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Exhibit 10.4
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made and entered into as of September 16,
1996, by and among Graham Corporation, a Delaware corporation with offices at 20
Florence Avenue, Batavia, New York 14020 (the "Company"), Graham Manufacturing
Co., Inc., a New York corporation with offices at 20 Florence Avenue, Batavia,
New York 14020 ("GMC"), and ALVARO CADENA currently residing at 4 LePere Drive,
Pittsford, New York 14534 (the "Executive").
The parties hereto, intending to be legally bound hereby, and
in consideration of the mutual covenants herein contained, agree as follows:
1. EMPLOYMENT.
(a) The Company hereby employs the Executive and the
Executive hereby accepts employment (such employment, together with the
Executive's employment with GMC hereunder, the "Employment"), as Vice President
of the Company and GMC hereby employs the Executive and the Executive hereby
accepts employment as President and Chief Operating Officer of the Company's
subsidiary, GMC, upon the terms and conditions hereinafter set forth. Failure in
any year of either the Company Board at its Annual Meeting to elect the
Executive to the offices of Vice President, or of the Board of Directors of GMC
("GMC Board") at its Annual Meeting to elect the Executive to the office of
President and Chief Operating Officer, shall constitute termination of the
Executive's employment without cause for purposes of this Agreement.
(b) The Company and GMC shall allocate between
themselves all expenses of the Executive's employment pursuant to this
Agreement.
(c) Except as otherwise specifically provided herein,
all obligations of theCompany referred to herein shall be joint and several
obligations of the Company and GMC.
2. DUTIES. The Executive is engaged as Vice President of the
Company and President and Chief Operating Officer of GMC. The Executive shall
have authority and responsibility, on a day to day basis, for the overall
management and direction of GMC and shall perform such duties consistent with
Executive's title as may from time to time be required of Executive by the Board
of Directors of Graham Corporation (the "Board"), or by the Chairman, President
and Chief Executive Officer of the Company, to whom Executive shall be directly
responsible. In his capacity as President and Chief Operating Officer of GMC,
the Executive shall also report to the Chairman and Chief Executive Officer of
GMC. The Executive's office shall be at the Company's headquarters office in, or
within a reasonable commuting distance east of Batavia, New York. The Executive
agrees to travel to the extent
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reasonably necessary for the performance of his duties hereunder. The Executive
shall devote his full business time to the business and affairs of the Company
and GMC (to be allocated between them as the Company may determine) and shall
use his best efforts, skill and ability in performing his duties on behalf of
the Company and GMC.
3. TERM.
(a) Except as otherwise provided in this Agreement to
the contrary, the terms and conditions of this Agreement shall be and remain in
effect during the period of employment ("Term") established under this Section
3. The Term shall be for a term of one (1) year commencing on September 16,
1996, plus such extensions, if any, as are provided pursuant to Section 3(b).
(b) Except as provided in Section 3(c), beginning on
the date of this Agreement, the Term shall be automatically extended for one (1)
additional day each day, unless either the Company and GMC, or the Executive,
elects not to extend the Term further by giving written notice to the other
party, in which case the Term shall end on the later of (i) the first
anniversary of the date of this Agreement, or (ii) the first anniversary of the
date on which such written notice is given; provided, however, that in any
event, the Term shall end on the last day of the month in which the Executive
attains age sixty-five (65). Upon termination of the Executive's employment with
the Company or GMC for any reason whatsoever, any daily extensions provided
pursuant to this Section 3, if not theretofore discontinued, shall cease and the
remaining unexpired Term under this Agreement shall be a fixed period ending on
the later of the fifth anniversary of the date of this Agreement or the first
anniversary of the date on which the daily extensions were discontinued.
(c) Notwithstanding anything herein contained to the
contrary: (i) the Executive's employment with the Holding Company or GMC may be
terminated during the Term, subject to the terms and conditions of this
Agreement; and (ii) nothing in this Agreement shall mandate or prohibit a
continuation of the Executive's employment following the expiration of the Term
upon such terms and conditions as the Company and the Executive may mutually
agree upon.
4. BASE COMPENSATION. As the base compensation for all
services to be rendered by the Executive in any capacity to the Company and GMC,
the Company agrees to pay to the Executive, and the Executive shall accept, a
salary at a rate of $155,397 per annum, payable in arrears in equal monthly
installments, subject to such deductions and withholdings as may be required by
law. During the fourth quarter of each year, the Company will review the salary
rate of the Executive, taking into consideration such factors as the Executive's
performance during the preceding year and such other matters as it deems
relevant and, in its sole discretion, may increase the salary of the Executive
for the following calendar year, to be effective from January 1 of such
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following year, to such rate and for such period of time as the Company deems
proper, provided that the Company shall in no event be required to grant or to
continue any such increase. However, in the event that any person or entity
acquires twenty percent (20%) or more of the outstanding equity stock of the
Company or GMC, who was not an owner of twenty percent of the equity stock of
either the Company (in the case of an acquisition of Company stock) or GMC (in
the case of an acquisition of GMC stock) prior to May 13, 1993, or in the event
that any person or entity acquires twenty percent (20%) or more of the assets of
either the Company or GMC who was not an owner of twenty percent of the assets
of either the Company (in the case of an acquisition of Company assets) or of
GMC (in the case of an acquisition of GMC assets) prior to September 16, 1996
then, subsequent to such acquisition of twenty percent stock or twenty percent
asset ownership of either the Company or GMC by any such person or entity: (1)
if for any calendar year a salary increase at least equal to the increase in the
U.S. City All-Items Consumer Price Index for Urban Wage Earners and Clerical
Workers during the previous twelve months, is not granted; or if (2) the
Executive's base salary is decreased at any time, then in either event the
Executive may in his sole discretion terminate this Agreement upon thirty days'
written notice given at any time during the calendar year for which no such
increase was granted, or during the twelve month period following any such
decrease in salary, and thereupon the Company and GMC shall be obligated to pay
the Executive the amounts, and provide the benefits, specified in Section 9.3 of
this Agreement.
5. BONUSES. The Company shall pay Executive bonuses subject
to The Executive Bonus Plan of Graham Corporation, as it may be amended from
time to time, or such other bonus plans or arrangements of Company as may be in
effect from time to time, as determined by the Company's Board of Directors or a
committee thereof.
6. BENEFITS. During the term of this Agreement, the Company
shall provide the following benefits to the Executive:
6.1 MEDICAL. The Company will provide the Executive
health coverage for himself and his family in accordance with the Graham
Manufacturing Co., Inc. Self Insured Medical/Dental Plan, as the same may be
amended from time to time, or in accordance with such other health coverage plan
as the Company may adopt.
6.2 VACATION. The Executive shall be entitled to 25
business days of paid vacation in calendar year 1996 with additional time to
accrue thereafter in accordance with the Company's vacation policy, as the same
may be in effect from time to time.
6.3 GENERAL BENEFITS. The Executive shall be entitled
to participate in all employee benefit plans and arrangements of the Company and
GMC that may from time to time be in effect and may from time to time be made
available to the executive officers of the Company and of GMC, subject to and on
a basis consistent with the terms, conditions and overall
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administration of such plans and arrangements. Nothing in this Section 6.3 shall
be construed to limit or restrict the complete discretion of the Board of
Directors of the Company or, as the case may be, the Board of Directors of GMC,
to amend, modify or terminate employee benefit or bonus plan or plans of the
Company or GMC where such action generally affects plan participants or
employees, including the Executive.
6.4 LIFE INSURANCE. (a) The Executive agrees that the
Company, in its discretion, may apply for and procure in its own name and for
its own benefit, life insurance on his life in any amount or amounts considered
advisable, and that he shall have no right, title or interest therein. The
employee further agrees to submit to any medical or other examination and to
execute and deliver any application or other instrument in writing, reasonably
necessary to effectuate such insurance, provided such actions do not harm the
Executive's ability to otherwise obtain or retain life insurance(s). (b) As soon
as practical following the termination of employment for any reason, the Company
and GMC will cause to be transferred, assigned or otherwise conveyed to the
Executive any right, title and interest that either may have in and to any life
insurance contract (other than any group-term life insurance contract) under
which the Executive's life is insured, including full rights of ownership in and
to the cash surrender value thereof (net of any loans obtained against such cash
surrender value), and the Executive shall assume all obligations for the payment
of any premiums which may become due with respect to such insurance contract
after the termination of employment.
7. USE OF AUTOMOBILE.
7.1
7.2 Notwithstanding the provisions of Section 7.1 (b)
above, the Executive represents that he now carries automobile liability
insurance, with respect to any automobile owned by him, for injuries to persons
and property.
8. EXPENSES. The Company shall pay or reimburse the
Executive for all reasonable and necessary traveling and other expenses incurred
or paid by the Executive in connection with the performance of his duties under
this Agreement upon presentation of expense statements or vouchers and such
other supporting information as it may from time to time request. However, the
amount available for such traveling and other expenses may be fixed in advance
by the Chairman, the President or Board of Directors of the Company.
9. TERMINATION. This Agreement shall terminate prior to the
Term expiration date, hereinabove set forth, in the event that the Executive
shall die or the Company shall determine that the Executive has become disabled,
or if the Executive shall be dismissed for cause or without cause, as
hereinafter provided.
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9.1 DISABILITY. The Company or GMC may determine that
the Executive has become disabled, for purposes of this Agreement, in the event
that the Executive shall fail, because of illness or incapacity, to render for
nine (9) successive months, or for shorter periods aggregating twelve (12)
months or more in any period of eighteen (18) months, services of the character
contemplated by this Agreement; and thereupon this Agreement and the employment
and all rights of the Executive hereunder shall be deemed to have been
terminated as of the end of the calendar month in which such determination was
made.
9.2 FOR CAUSE. The Company or GMC may dismiss the
Executive for cause in the event that it determines that there has been willful
misconduct by the Executive in connection with the performance of his duties
hereunder, or any other conduct on the part of the Executive which has been
materially injurious to the Company or GMC; and thereupon this Agreement and the
Employment shall terminate effective upon the delivery to the Executive of 90
day written notice that the Company Board or the GMC Board has made such
determination. For purposes of this Agreement, "Cause" shall be determined only
by a good faith finding thereof by the Company Board or the GMC Board, which
shall afford the Executive the opportunity to appear before it prior to
finalizing any such determination. If the Executive in good faith contests a
termination for cause by the Company or GMC, the Company and GMC will pay all
legal fees and other expenses incurred by the Executive, as the Executive is
billed for such costs, within ten (10) days of periodic submission to the
Company or GMC of statements of charges of attorneys and statements of other
expenses incurred by the Executive in connection with such challenge; the
Executive will reimburse the Company or GMC if it should be determined by a
court of final adjudication that the Executive did not act in good faith in
bringing such challenge.
9.3 WITHOUT CAUSE. The Company or GMC may dismiss the
Executive without cause at any time upon thirty (30) days notice to the
Executive. In the event the Company or GMC dismisses the Executive other than
for cause, or if the Executive resigns because of a material breach of this
Agreement by the Company or GMC, the Company or GMC shall thereupon pay to the
Executive (a) the compensation due him to the date of termination, plus (b) an
additional lump sum in an amount equal to twelve months' salary at the rate
specified in Section 4 hereinabove. At any time prior to the effective date of
termination of employment, the Executive may in writing elect to receive the
additional lump sum equal to twelve months' salary in monthly installments of up
to, but not to exceed, thirty-six (36) successive months. In addition, the
Company and GMC shall (a) provide the Executive with continuing health care
coverage, as described in Section 6.1 hereof, for a period of thirty-six (36)
months following the effective date of termination of employment; (b) shall pay
for, or in the Executive's sole discretion, reimburse the Executive as the
Executive is billed, within ten (10) days of periodic submission to the Company
or GMC of statements of charges, for outplacement services of the Executive's
choice until the sooner of (i) the Executive's commencement of employment with
another employer or (ii) thirty-six (36) months following the effective date of
termination of employment. In the event that the provisions of this Section 9.3
are triggered by discharge of the Executive without cause
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by one of the Company or GMC, the Executive shall resign from all offices and
directorships of the other entity and of all subsidiaries and affiliates of the
Company, upon payment to the Executive of the amount referred to in subsection
(a) of the second sentence of this Section 9.3, payment of the amount referred
to in subsection (b) of the second sentence of this Section 9.3 (or the first
installment thereof) and Accrued bonus, if any.
9.4 RETURN OF CONFIDENTIAL DOCUMENTATION. Upon
termination of employment for any reason whatsoever, the Executive shall return
to the Company all working papers, notebooks, strategic plans and other
confidential documents and information, in any form whatsoever.
10. COVENANTS OF EXECUTIVE
The Executive acknowledges that: (a) the business of
the Company and its affiliates, as currently conducted and as conducted from
time to time throughout the term of this Agreement (collectively, the
"Business"), is conducted by and is proposed to be conducted by the Company on a
world wide basis (the "Company's Market"); (b) the Business involves providing
design, engineering and manufacture of certain vacuum and heat transfer
equipment, including but not limited to steam condensers, steam jet ejectors,
shell and tube heat exchangers, plate and frame heat exchangers Heliflow heat
exchangers, liquid ring vacuum pumps and rotary piston pumps; (c) the Company
has developed trade secrets and confidential information concerning the
Business; and (d) the agreements and covenants contained in this Section 10 are
essential to protect the Business of the Company. In order to induce the Company
to enter into this Employment Agreement, the Executive covenants and agrees
that:
10.1 AGREEMENT NOT TO COMPETE. In the event that the
Executive resigns (for reasons other than a material breach of this Agreement by
the Company) or departs from the employ of the Company without the approval of
the Board of Directors or is discharged for cause, then for a period of twelve
(12) months after such resignation, departure or discharge (such period of time
hereinafter the "Restricted Period"), neither the Executive nor any entity of
which 20% or more of the beneficial ownership is held by the Executive or a
person related to the Executive by blood or marriage ("Controlled Entity") will,
anywhere in the Company's Market, directly or indirectly own, manage, operate,
control, invest or acquire an interest in, or herewise engage or participate in,
whether as a proprietor, partner, stockholder, director, officer or employee,
any business which competes in the Company's Market with the Business, without
the prior written consent of the Company. Notwithstanding any other provisions
of this Agreement, the Executive may make a passive investment in any
publicly-traded company or entity in an amount not to exceed 5% of the voting
stock of any such company or entity.
