Exhibit 10.1
Execution copy
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT effective as of the 1st day of January 2005 (the
“ Effective Date ”), by and between Daniel J.
O’Leary , an individual whose address is 17741 Brookcrest
Avenue, Baton Rouge, Louisiana 70817 (the “ Executive
”), Edgen Louisiana Corporation , a Louisiana
corporation (“ EDGEN ” or the
“Company”), and Edgen Corporation, a Nevada corporation
(“ Parent ”).
W I T N E S S E T
H
WHEREAS, the Executive served as the
President/Chief Operating Officer of Parent and EDGEN, pursuant to
an Employment Agreement, dated January 8, 2004 (the “
Prior Agreement ”), by and between EDGEN and the
Executive and since August of 2003 has served as the
President/Chief Operating Officer of Parent and EDGEN;
WHEREAS, Parent and EDGEN seek to
utilize the Executive’s knowledge, experience, talents and
abilities; EDGEN desires to continue to employ the Executive as the
President and to employ the Executive as Chief Executive Officer of
Parent and of EDGEN, and the Executive desires to be so employed,
subject to the terms and conditions set forth herein;
WHEREAS, EDGEN is a wholly-owned
subsidiary of Parent; and
WHEREAS, the Executive and EDGEN
wish to amend and restate the Prior Agreement in its entirety in
accordance with the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of
the foregoing and of the respective covenants and agreements herein
contained, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby amend and restate the Prior Agreement as
follows:
1. Employment
.
1.1 General Provision
. Subject to the terms and conditions hereinafter set forth,
EDGEN hereby agrees to employ the Executive, and the Executive
hereby agrees to serve as the President/Chief Executive Officer of
Parent and of EDGEN, effective on the Effective Date. The
Executive agrees to perform such services customary to such office
as shall from time to time be assigned to him by the Board of
Directors of Parent and/or EDGEN. The Executive further agrees
to use his best efforts to promote the interests of EDGEN and
Parent, and to devote his full business time, business energies,
and skill to the business and affairs of EDGEN and of Parent in
accordance with the directions and orders of the Board of Directors
of EDGEN and/or Parent. The Executive may participate in
reasonable outside charitable or unrelated business activities as
long as such activities do not take up a significant amount of the
Executive’s time and energies or interfere in any way with
the performance of the Executive’s duties hereunder, and to
the extent that any such activities do require the Executive to
devote a significant amount of his time and energies, such
activities must be approved in advance by the Board of Directors of
EDGEN.
1.2 Location of
Employment . Unless otherwise agreed by Executive,
Executive’s principal place of employment shall be within 50
miles of the Company’s principal executive offices located in
Baton Rouge, Louisiana. If executive should agree to any other
location, the Company shall (a) pay all out of pocket expenses
incurred by Executive in connection with the relocation; and
(b) if requested by Executive, shall purchase his residence at
fair market value as determined by a real estate appraiser,
mutually selected by the Company and Executive. If agreement
cannot be reached, each party may select one appraiser and they
shall agree on a third appraiser. The average of the three
appraisals shall become the fair market value. All expenses
incurred in connection with the appraisers shall be paid by the
Company.
1.3 Board Membership .
During the term of this agreement, the Company shall use its best
efforts to nominate and cause the election of the Executive to the
Company’s Board of Directors and its Executive Committee, if
one is constituted. Except as may otherwise be provided or
prohibited in accordance with appropriate law, the Company shall
use its best efforts to amend its Articles of Incorporation and
Bylaws to provide that directors may only be removed for cause by a
vote of the majority of the shares of voting stock of the Company
then outstanding, if necessary. If Executive is not elected to
the Board of Directors at any time during the term hereof, he shall
be entitled to terminate this agreement and receive the Severance
benefits set forth in Section 5.5 of this
Agreement.
2. Term of Employment .
The Executive’s “ Employment Term ”
pursuant to this Agreement shall commence on the Effective Date
and, unless terminated earlier pursuant to Section 4 hereof,
shall terminate upon the third anniversary of the Effective Date;
provided , however , that after the third
anniversary, the Employment Term shall automatically be extended
for additional periods of one (1) year each unless either
EDGEN or the Executive elects not to extend such term by giving
written notice thereof at least thirty (30) days prior to the
end of the then current term; provided , further ,
however , that if the Executive is terminated pursuant to
Section 4 below, there shall be no automatic renewal of the
Employment Term. For purposes hereof, the last day of the
Employment Term shall be deemed the “ Expiration Date
.”
