discharge such services and duties of equivalent responsibility and
authority as the Company may from time to time designate. The Employee agrees
that he will fulfill any duty or task as directed by Xxxxxx X. Xxxxxx, the
President of GEO Specialty Chemicals, Xxxxxxx X. Xxxxxx, the Senior Vice
President of GEO Specialty Chemicals, or any other person designated by Xx.
Xxxxxx or Xx. Xxxxxx. The Employee agrees that he will provide Xx. Xxxxxx and
Xx. Xxxxxx with a written monthly business report. The form, contents, and time
for delivery of this monthly business report shall be determined by Xx. Xxxxxx
and Xx. Xxxxxx. The Employee also agrees that he will inform either Xx. Xxxxxx
or Xx. Xxxxxx and obtain concurrence prior to implementing any strategic
decision. For purposes of this Agreement, "strategic decision" means any
decision or action likely to have a material impact upon the profitability or
strategic goals of the Company. The Employee agrees that the term "strategic
decision" is to be construed broadly under this Agreement and that he should
contact either Xx. Xxxxxx or Xx. Xxxxxx if he has any doubts, questions, or
concerns about whether a contemplated course of action constitutes a strategic
decision. The Employee also agrees that he will make measurable and significant
progress in moving the Company toward any strategic goals established by the
Company. These strategic goals include:
(a) Increasing the Company's market share in the aluminum-
based water treatment business in a profitable manner;
(b) Gaining additional municipal accounts in order to optimize
the throughput of the Company's plants;
(c) Fully utilizing clay processing capacity to cover overhead
and increase profit at the Little Rock facility;
(d) Finding additional markets for calcined clay products;
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(e) Achieving safe and environmentally sound operations at all
manufacturing sites;
(f) Broadening the product line to include specialty
formulations of polymer blends of aluminum-based chemicals; and
(g) Broadening sales of anhydrous alum and increasing the dry
alum distribution network and sales volume.
The Employee agrees that the Company may add to, modify, or delete the foregoing
list of strategic goals at any time.
7. TERM. Unless sooner terminated as provided herein, the Employee
shall be employed with the Company for an initial term of two (2) years,
commencing on the date of this Agreement. Thereafter, the Employee's employment
hereunder shall continue for an indefinite period until terminated by either
party upon at least thirty (30) days advanced written notice or as otherwise
provided herein, which notice may be given at any time prior to the end of the
initial two year term, provided that such termination is not effective prior to
the end of such term.
8. TERMINATION. Notwithstanding anything to contrary in the Agreement,
the Employee's employment with the Company hereunder shall terminate under the
following circumstances, provided that the Management Incentive Compensation
provisions shall survive the Employee's death and are payable to his estate as
long as the conditions set forth in Paragraph 4 of the Agreement are met:
(a) DEATH. In the event the Employee dies, the Employee's
employment shall terminate effective as of the end of the month during
which his death occurs. Payment of the Employee's salary will cease at
the end of that month.
(b) DISABILITY. If the Employee, due to physical or mental
illness, shall be disabled so as to be unable to perform substantially
all of his services for a continuous period of three (3) months, either
the Employee or the Company may by notice terminate this Agreement
effective as of the last day of the calendar month during which such
notice is given, provided such termination shall not be effective until
after Employee is certified as disabled in accordance with the
certification procedure described below, if requested by either party.
Payment of the Employee's salary shall cease as of the date his
employment terminates under this provision. If any question shall arise
as to whether during any period the Employee was disabled so as to be
unable to perform the services required hereunder due to physical or
mental illness, the Employee may, and at the request of the Company
will, submit to the Company a certification in reasonable detail of a
physician selected by the Company as to whether the Employee was so
disabled. Nothing herein shall relieve the Company of its obligation to
pay the Employee disability benefits in accordance with the Company's
disability policy, if any.
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(c) TERMINATION BY THE COMPANY FOR CAUSE. The Employee's
employment hereunder may be terminated effective immediately by the
Company at any time for cause by written notice to the Employee. The
following acts or omissions by the Employee shall constitute "cause"
for such termination: (i) dishonesty or misconduct by the Employee,
whether or not in relation to the business of the Company, which is
detrimental to the interests of the Company; (ii) insubordination or
disloyalty to the Company or any of its officers; (iii) gross
negligence or breach of fiduciary duty to the Company; (iv) criticism
of the Company or its officers to other employees of the Company or to
outsiders, provided that the Employee is entitled to privately express
disagreements or reservations to Xxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx;
(v) failure to timely submit the reports required under Paragraph 6 of
the Agreement; and (vi) failure by the Employee to fulfill his
obligations under this Agreement, including, but not limited to, the
obligations set forth in Paragraph 6 of this Agreement. In the event of
termination of the Employee's employment for cause hereunder, the
Employee agrees that he shall thereby forfeit: (A) all rights granted
to him under any bonus or deferred compensation arrangement of the
Company then existing in which he participates, if any, to the extent
permitted by law, and (B) his Annual Compensation, including Base
Salary and fringe benefits for the effective date of such termination,
to the extent permitted by law, and all Incentive Compensation,
including any Management Incentive Compensation bonus, regardless of
when accrued or payable.