10.2 AGREEMENT NOT TO INTERFERE IN BUSINESS
RELATIONSHIPS. (a) During the Restricted Period, neither the Executive nor any
Controlled Entity will directly or indirectly
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solicit, induce or influence customer, or any other person which has a business
relationship with the Company or any affiliate, or which had on the date of this
Agreement such a relationship with the Company or any affiliate, to discontinue
or reduce the extent of such relationship with the Company or any affiliate in
the Company's Market without the prior written consent of the Company. (b)
During the Restricted Period, neither the Executive nor any Controlled Entity
will (i) directly or indirectly recruit, solicit or otherwise induce or
influence any shareholder or employee of the Company or any of its affiliates to
discontinue such employment or other relationship with the Company or any
affiliate without the prior written consent of the Company, or (ii) employ or
seek to employ, or cause or permit any Competitive Business which competes in
the Company's Markets to employ or seek to employ for any Competitive Business,
any person who is then (or was at any time within six months prior to the date
the Executive or the Competitive Business employs or seeks to employ such
person) employed by the Company or any affiliate without the prior written
consent of the Company. Nothing herein shall prevent the Executive from
providing a letter of recommendation to an Employee with respect to a future
employment opportunity, nor prohibit the Executive from making general
employment advertisements in mass-circulation newspapers or other mass media.
10.3 CONFIDENTIALITY. During the Restricted Period,
neither the Executive nor any Controlled Entity will directly or indirectly
disclose to anyone, or use or otherwise exploit for the Executive's or any
Controlled Entity's own benefit or for the benefit of anyone other than the
Company, any confidential information, including, without limitation, any
confidential "know-how", trade secrets, customer lists, details of customer
contracts, pricing policies, operational methods, marketing plans or strategies,
product development techniques or plans, business acquisition plans and new
personnel acquisition plans of the Company or any affiliate related to the
Business or any portion or phase of any scientific, engineering or technical
information, design, process, procedure, formula, improvement, discovery,
invention, machinery or device of the Company or any affiliate that is not
generally known to the competitors of the Company whether or not in written or
tangible form (hereinafter referred to as "Confidential Information"). The term
"Confidential Information" does not include, and there shall be no obligation
hereunder with respect to, information that becomes generally available to the
public other than as a result of a disclosure by the Executive or a Controlled
Entity or any agent or other representative thereof. Neither the Executive nor
any Controlled Entity shall have any obligation hereunder to keep confidential
any Confidential Information to the extent disclosure is required by law, or
determined in good faith by the Executive to be necessary or appropriate to
comply with any legal or regulatory order, regulation or requirement; provided,
however, that in the event disclosure is required by law, the Executive or the
Controlled Entity concerned shall provide the Company with prompt notice of such
requirement so that the Company may seek an appropriate protective order. It is
understood that in any new employment, the Executive may use his ordinary skill
and non-confidential knowledge, even though said skill and non-confidential
knowledge may have been gained at the Company. The Executive's obligations under
this Section 10.3 shall be in addition to, not in substitution for, any common
law fiduciary duties the Executive has to the Company or
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GMC regarding information acquired during the course of his employment.
10.4 INTELLECTUAL PROPERTY. The Executive shall
communicate to the Company full information concerning all inventions,
improvements, discoveries, formulas, processes, systems of organization,
management procedures, software or computer applications (hereinafter,
collectively, "Intellectual Property") made or conceived by him either solely or
jointly with others while in the employ of the Company, whether or not perfected
during his period of employment and which shall be within the existing or
contemplated scope of the Company's business during his employment. The
Executive will assist the Company and its nominees in every way at the Company's
expense in obtaining patents for such Intellectual Property as may be patentable
in any and all countries and the Executive will execute all papers the Company
may desire and assignments thereof to the Company or its nominees and said
Intellectual Property shall be and remain the property of the Company and its
nominees, if any, whether patented or not or assigned or not.
10.5 SURVIVAL OF COVENANTS. In the event of a
termination of this Agreement, the covenants and agreements contained in this
Section 10 shall survive, shall continue thereafter, and shall not expire unless
and except as expressly set forth in such Section.
10.6 REMEDIES. The parties to this Agreement agree
that (a) if either the Executive or any Controlled Entity breaches any provision
of this Section 10, the damage to the Company and its affiliates will be
substantial, although difficult to ascertain, and money damages will not afford
an adequate remedy, and (b) if either the Executive or any Controlled Entity is
in breach of this Agreement, or threatens a breach of this Agreement, the
Company shall be entitled in its own right and/or on behalf of one or more of
its affiliates, in addition to all other rights and remedies as may be available
at law or in equity, to (i) injunctive and other equitable relief to prevent or
restrain a breach of this Agreement and (ii) may require the breaching party to
pay damages as the result of any transactions constituting a breach hereof.
11. INDEMNIFICATION OF EXECUTIVE. In the event the Employment
is terminated for any reason, (a) the Company will hold harmless and indemnify
the Executive for all acts or omissions and for any suits it has at law or in
equity, claims, actions or other proceedings against the Executive initiated
either prior to the termination of employment or thereafter which relate to
duties performed in good faith by the Executive while employed by the Company;
and (b) The Company will retain the Executive as named insured under any
directors' and officers' insurance policies it may have, for acts of the
Executive during the time he served as an officer of the Company and GMC.
Additionally, all legal and other costs incurred by the Executive to defend
himself will be paid by the Company, as the Executive is billed for such costs,
within ten (10) days of periodic submission to the Company or GMC of statements
of charges of attorneys and statements of other expenses incurred by the
Executive in connection with such defense.
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12. EFFECT OF WAIVER. The waiver by either party of a breach
of any provision of this Agreement shall not operate as or be construed as a
waiver of any subsequent breach thereof.
13. NOTICE. Any and all notices provided for herein shall be
in writing and shall be physically delivered or mailed by registered or
certified mail, return receipt requested to the parties at their respective
addresses set forth hereinabove. Either party may from time to time designate a
different address for notices to be sent to such party by giving the other party
due notice of such different address.
14. VALIDITY. If any part of this Agreement shall be found
to be invalid or unenforceable, the same shall be deemed to be severable and
the remaining portions of this Agreement shall remain in full force and
effect.
15. MODIFICATION AND ASSIGNMENT. This Agreement shall not be
modified or amended except by an instrument in writing signed by the parties
hereto. This Agreement and all of its terms and conditions shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns, including but not limited
to any corporation or other entity with or into which the Company is merged or
consolidated or any other successor of the Company. The Executive agrees that
he will not and may not assign, transfer or convey, pledge or encumber this
Agreement or his right, title or interest therein, or his power to execute the
same or any monies due or to become due hereunder, this Agreement being
intended to secure the personal services of the Executive, and the Company
shall not recognize any such assignment, transfer, conveyance, pledge or
encumbrance.
16. APPLICABLE LAW. This agreement and the rights and
obligations of the parties hereunder shall be construed and interpreted in
accordance with the laws of the State of New York, without giving effect to the
conflict of laws provisions thereof.
17. PRIOR AGREEMENTS. This Agreement shall supersede any prior
employment agreement between the Company and the Executive and shall be
effective from the date specified hereinabove, PROVIDED, HOWEVER, that the
Senior Executive Severance Agreement between the Company and the Executive as
approved by the Board of Directors of the Company at its meeting on [DATE], as
the same may from time to time be amended, shall remain in full force and effect
and all obligations of either the Company or the Executive under the Senior
Executive Severance Agreement are and shall be deemed separate and independent
obligations in addition to any obligations created by this Agreement.
18. BUSINESS COMBINATIONS. In the event of any sale, merger or
any form of business combination affecting the Company or GMC whatsoever, the
Company and GMC will obtain the express written assumption of this Agreement by
the acquiring or surviving entity from such combination, and failure of the
Company and GMC to obtain such an assumption will
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constitute a breach of this Agreement, entitling the Executive to all payments
and other benefits to be provided in the event of termination without cause
provided in Section 9.3 hereof.
19. HEADINGS. This section headings of this Agreement are for
convenience of reference only and are not to be considered in the interpretation
of the terms and conditions of this Agreement.
20. INVALIDITY OR UNENFORCEABILITY. If any term or provision
of this Agreement is held to be invalid or unenforceable, for any reason, such
invalidity or unenforceability shall not affect any other term or provision
hereof and this Agreement shall continue in full force and effect as if such
invalid or unenforceable term or provision (to the extent of the invalidity or
unenforceability) had not been contained herein. If any court determines that
any provision of Section 10 hereof is unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the scope or duration of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
21. COUNTERPARTS. This agreement may be executed in any number
of counterparts, each of which for all purposes shall be deemed to be an
original.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the day and year first above written.
(Corporate Seal)
GRAHAM CORPORATION
By /s/ F.D. Berkeley
---------------------------------
Chairman, President & Chief Executive Officer
(Corporate Seal) GRAHAM MANUFACTURING CO., INC.
By /s/ F.D. Berkeley
----------------------------------
President
/s/ A. Cadena
----------------------------------
ALVARO CADENA
Attest: /s/ Christine Jean Sabatino
----------------------------
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STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 27th day of September, 1996, before me
personally came F. D. Berkeley, to me known, who, being by me duly sworn, did
depose and say that he resides at 50 Old Mill Road, Rochester, New York; that he
is Chairman, President and Chief Executive Officer of Graham Corporation
described in and which executed the attached instrument; that he knows the seal
of said corporation and that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authorizations of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
/s/ Carole M. Anderson
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 27th day of September, 1996, before me
personally came Alvaro Cadena, to me known, who, being by me duly sworn, did
depose and say that he resides at 4 LePere Drive, Pittsford, New York; that he
is President of Graham Manufacturing Co., Inc. described in and which executed
the attached instrument; that he knows the seal of said corporation and that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authorizations of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Carole M. Anderson
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 27th day of September, 1996, before me
personally came ALVARO CADENA, to me known to be the person described in and who
executed the attached instrument and acknowledged that he executed the same.
/s/ Christine Jean Sabatino
---------------------------------
Notary Public
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EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made and entered into as of May 13, 1993, by and among
Graham Corporation, a Delaware corporation with offices at 20 Florence Avenue,
Batavia, New York 14020 (the "Company"), Graham Manufacturing Co., Inc., a New
York corporation with offices at 20 Florence Avenue, Batavia, New York 14020
("GMC"), and J. Ronald Hansen, currently residing at 109 Central Avenue,
Fredonia, New York 14063 (the "Executive").
The parties hereto, intending to be legally bound hereby, and in
consideration of the mutual covenants herein contained, agree as follows:
1. EMPLOYMENT.
(a) The Company hereby employs the Executive and the Executive hereby
accepts employment (such employment, together with the Executive's employment
with GMC hereunder, the "Employment"), as Vice President-Finance and Chief
Financial Officer of the Company and GMC hereby employs the Executive and the
Executive hereby accepts employment as Vice President-Finance of the Company's
subsidiary, GMC, upon the terms and conditions hereinafter set forth. Failure in
any year of either the Company Board at its Annual Meeting to elect the
Executive to the offices of Vice President-Finance and Chief Financial Officer,
or of the Board of Directors of GMC ("GMC Board") at its Annual Meeting to elect
the Executive to the office of Vice President-Finance, shall constitute
termination of the Executive's employment without cause for purposes of this
Agreement.
(b) The Company and GMC shall allocate between themselves all expenses
of the Executive's employment pursuant to this Agreement.
(c) Except as otherwise specifically provided herein, all obligations
of the Company referred to herein shall be joint and several obligations of the
Company and GMC.
2. DUTIES. The Executive is engaged as Vice President-Finance and Chief
Financial Officer of the Company and Vice President-Finance of GMC. The
Executive shall have authority and responsibility for the financial operation
and management, on a day to day basis, of the Company and its related entities
and GMC, and shall perform such duties consistent with Executive's title as may
from time to time be required of Executive by the Board of Directors of Graham
Corporation (the "Board"), or by the Chairman, President and Chief Executive
Officer of the Company, to whom Executive shall be directly responsible. In his
capacity as Vice President-Finance of GMC, the Executive shall also report to
the President of GMC. The Executive's office shall be at the Company's
headquarters office in, or within a reasonable commuting distance of Batavia,
New York. The Executive agrees to travel to the extent reasonably necessary for
the performance of his duties hereunder. The Executive shall devote his full
business time to the business and affairs of the Company and GMC (to be
allocated between
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them as the Company may determine) and shall use his best efforts, skill and
ability in performing his duties on behalf of the Company and GMC.
3. TERM.
(a) Except as otherwise provided in this Agreement to the contrary, the
terms and conditions of this Agreement shall be and remain in effect during the
period of employment ("Term") established under this Section 3. The Term shall
be for a term of five (5) years commencing on May 13, 1993, plus such
extensions, if any, as are provided pursuant to Section 3(b).
(b) Except as provided in Section 3(c), beginning on the fourth
anniversary of the date of this Agreement, the Term shall be automatically
extended for one (1) additional day each day, unless either the Company and GMC,
or the Executive, elects not to extend the Term further by giving written notice
to the other party, in which case the Term shall end on the later of (i) the
fifth anniversary of the date of this Agreement, or (ii) the first anniversary
of the date on which such written notice is given; provided, however, that in
any event, the Term shall end on the last day of the month in which the
Executive attains age sixty-five (65). Upon termination of the Executive's
employment with the Company or GMC for any reason whatsoever, any daily
extensions provided pursuant to this Section 3, if not theretofore discontinued,
shall cease and the remaining unexpired Term under this Agreement shall be a
fixed period ending on the later of the fifth anniversary of the date of this
Agreement or the first anniversary of the date on which the daily extensions
were discontinued.
(c) Notwithstanding anything herein contained to the contrary: (i) the
Executive's employment with the Holding Company or GMC may be terminated during
the Term, subject to the terms and conditions of this Agreement; and (ii)
nothing in this Agreement shall mandate or prohibit a continuation of the
Executive's employment following the expiration of the Term upon such terms and
conditions as the Company and the Executive may mutually agree upon.