3. Compensation and Other
Related Matters .
3.1. Base Salary
. As compensation for the services rendered by the Executive
hereunder, EDGEN shall pay, or shall cause to be paid, to the
Executive during the Employment Term, and the Executive shall
accept, compensation at the rate of Two Hundred Seventy-Five
Thousand Dollars ($275,000) per annum (the “ Annual Base
Salary ”). EDGEN’s obligation to pay the
Annual Base Salary shall begin to accrue on the Effective Date and
shall be paid in accordance with EDGEN’s customary payroll
practices which are in effect from time to time during the
Employment Term. The Annual Base Salary may be increased at
any time during the Employment Term by action of the Board of
Directors. The Executive’s Annual Base Salary shall be
subject to all applicable withholding and other taxes.
3.2. Annual Bonus
. In addition to the Annual Base Salary set forth above,
during the Employment Term, with respect to each fiscal year of
EDGEN, subject to Section 5.1, the Executive shall be entitled
to receive an annual bonus (the “ Annual Bonus
”) calculated in accordance with Schedule A
attached hereto. The Annual Bonus shall be payable by EDGEN to
the Executive with respect to each year ending on December 31
by April 1 of the following year.
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3.3. Other Employment
Benefits . During the Employment Term, the Executive shall
be entitled to the following employment benefits:
(a) four (4) weeks of paid
vacation in each fiscal year of EDGEN while the Executive is
employed hereunder (one week of which, if not used by the Executive
in any given fiscal year, may be carried over to the next fiscal
year; provided , that the Executive shall not have more than
five (5) weeks of paid vacation in any given fiscal year as a
result of such carry over), and sick leave in accordance with
EDGEN’s policies from time to time in effect for executive
officers of EDGEN; provided , that, except as provided
herein, vacation and/or sick leave time not used in any year may
not be carried over or transferred from one year to another or
converted to cash, except in a year in which there is a Change of
Control (as hereinafter defined) where the Executive is no longer
employed;
(b) participation, subject to
qualification requirements, in medical, life or other insurance or
hospitalization plans and long-term disability policies which are
presently in effect or hereinafter instituted by EDGEN and
applicable to its executive officers generally;
(c) participation, subject to
classification requirements and continued maintenance thereof by
EDGEN in other Executive benefit plans, such as pension and profit
sharing plans, which are from time to time applicable to
EDGEN’s executive officers generally;
(d) an automobile allowance of
$1,200 per month, which shall be used by the Executive to cover all
lease and insurance payments with respect to one automobile of the
Executive’s choice for business purposes, which
automobile’s retail value shall not exceed $75,000. The
Executive shall provide proof of insurance in limits and with a
company approved by EDGEN. EDGEN shall also be listed as a
“named insured” under the policy. EDGEN shall
reimburse the Executive, upon the presentation of appropriate
receipts, for all reasonable and necessary maintenance, repair and
gasoline costs incurred by the Executive in connection with the use
of such automobile; provided , that such costs are directly
related to the performance by the Executive of his obligations to
EDGEN and/or to Parent hereunder;
(e) EDGEN shall purchase
(subject to the insurability of the Executive at standard rates) a
life insurance policy in the amount of $1,000,000 on the life of
the Executive to provide benefits under Section 5.2
(b) hereof; and
(f) a supplemental payment of
$9500 per annum (the “Supplemental Payment”), which
shall be paid in accordance with EDGEN’s customary payroll
practices which are in effect from time to time during the
Employment Term.
3.4. Expenses
. During the Employment Term, the Executive shall be entitled
to receive prompt reimbursement from EDGEN or all travel,
entertainment and out-of-pocket expenses which are reasonably and
necessarily incurred by the Executive in the performance of his
duties hereunder (including up to $400 monthly for club dues in
connection with membership in one country club or similar
organization); provided, that, the Executive properly
accounts therefor in accordance with EDGEN’s policies as in
effect from time to time and such expenses are approved by the
Board of Directors of EDGEN.
