EXHIBIT 10(S)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of this 1st day of April 2003
by and between STANDEX INTERNATIONAL CORPORATION, a Delaware corporation with
its executive offices in Salem, New Hampshire (hereinafter referred to as the
"Employer"), and
ROGER L. FIX
of Manchester, New Hampshire (hereinafter referred to as the "Executive").
WHEREAS, Executive has heretofore been and is now employed by Employer in
a managerial and supervisory capacity, currently serving as President/CEO of
Employer pursuant to an Employment Agreement dated December 3, 2001; and
WHEREAS, Employer is desirous of retaining the services of Executive in
such senior executive capacity upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
of the parties herein contained, it is agreed by and between the parties as
follows:
1. TERMINATION OF 2001 EXECUTIVE EMPLOYMENT AGREEMENT; EMPLOYMENT;
TERM. Employer and Employee agree that the Executive Employment Agreement
dated December 1, 2001 (the "2001 Agreement") is terminated in all respects as
of the date of this Agreement. The parties further agree that this Agreement
replaces and supersedes the 2001 Agreement and is intended to be controlling
with respect to all terms and conditions of the employment relationship between
the Employer and the Employee.
Employer hereby agrees to employ Executive on a full-time basis and
Executive agrees to serve Employer on a full-time basis as President/Chief
Executive Officer of the Employer or other senior executive, managerial and
supervisory capacity, subject to the direction and control of the Board of
Directors of Employer, said employment being upon the terms and conditions
herein set forth.
2. TERM. The initial term (the "Initial Term") of this Agreement shall
commence upon the date it is executed by the Executive and continue through
midnight on December 31, 2006, unless otherwise terminated in accordance with
the provisions of Sections 6 or 15. Upon the expiration of the Initial Term,
this Agreement shall automatically renew for an additional term of three (3)
years (the "First Renewal Term") commencing upon January 1, 2007, and upon the
expiration of the First Renewal Term, this Agreement shall automatically renew
for an additional term of three (3) years (the "Second Renewal Term")
commencing upon January 1, 2010. Notwithstanding the foregoing, the First
Renewal Term and the Second Renewal Term shall not occur if this Agreement has
been otherwise terminated in accordance with the provisions of Sections 6 or 15
and, provided further. Subject to the provisions for termination otherwise
included herein, either the Employer or the Executive shall have the right to
terminate this Agreement by giving the other party thirty (30) days advanced,
written notice (the "Notice Period"), at any time during the Initial Term or
any Renewal Term, stating his/its intention to terminate the Agreement. Such
termination will be effective at the end of the Notice Period. In the event of
notice of termination by the Employer, the provisions of Section 6 shall apply.
3. BEST EFFORTS. Executive agrees, as long as this Agreement is in
effect, to continue to devote his same best efforts and the same time and
attention to the business of Employer that he is presently devoting to said
business of Employer, and to the performance of such executive, managerial and
supervisory duties of a similar nature to those performed for Employer during
the period of service preceding this Agreement.
4. NON-COMPETE. Except as set forth in the third paragraph of this
Section 4, Executive shall not, as long as this Agreement is in effect, engage
in, or be interested in, in any active capacity, any business other than that
of Employer or any affiliate, associate or subsidiary corporation of Employer.
It is the express intent of the Employer and the Executive that: (i) the
covenants and affirmative obligations in this Section be binding obligations to
be enforced to the fullest extent permitted by law; (ii) in the event of any
determination of unenforceability of the scope of any covenant or obligation,
its limitation which a court of competent jurisdiction deems fair and
reasonable, shall be the sole basis for relief from the full enforcement
thereof; and (iii) in no event shall the covenants or obligations in this
Section be deemed wholly unenforceable.
In addition, except as set forth in the third paragraph of this Section
4, Executive shall not for a period of two years after the termination of
employment with Employer (whether such termination is by reason of the
expiration of this Agreement or for any other reason) compete with or directly
or indirectly own, control, manage, operate, join or participate in the
ownership, control, management or operation of any business which competes with
any present or future business of Employer at the time of such termination. In
addition, the Executive covenants and agrees that he will not, after
termination of employment with the Employer, directly or indirectly solicit for
employment or retain or hire any employees of the Employer.