4. BASE COMPENSATION. As the base compensation for all services to be
rendered by the Executive in any capacity to the Company and GMC, the Company
agrees to pay to the Executive, and the Executive shall accept, a salary at a
rate of $105,000 per annum, payable in arrears in equal monthly installments,
subject to such deductions and withholdings as may be required by law. During
the fourth quarter of each year, the Company will review the salary rate of the
Executive, taking into consideration such factors as the Executive's performance
during the preceding year and such other matters as it deems relevant and, in
its sole discretion, may increase the salary of the Executive for the following
calendar year, to be effective from January 1 of such following year, to such
rate and for such period of time as the Company deems proper, provided that the
Company shall in no event be required to grant or to continue any such increase.
However, in the event that any person or entity acquires twenty percent (20%) or
more of the outstanding equity stock of the Company or GMC, who was not an owner
of twenty percent of
15
-3-
the equity stock of either the Company (in the case of an acquisition of Company
stock) or GMC (in the case of an acquisition of GMC stock) prior to May 13,
1993, or in the event that any person or entity acquires twenty percent (20%) or
more of the assets of either the Company or GMC who was not an owner of twenty
percent of the assets of either the Company (in the case of an acquisition of
Company assets) or of GMC (in the case of an acquisition of GMC assets) prior to
May 13, 1993 then, subsequent to such acquisition of twenty percent stock or
twenty percent asset ownership of either the Company or GMC by any such person
or entity: (1) if for any calendar year a salary increase at least equal to the
increase in the U.S. City All-Items Consumer Price Index for Urban Wage Earners
and Clerical Workers during the previous twelve months, is not granted; or if
(2) the Executive's base salary is decreased at any time, then in either event
the Executive may in his sole discretion terminate this Agreement upon thirty
days' written notice given at any time during the calendar year for which no
such increase was granted, or during the twelve month period following any such
decrease in salary, and thereupon the Company and GMC shall be obligated to pay
the Executive the amounts, and provide the benefits, specified in Section 9.3 of
this Agreement.
5. BONUSES. The Company shall pay Executive bonuses subject to The
Executive Bonus Plan of Graham Corporation, as it may be amended from time to
time, or such other bonus plans or arrangements of Company as may be in effect
from time to time, as determined by the Company's Board of Directors or a
committee thereof.
6. BENEFITS. During the term of this Agreement, the Company shall provide
the following benefits to the Executive:
6.1 MEDICAL. The Company will provide the Executive health coverage for
himself and his family in accordance with the Graham Manufacturing Co., Inc.
Self Insured Medical/Dental Plan, as the same may be amended from time to time,
or in accordance with such other health coverage plan as the Company may adopt.
6.2 VACATION. The Executive shall be entitled to five (5) business days
of paid vacation in the period from September 1 through November 30, 1993,
fifteen (15) business days in calendar year 1994 and twenty (20) business days
each calendar year thereafter, with additional time to accrue in accordance with
the Company's vacation policy, as the same may be in effect from time to time.
6.3 RELOCATION. The Executive's relocation expenses in moving from 109
Central Avenue, Fredonia, New York to the Batavia, New York area will be paid by
the Company pursuant to the relocation policy of Graham Manufacturing Co., Inc.
for new employees.
6.4 GENERAL BENEFITS. The Executive shall be entitled to participate in
all employee benefit plans and arrangements of the Company and GMC that may from
time to time be in effect and may from time to time be made available to the
executive officers of the Company and of GMC, subject to and on a basis
consistent with the terms, conditions and overall
16
-4-
administration of such plans and arrangements. Nothing in this Section 6.4 shall
be construed to limit or restrict the complete discretion of the Board of
Directors of the Company or, as the case may be, the Board of Directors of GMC,
to amend, modify or terminate employee benefit or bonus plan or plans of the
Company or GMC where such action generally affects plan participants or
employees, including the Executive.
6.5 LIFE INSURANCE. (a) The Executive agrees that the Company, in its
discretion, may apply for and procure in its own name and for its own benefit,
life insurance on his life in any amount or amounts considered advisable, and
that he shall have no right, title or interest therein. The employee further
agrees to submit to any medical or other examination and to execute and deliver
any application or other instrument in writing, reasonably necessary to
effectuate such insurance, provided such actions do not harm the Executive's
ability to otherwise obtain or retain life insurance(s). (b) As soon as
practical following the termination of employment for any reason except for
cause, the Company and GMC will cause to be transferred, assigned or otherwise
conveyed to the Executive any right, title and interest that either may have in
and to any life insurance contract (other than any group-term life insurance
contract) under which the Executive's life is insured, including full rights of
ownership in and to the cash surrender value thereof (net of any loans obtained
against such cash surrender value), and the Executive shall assume all
obligations for the payment of any premiums which may become due with respect to
such insurance contract after the termination of employment.
7. USE OF AUTOMOBILE.
7.1 The Company shall, at its expense, provide the Executive with an
automobile of the Executive's choice for use by the Executive in performance of
his duties under this Agreement, provided that the annual lease payments made by
the Company on such automobile shall not exceed in any year seven percent (7%)
of the Executive's annual base salary for such year. The Company shall pay or
reimburse the Executive for all reasonable and necessary expenses of maintenance
and operation of such automobile incurred or paid for by the Executive, and
shall obtain, and include the name of the Executive as one of the assureds
under, a liability insurance policy for injuries to persons and property caused
by the operation of such automobile. At the end of the term of any automobile
lease entered into by the Company pursuant to this Section 7.1, the Company may,
in its discretion, either (a) lease a new automobile for the Executive's use; or
(b) provide the Executive with the continued use of the same automobile, at the
Company's expense. In the event the Company elects to do neither, the Company
shall permit the Executive to purchase the automobile from the lessor.
7.2 Notwithstanding the provisions of Section 7.1 (b) above, the
Executive represents that he now carries automobile liability insurance, with
respect to any automobile owned by him, for injuries to persons and property.
8. EXPENSES. The Company shall pay or reimburse the Executive for all
reasonable and necessary traveling and other expenses incurred or paid by the
Executive in
17
-5-
connection with the performance of his duties under this Agreement upon
presentation of expense statements or vouchers and such other supporting
information as it may from time to time request. However, the amount available
for such traveling and other expenses may be fixed in advance by the Chairman,
the President or Board of Directors of the Company.
9. TERMINATION. This Agreement shall terminate prior to the Term expiration
date, hereinabove set forth, in the event that the Executive shall die or the
Company shall determine that the Executive has become disabled, or if the
Executive shall be dismissed for cause or without cause, as hereinafter
provided.
9.1 DISABILITY. The Company or GMC may determine that the Executive has
become disabled, for purposes of this Agreement, in the event that the Executive
shall fail, because of illness or incapacity, to render for nine (9) successive
months, or for shorter periods aggregating twelve (12) months or more in any
period of eighteen (18) months, services of the character contemplated by this
Agreement; and thereupon this Agreement and the employment and all rights of the
Executive hereunder shall be deemed to have been terminated as of the end of the
calendar month in which such determination was made.
9.2 FOR CAUSE. The Company or GMC may dismiss the Executive for cause
in the event that it determines that there has been willful misconduct by the
Executive in connection with the performance of his duties hereunder, or any
other conduct on the part of the Executive which has been materially injurious
to the Company or GMC; and thereupon this Agreement and the Employment shall
terminate effective upon the delivery to the Executive of 90 day written notice
that the Company Board or the GMC Board has made such determination. For
purposes of this Agreement, "Cause" shall be determined only by a good faith
finding thereof by the Company Board or the GMC Board, which shall afford the
Executive the opportunity to appear before it prior to finalizing any such
determination. If the Executive in good faith contests a termination for cause
by the Company or GMC, the Company and GMC will pay all legal fees and other
expenses incurred by the Executive, as the Executive is billed for such costs,
within ten (10) days of periodic submission to the Company or GMC of statements
of charges of attorneys and statements of other expenses incurred by the
Executive in connection with such challenge; the Executive will reimburse the
Company or GMC if it should be determined by a court of final adjudication that
the Executive did not act in good faith in bringing such challenge.
9.3 WITHOUT CAUSE. The Company or GMC may dismiss the Executive without
cause at any time upon thirty (30) days notice to the Executive. In the event
the Company or GMC dismisses the Executive other than for cause, or if the
Executive resigns because of a material breach of this Agreement by the Company
or GMC, the Company or GMC shall thereupon pay to the Executive (a) the
compensation due him to the date of termination, plus (b) an additional lump sum
in an amount equal to twelve months' salary at the rate specified in Section 4
hereinabove. At any time prior to the effective date of termination of
employment, the Executive may in writing elect to receive the additional lump
sum equal to twelve months' salary in monthly installments of up to, but not to
exceed, thirty-six (36) successive months. In addition,
18
-6-
the Company and GMC shall (a) provide the Executive with continuing health care
coverage, as described in Section 6.1 hereof, for a period of thirty-six (36)
months following the effective date of termination of employment; (b) shall pay
for, or in the Executive's sole discretion, reimburse the Executive as the
Executive is billed, within ten (10) days of periodic submission to the Company
or GMC of statements of charges, for outplacement services of the Executive's
choice until the sooner of (i) the Executive's commencement of employment with
another employer or (ii) thirty-six (36) months following the effective date of
termination of employment; and (c) shall assign to the Executive its interest in
the automobile lease in force at the time of termination of employment and shall
reimburse the Executive for each remaining lease payment thereafter, within ten
(10) days of the due date of each remaining lease payment; or in the event that
termination of employment occurs following the expiration of automobile lease
and prior to the Company or GMC extending such lease or leasing a new automobile
for the Executive, the Company or GMC, if either then owns the automobile,
shall, at the election of the Executive, sell the automobile to the Executive
for the value for such automobile stated in the then-current edition of the NADA
Official Used Car Guide for Domestic and Imported Cars and Trucks. In the event
that the provisions of this Section 9.3 are triggered by discharge of the
Executive without cause by one of the Company or GMC, the Executive shall resign
from all offices and directorships of the other entity and of all subsidiaries
and affiliates of the Company, upon payment to the Executive of the amounts
referred to in the second sentence of this Section 9.3, and the performance by
the Company and GMC of their obligations pursuant to the fourth sentence,
subsections (c) and (d), of this Section 9.3.
9.4 RETURN OF CONFIDENTIAL DOCUMENTATION. Upon termination of
employment for any reason whatsoever, the Executive shall return to the Company
all working papers, notebooks, strategic plans and other confidential documents
and information, in any form whatsoever.
10. COVENANTS OF EXECUTIVE
The Executive acknowledges that: (a) the business of the Company and
its affiliates, as currently conducted and as conducted from time to time
throughout the term of this Agreement (collectively, the "Business"), is
conducted by and is proposed to be conducted by the Company on a world wide
basis (the "Company's Market"); (b) the Business involves providing design,
engineering and manufacture of certain vacuum and heat transfer equipment,
including but not limited to steam condensers, steam jet ejectors, shell and
tube heat exchangers, plate and frame heat exchangers, Heliflow heat exchangers,
liquid ring vacuum pumps and rotary piston pumps; (c) the Company has developed
trade secrets and confidential information concerning the Business; and (d) the
agreements and covenants contained in this Section 10 are essential to protect
the Business of the Company. In order to induce the Company to enter into this
Employment Agreement, the Executive covenants and agrees that:
10.1 AGREEMENT NOT TO COMPETE. In the event that the Executive resigns
(for reasons other than a material breach of this Agreement by the Company) or
departs from the
19
-7-
employ of the Company without the approval of the Board of Directors or is
discharged for cause, then for a period of twelve (12) months after such
resignation, departure or discharge (such period of time hereinafter the
"Restricted Period"), neither the Executive nor any entity of which 20% or more
of the beneficial ownership is held by the Executive or a person related to the
Executive by blood or marriage ("Controlled Entity") will, anywhere in the
Company's Market, directly or indirectly own, manage, operate, control, invest
or acquire an interest in, or herewise engage or participate in, whether as a
proprietor, partner, stockholder, director, officer or employee, any business
which competes in the Company's Market with the Business, without the prior
written consent of the Company. Notwithstanding any other provisions of this
Agreement, the Executive may make a passive investment in any publicly-traded
company or entity in an amount not to exceed 5% of the voting stock of any such
company or entity.
10.2 AGREEMENT NOT TO INTERFERE IN BUSINESS RELATIONSHIPS. (a) During
the Restricted Period, neither the Executive nor any Controlled Entity will
directly or indirectly solicit, induce or influence customer, or any other
person which has a business relationship with the Company or any affiliate, or
which had on the date of this Agreement such a relationship with the Company or
any affiliate, to discontinue or reduce the extent of such relationship with the
Company or any affiliate in the Company's Market without the prior written
consent of the Company. (b) During the Restricted Period, neither the Executive
nor any Controlled Entity will (i) directly or indirectly recruit, solicit or
otherwise induce or influence any shareholder or employee of the Company or any
of its affiliates to discontinue such employment or other relationship with the
Company or any affiliate without the prior written consent of the Company, or
(ii) employ or seek to employ, or cause or permit any Competitive Business which
competes in the Company's Markets to employ or seek to employ for any
Competitive Business, any person who is then (or was at any time within six
months prior to the date the Executive or the Competitive Business employs or
seeks to employ such person) employed by the Company or any affiliate without
the prior written consent of the Company. Nothing herein shall prevent the
Executive from providing a letter of recommendation to an Employee with respect
to a future employment opportunity, nor prohibit the Executive from making
general employment advertisements in mass-circulation newspapers or other mass
media.
10.3 CONFIDENTIALITY. During the Restricted Period, neither the
Executive nor any Controlled Entity will directly or indirectly disclose to
anyone, or use or otherwise exploit for the Executive's or any Controlled
Entity's own benefit or for the benefit of anyone other than the Company, any
confidential information, including, without limitation, any confidential
"know-how", trade secrets, customer lists, details of customer contracts,
pricing policies, operational methods, marketing plans or strategies, product
development techniques or plans, business acquisition plans and new personnel
acquisition plans of the Company or any affiliate related to the Business or any
portion or phase of any scientific, engineering or technical information,
design, process, procedure, formula, improvement, discovery, invention,
machinery or device of the Company or any affiliate that is not generally known
to the competitors of the Company whether or not in written or tangible form
(hereinafter referred to as "Confidential Information"). The term "Confidential
Information" does not include, and there shall be no obligation hereunder
20
-8-
with respect to, information that becomes generally available to the public
other than as a result of a disclosure by the Executive or a Controlled Entity
or any agent or other representative thereof. Neither the Executive nor any
Controlled Entity shall have any obligation hereunder to keep confidential any
Confidential Information to the extent disclosure is required by law, or
determined in good faith by the Executive to be necessary or appropriate to
comply with any legal or regulatory order, regulation or requirement; provided,
however, that in the event disclosure is required by law, the Executive or the
Controlled Entity concerned shall provide the Company with prompt notice of such
requirement so that the Company may seek an appropriate protective order. It is
understood that in any new employment, the Executive may use his ordinary skill
and non- confidential knowledge, even though said skill and non-confidential
knowledge may have been gained at the Company. The Executive's obligations under
this Section 10.3 shall be in addition to, not in substitution for, any common
law fiduciary duties the Executive has to the Company or GMC regarding
information acquired during the course of his employment.