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3.5 Tax Preparation
. The Company will reimburse Executive for the cost of tax and
financial preparation and planning, including services that may be
requested by Executive from time to time pertaining to this
Agreement, which shall be limited to $1,500 per year, increased by
the greater of (i) six (6%) percent per year or
(ii) the annual percentage increase in the Consumer Price
Index for All Urban Consumers (CPI-U) as published by the Bureau of
Labor Statistics, U.S. Department of Labor.
4. Termination
.
4.1. Disability
. In the event that at any time during the Employment Term,
the Executive, due to physical or mental injury, illness,
disability or incapacity, including “disability” within
the meaning of the disability plan(s) that EDGEN then has in effect
entitling the Executive to benefits thereunder (a “
Disability ”), shall fail to perform satisfactorily
and continuously the duties assigned to him and the services to be
performed by him hereunder for a period of three
(3) consecutive months or for a non-consecutive period of five
(5) months within any twelve (12) month period, EDGEN may
terminate his employment for Disability upon not less than thirty
(30) days prior written notice by delivery of a Termination
Notice (as defined below) to the Executive specifying that the
Executive is being terminated for Disability.
4.2. Death . The
Executive’s employment shall terminate immediately upon the
death of the Executive.
4.3. Cause . EDGEN
may, at any time and in its sole discretion, terminate the
Executive’s employment for Cause (as herein defined) by
delivery to the Executive of a Termination Notice specifying the
nature of such Cause, effective as of the date (such effective date
referred to herein as a “ Termination Date ”) of
such Termination Notice. For purposes hereof, termination for
“ Cause ” shall mean (i) a conviction of, a
plea of nolo contendere , a guilty plea or confession by the
Executive to an act of fraud, misappropriation or embezzlement or
to a felony; (ii) the commission of a fraudulent act or
practice by the Executive affecting EDGEN and/or Parent;
(iii) the willful failure by the Executive to follow the
directions of the Board of Directors of EDGEN; (iv) the
Executive’s habitual drunkenness or use of illegal
substances, each as determined in the reasonable discretion of the
Board of Directors of EDGEN; (v) the material breach by the
Executive of this Agreement; or (vi) an act of gross neglect
or gross or willful misconduct that relates to the affairs of
Parent and/or EDGEN which Board of Directors of EDGEN, in its
reasonable discretion, deems to be good and sufficient cause;
provided , that if the Executive shall receive a Termination
Notice with respect to a termination for Cause pursuant to
subsections (iii), (v) and/or (vi) hereof, then the
Executive shall have the thirty (30) days following his
receipt of the Termination Notice to cure the breach specified
therein, if capable of being cured, to the reasonable satisfaction
of Board of Directors of EDGEN prior to his employment being
terminated for Cause pursuant thereto; provided ,
however , the Executive shall have the right to cure any
such breach only one (1) time in any twelve (12) month
period.
4.4. Voluntary Termination
by EDGEN . EDGEN may, at any time, and in its sole
discretion, terminate the employment of the Executive hereunder for
any reason other than for Cause by the delivery to the Executive of
a Termination Notice, effective as of the date of such Termination
Notice.
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4.5. Termination by EDGEN
in Conjunction with a Change of Control . For purposes of
this Agreement, a “ Change of Control ” means
the sale of Parent whether by, merger, consolidation,
recapitalization, reorganization, sale of securities, sale of
assets or otherwise in one transaction or a series of related
transactions to a person or persons (other than to funds managed by
Jefferies Capital Partners or to any person, persons or entities
affiliated therewith), pursuant to which such person or persons
(together with its affiliates) acquires (i) securities
representing at least a majority of the voting power of all
securities including all securities convertible, exchangeable or
exercisable for or into voting securities of Parent, assuming the
conversion, exchange or exercise of all securities convertible,
exchangeable or exercisable for or into voting securities (other
than in connection with a successfully completed firm commitment
underwritten public offering pursuant to an effective registration
statement under the Securities Act), or (ii) all or
substantially all of the consolidated assets of Parent. EDGEN
may terminate the employment of the Executive hereunder in
conjunction with any Change of Control by delivery to the Executive
of a Termination Notice, effective as of the date stated in the
Termination Notice.
4.6 Resignation by
Executive in Conjunction with a Change of Control . In the
event of a “Change of Control” as defined above, the
Executive may elect to resign his position and upon such
resignation shall be entitled to a Severance Package and benefits
as set forth in Section 5.5 below.