No provision contained in this paragraph shall restrict Executive from
making investments in other ventures which are not competitive with Employer,
or restrict Executive from engaging, during non-business hours, in any other
such non-competitive business or restrict Executive from owning less than five
per cent of the outstanding securities of companies which compete with any
present or future business of Employer and which are listed on a national stock
exchange or actively traded on the NASDAQ National Market System.
5. COMPENSATION; BENEFITS. Employer agrees to compensate Executive for
his services at a minimum annual base salary during any year of this Agreement
(January 1 to December 31) of the higher of $600,000 or the base salary at the
end of the immediately preceding year of this Agreement. Such base salary
shall be payable at least monthly and shall be increased as determined (in its
sole discretion) by Employer.
Executive shall also be entitled to participate in the Standex Long Term
Incentive Program, the Standex Annual Incentive Program, the Standex
Supplemental Executive Retirement Plan ("SERP"), the Standex Retirement Savings
Plan and in such other benefit plans and programs as are made available from
time to time to senior executives of the Employer. Executive shall be entitled
to use an automobile furnished at the expense of Employer in accordance with
Employer's policy on this subject, as such policy shall be revised from time to
time.
1. TERMINATION.
A. DEATH. Executive's employment shall terminate forthwith upon
his death and all liability of Employer under this Agreement or otherwise shall
thereupon cease except for any compensation for past services remaining unpaid
and for benefits due to Executive's estate or to others under the terms of any
benefit plan or agreement then in effect.
B. DISABILITY. In the event that Executive becomes substantially
disabled during the term of this Agreement for a period of six consecutive
months so that he is unable, in the reasonable opinion of Employer, to perform
the services as contemplated herein, then Employer, at its option, may
terminate Executive's employment and this Agreement upon at least six (6)
additional months advance written notification to Executive. Until such
termination option is exercised and the six month period has been satisfied or
as otherwise mutually agreed in writing, Executive will continue to receive his
full salary and fringe benefits during any period of illness or other
disability, regardless of duration.
C. MATERIAL BREACH. In the event of a material breach of the terms
of this Agreement by Executive or Employer, the non-breaching party may cause
this Agreement to be terminated on 10 days written notice, provided, however,
that termination by Employer for material breach following a change of control,
as defined in Section 15, shall be effective only upon twelve (12) months prior
written notice. Employer may remove Executive from all duties and authority
commencing on the first day of any such notice period, however, payment of
compensation and participation in all benefits shall continue through the last
day of such notice period. For purposes of this Agreement material breach
shall be defined as:
(i) an act or acts of dishonesty on the Executive's part which are
intended to result in his substantial personal enrichment at the
expense of the Employer; or
(ii)the Executive willfully, deliberately and continuously fails to
materially and substantially perform his duties hereunder and
which result in material injury to the Employer (other than such
failure resulting from the Executive's incapacity due to
physical or mental disability) after demand for substantial
performance is given by the Employer to the Executive
specifically identifying the manner in which the Employer
believes the Executive has not materially and substantially
performed his duties hereunder.
No action, or failure to act, shall be considered "willful" if it is done by
the Executive in good faith and with reasonable belief that his action or
omission was in the best interest of the Employer.
D. LEGAL EXPENSES. It is further agreed that Employer will pay all
reasonable legal expenses of Executive in the event that Executive defends or
brings any action under this Agreement, provided, however, that Employer shall
not be obligated to pay the legal expenses of Executive if, in good faith, the
Board of Directors determines that, Executive acted in a manner Executive
believed to be adverse to the best interests of Employer or that Executive
should have known that his conduct was unlawful. Notwithstanding such a
determination, the Board shall be obligated to reimburse Executive for said
legal expenses if he successfully defends or successfully prosecutes his case.
7. SEVERANCE. In the event that Executive's employment is terminated
pursuant to Section 1 of this Agreement (exclusive of a termination after a
change in control where severance is governed by the provisions contained in
Section 15 herein and exclusive of termination pursuant to Section 6, the
Executive shall receive severance pay for a period of two (2) years following
termination of employment and coincident with the first year of the severance
period, one year of medical and dental insurance coverage as is then being
offered to salaried employees at the Employer's corporate home office.