10.4 INTELLECTUAL PROPERTY. The Executive shall communicate to the
Company full information concerning all inventions, improvements, discoveries,
formulas, processes, systems of organization, management procedures, software or
computer applications (hereinafter, collectively, "Intellectual Property") made
or conceived by him either solely or jointly with others while in the employ of
the Company, whether or not perfected during his period of employment and which
shall be within the existing or contemplated scope of the Company's business
during his employment. The Executive will assist the Company and its nominees in
every way at the Company's expense in obtaining patents for such Intellectual
Property as may be patentable in any and all countries and the Executive will
execute all papers the Company may desire and assignments thereof to the Company
or its nominees and said Intellectual Property shall be and remain the property
of the Company and its nominees, if any, whether patented or not or assigned or
not.
10.5 SURVIVAL OF COVENANTS. In the event of a termination of this
Agreement, the covenants and agreements contained in this Section 10 shall
survive, shall continue thereafter, and shall not expire unless and except as
expressly set forth in such Section.
10.6 REMEDIES. The parties to this Agreement agree that (a) if either
the Executive or any Controlled Entity breaches any provision of this Section
10, the damage to the Company and its affiliates will be substantial, although
difficult to ascertain, and money damages will not afford an adequate remedy,
and (b) if either the Executive or any Controlled Entity is in breach of this
Agreement, or threatens a breach of this Agreement, the Company shall be
entitled in its own right and/or on behalf of one or more of its affiliates, in
addition to all other rights and remedies as may be available at law or in
equity, to (i) injunctive and other equitable relief to prevent or restrain a
breach of this Agreement and (ii) may require the breaching party to pay damages
as the result of any transactions constituting a breach hereof.
11. INDEMNIFICATION OF EXECUTIVE. In the event the Employment is terminated
for any reason, (a) the Company will hold harmless and indemnify the Executive
for all acts or
21
-9-
omissions and for any suits it has at law or in equity, claims, actions or other
proceedings against the Executive initiated either prior to the termination of
employment or thereafter which relate to duties performed in good faith by the
Executive while employed by the Company; and (b) The Company will retain the
Executive as named insured under any directors' and officers' insurance policies
it may have, for acts of the Executive during the time he served as an officer
of the Company and GMC. Additionally, all legal and other costs incurred by the
Executive to defend himself will be paid by the Company, as the Executive is
billed for such costs, within ten (10) days of periodic submission to the
Company or GMC of statements of charges of attorneys and statements of other
expenses incurred by the Executive in connection with such defense.
12. EFFECT OF WAIVER. The waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed as a waiver of
any subsequent breach thereof.
13. NOTICE. Any and all notices provided for herein shall be in writing and
shall be physically delivered or mailed by registered or certified mail, return
receipt requested to the parties at their respective addresses set forth
hereinabove. Either party may from time to time designate a different address
for notices to be sent to such party by giving the other party due notice of
such different address.
14. VALIDITY. If any part of this Agreement shall be found to be invalid or
unenforceable, the same shall be deemed to be severable and the remaining
portions of this Agreement shall remain in full force and effect.
15. MODIFICATION AND ASSIGNMENT. This Agreement shall not be modified or
amended except by an instrument in writing signed by the parties hereto. This
Agreement and all of its terms and conditions shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns, including but not limited to any
corporation or other entity with or into which the Company is merged or
consolidated or any other successor of the Company. The Executive agrees that he
will not and may not assign, transfer or convey, pledge or encumber this
Agreement or his right, title or interest therein, or his power to execute the
same or any monies due or to become due hereunder, this Agreement being intended
to secure the personal services of the Executive, and the Company shall not
recognize any such assignment, transfer, conveyance, pledge or encumbrance.
16. APPLICABLE LAW. This agreement and the rights and obligations of the
parties hereunder shall be construed and interpreted in accordance with the laws
of the State of New York, without giving effect to the conflict of laws
provisions thereof.
17. PRIOR AGREEMENTS. This Agreement shall supersede any prior employment
agreement between the Company and the Executive and shall be effective from the
date specified hereinabove, PROVIDED, HOWEVER, that the Senior Executive
Severance Agreement between the Company and the Executive as approved by the
Board of Directors of the Company at its meeting on May 13, 1993, as the same
may from time to time be amended, shall remain in full force and
22
-10-
effect and all obligations of either the Company or the Executive under the
Senior Executive Severance Agreement are and shall be deemed separate and
independent obligations in addition to any obligations created by this
Agreement.
18. BUSINESS COMBINATIONS. In the event of any sale, merger or any form of
business combination affecting the Company or GMC whatsoever, the Company and
GMC will obtain the express written assumption of this Agreement by the
acquiring or surviving entity from such combination, and failure of the Company
and GMC to obtain such an assumption will constitute a breach of this Agreement,
entitling the Executive to all payments and other benefits to be provided in the
event of termination without cause provided in Section 9.3 hereof.
19. HEADINGS. This section headings of this Agreement are for convenience
of reference only and are not to be considered in the interpretation of the
terms and conditions of this Agreement.
20. INVALIDITY OR UNENFORCEABILITY. If any term or provision of this
Agreement is held to be invalid or unenforceable, for any reason, such
invalidity or unenforceability shall not affect any other term or provision
hereof and this Agreement shall continue in full force and effect as if such
invalid or unenforceable term or provision (to the extent of the invalidity or
unenforceability) had not been contained herein. If any court determines that
any provision of Section 10 hereof is unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the scope or duration of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
21. COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which for all purposes shall be deemed to be an original.
23
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IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the day and year first above written.
(Corporate Seal)
GRAHAM CORPORATION
/s/ F.D. Berkeley
-----------------------------------
By Chairman, President &
Chief Executive Officer
(Corporate Seal) GRAHAM MANUFACTURING CO., INC.
/s/ A. Cadena
-----------------------------------
By President
/s/ J. Ronald Hansen
-----------------------------------
J. Ronald Hansen
Attest: /s/ Carole M. Anderson
--------------------------
24
-12-
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 1st day of December, 1993, before me personally came F. D. Berkeley
to me known, who, being by me duly sworn, did depose and say that he resides at
50 Old Mill Road, Rochester, New York; that he is Chairman, President & Chief
Executive Officer of Graham Corporation described in and which executed the
attached instrument; that he knows the seal of said corporation and that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authorizations of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Carole M. Anderson
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 1st day of December, 1993, before me personally came Alvaro Cadena,
to me known, who, being by me duly sworn, did depose and say that he resides at
4 LePere Drive, Pittsford, New York; that he is President of Graham
Manufacturing Co., Inc. described in and which executed the attached instrument;
that he knows the seal of said corporation and that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authorizations of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
/s/ Carole M. Anderson
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 1st day of December, 1993, before me personally came J. Ronald
Hansen, to me known to be the person described in and who executed the attached
instrument and acknowledged that he executed the same.
/s/ Carole M. Anderson
---------------------------------
Notary Public
25
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
ENTERED INTO AS OF MAY 13, 1993 AMONG GRAHAM CORPORATION,
GRAHAM MANUFACTURING CO., INC. AND J. RONALD HANSEN
THIS AMENDMENT, is made and entered into as of September 26,
1996, by and among Graham Corporation, a Delaware corporation with offices at 20
Florence Avenue, Batavia, New York 14020 (the "Company"), Graham Manufacturing
Co., Inc., a New York corporation with offices at 20 Florence Avenue, Batavia,
New York 14020 ("GMC"), and J. Ronald Hansen currently residing at 9295 Fargo
Road, Stafford, New York 14143 (the "Executive").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company and GMC have entered into an Employment
Agreement with the Executive entered into as of May 13, 1993 (the "Employment
Agreement"); and
WHEREAS, the Company, GMC and the Executive wish to amend
certain provisions of the Employment Agreement;
NOW, THEREFORE, the Company, GMC and the Executive, intending
to be legally bound hereby, agree as follows:
1. The final sentence of Section 2 of the Employment
Agreement be and hereby is amended to read in its entirety as follows:
"The Executive shall devote his full time during the Company's
or GMC's hours of work to the business and affairs of the
Company and GMC (to be allocated between them as the Company
may determine) and shall use his best efforts, skill and
ability in performing his duties on behalf of the Company and
GMC."
2. Section 4 of the Employment Agreement be and hereby is
amended to read in its entirety as follows:
"4. BASE COMPENSATION. As the base compensation for all
services to be rendered by the Executive in any capacity to
the Company and GMC, the Company and GMC agree to pay to the
Executive, and the Executive shall accept, a salary at a rate
of $117,374 per annum, payable in arrears in equal monthly
installments, subject to such deductions and withholdings as
may be required by law. During the fourth quarter of each
year, the Company and GMC will review the salary rate
26
-2-
of the Executive, taking into consideration such factors as
the Executive's performance during the preceding year and such
other matters as they deem relevant and, in their discretion
alone, may increase the salary of the Executive for the
following calendar year, to be effective from January 1 of
such following year, to such rate and for such period of time
as the Company and GMC deems proper, provided that the Company
and GMC shall in no event be required to grant any such
increase. However, in the event that any person or entity
acquires twenty percent (20%) or more of the outstanding
equity stock of the Company or GMC, who was not an owner of
twenty percent of the equity stock of either the Company (in
the case of an acquisition of Company stock) or GMC (in the
case of an acquisition of GMC stock) prior to May 13, 1993, or
in the event that any person or entity acquires twenty percent
(20%) or more of the assets of either the Company or GMC who
was not an owner of twenty percent of the assets of either the
Company (in the case of an acquisition of Company assets) or
of GMC (in the case of an acquisition of GMC assets) prior to
May 13, 1993 then, subsequent to such acquisition of twenty
percent stock or twenty percent asset ownership of either the
Company or GMC by any such person or entity: (1) if for any
calendar year a salary increase at least equal to the increase
in the U.S. City All-Items Consumer Price Index for Urban Wage
Earners and Clerical Workers during the previous twelve
months, is not granted; or if (2) the Executive's base salary
is decreased at any time, then in either event the Executive
may in his sole discretion terminate this Agreement upon
thirty days' written notice given at any time during the
calendar year for which no such increase was granted, or
during the twelve month period following any such decrease in
salary, and thereupon the Company and GMC shall be obligated
to pay the Executive the amounts, and provide the benefits,
specified in Section 9.3 of this Agreement."
3. Section 5 of the Employment Agreement be and hereby is
amended by replacing the words "The Executive Bonus Plan" with the words "The
Incentive Compensation Plan (formerly the Executive Bonus Plan)".
4. Section 7 of the Employment Agreement be and hereby is
amended to read in its entirety as follows:
"7. AUTOMOBILE ALLOWANCE."
"7.1 The Company and GMC shall pay the Executive an automobile
allowance of $8,550 per annum (the "Automobile Allowance").
Neither the Automobile
27
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Allowance nor any portion of it shall be included as Base
Compensation for the purpose of eligibility for possible
increases in Base Compensation as provided by Section 4 of
this Agreement. During the fourth quarter of each calendar
year, the Company and GMC will review the automobile allowance
amount of the Executive and, in their discretion, may increase
the automobile allowance paid to the Executive for the
following calendar year, to be effective from January 1 of the
following year, to such increased rate and for such period of
time as the Company and GMC deem proper, provided that neither
the Company nor GMC shall be required to grant any such
increase."
"7.2 The Executive represents that he now carries automobile
liability insurance, with respect to any automobile owned by
him, for injuries to persons and property."
5. Section 9.3 of the Employment Agreement be and hereby is
amended by deleting subsection (c) of the fourth sentence.
6. Section 9.3 of the Employment Agreement be and hereby is
further amended by deleting the last sentence and adding the following
sentences:
"In addition to other amounts payable to the Executive under
this Section 9.3, the Company and GMC shall pay to the
Executive Accrued Bonus as defined hereinafter. For purposes
of this Section 9.3, Accrued Bonus shall mean any amount of
bonus with respect to any year prior to the year in which
dismissal without cause occurs ("Prior Bonus Year") calculable
by applying the formula prescribed by the Incentive
Compensation Plan (formerly the Executive Bonus Plan) of
Graham Corporation as it existed on December 31 of such Prior
Bonus Year and employing in the application of such formula
the goals, ratios and weighting percentages and other variable
figures which the Bonus Plan calls for the Company's Board or
any Committee thereof to determine annually ("Bonus Plan
Variables") which the Company's Board of Directors or any
Committee thereof adopted for purposes of the Bonus Plan prior
to December 31 of such Prior Bonus Year. With respect to any
Prior Bonus Year for which neither the Company's Board nor any
Committee thereof adopted Bonus Plan Variables prior to
December 31 of such year, the Bonus Plan Variables adopted
most recently prior to the commencement of the Prior Bonus
Year in issue shall be employed for purposes of calculating
the amount of Accrued Bonus payable pursuant to this
Agreement. Notwithstanding any other provision of this
Section, no Accrued Bonus shall be payable pursuant to
Section 9.3 of this Agreement for any Prior Bonus Year with
28
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respect to which a bonus amount was paid to and accepted by
the Executive. In the event that the provisions of this
Section 9.3 are triggered by discharge of the Executive
without cause by one of the Company or GMC, the Executive
shall resign from all offices and directorships of the other
entity and of all subsidiaries and affiliates of the Company,
upon payment to the Executive of the amount referred to in
subsection (a) of the second sentence of this Section 9.3,
payment of the amount referred to in subsection (b) of the
second sentence of this Section 9.3 (or the first installment
thereof) and Accrued Bonus, if any."
