EXHIBIT 10.28
131
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made as of June 1, 1995
between ATLAS CORPORATION, a Delaware corporation ("Employer"), and Gerald E.
Davis, Executive Vice President of Employer ("Executive").
Employer and Executive agree as follows:
1. EMPLOYMENT. In accordance with the terms and conditions of this
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Agreement, Employer agrees to employ Executive as an officer of Employer
commencing June 1, 1995, and continuing until that employment is terminated (a)
by either Employer or Executive or (b) by reason of Executive's normal
retirement in accordance with Employer's retirement programs applicable to
Executive at the time of his retirement ("Executive's Retirement"). Executive
accepts that employment and agrees to perform the duties associated therewith.
Subject to the terms and conditions of this Agreement, Executive's employment by
Employer may be terminated at any time by either Executive or Employer by 10
days prior written notice to that effect.
2. DUTIES. As long as Executive is employed by Employer hereunder,
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Executive shall be subject to the direction of and be responsible to the Chief
Executive Officer of Employer or his designee with respect to the performance of
his duties hereunder, shall report to the Chief Executive Officer of Employer in
that connection at such times and in such detail as the Chief Executive Officer
of Employer may require and shall devote his full business time, attention,
skill and efforts to the business and affairs of Employer.
3. SALARY. As compensation for the services to be furnished by Executive
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to Employer hereunder, as long as Executive is employed by Employer hereunder,
Employer shall pay Executive a salary at a minimum annual rate of $150,000
payable in accordance with Employer's standard payroll policies applicable to
officers.
4. BASIC EMPLOYEE BENEFIT PLANS AND PROGRAMS. As long as Executive is
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employed by employer hereunder, Executive shall be entitled to participate in
all regular and key employee benefit plans and programs which are or may be made
available by Employer for its officers.
5. EXPENSES. Employer shall provide for the payment of, or reimbursement
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of Executive for, all travel and other out-of-pocket expenses reasonably
incurred by Executive in the performance of his duties hereunder.
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6. TERMINATION.
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6.1 Certain Definitions. As used in this Section 6:
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(a) "Board" means the Board of Directors of Employer.
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(b) "Cause" means, and is limited to, (i) action by Executive
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involving willful malfeasance, (ii) failure to act by Executive involving
material nonfeasance or (iii) Executive being convicted of a felony.
(c) "Change of Control Event" means any one of the following: (i)
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Continuing Directors no longer constitute at least two thirds of the Directors
constituting the Board; (ii) any person or group (as defined in Rule 13d-5 under
the Securities Exchange Act of 1934), together with its affiliates, other than
Phoenix Financial Holdings Inc., Mackenzie Financial Corporation or M.I.M.
Holdings Limited (in each case, together with its affiliates), becomes the
beneficial owner, directly or indirectly, of 15% or more of Employer's then
outstanding Common Stock or 15% or more of the voting power of Employer's then
outstanding securities entitled generally to vote for the election of Directors,
provided that the foregoing circumstances shall not constitute a Change of
Control Event if such beneficial owner is Employer, any subsidiary of Employer,
any employee benefit plan or employee stock plan of Employer or of any
subsidiary of Employer; and provided further that, notwithstanding the
foregoing, a Change of Control Event shall be deemed to occur if Mackenzie
Financial Corporation, and its affiliates, or M.I.M. Holdings Limited, and its
affiliates, shall acquire 25% or more of the Employer's then outstanding Common
Stock or the voting power of the Employer's then outstanding securities entitled
generally to vote for the election of Directors; (iii) the approval by
Employer's stockholders of the merger or consolidation of Employer with any
other corporation, the sale of substantially all of Employer's assets or the
liquidation or dissolution of Employer, unless, in the case of a merger or
consolidation, the Continuing Directors in office immediately prior to such
merger or consolidation constitute at least two thirds of the directors
constituting the board of directors of the surviving corporation of such merger
or consolidation and any parent (as such term is defined in Rule 12b-2 under the
Securities Exchange Act of 1934) of such corporation; or (iv) at least two
thirds of the Continuing Directors in office immediately prior to any other
action taken or proposed to be taken by Employer's stockholders or by the Board
determines that such action constitutes, or that such proposed action, if taken,
would constitute, a change of control of Employer and such action is taken.