Notwithstanding the foregoing medical and dental coverage, in the event that
the Executive becomes eligible and elects to receive other medical and dental
insurance coverage through a new employer during the severance period, the
Employer's obligations to provide medical and dental insurance coverage
pursuant to this Section 7 shall terminate upon the commencement of such other
coverage. Severance will be paid in accordance with normal and customary
payroll practices of the Employer. The severance pay will be calculated based
on the Executive's then current, annual base compensation.
8. NOTICES. Any notice to be given pursuant to this Agreement shall be
sent by certified mail, postage prepaid, or by fax (with a copy mailed via
first class mail, postage pre-paid) or delivered in person to the parties at
the following addresses or at such other address as either party may from time
to time in writing designate:
To Executive: Roger L. Fix
555 Canal Street, Apt. 712
Manchester, New Hampshire 03101
To Employer: Standex International Corporation
6 Manor Parkway
Salem, New Hampshire 03079
9. INVENTION AND TRADE SECRET AGREEMENT. Executive agrees that the
Invention and Trade Secret Agreement dated December 3, 2001 by and between
Executive and Standex International Corporation and signed by Executive shall
remain in full force and effect while this Agreement is in effect and, as
provided in the Invention and Trade Secret Agreement, after termination hereof.
10. SPECIFIC PERFORMANCE. It is acknowledged by both parties that
damages will be an inadequate remedy to Employer in the event that Executive
breaches or threatens to breach his commitments under Section 4 or under the
Invention and Trade Secret Agreement. Therefore, it is agreed that Employer,
may institute and maintain an action or proceeding to compel the specific
performance of the promises of Executive contained herein and therein. Such
remedy shall, however, be cumulative, and not exclusive, to any other remedy
that Employer may have.
11. SURVIVAL. The obligations contained in Sections 4 and 9 shall
survive the termination of this Agreement. In addition, the termination of
this Agreement shall not affect any of the rights or obligations of either
party arising prior to or at the time of the termination of this Agreement or
which may arise by any event causing the termination of this Agreement.
12. COVENANTS SEVERABLE. In the event that any covenant of this
Agreement shall be determined invalid or unenforceable and the remaining
provisions can be given effect, then such remaining provisions shall remain in
full force and effect.
13. ENTIRE AGREEMENT; AMENDMENT. This Agreement supersedes any
employment understanding or agreement (except the Invention and Trade Secret
Agreement) that may have been previously made by Employer or its respective
subsidiaries or affiliates with Executive. This Agreement, together with the
Invention and Trade Secret Agreement, represents all the terms and conditions
and the entire agreement between the parties hereto with respect to the
employment of Executive by Employer. This Agreement may be modified or amended
only by written agreement signed by Employer and Executive.
14. ASSIGNMENT. This Agreement is personal between Employer and
Executive and may not be assigned; provided, however, that Employer shall have
the absolute right at any time, or from time to time, to sell or otherwise
dispose of its assets or any part thereof or to reconstitute the same into one
or more subsidiary corporations or divisions or to merge, consolidate or enter
into similar transactions. In the event of any such transaction, the term
"Employer" as used herein shall mean and include such successor corporation.
1. CHANGE OF CONTROL.
A. In the event of a change in control of Employer required to be
reported under Item 6(e) of Schedule 14A of Regulation 14A of the Securities
Exchange Act of 1934:
(i) Employer may terminate Executive's employment only upon
conclusive evidence of substantial and indisputable intentional
personal malfeasance in office such as a conviction for
embezzlement of Employer's funds; and
(ii) Executive may terminate his employment at any time if there
is a change in his general area of responsibility, title or place
of employment, or if his salary or benefits are lessened or
diminished.