7. The Employment Agreement be and hereby is amended by adding
the following section:
"9.5 NON-DUPLICATION. In the event that the Executive shall be
a party to any other contract, agreement or arrangement
providing termination payments (other than retirement or
similar benefits or pursuant to any plan providing for stock
options or appreciation rights) upon a cessation of service
for the Company or GMC, any compensation or other benefits
provided to the Executive under such other contract, agreement
or arrangement and paid to the Executive shall be applied to
offset the obligations of the Company and GMC to pay a lump
sum equal to twelve months' salary as provided by Section 9.3
hereof, it being intended that such lump sum payment provided
under Section 9.3 hereof not duplicate payments otherwise due
to the Executive on account of his cessation of service."
8. Section 16 of the Employment Agreement be and hereby is
amended by adding the following sentence:
"Any action or proceeding brought by either party against the
other arising out of or related to the Agreement shall be
brought only in a state court of competent jurisdiction
located in the County of Monroe, State of New York or the
Federal District Court for the Western District of New York
located in Monroe County, New York and the parties hereby
consent to the personal jurisdiction of said courts."
9. Section 17 of the Employment Agreement be and hereby is
amended by replacing the date "May 13, 1993" with the date "July 27,
1995."
10. All other terms and conditions of the Employment Agreement
remain unchanged and in full force and effect.
29
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IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the day and year first above written.
(Corporate Seal)
GRAHAM CORPORATION
By /s/ F.D. Berkeley
--------------------------------------------
Chairman, President & Chief Executive Officer
(Corporate Seal)
GRAHAM MANUFACTURING CO., INC.
By /s/ A. Cadena
--------------------------------------------
President
/s/ J. Ronald Hansen
--------------------------------------------
J. Ronald Hansen
Attest: /s/ Carole M. Anderson
----------------------
30
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STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 27th day of September, 1996, before me personally came
F. D. Berkeley, to me known, who, being by me duly sworn, did depose and say
that he resides at 50 Old Mill Road, Rochester, New York; that he is Chairman,
President and Chief Executive Officer of Graham Corporation described in and
which executed the attached instrument; that he knows the seal of said
corporation and that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authorizations of the Board of Directors of
said corporation, and that he signed his name thereto by like authority.
/s/ Carole M. Anderson
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 27th day of September, 1996, before me personally came
Alvaro Cadena, to me known, who, being by me duly sworn, did depose and say
that he resides at 4 LePere Drive, Pittsford, New York; that he is President of
Graham Manufacturing Co., Inc. described in and which executed the attached
instrument; that he knows the seal of said corporation and that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authorizations of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Christine Jean Sabatino
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 27th day of September, 1996, before me personally came
J. Ronald Hansen, to me known to be the person described in and who executed
the attached instrument and -2- acknowledged that he executed the same.
/s/ Carole M. Anderson
---------------------------------
Notary Public
31
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made and entered into as of September 26, 1996 by and
among Graham Manufacturing Co., Inc., a New York corporation with offices at 20
Florence Avenue, Batavia, New York 14020 ("GMC"), Graham Corporation, a Delaware
corporation with offices at 20 Florence Avenue, Batavia, New York 14020
("Holding Company") and JOSEPH P. GORMAN, JR., currently residing at 20 LePere
Drive, Pittsford, New York 14534 (the "Executive").
The parties hereto, intending to be legally bound hereby, and in
consideration of the mutual covenants herein contained, agree as follows:
1. EMPLOYMENT.
GMC hereby employs the Executive and the Executive hereby accepts
employment (such employment, hereafter, the "Employment") as Vice President -
Sales of GMC upon the terms and conditions hereinafter set forth. Failure in any
year of the Board of Directors of GMC ("GMC Board") at its Annual Meeting to
elect the Executive to the office of Vice President Sales shall constitute
termination of the Executive's employment without cause under Section 9.3 of
this Agreement.
2. DUTIES. The Executive is engaged as Vice President - Sales of GMC. The
Executive shall have authority and responsibility for the operation and
management, on a day to day basis, for the Company's domestic and international
sales efforts, including its sales offices and all sales agents and
representatives , and shall perform such duties consistent with Executive's
title as may from time to time be required of Executive by the GMC Board or by
either the Chairman and Chief Executive Officer of GMC, or by the President of
GMC to whom Executive shall be directly responsible. The Executive's office
shall be at GMC's headquarters office in Batavia, New York, or within a
reasonable commuting distance east of Batavia, New York. The Executive agrees to
travel to the extent reasonably necessary for the performance of his duties
hereunder. The Executive shall devote his full time during GMC's hours of work
to the business and affairs of GMC and shall use his best efforts, skill and
ability in performing his duties on behalf of GMC.
3. TERM.
(a) Except as otherwise provided in this Agreement to the contrary, the
terms and conditions of this Agreement shall be and remain in effect during the
period of employment ("Term") established under this Section 3. The Term shall
be for a term of one (1)
32
-2-
year commencing on September 26, 1996, plus such extensions, if any, as are
provided pursuant to Section 3(b).
(b) Except as provided in Section 3(c), beginning on the date of this
Agreement, the Term shall be automatically extended for one (1) additional day
each day, unless either GMC or the Executive elects not to extend the Term
further by giving written notice to the other party, in which case the Term
shall end on the first anniversary of the date on which such written notice is
given; provided, however, that in any event, the Term shall end on the last day
of the month in which the Executive attains age sixty-five (65). Upon
termination of the Executive's employment with GMC for any reason whatsoever,
any daily extensions provided pursuant to this Section 3, if not theretofore
discontinued, shall cease and the remaining unexpired Term under this Agreement
shall be a fixed period ending on the first anniversary of the date on which the
daily extensions were discontinued.
(c) Notwithstanding anything herein contained to the contrary: (i) the
Executive's employment with GMC may be terminated during the Term, subject to
the terms and conditions of this Agreement; and (ii) nothing in this Agreement
shall mandate or prohibit a continuation of the Executive's employment following
the expiration of the Term upon such terms and conditions as GMC and the
Executive may mutually agree upon.
4. BASE COMPENSATION. As the base compensation for all services to be
rendered by the Executive in any capacity to GMC and its affiliates, GMC agrees
to pay to the Executive, and the Executive shall accept, a salary at a rate of
$107,744 per annum and as such rate may be increased from time to time in
accordance with this Section 4 or otherwise, payable in arrears in equal monthly
installments, subject to such deductions and withholdings as may be required by
law. During the fourth quarter of each year commencing in calendar year 1996,
GMC will review the salary rate of the Executive, taking into consideration such
factors as the Executive's performance during the preceding year and such other
matters as it deems relevant and, in its sole discretion, may increase the
salary of the Executive for the following calendar year, to be effective from
January 1 of such following year, to such rate and for such period of time as
GMC deems proper, provided that GMC shall in no event be required to grant any
such increase. However, in the event that any person or entity acquires twenty
percent (20%) or more of the outstanding equity stock of GMC's parent, the
Holding Company, or GMC, who was not an owner of twenty percent of the equity
stock of either the Holding Company (in the case of an acquisition of Holding
Company stock) or GMC (in the case of an acquisition of GMC stock) prior to
September 26, 1996, or in the event that any person or entity acquires twenty
percent (20%) or more of the assets of either the Holding Company or GMC who was
not an owner of twenty percent of the assets of either the Company (in the case
of an acquisition of Holding Company assets) or of GMC (in the case of an
acquisition of GMC assets) prior to September 26, 1996, AND PROVIDED that in
such event, such person or entity (i) initiated a tender offer for the capital
stock of the Company or GMC other than at the invitation of either the Holding
Company Board or the GMC Board; or (ii)
33
-3-
caused its nominee or nominees to be elected to the Holding Company Board or the
GMC Board as a result of a proxy contest in which election of its nominees, or
any of them, was not endorsed by management of the Holding Company or GMC in any
proxy statement prepared for the purpose; or (iii) acquired its twenty percent
or greater interest in either the Holding Company or GMC subsequent to and
within two years of any other party or entity's initiation of a tender offer,
initiation of a proxy contest, or offer to acquire all, or more than 20% of the
outstanding capital stock of the Holding Company or GMC for a stated price or in
exchange for any non-cash form of consideration, then, subsequent to such
acquisition of twenty percent stock or twenty percent asset ownership of either
the Holding Company or GMC by any such person or entity: (1) if for any calendar
year a salary increase at least equal to the increase in the U.S. City All-Items
Consumer Price Index for Urban Wage Earners and Clerical Workers during the
previous twelve months, is not granted; or if (2) the Executive's base salary is
decreased at any time, then in either event the Executive may in his sole
discretion terminate this Agreement upon thirty days' written notice given at
any time during the calendar year for which no such increase was granted, or
during the twelve month period following any such decrease in salary, and
thereupon GMC or any successor shall be obligated to pay the Executive the
amounts, and provide the benefits, specified in Section 9.3 of this Agreement.
5. BONUSES. GMC shall pay Executive bonuses subject to The Incentive
Compensation Plan (formerly the Executive Bonus Plan) of Graham Corporation, as
it may be amended from time to time, or such other bonus plans or arrangements
of GMC, or made available to GMC by the Holding Company, as may be in effect
from time to time, as determined by GMC's or the Holding Company's Board of
Directors or a committee of either.
6. BENEFITS. During the term of this Agreement, GMC shall provide the
following benefits to the Executive:
6.1 MEDICAL. GMC will provide the Executive health coverage for himself
and his family in accordance with the Graham Manufacturing Co., Inc. Self
Insured Medical/Dental Plan, as the same may be amended from time to time, or in
accordance with such other health coverage plan as GMC may adopt.
6.2 VACATION. The Executive shall be entitled to 25 business days of
paid vacation in calendar year 1996 with additional time to accrue thereafter in
accordance with GMC's vacation policy, as the same may be in effect from time to
time.
6.3 GENERAL BENEFITS. The Executive shall be entitled to participate in
all employee benefit plans and arrangements of the Holding Company and GMC that
may from time to time be in effect and may from time to time be made available
to the executive officers of GMC, subject to and on a basis consistent with the
terms, conditions and overall administration of such plans and arrangements.
Nothing in this Section 6.3 shall be construed to limit or restrict
34
-4-
the complete discretion of the Board of Directors of the Holding Company (with
respect to employee benefit or bonus plan or plans of the Holding Company or the
Board of Directors of GMC (with respect to employee benefit or bonus plan or
plans of GMC, to amend, modify or terminate any of such plans, provided that
such action generally affects plan participants or employees, including the
Executive.
6.4 LIFE INSURANCE. (a) GMC will provide life insurance for the
executive providing coverage in an amount equal to three times base salary. (b)
The Executive agrees that GMC, in its discretion, may apply for and procure in
its own name and for its own benefit, life insurance on his life in any amount
or amounts considered advisable, and that he shall have no right, title or
interest therein. The employee further agrees to submit to any medical or other
examination and to execute and deliver any application or other instrument in
writing, reasonably necessary to effectuate such insurance, provided such
actions do not harm the Executive's ability to otherwise obtain or retain life
insurance(s). (c) As soon as practical following the termination of employment
for any reason except for cause, GMC will cause to be transferred, assigned or
otherwise conveyed to the Executive any right, title and interest that either
may have in and to any life insurance contract (other than any group-term life
insurance contract) under which the Executive's life is insured, including full
rights of ownership in and to the cash surrender value thereof (net of any loans
obtained against such cash surrender value), and the Executive shall assume all
obligations for the payment of any premiums which may become due with respect to
such insurance contract after the termination of employment.
7. USE OF AUTOMOBILE.
7.1 The Company shall pay the Executive an automobile allowance of
$8,550 per annum (the "Automobile Allowance") toward the Executive's use and
maintenance of his own automobile. Neither the Automobile Allowance or any
portion of it shall be included as Base Compensation for the purpose of any
eligibility for possible increases in Base Compensation as provided by Section 4
of this Agreement. During the fourth quarter of each year, the Company will
review the automobile allowance amount of the Executive and, in its sole
discretion, may increase the automobile allowance paid to the Executive for the
following calendar year, to be effective from January 1 of such following year,
to such increased rate and for such period of time as the Company deems proper,
provided that the Company shall in no event be required to grant any such
increase.
7.2 The Executive represents that he now carries automobile liability
insurance, with respect to any automobile owned by him, for injuries to persons
and property.
8. EXPENSES. GMC shall pay or reimburse the Executive for all reasonable
and necessary traveling and other expenses incurred or paid by the Executive in
connection with the performance of his duties under this Agreement upon
presentation of expense statements or vouchers and such other supporting
information as it may from time to time request. However,
35
-5-
the amount available for such traveling and other expenses may be fixed in
advance by the Chairman, the President or the Board of Directors of GMC.
9. TERMINATION. This Agreement shall terminate prior to the Term expiration
date, hereinabove set forth, in the event that the Executive shall die or GMC
shall determine that the Executive has become disabled, or if the Executive
shall be dismissed for cause or without cause, as hereinafter provided.
9.1 DISABILITY. GMC may determine that the Executive has become
disabled, for purposes of this Agreement, in the event that the Executive shall
fail, because of illness or incapacity, to render for nine (9) successive
months, or for shorter periods aggregating twelve (12) months or more in any
period of eighteen (18) months, services of the character contemplated by this
Agreement; and thereupon this Agreement and the employment and all rights of the
Executive hereunder shall be deemed to have been terminated as of the end of the
calendar month in which such determination was made.
9.2 FOR CAUSE. GMC may dismiss the Executive for Cause. For purposes of
this Agreement, "Cause" shall mean willful misconduct by the Executive in
connection with the performance of his duties hereunder or any other conduct on
the part of the Executive which has been materially injurious to GMC or any
affiliate. Existence of Cause as defined herein shall be determined only by a
good faith finding thereof by the GMC Board, which shall afford the Executive
the opportunity to appear before it, with the Executive's legal counsel if the
Executive chooses, prior to finalizing any such determination. Following such a
good faith determination by the GMC Board and upon the delivery to the Executive
of written notice that the GMC Board has made such determination, the Employment
shall terminate. If the Executive in good faith contests a termination for cause
by GMC, GMC will pay all legal fees and other expenses incurred by the
Executive, as the Executive is billed for such costs, within ten (10) days of
periodic submission to GMC of statements of charges of attorneys and statements
of other expenses incurred by the Executive in connection with such challenge;
the Executive will reimburse GMC for the amount of legal fees and other expenses
so paid if it should be determined by a court of final adjudication that the
Executive did not act in good faith in bringing such challenge.