(d) "Continuing Director" means any person who (i) is a Director on
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the date of this Agreement; (ii) was designated before such person's initial
election as a Director as a Continuing Director by a majority of the Continuing
Directors; or (iii) has been a Director for at least two years after the
occurrence of one or more Change of Control Events.
(e) "Director" means a member of the Board.
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(f) "Disability" means, as applied to Executive, that (i) he has been
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so incapacitated by bodily injury or disease as to be unable to perform the
duties contemplated to be performed by him hereunder, (ii) the incapacity shall
have continued for a period of three consecutive
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months and (iii) the incapacity will, in the opinion of a qualified physician
acceptable to Employer, be permanent and continuous for a period of at least one
year.
(g) "Good Reason" means (i) without Executive's written consent (A)
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(1) the assignment to Executive of any duties and responsibilities, or any
limitation of Executive's duties and responsibilities, if such assignment or
limitation is materially inconsistent with Executive's positions, duties,
responsibilities and status as an executive of Employer or (2) any removal of
Executive from, or any failure to reelect Executive to, any of Executive's
positions with Employer except for Cause or as a result of the death or
Disability of Executive, and (B) the continuance thereof for a period of 20 days
after written notice thereof to Employer from Executive; (ii) any failure by
Employer to pay, or any reduction by Employer of, the salary payable to
Executive under Section 3 of this Agreement; (iii) any failure by Employer (A)
to continue to provide Executive with the opportunity to participate, on terms
no less favorable than those in effect immediately prior to a Change of Control
Event, in any benefit plan or program in which Executive was participating
immediately prior to the Change of Control Event, or their equivalent, or (B) to
provide Executive with all other fringe benefits, or their equivalent, from time
to time in effect for the benefit of any of Employer's salaried employees; (iv)
the failure by Employer to obtain the specific assumption of this Agreement by a
successor or assign of Employer or by any person acquiring substantially all of
Employer's assets; or (v) any material breach by Employer of any provision of
this Agreement.
6.2 Compensation of Executive in the Event of Termination of
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Executive's Employment Hereunder.
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(a) In the event of Executive's Disability, Executive's employment by
Employer hereunder may be terminated by Employer upon written notice from
Employer to Executive which shall specify a date not less than 30 days from the
date of such notice as the date on which such termination shall become
effective. If Executive's employment by Employer hereunder is terminated
because of Executive's Disability or death, Executive, or his heirs, executors
or administrators if termination is because of Executive's death, shall be
entitled to receive the salary payable to Executive under Section 3 until the
date on which the termination occurs.
(b) (i) Executive shall be entitled to compensation as specified in
Section 6.2(b)(ii) and (iii) if (A) Employer terminates Executive's employment
hereunder without Cause either prior to 3 months before a Change of Control
Event or more than two years after the last Change of Control Event, or (B)
Executive voluntarily terminates his employment hereunder with Good Reason
either prior to 3 months before a Change of Control Event or more than two years
after the last Change of Control Event. (ii) Prior to the 30th day following
the date of such termination Employer shall pay Executive (A) the amount which
equals Executive's annual rate of base salary that is in effect on the date of
termination, and (B) all amounts which had accrued but were not paid prior to
such termination for personal services actually rendered before the termination.
(iii) As soon as practicable following the date of such termination, or at such
later date as Executive may validly elect, Employer shall pay Executive all
amounts payable under then existing employee benefit plans and programs.
Notwithstanding the foregoing, if the sum of all of the payments to Executive
whether under this Agreement or otherwise (but excluding any payments which need
not be included in determining if a "parachute payment" has been made within the
meaning of Internal Revenue Code (the "Code") (Section) 280G(b)(2)) exceeds the
product of
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multiplying the Base Amount times 2.99, then such payments hereunder shall be
reduced by the amount of such excess. For purposes of this Agreement, the term
Base Amount is defined in Code (Section) 280G(b)(3) and the Treasury Regulations
promulgated thereunder, calculated as of the date required under the Code.