B. Following a change of control of Employer, any termination of
Executive's employment either by Executive pursuant to Section 15.A.(ii) or by
Employer under any circumstances other than involving conclusive evidence of
substantial and indisputable intentional personal malfeasance in office, then:
(i) Executive shall be promptly paid a lump sum payment equal to
three times his current annual base salary plus three times the
most recent annual incentive paid to him;
(ii) Executive shall become 100% vested in all benefit plans in
which he participates including but not limited to the Standex
Retirement Savings Plan, the Management Savings Program portion
of the Standex Annual Incentive Program and all restricted stock
options and performance share units granted under the Standex
Long Term Incentive Program and any other stock option plans of
the Employer;
(iii) Three years of benefit service shall be added to the years of
service credited to Executive under the Standex Retirement Plan;
(iv) The salary and bonus paid under Section 15.B.(i) shall be
deemed the Executive's compensation during such three additional
years for purposes of the computation of his pension under the
Standex Retirement Plan;
(v) All life insurance and medical plan benefits covering the
Executive and his dependents shall be continued at the expense of
Employer for the three-year period following such termination as
if the Executive were still an employee of the Employer; and
(vi) In the event that any payment or distribution of any type to
or for the benefit of the Executive made by the Employer, by any
of its affiliates, by any person or entity which acquires
ownership or effective control or ownership of a substantial
portion of the Employer's assets within the meaning of Section
280G of the Internal Revenue Code of 1986, as amended, and all
related regulations or any similar federal tax that may
hereinafter be imposed, whether paid or payable or distributed or
distributable pursuant to this Agreement or otherwise
(collectively called the "Total Payments"), would be subject to
the excise tax imposed by Section 4999 of the Internal Revenue
Code of 1986, as amended, and all related regulations or any
similar federal tax that may hereinafter be imposed or any
interest or penalties with respect to such excise tax (such
excise tax, together with any such interest or penalties are
hereinafter collectively referred to as the "Excise Tax"), then
the Executive shall be entitled to receive from the Employer an
additional payment (an "Excise Tax Restoration Payment") in an
amount that shall fully fund the payment by the Executive of any
Excise Tax on the Total Payments as well as any income taxes
imposed on the Excise Tax Restoration Payment, any Excise Tax
imposed on the Excise Tax Restoration Payment and any interest or
penalties imposed with respect to taxes on the Excise Tax
Restoration Payment or any Excise Tax. If the Employer refuses
or fails to timely pay the Excise Tax Restoration Payment to the
Executive without a good faith lawful justification and such
refusal or failure is not corrected within twenty (20) business
days after the Executive provides written notice to the Employer
concerning the refusal or failure, then the Employer shall
immediately pay to the Executive an additional amount equal to
75% of the Executive's last annual base salary as a late fee for
the Employer's late payment of the Excise Tax Restoration
Payment. The Employer shall furnish to the Executive a written
statement setting forth in detail the manner in which the Excise
Tax Restoration Payment was calculated and the basis for such
calculations, including any opinions or other advice that the
Employer received from outside counsel, auditors or consultants.
Notwithstanding the foregoing, it is the express intent and
desire of the parties that if the Total Payments would trigger an
Excise Tax, then the Executive shall be entitled to promptly
receive such additional monetary compensation from the Employer
as may be necessary to ensure that the Executive's net after tax
benefit of the Total Payments would be the same as if no Excise
Tax had been imposed upon the Total Payments. In the event of any
dispute between the Executive and the Employer involving the
Excise Tax Restoration Payment, the matter shall be promptly
submitted to binding arbitration on an expedited basis before a
mutually acceptable arbitrator at a national accounting firm.
16. GOVERNING LAW; BINDING NATURE OF AGREEMENT. This Agreement shall be
construed in accordance with the laws of the State of New Hampshire and shall
be binding upon and inure to the benefit of the parties hereto, their
respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF, Employer has caused this Agreement to be executed on
its behalf by its officers thereunto duly authorized and its corporate seal to
be hereto affixed, and Executive has executed the within instrument as a sealed
document, all as of the day and year first above written.
STANDEX INTERNATIONAL CORPORATION
/s/ Edward J. Trainor
By: ____________________________________
Edward J. Trainor, Chairman
ATTEST:
/s/ Deborah A. Rosen
_______________________________
Deborah A. Rosen, Secretary
/s/ Janet L. Duffy /s/ Roger L. Fix
_______________________________ _____________________________________
Witness Roger L. Fix
#