9.3 WITHOUT CAUSE. GMC may dismiss the Executive without cause at any
time upon thirty (30) days notice to the Executive. In the event GMC dismisses
the Executive other than for cause, or if the Executive resigns because of a
material breach of this Agreement by GMC, GMC shall thereupon pay to the
Executive (a) the compensation due him to the date of termination, plus (b) an
additional lump sum in an amount equal to twelve months' salary at the rate
specified in Section 4 hereinabove. At any time prior to the effective date of
termination of employment, the Executive may in writing elect to receive the
additional lump sum equal to twelve months' salary in monthly installments of up
to, but not to exceed, thirty-six (36) successive months. In addition, GMC shall
(a) provide the Executive with continuing health care coverage,
36
-6-
as described in Section 6.1 hereof, for a period of thirty-six (36) months
following the effective date of termination of employment; and (b) shall pay
for, or in the Executive's sole discretion, reimburse the Executive as the
Executive is billed, within ten (10) days of periodic submission to GMC of
statements of charges, for outplacement services from a provider agreed to by
the Executive and GMC until the sooner of (i) the Executive's commencement of
employment with another employer or (ii) thirty-six (36) months following the
effective date of termination of employment. In addition to other amounts
payable to the Executive under this Section 9.3, the Company and GMC shall pay
to the Executive Accrued Bonus as defined hereinafter. For purposes of this
Section 9.3, Accrued Bonus shall mean any amount of bonus with respect to any
calendar year prior to the calendar year in which dismissal without cause occurs
("Prior Bonus Year") calculable by applying the formula prescribed by the
Executive Bonus Plan of Graham Corporation as it existed on December 31 of such
Prior Bonus Year and employing in the application of such formula the goals,
ratios and weighting percentages and other variable figures which the Bonus Plan
calls for the Holding Company Board or any Committee thereof to determine
annually ("Bonus Plan Variables") which the Holding Company's Board of Directors
or any Committee thereof adopted for purposes of the Bonus Plan prior to
December 31 of such Prior Bonus Year. With respect to any Prior Bonus Year for
which neither the Holding Company Board nor any Committee thereof adopted Bonus
Plan Variables prior to December 31 of such year, the Bonus Plan Variables
adopted most recently prior to the commencement of the Prior Bonus Year in issue
shall be employed for purposes of calculating the amount of Accrued Bonus
payable pursuant to this Agreement. Notwithstanding any other provision of this
Section, no Accrued Bonus shall be payable pursuant to Section 9.3 of this
Agreement for any Prior Bonus Year with respect to which a bonus amount was paid
to and accepted by the Executive. In the event that the provisions of this
Section 9.3 are triggered by discharge of the Executive without cause by GMC,
the Executive shall resign from all offices and directorships all subsidiaries
and affiliates of GMC and of the Holding Company, upon payment to the Executive
of the amounts referred to in subsection (a) of the second sentence of this
Section 9.3, payment of the amount referred to in subsection (b) of the second
sentence of this Section 9.3 (or the first installment thereof) and Accrued
Bonus, if any.
9.4 RETURN OF CONFIDENTIAL DOCUMENTATION. Upon termination of
employment for any reason whatsoever, the Executive shall return to GMC all
working papers, notebooks, strategic plans, computer programs and files, and
other confidential documents and information, in any form whatsoever.
10. COVENANTS OF EXECUTIVE
The Executive acknowledges that: (a) the business of GMC and its
affiliates, as currently conducted and as conducted from time to time throughout
the term of this Agreement (collectively, the "Business"), is conducted by and
is proposed to be conducted on a world wide basis (the "Company's Market"); (b)
the Business involves providing design,
37
-7-
engineering and manufacture of certain vacuum and heat transfer equipment,
including but not limited to steam condensers, steam jet ejectors, shell and
tube heat exchangers, plate and frame heat exchangers, Heliflow heat exchangers,
liquid ring vacuum pumps and rotary piston pumps; (c) GMC and its affiliates
have developed trade secrets and confidential information concerning the
Business; and (d) the agreements and covenants contained in this Section 10 are
essential to protect the Business. In order to induce GMC to enter into this
Employment Agreement, the Executive covenants and agrees that:
10.1 AGREEMENT NOT TO COMPETE. In the event that the Executive resigns
(for reasons other than a material breach of this Agreement by GMC) or departs
from the employ of GMC without the approval of the GMC Board or is discharged
for cause, then for a period of twelve (12) months after such resignation,
departure or discharge (such period of time hereinafter the "Restricted
Period"), neither the Executive nor any entity of which 20% or more of the
beneficial ownership is held by the Executive or a person related to the
Executive by blood or marriage ("Controlled Entity") will, anywhere the Market
of GMC or any affiliate, directly or indirectly own, manage, operate, control,
invest or acquire an interest in, or herewise engage or participate in, whether
as a proprietor, partner, stockholder, director, officer or employee, any
business which competes in the Market of GMC or any affiliate with the Business
as such Business was conducted, or such other business as the Company had plans
to conduct or had taken material steps toward conducting as of the date of
termination of the Executive's employment with the Company, without the prior
written consent of GMC. Notwithstanding any other provisions of this Agreement,
the Executive may make a passive investment in any publicly-traded company or
entity in an amount not to exceed 5% of the voting stock of any such company or
entity.
10.2 AGREEMENT NOT TO INTERFERE IN BUSINESS RELATIONSHIPS. (a) During
the Restricted Period, neither the Executive nor any Controlled Entity will
directly or indirectly solicit, induce or influence customer, or any other
person which has a business relationship with GMC or any affiliate, or which had
on the date of this Agreement such a relationship with GMC or any affiliate, to
discontinue or reduce the extent of such relationship with GMC or any affiliate
in the Market of GMC or any affiliate without the prior written consent of GMC.
(b) During the Restricted Period, neither the Executive nor any Controlled
Entity will (i) directly or indirectly recruit, solicit or otherwise induce or
influence any shareholder or employee of GMC or any of its affiliates to
discontinue such employment or other relationship with GMC or any affiliate
without the prior written consent of GMC, or (ii) employ or seek to employ, or
cause or permit any Competitive Business which competes in the Market of GMC or
any affiliate to employ or seek to employ for any Competitive Business, any
person who is then (or was at any time within six months prior to the date the
Executive or the Competitive Business employs or seeks to employ such person)
employed by GMC or any affiliate without the prior written consent of GMC.
Nothing herein shall prevent the Executive from providing a letter of
recommendation to an Employee with respect to a future employment opportunity,
nor prohibit the Executive from making general employment advertisements in
mass-circulation newspapers or other mass media.
38
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10.3 CONFIDENTIALITY. During the Restricted Period, neither the
Executive nor any Controlled Entity will directly or indirectly disclose to
anyone, or use or otherwise exploit for the Executive's or any Controlled
Entity's own benefit or for the benefit of anyone other than GMC, any
confidential information, including, without limitation, any confidential
"know-how", trade secrets, customer lists, details of customer contracts,
pricing policies, operational methods, marketing plans or strategies, product
development techniques or plans, business acquisition plans and new personnel
acquisition plans of GMC or any affiliate related to the Business or any portion
or phase of any scientific, engineering or technical information, design,
process, procedure, formula, improvement, discovery, invention, machinery or
device of GMC or any affiliate that is not generally known to the competitors of
the Company whether or not in written or tangible form (hereinafter referred to
as "Confidential Information"). The term "Confidential Information" does not
include, and there shall be no obligation hereunder with respect to, information
that becomes generally available to the public other than as a result of a
disclosure by the Executive or a Controlled Entity or any agent or other
representative thereof. Neither the Executive nor any Controlled Entity shall
have any obligation hereunder to keep confidential any Confidential Information
to the extent disclosure is required by law, or determined in good faith by the
Executive to be necessary or appropriate to comply with any legal or regulatory
order, regulation or requirement; provided, however, that in the event
disclosure is required by law, the Executive or the Controlled Entity concerned
shall provide the Company with prompt notice of such requirement so that GMC may
seek an appropriate protective order. It is understood that in any new
employment, the Executive may use his ordinary skill and non-confidential
knowledge, even though said skill and non-confidential knowledge may have been
gained at GMC. The Executive's obligations under this Section 10.3 shall be in
addition to, not in substitution for, any common law fiduciary duties the
Executive has to GMC regarding information acquired during the course of his
employment.
10.4 INTELLECTUAL PROPERTY. The Executive shall communicate to GMC full
information concerning all inventions, improvements, discoveries, formulas,
processes, systems of organization, management procedures, software or computer
applications (hereinafter, collectively, "Intellectual Property") made or
conceived by him either solely or jointly with others while in the employ of
GMC, whether or not perfected during his period of employment and which shall be
within the existing or contemplated scope of the Business during his employment.
The Executive will assist GMC and its nominees in every way at GMC's expense in
obtaining patents for such Intellectual Property as may be patentable in any and
all countries and the Executive will execute all papers GMC may desire and
assignments thereof to GMC or its nominees and said Intellectual Property shall
be and remain the property of GMC and its nominees, if any, whether patented or
not or assigned or not.
10.5 SURVIVAL OF COVENANTS. In the event of a termination of this
39
-9-
Agreement, the covenants and agreements contained in this Section 10 shall
survive, shall continue thereafter, and shall not expire unless and except as
expressly set forth in such Section.
10.6 REMEDIES. The parties to this Agreement agree that (a) if either
the Executive or any Controlled Entity breaches any provision of this Section
10, the damage to GMC and its affiliates will be substantial, although difficult
to ascertain, and money damages will not afford an adequate remedy, and (b) if
either the Executive or any Controlled Entity is in breach of this Agreement, or
threatens a breach of this Agreement, GMC shall be entitled in its own right
and/or on behalf of one or more of its affiliates, in addition to all other
rights and remedies as may be available at law or in equity, to (i) injunctive
and other equitable relief to prevent or restrain a breach of this Agreement and
(ii) may require the breaching party to pay damages as the result of any
transactions constituting a breach hereof.
11. INDEMNIFICATION OF EXECUTIVE. In the event the Employment is terminated
for any reason, (a) GMC will hold harmless and indemnify the Executive for all
acts or omissions and for any suits it has at law or in equity, claims, actions
or other proceedings against the Executive initiated either prior to the
termination of employment or thereafter which relate to duties performed in good
faith by the Executive while employed by GMC; and (b) GMC will retain the
Executive as named insured under any directors' and officers' insurance policies
it may have, for acts of the Executive during the time he served as an officer
of GMC and any affiliate. Additionally, all legal and other costs incurred by
the Executive to defend himself will be paid by GMC, as the Executive is billed
for such costs, within ten (10) days of periodic submission to GMC of statements
of charges of attorneys and statements of other expenses incurred by the
Executive in connection with such defense.
12. EFFECT OF WAIVER. The waiver by either party of a breach of any
provision of this Agreement shall not operate as or be construed as a waiver of
any subsequent breach thereof.
13. NOTICE. Any and all notices provided for herein shall be in writing and
shall be physically delivered or mailed by registered or certified mail, return
receipt requested to the parties at their respective addresses set forth
hereinabove. Either party may from time to time designate a different address
for notices to be sent to such party by giving the other party due notice of
such different address.
14. VALIDITY. If any part of this Agreement shall be found to be invalid or
unenforceable, the same shall be deemed to be severable and the remaining
portions of this Agreement shall remain in full force and effect.
15. MODIFICATION AND ASSIGNMENT. This Agreement shall not be modified or
amended except by an instrument in writing signed by the parties hereto. This
Agreement and all of its terms and conditions shall be binding upon and shall
inure to the benefit of the parties hereto
40
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and their respective heirs, legal representatives, successors and assigns,
including but not limited to any corporation or other entity with or into which
GMC is merged or consolidated or any other successor of GMC. The Executive
agrees that he will not and may not assign, transfer or convey, pledge or
encumber this Agreement or his right, title or interest therein, or his power to
execute the same or any monies due or to become due hereunder, this Agreement
being intended to secure the personal services of the Executive, and GMC shall
not recognize any such assignment, transfer, conveyance, pledge or encumbrance.
16. APPLICABLE LAW; VENUE. This agreement and the rights and obligations of
the parties hereunder shall be construed and interpreted in accordance with the
laws of the State of New York, without giving effect to the conflict of laws
provisions thereof. Any action or proceeding brought by either party against the
other arising out of or related to the Agreement shall be brought only in a
state court of competent jurisdiction located in the County of Monroe, State of
New York or the Federal District Court for the Western District of New York
located in Monroe County, New York and the parties hereby consent to the
personal jurisdiction of said courts.
17. PRIOR AGREEMENTS. This Agreement shall supersede any prior employment
agreement between GMC and the Executive and shall be effective from the date
specified hereinabove.
18. BUSINESS COMBINATIONS. In the event of any sale, merger or any form of
business combination affecting the Holding Company or GMC whatsoever, the
Holding Company and GMC will obtain the express written assumption of this
Agreement by the acquiring or surviving entity from such combination, and
failure of the Holding Company and GMC to obtain such an assumption no later
than the effective date of any such business combination will constitute a
breach of this Agreement, entitling the Executive to all payments and other
benefits to be provided in the event of termination without cause provided in
Section 9.3 hereof.
19. HEADINGS. The section headings of this Agreement are for convenience of
reference only and are not to be considered in the interpretation of the terms
and conditions of this Agreement.
20. INVALIDITY OR UNENFORCEABILITY. If any term or provision of this
Agreement is held to be invalid or unenforceable, for any reason, such
invalidity or unenforceability shall not affect any other term or provision
hereof and this Agreement shall continue in full force and effect as if such
invalid or unenforceable term or provision (to the extent of the invalidity or
unenforceability) had not been contained herein. If any court determines that
any provision of Section 10 hereof is unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the scope or duration of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
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21. COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which for all purposes shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as
of the day and year first above written.
(Corporate Seal) GRAHAM CORPORATION
By /s/ F.D. Berkeley
-----------------------------------
Chairman, President and Chief
Executive Officer
(Corporate Seal) GRAHAM MANUFACTURING CO., INC.