(c) (i) Executive shall be entitled to compensation as specified in
Section 6.2(c)(ii) and (iii) if (A) Employer terminates Executive's employment
hereunder without Cause either (1) within 3 months prior to a Change of Control
Event or (2) upon or after a Change of Control Event but within two years after
the date of that Change of Control Event, or (B) Executive voluntarily
terminates his employment hereunder with Good Reason either (1) within 3 months
prior to a Change of Control Event or (2) upon or after a Change of Control
Event but within two years after the date of that Change of Control Event. (ii)
Prior to the 30th day following the date of such termination Employer shall pay
Executive (A) the amount which equals the product of multiplying Executive's
annual rate of base salary that is in effect on the date of termination times
two, and (B) all amounts which had accrued but were not paid prior to such
termination for personal services actually rendered before the termination.
(iii) As soon as practicable following the date of such termination, or at such
later date as Executive may validly elect, Employer shall pay Executive all
amounts payable under then existing employee benefit plans and programs.
Notwithstanding the foregoing, if the sum of all of the payments to Executive
whether under this Agreement or otherwise (but excluding any payments which need
not be included in determining if a "parachute payment" has been made within the
meaning of Code (S) 280G(b)(2)) exceeds the Base Amount times 2.99, then such
payments hereunder shall be reduced by the amount of such excess.
(d) If Executive's employment hereunder is terminated by Employer or
by Executive under any circumstances other than as set forth in Section 6.2(a),
6.2(b), or 6.2(c), all payments required by this Agreement shall cease and the
termination shall relieve Employer of its obligations to make any further
payments under this Agreement except payments under the employee benefit plans
and programs and payments of amounts which had accrued but were not yet paid
prior to the termination.
7. CONFIDENTIAL INFORMATION AND TRADE SECRETS. Executive acknowledges
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that all information possessed by him relating to activities of Employer that is
of a secret or confidential nature, including without limitation financial
information, exploration, mining and milling information, lists of customers,
technical and production know-how, developments, inventions, processes and
administrative procedures, is the property of Employer, and as long as Executive
is employed by Employer hereunder, and for a period of two years thereafter,
Executive shall not use any such information for the benefit of anyone other
than Employer or disclose any such information to others except in the course of
Employer's business.
8. PAYMENT TO ESTATE OR BENEFICIARY. If Executive dies before any
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payments required to be paid by Employer to Executive hereunder have been paid,
Employer shall make all such payments to the beneficiary or beneficiaries
designated by Executive in a written notice previously delivered by Executive or
Employer or, in the absence of such a notice, to Executive's estate.
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9. ARBITRATION. Any and all disputes arising under or relating to this
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Agreement shall be subject to mandatory binding arbitration in Denver, Colorado,
before the American Arbitration Association in accordance with its Commercial
Arbitration Rules. Discovery shall be allowed but subject to the limits and
procedures set forth in Rule 26.1 of the Colorado Rules of Civil Procedure. The
prevailing party in any such arbitration proceeding shall be entitled to an
award of his or its reasonable costs and attorney fees.
10. BINDING EFFECT; SUCCESSORS, ASSIGNMENT. Subject to the provisions of
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this Section 10, this Agreement shall be binding upon, inure to the benefit of
and be enforceable by Employer and Executive and their respective heirs, legal
representatives, successors and assigns. If Employer shall be merged into or
consolidated with another entity, the provisions of this Agreement shall be
binding upon and inure to the benefit of the entity surviving such merger or
resulting from such consolidation.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Colorado applicable to contracts made
and to be performed therein.
12. NOTICE. Any notice required to be given hereunder shall be in writing
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and delivered by certified mail, return receipt requested, addressed:
To Employer at:
Republic Plaza
370 Seventeenth Street
Suite 3150
Denver, Colorado 80202
To Executive at:
Republic Plaza
370 Seventeenth Street
Suite 3150
Denver, Colorado 80202
or in either case to such other address as may be specified in a written notice
given as provided above.
13. ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the entire
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agreement of Employer and Executive with respect to the subject matter hereof
and shall supersede any and all previous agreements, arrangements and
understandings between Employer and Executive in that regard. This Agreement
may be amended only by the written agreement of Employer and Executive.
ATLAS CORPORATION
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By___________________________________
Chief Executive Officer
EXECUTIVE
By___________________________________
Gerald E. Davis
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