9. CONFLICTING AGREEMENTS. The Employee represents, warrants and agrees
that (a) the execution of this Agreement and the performance of his duties and
obligations hereunder will not breach or be in conflict with any other agreement
to which he is a party and by which he is bound; (b) except as set forth on
Exhibit D, he has not heretofore entered into any written employment,
noncompetition, confidentiality or similar agreement; (c) except as set forth on
Exhibit C, he is not now subject to any covenants against competition or similar
covenants which would affect the performance of his duties hereunder; (d) he has
not made and will not make any agreements in conflict with this Agreement; and
(e) he will not disclose to the Company, or use for the Company's benefit, any
trade secrets or confidential information that is the property of any other
party now or hereafter in his possession. Employee further represents and
warrants that the Agreements listed on Exhibit D will not materially interfere
with the Employee's performance of his duties hereunder.
10. SEVERABILITY. The parties agree that each provision contained in
this Agreement shall be treated as a separate and independent clause, and the
unenforceability of any one clause shall in no way impair the enforceability of
any of the other clauses herein. Moreover, if one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively broad
as to scope, activity or subject so as to be unenforceable at all, such
provision or provisions shall be construed by the appropriate judicial body by
limiting and reducing it or them, so as to be enforceable to the extent
compatible with the applicable law.
11. ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the heirs, executors, and administrators of the Employee, and to the
successors and assigns of the
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Company. Neither the Company nor the Employees may assign this Agreement or any
interest therein by operation of law or otherwise, without the prior written
consent of the other party; provided, however, that the Company may, at its sole
election, assign its rights under the Agreement, in the event of a
reorganization, consolidation with or merger with or into any other business
entity, or a transfer of all or substantially all of its properties or assets to
another business entity, provided such other business entity agrees to accept
all of the rights and all of the obligations of the Company under this
Agreement.
12. CONSTRUCTION OF TERMS. The term "Agreement" when used in this
Agreement means this Agreement and all Schedules and Exhibits hereto, including
without limitation the Noncompetition and Proprietary Information Agreement
attached as Exhibit C.
13. NOTICES. All notices to be sent pursuant to this Agreement shall be
in writing and shall have been deemed to have been adequately given if delivered
in person, by telex or telecopy, or mailed by registered or certified mail,
postage prepaid.
If to the Company:
Xxxxxx X. Xxxxxx
XXX Specialty Chemicals
00000 Xxxxxxx Xxxx., #000
Xxxxxxxxx, Xxxx 00000
With a copy to:
Xxxxxxxx Xxxx & Xxxxx LLP
0000 Xxxxxxx Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
If to the Employee:
Xxxxxx X. Xxxxxxx
00000 Xxxxx Xxxx
Xxxxxxx, XX 00000
or to such other address as any party may from time to time designate for itself
by notice in writing given to the other party hereto.
14. WAIVERS. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed to be a
continuing waiver unless specifically stated therein.
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15. ENTIRE AGREEMENT. This Agreement, together with all Schedules and
Exhibits hereto, constitutes the entire understanding of the parties hereto with
respect to the Employee's employment with the Company. This Agreement supersedes
any prior agreement or arrangement concerning the Employer's employment with the
Company. No modifications of any provisions of this Agreement shall be made
unless made in writing and signed by the parties hereto.
16. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Ohio.
17. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18. CONFIDENTIALITY. The terms of this Agreement are confidential and
shall not be disclosed by the Employee to any third party except for his wife,
his accountant, and his attorney. Each of such persons to whom the Employee
discloses the terms of this Agreement shall be advised by the Employee to
maintain the confidentiality of same.
19. HEADINGS. The headings of sections and paragraphs herein are
included solely for convenience of reference and shall not effect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto, or their duly authorized
representatives, have signed, sealed and delivered this Agreement effective as
of the day and year first above written.
GEO SPECIALTY CHEMICALS
By: /s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
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