By /s/ A. Cadena
------------------------------------
President
/s/ Joseph P. Gorman, Jr.
------------------------------------
JOSEPH P. GORMAN, JR.
Attest: /s/ Carole M. Anderson
------------------------
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STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 10th day of February, 1997, before me personally came
F. D. Berkeley, to me known, who, being by me duly sworn, did depose and say
that he resides at 50 Old Mill Road, Rochester, New York; that he is Chairman,
President and Chief Executive Officer of Graham Corporation described in and
which executed the attached instrument; that he knows the seal of said
corporation and that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authorizations of the Board of Directors of said
corporation,k and that he signed his name thereto by like authority.
/s/ Carole M. Anderson
------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 10th day of February, 1997, before me personally came Alvaro
Cadena, to me known, who, being by me duly sworn, did depose and say that he
resides at 4 LePere Drive, Pittsford, New York; that he is President of Graham
Manufacturing Co., Inc. described in and which executed the attached
instrument; that he knows the seal of said corporation and that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authorizations of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Carole M. Anderson
---------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 10th day of February, 1997, before me personally came
JOSEPH P. GORMAN, JR., to me known to be the person described in and who
executed the attached instrument and acknowledged that he executed the same.
/s/ Carole M. Anderson
---------------------------------
Notary Public
44
EMPLOYMENT AGREEMENT
THIS AGREEMENT, is made and entered into as of September 26,
1996 by and among Graham Manufacturing Co., Inc., a New York corporation with
offices at 20 Florence Avenue, Batavia, New York 14020 ("GMC"), Graham
Corporation, a Delaware corporation with offices at 20 Florence Avenue, Batavia,
New York 14020 ("Holding Company") and STEPHEN P. NORTHRUP, currently residing
at 5034 Barrville Road, Elba, New York 14058 (the "Executive").
The parties hereto, intending to be legally bound hereby, and
in consideration of the mutual covenants herein contained, agree as follows:
1. EMPLOYMENT.
GMC hereby employs the Executive and the Executive
hereby accepts employment (such employment, hereafter, the "Employment") as Vice
President - Engineering of GMC upon the terms and conditions hereinafter set
forth. Failure in any year of the Board of Directors of GMC ("GMC Board") at its
Annual Meeting to elect the Executive to the office of Vice President -
Engineering shall constitute termination of the Executive's employment without
cause under Section 9.3 of this Agreement.
2. DUTIES. The Executive is engaged as Vice President -
Engineering of GMC. The Executive shall have authority and responsibility for
the operation and management, on a day to day basis, for the Company's contract
engineering and quality assurance departments, and shall perform such duties
consistent with Executive's title as may from time to time be required of
Executive by the GMC Board or by either the Chairman and Chief Executive Officer
of GMC, or by the President of GMC to whom Executive shall be directly
responsible. The Executive's office shall be at GMC's headquarters office in
Batavia, New York, or within a reasonable commuting distance of Batavia, New
York. The Executive agrees to travel to the extent reasonably necessary for the
performance of his duties hereunder. The Executive shall devote his full time
during GMC's hours of work to the business and affairs of GMC and shall use his
best efforts, skill and ability in performing his duties on behalf of GMC.
3. TERM.
(a) Except as otherwise provided in this Agreement to
the contrary, the terms and conditions of this Agreement shall be and remain in
effect during the period of employment ("Term") established under this Section
3. The Term shall be for a term of one (1) year commencing on September 26,
1996, plus such extensions, if any, as are provided pursuant
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to Section 3(b).
(b) Except as provided in Section 3(c), beginning on
the date of this Agreement, the Term shall be automatically extended for one (1)
additional day each day, unless either GMC or the Executive elects not to extend
the Term further by giving written notice to the other party, in which case the
Term shall end on the first anniversary of the date on which such written notice
is given; provided, however, that in any event, the Term shall end on the last
day of the month in which the Executive attains age sixty-five (65). Upon
termination of the Executive's employment with GMC for any reason whatsoever,
any daily extensions provided pursuant to this Section 3, if not theretofore
discontinued, shall cease and the remaining unexpired Term under this Agreement
shall be a fixed period ending on the first anniversary of the date on which the
daily extensions were discontinued.
(c) Notwithstanding anything herein contained to the
contrary: (i) the Executive's employment with GMC may be terminated during the
Term, subject to the terms and conditions of this Agreement; and (ii) nothing in
this Agreement shall mandate or prohibit a continuation of the Executive's
employment following the expiration of the Term upon such terms and conditions
as GMC and the Executive may mutually agree upon.
4. BASE COMPENSATION. As the base compensation for all
services to be rendered by the Executive in any capacity to GMC and its
affiliates, GMC agrees to pay to the Executive, and the Executive shall accept,
a salary at a rate of $109,595 per annum and as such rate may be increased from
time to time in accordance with this Section 4 or otherwise, payable in arrears
in equal monthly installments, subject to such deductions and withholdings as
may be required by law. During the fourth quarter of each year commencing in
calendar year 1996, GMC will review the salary rate of the Executive, taking
into consideration such factors as the Executive's performance during the
preceding year and such other matters as it deems relevant and, in its sole
discretion, may increase the salary of the Executive for the following calendar
year, to be effective from January 1 of such following year, to such rate and
for such period of time as GMC deems proper, provided that GMC shall in no event
be required to grant any such increase. However, in the event that any person or
entity acquires twenty percent (20%) or more of the outstanding equity stock of
GMC's parent, the Holding Company, or GMC, who was not an owner of twenty
percent of the equity stock of either the Holding Company (in the case of an
acquisition of Holding Company stock) or GMC (in the case of an acquisition of
GMC stock) prior to September 26, 1996, or in the event that any person or
entity acquires twenty percent (20%) or more of the assets of either the Holding
Company or GMC who was not an owner of twenty percent of the assets of either
the Company (in the case of an acquisition of Holding Company assets) or of GMC
(in the case of an acquisition of GMC assets) prior to September 26, 1996, AND
PROVIDED that in such event, such person or entity (i) initiated a tender offer
for the capital stock of the Company or GMC other than at the invitation of
either the Holding Company Board or the GMC Board; or (ii) caused its nominee
or nominees to be elected to the Holding Company Board or the GMC Board
46
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as a result of a proxy contest in which election of its nominees, or any of
them, was not endorsed by management of the Holding Company or GMC in any proxy
statement prepared for the purpose; or (iii) acquired its twenty percent or
greater interest in either the Holding Company or GMC subsequent to and within
two years of any other party or entity's initiation of a tender offer,
initiation of a proxy contest, or offer to acquire all, or more than 20% of the
outstanding capital stock of the Holding Company or GMC for a stated price or in
exchange for any non-cash form of consideration, then, subsequent to such
acquisition of twenty percent stock or twenty percent asset ownership of either
the Holding Company or GMC by any such person or entity: (1) if for any calendar
year a salary increase at least equal to the increase in the U.S. City All-Items
Consumer Price Index for Urban Wage Earners and Clerical Workers during the
previous twelve months, is not granted; or if (2) the Executive's base salary is
decreased at any time, then in either event the Executive may in his sole
discretion terminate this Agreement upon thirty days' written notice given at
any time during the calendar year for which no such increase was granted, or
during the twelve month period following any such decrease in salary, and
thereupon GMC or any successor shall be obligated to pay the Executive the
amounts, and provide the benefits, specified in Section 9.3 of this Agreement.
5. BONUSES. GMC shall pay Executive bonuses subject to The
Incentive Compensation Plan (formerly the Executive Bonus Plan) of Graham
Corporation, as it may be amended from time to time, or such other bonus plans
or arrangements of GMC, or made available to GMC by the Holding Company, as may
be in effect from time to time, as determined by GMC's or the Holding Company's
Board of Directors or a committee of either.
6. BENEFITS. During the term of this Agreement, GMC shall
provide the following benefits to the Executive:
6.1 MEDICAL. GMC will provide the Executive health
coverage for himself and his family in accordance with the Graham Manufacturing
Co., Inc. Self Insured Medical/Dental Plan, as the same may be amended from time
to time, or in accordance with such other health coverage plan as GMC may adopt.
6.2 VACATION. The Executive shall be entitled to 20
business days of paid vacation in calendar year 1996 with additional time to
accrue thereafter in accordance with GMC's vacation policy, as the same may be
in effect from time to time.
6.3 GENERAL BENEFITS. The Executive shall be entitled
to participate in all employee benefit plans and arrangements of the Holding
Company and GMC that may from time to time be in effect and may from time to
time be made available to the executive officers of GMC, subject to and on a
basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Nothing in this Section 6.3 shall be construed to limit
or restrict the complete discretion of the Board of Directors of the Holding
Company (with respect to
47
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employee benefit or bonus plan or plans of the Holding Company or the Board of
Directors of GMC (with respect to employee benefit or bonus plan or plans of
GMC, to amend, modify or terminate any of such plans, provided that such action
generally affects plan participants or employees, including the Executive.
6.4 LIFE INSURANCE. (a) GMC will provide life
insurance for the executive providing coverage in an amount equal to three times
base salary. (b) The Executive agrees that GMC, in its discretion, may apply for
and procure in its own name and for its own benefit, life insurance on his life
in any amount or amounts considered advisable, and that he shall have no right,
title or interest therein. The employee further agrees to submit to any medical
or other examination and to execute and deliver any application or other
instrument in writing, reasonably necessary to effectuate such insurance,
provided such actions do not harm the Executive's ability to otherwise obtain or
retain life insurance(s). (c) As soon as practical following the termination of
employment for any reason except for cause, GMC will cause to be transferred,
assigned or otherwise conveyed to the Executive any right, title and interest
that either may have in and to any life insurance contract (other than any
group-term life insurance contract) under which the Executive's life is insured,
including full rights of ownership in and to the cash surrender value thereof
(net of any loans obtained against such cash surrender value), and the Executive
shall assume all obligations for the payment of any premiums which may become
due with respect to such insurance contract after the termination of employment.
7. USE OF AUTOMOBILE.
7.1 The Company shall pay the Executive an automobile
allowance of $8,550 per annum (the "Automobile Allowance") toward the
Executive's use and maintenance of his own automobile. Neither the Automobile
Allowance or any portion of it shall be included as Base Compensation for the
purpose of any eligibility for possible increases in Base Compensation as
provided by Section 4 of this Agreement. During the fourth quarter of each year,
the Company will review the automobile allowance amount of the Executive and, in
its sole discretion, may increase the automobile allowance paid to the Executive
for the following calendar year, to be effective from January 1 of such
following year, to such increased rate and for such period of time as the
Company deems proper, provided that the Company shall in no event be required to
grant any such increase.
7.2 The Executive represents that he now carries
automobile liability insurance, with respect to any automobile owned by him, for
injuries to persons and property.
8. EXPENSES. GMC shall pay or reimburse the Executive for all
reasonable and necessary traveling and other expenses incurred or paid by the
Executive in connection with the performance of his duties under this Agreement
upon presentation of expense statements or vouchers and such other supporting
information as it may from time to time request. However, the amount available
for such traveling and other expenses may be fixed in advance by the
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Chairman, the President or the Board of Directors of GMC.
9. TERMINATION. This Agreement shall terminate prior to the
Term expiration date, hereinabove set forth, in the event that the Executive
shall die or GMC shall determine that the Executive has become disabled, or if
the Executive shall be dismissed for cause or without cause, as hereinafter
provided.
9.1 DISABILITY. GMC may determine that the Executive
has become disabled, for purposes of this Agreement, in the event that the
Executive shall fail, because of illness or incapacity, to render for nine (9)
successive months, or for shorter periods aggregating twelve (12) months or more
in any period of eighteen (18) months, services of the character contemplated by
this Agreement; and thereupon this Agreement and the employment and all rights
of the Executive hereunder shall be deemed to have been terminated as of the end
of the calendar month in which such determination was made.
9.2 FOR CAUSE. GMC may dismiss the Executive for
Cause. For purposes of this Agreement, "Cause" shall mean willful misconduct by
the Executive in connection with the performance of his duties hereunder or any
other conduct on the part of the Executive which has been materially injurious
to GMC or any affiliate. Existence of Cause as defined herein shall be
determined only by a good faith finding thereof by the GMC Board, which shall
afford the Executive the opportunity to appear before it, with the Executive's
legal counsel if the Executive chooses, prior to finalizing any such
determination. Following such a good faith determination by the GMC Board and
upon the delivery to the Executive of written notice that the GMC Board has made
such determination, the Employment shall terminate. If the Executive in good
faith contests a termination for cause by GMC, GMC will pay all legal fees and
other expenses incurred by the Executive, as the Executive is billed for such
costs, within ten (10) days of periodic submission to GMC of statements of
charges of attorneys and statements of other expenses incurred by the Executive
in connection with such challenge; the Executive will reimburse GMC for the
amount of legal fees and other expenses so paid if it should be determined by a
court of final adjudication that the Executive did not act in good faith in
bringing such challenge.
9.3 WITHOUT CAUSE. GMC may dismiss the Executive
without cause at any time upon thirty (30) days notice to the Executive. In the
event GMC dismisses the Executive other than for cause, or if the Executive
resigns because of a material breach of this Agreement by GMC, GMC shall
thereupon pay to the Executive (a) the compensation due him to the date of
termination, plus (b) an additional lump sum in an amount equal to twelve
months' salary at the rate specified in Section 4 hereinabove. At any time
prior to the effective date of termination of employment, the Executive may in
writing elect to receive the additional lump sum equal to twelve months' salary
in monthly installments of up to, but not to exceed, thirty-six (36) successive
months. In addition, GMC shall (a) provide the Executive with continuing health
care coverage, as described in Section 6.1 hereof, for a period of thirty-six
(36) months following the effective date of termination of employment; and (b)
shall pay for, or in the Executive's sole discretion, reimburse the Executive
as the Executive is billed, within ten (10) days of periodic submission to GMC
of statements of charges, for outplacement services from a provider agreed to
by the Executive and GMC until the sooner of (i) the Executive's commencement
of employment with another employer or (ii) thirty-six (36) months following
the effective
49
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date of termination of employment. In addition to other amounts payable to the
Executive under this Section 9.3, the Company and GMC shall pay to the
Executive Accrued Bonus as defined hereinafter. For purposes of this Section
9.3, Accrued Bonus shall mean any amount of bonus with respect to any calendar
year prior to the calendar year in which dismissal without cause occurs ("Prior
Bonus Year") calculable by applying the formula prescribed by the Executive
Bonus Plan of Graham Corporation as it existed on December 31 of such Prior
Bonus Year and employing in the application of such formula the goals, ratios
and weighting percentages and other variable figures which the Bonus Plan calls
for the Holding Company Board or any Committee thereof to determine annually
("Bonus Plan Variables") which the Holding Company's Board of Directors or any
Committee thereof adopted for purposes of the Bonus Plan prior to December 31
of such Prior Bonus Year. With respect to any Prior Bonus Year for which
neither the Holding Company Board nor any Committee thereof adopted Bonus Plan
Variables prior to December 31 of such year, the Bonus Plan Variables adopted
most recently prior to the commencement of the Prior Bonus Year in issue shall
be employed for purposes of calculating the amount of Accrued Bonus payable
pursuant to this Agreement. Notwithstanding any other provision of this
Section, no Accrued Bonus shall be payable pursuant to Section 9.3 of this
Agreement for any Prior Bonus Year with respect to which a bonus amount was
paid to and accepted by the Executive. In the event that the provisions of this
Section 9.3 are triggered by discharge of the Executive without cause by GMC,
the Executive shall resign from all offices and directorships all subsidiaries
and affiliates of GMC and of the Holding Company, upon payment to the Executive
of the amounts referred to in subsection (a) of the second sentence of this
Section 9.3, payment of the amount referred to in subsection (b) of the second
sentence of this Section 9.3 (or the first installment thereof) and Accrued
Bonus, if any.
9.4 RETURN OF CONFIDENTIAL DOCUMENTATION. Upon
termination of employment for any reason whatsoever, the Executive shall return
to GMC all working papers, notebooks, strategic plans, computer programs and
files, and other confidential documents and information, in any form whatsoever.
10. COVENANTS OF EXECUTIVE
The Executive acknowledges that: (a) the business of
GMC and its affiliates, as currently conducted and as conducted from time to
time throughout the term of this Agreement (collectively, the "Business"), is
conducted by and is proposed to be conducted on a world wide basis (the
"Company's Market"); (b) the Business involves providing design, engineering and
manufacture of certain vacuum and heat transfer equipment, including but not
50
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limited to steam condensers, steam jet ejectors, shell and tube heat exchangers,
plate and frame heat exchangers, Heliflow heat exchangers, liquid ring vacuum
pumps and rotary piston pumps; (c) GMC and its affiliates have developed trade
secrets and confidential information concerning the Business; and (d) the
agreements and covenants contained in this Section 10 are essential to protect
the Business. In order to induce GMC to enter into this Employment Agreement,
the Executive covenants and agrees that:
10.1 AGREEMENT NOT TO COMPETE. In the event that the
Executive resigns (for reasons other than a material breach of this Agreement by
GMC) or departs from the employ of GMC without the approval of the GMC Board or
is discharged for cause, then for a period of twelve (12) months after such
resignation, departure or discharge (such period of time hereinafter the
"Restricted Period"), neither the Executive nor any entity of which 20% or more
of the beneficial ownership is held by the Executive or a person related to the
Executive by blood or marriage ("Controlled Entity") will, anywhere the Market
of GMC or any affiliate, directly or indirectly own, manage, operate, control,
invest or acquire an interest in, or herewise engage or participate in, whether
as a proprietor, partner, stockholder, director, officer or employee, any
business which competes in the Market of GMC or any affiliate with the Business
as such Business was conducted, or such other business as the Company had plans
to conduct or had taken material steps toward conducting as of the date of
termination of the Executive's employment with the Company, without the prior
written consent of GMC. Notwithstanding any other provisions of this Agreement,
the Executive may make a passive investment in any publicly-traded company or
entity in an amount not to exceed 5% of the voting stock of any such company or
entity.
10.2 AGREEMENT NOT TO INTERFERE IN BUSINESS
RELATIONSHIPS. (a) During the Restricted Period, neither the Executive nor any
Controlled Entity will directly or indirectly solicit, induce or influence
customer, or any other person which has a business relationship with GMC or any
affiliate, or which had on the date of this Agreement such a relationship with
GMC or any affiliate, to discontinue or reduce the extent of such relationship
with GMC or any affiliate in the Market of GMC or any affiliate without the
prior written consent of GMC. (b) During the Restricted Period, neither the
Executive nor any Controlled Entity will (i) directly or indirectly recruit,
solicit or otherwise induce or influence any shareholder or employee of GMC or
any of its affiliates to discontinue such employment or other relationship with
GMC or any affiliate without the prior written consent of GMC, or (ii) employ or
seek to employ, or cause or permit any Competitive Business which competes in
the Market of GMC or any affiliate to employ or seek to employ for any
Competitive Business, any person who is then (or was at any time within six
months prior to the date the Executive or the Competitive Business employs or
seeks to employ such person) employed by GMC or any affiliate without the prior
written consent of GMC. Nothing herein shall prevent the Executive from
providing a letter of recommendation to an Employee with respect to a future
employment opportunity, nor prohibit the Executive from making general
employment advertisements in mass-circulation newspapers or other mass media.
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10.3 CONFIDENTIALITY. During the Restricted Period,
neither the Executive nor any Controlled Entity will directly or indirectly
disclose to anyone, or use or otherwise exploit for the Executive's or any
Controlled Entity's own benefit or for the benefit of anyone other than GMC, any
confidential information, including, without limitation, any confidential
"know-how", trade secrets, customer lists, details of customer contracts,
pricing policies, operational methods, marketing plans or strategies, product
development techniques or plans, business acquisition plans and new personnel
acquisition plans of GMC or any affiliate related to the Business or any portion
or phase of any scientific, engineering or technical information, design,
process, procedure, formula, improvement, discovery, invention, machinery or
device of GMC or any affiliate that is not generally known to the competitors of
the Company whether or not in written or tangible form (hereinafter referred to
as "Confidential Information"). The term "Confidential Information" does not
include, and there shall be no obligation hereunder with respect to, information
that becomes generally available to the public other than as a result of a
disclosure by the Executive or a Controlled Entity or any agent or other
representative thereof. Neither the Executive nor any Controlled Entity shall
have any obligation hereunder to keep confidential any Confidential Information
to the extent disclosure is required by law, or determined in good faith by the
Executive to be necessary or appropriate to comply with any legal or regulatory
order, regulation or requirement; provided, however, that in the event
disclosure is required by law, the Executive or the Controlled Entity concerned
shall provide the Company with prompt notice of such requirement so that GMC may
seek an appropriate protective order. It is understood that in any new
employment, the Executive may use his ordinary skill and non-confidential
knowledge, even though said skill and non-confidential knowledge may have been
gained at GMC. The Executive's obligations under this Section 10.3 shall be in
addition to, not in substitution for, any common law fiduciary duties the
Executive has to GMC regarding information acquired during the course of his
employment.
10.4 INTELLECTUAL PROPERTY. The Executive shall
communicate to GMC full information concerning all inventions, improvements,
discoveries, formulas, processes, systems of organization, management
procedures, software or computer applications (hereinafter, collectively,
"Intellectual Property") made or conceived by him either solely or jointly with
others while in the employ of GMC, whether or not perfected during his period of
employment and which shall be within the existing or contemplated scope of the
Business during his employment. The Executive will assist GMC and its nominees
in every way at GMC's expense in obtaining patents for such Intellectual
Property as may be patentable in any and all countries and the Executive will
execute all papers GMC may desire and assignments thereof to GMC or its nominees
and said Intellectual Property shall be and remain the property of GMC and its
nominees, if any, whether patented or not or assigned or not.
10.5 SURVIVAL OF COVENANTS. In the event of a
termination of this Agreement, the covenants and agreements contained in this
Section 10 shall survive, shall continue thereafter, and shall not expire unless
and except as expressly set forth in such Section.
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10.6 REMEDIES. The parties to this Agreement agree
that (a) if either the Executive or any Controlled Entity breaches any provision
of this Section 10, the damage to GMC and its affiliates will be substantial,
although difficult to ascertain, and money damages will not afford an adequate
remedy, and (b) if either the Executive or any Controlled Entity is in breach of
this Agreement, or threatens a breach of this Agreement, GMC shall be entitled
in its own right and/or on behalf of one or more of its affiliates, in addition
to all other rights and remedies as may be available at law or in equity, to (i)
injunctive and other equitable relief to prevent or restrain a breach of this
Agreement and (ii) may require the breaching party to pay damages as the result
of any transactions constituting a breach hereof.
11. INDEMNIFICATION OF EXECUTIVE. In the event the Employment
is terminated for any reason, (a) GMC will hold harmless and indemnify the
Executive for all acts or omissions and for any suits it has at law or in
equity, claims, actions or other proceedings against the Executive initiated
either prior to the termination of employment or thereafter which relate to
duties performed in good faith by the Executive while employed by GMC; and (b)
GMC will retain the Executive as named insured under any directors' and
officers' insurance policies it may have, for acts of the Executive during the
time he served as an officer of GMC and any affiliate. Additionally, all legal
and other costs incurred by the Executive to defend himself will be paid by GMC,
as the Executive is billed for such costs, within ten (10) days of periodic
submission to GMC of statements of charges of attorneys and statements of other
expenses incurred by the Executive in connection with such defense.
12. EFFECT OF WAIVER. The waiver by either party of a breach
of any provision of this Agreement shall not operate as or be construed as a
waiver of any subsequent breach thereof.
13. NOTICE. Any and all notices provided for herein shall be
in writing and shall be physically delivered or mailed by registered or
certified mail, return receipt requested to the parties at their respective
addresses set forth hereinabove. Either party may from time to time designate a
different address for notices to be sent to such party by giving the other party
due notice of such different address.
14. VALIDITY. If any part of this Agreement shall be found to
be invalid or unenforceable, the same shall be deemed to be severable and the
remaining portions of this Agreement shall remain in full force and effect.
15. MODIFICATION AND ASSIGNMENT. This Agreement shall
not be modified or amended except by an instrument in writing signed by the
parties hereto. This Agreement and all of its terms and conditions shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns, including but
not limited to any corporation or other entity with or into which GMC is merged
or consolidated or any other successor of GMC. The Executive agrees that he will
not and may not assign, transfer or convey,
53
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pledge or encumber this Agreement or his right, title or interest therein, or
his power to execute the same or any monies due or to become due hereunder, this
Agreement being intended to secure the personal services of the Executive, and
GMC shall not recognize any such assignment, transfer, conveyance, pledge or
encumbrance.
16. APPLICABLE LAW; VENUE. This agreement and the rights and
obligations of the parties hereunder shall be construed and interpreted in
accordance with the laws of the State of New York, without giving effect to the
conflict of laws provisions thereof. Any action or proceeding brought by either
party against the other arising out of or related to the Agreement shall be
brought only in a state court of competent jurisdiction located in the County of
Monroe, State of New York or the Federal District Court for the Western District
of New York located in Monroe County, New York and the parties hereby consent to
the personal jurisdiction of said courts.
17. PRIOR AGREEMENTS. This Agreement shall supersede any prior
employment agreement between GMC and the Executive and shall be effective from
the date specified hereinabove.
18. BUSINESS COMBINATIONS. In the event of any sale, merger or
any form of business combination affecting the Holding Company or GMC
whatsoever, the Holding Company and GMC will obtain the express written
assumption of this Agreement by the acquiring or surviving entity from such
combination, and failure of the Holding Company and GMC to obtain such an
assumption no later than the effective date of any such business combination
will constitute a breach of this Agreement, entitling the Executive to all
payments and other benefits to be provided in the event of termination without
cause provided in Section 9.3 hereof.
19. HEADINGS. The section headings of this Agreement are for
convenience of reference only and are not to be considered in the interpretation
of the terms and conditions of this Agreement.
20. INVALIDITY OR UNENFORCEABILITY. If any term or provision
of this Agreement is held to be invalid or unenforceable, for any reason, such
invalidity or unenforceability shall not affect any other term or provision
hereof and this Agreement shall continue in full force and effect as if such
invalid or unenforceable term or provision (to the extent of the invalidity or
unenforceability) had not been contained herein. If any court determines that
any provision of Section 10 hereof is unenforceable because of the duration or
geographic scope of such provision, such court shall have the power to reduce
the scope or duration of such provision, as the case may be, and, in its reduced
form, such provision shall then be enforceable.
21. COUNTERPARTS. This agreement may be executed in any number
of counterparts, each of which for all purposes shall be deemed to be an
original.
54
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IN WITNESS WHEREOF, the parties hereto have duly executed this
agreement as of the day and year first above written.
(Corporate Seal) GRAHAM CORPORATION
By /s/ F.D. Berkeley
----------------------------------------
Chairman, President and Chief
Executive Officer
(Corporate Seal) GRAHAM MANUFACTURING CO., INC.
By /s/ A. Cadena
----------------------------------------
President
/s/ Stephen P. Northrup
----------------------------------------
STEPHEN P. NORTHRUP
Attest: /s/ Carole M. Anderson
--------------------------
55
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STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 10th day of February, 1997, before me personally came
F. D. Berkeley, to me known, who, being by me duly sworn, did depose and say
that he resides at 50 Old Mill Road, Rochester, New York; that he is Chairman,
President and Chief Executive Officer of Graham Corporation described in and
which executed the attached instrument; that he knows the seal of said
corporation and that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authorizations of the Board of Directors of
said corporation,k and that he signed his name thereto by like authority.
/s/ Carole M. Anderson
--------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 10th day of February, 1997, before me personally came
Alvaro Cadena, to me known, who, being by me duly sworn, did depose and say
that he resides at 4 LePere Drive, Pittsford, New York; that he is President of
Graham Manufacturing Co., Inc. described in and which executed the attached
instrument; that he knows the seal of said corporation and that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authorizations of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
/s/ Carole M. Anderson
--------------------------------------
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF GENESEE )
On the 10th day of February, 1997, before me personally came
STEPHEN P. NORTHRUP, to me known to be the person described in and who executed
the attached instrument and acknowledged that he executed the same.
/s/ Carole M. Anderson
--------------------------------------
Notary Public