4.7 Termination Notice
. For the purposes hereof “ Termination Notice
” shall mean a written notice delivered by EDGEN and/or
Parent to the Executive specifying that EDGEN and/or Parent has
terminated the Executive’s employment hereunder.
5. Compensation and
Benefits During Disability and Upon Termination . During a
Disability Period (as herein defined) or upon the termination of
the Executive’s employment hereunder, the Executive shall be
entitled to the following benefits:
5.1. Disability . During any
period (the “ Disability Period ”) that the
Executive, due to Disability fails to perform satisfactorily and
continuously the duties assigned to him and the services to be
performed by him hereunder, EDGEN shall continue to pay to the
Executive the Annual Base Salary (as in effect at such time) in
accordance with the provisions of Section 3.1 hereof, less any
compensation payable to the Executive under the applicable
disability insurance plan(s) of EDGEN during such Disability
Period. Thereafter, if the Executive’s employment
hereunder is terminated pursuant to Section 4.1 hereof, EDGEN
shall have no further obligations hereunder after the Termination
Date other than the payment of (a) any Annual Base Salary
accrued and unpaid on the Termination Date; (b) the Annual
Base Salary (as in effect during the year of such termination)
payable in accordance with EDGEN’s customary payroll
practices (less any compensation payable to the Executive under the
applicable disability insurance plan(s) of EDGEN), for the twelve
(12) month period immediately following the Termination Date;
and (c) any Annual Bonus accrued and unpaid on the Termination
Date for the year prior to the year in which the Executive’s
termination occurs and the Executive’s pro rata
portion of the Annual Bonus due pursuant to Section 3.2 hereof
for the year in which such termination occurs (based upon the
number of days during such year that the Executive was employed
(excluding any Disability Period) over 365 days), payable on the
same date as such
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Annual Bonus would have been payable
for such year pursuant to Section 3.2 hereof had the
Employment Term not been so terminated.
5.2. Death . If
the Executive’s employment is terminated pursuant to
Section 4.2 hereof as a result of the Executive’s death,
EDGEN shall have no further obligations hereunder after the date of
the Executive’s death other than the payment to the
Executive’s spouse, or in default thereof, to the
Executive’s estate, legal representative, or heirs (“
Appropriate Beneficiary ”) of:
(a) any Annual Base Salary and
Annual Bonus accrued and unpaid at the date of the
Executive’s death; and
(b) the proceeds of a life
insurance policy on the life of the Executive in the amount of
$1,000,000, obtained by EDGEN. In the event that payment of
the proceeds of the policy are refused by the insurer, for whatever
reason, and suit is filed against the insurer to force payment of
the proceeds, commencing the first EDGEN payroll after suit is
filed, EDGEN shall begin paying the Appropriate Beneficiary, in
accordance with its customary payroll practices, one twelfth
(1/12) of the Annual Base Salary (as in effect during the year
of such death) each month, up to a maximum equal to the Annual Base
Salary (as in effect during the year of such death). In the
event the suit against the insurer is successful, and insurance
proceeds are obtained, EDGEN shall first be reimbursed for all
death benefits paid under Section 5.2(b) and all expenses
of the suit, and the remainder, or balance of the proceeds, if any,
shall be paid to the Appropriate Beneficiary within thirty
(30) days of receipt of proceeds from the insurer by
EDGEN. EDGEN shall have sole discretion in deciding if any
suit will be filed against the insurer and whether or not, and in
what amount, any such suit should be settled or
compromised. In the event that such policy is not procured,
for whatever reason, EDGEN shall pay to the Appropriate Beneficiary
the Annual Base Salary (as in effect during the year of such
death), payable in accordance with EDGEN’s customary payroll
practices, for the 12-month period immediately following the date
of the Executive’s death.
5.3. Cause . If
the Executive’s employment is terminated by EDGEN for Cause
pursuant to Section 4.3 hereof, EDGEN shall have no further
obligations hereunder after the Termination Date other than the
payment to the Executive of the Annual Base Salary accrued and
unpaid through the Termination Date. EDGEN shall not be
obligated to make any bonus payments to the Executive pursuant to
Section 3.2 hereof for the year in which such termination
occurs or to provide any of the benefits set forth in
Section 3.3 of this Agreement after the Termination Date,
except as may be required by applicable law. Upon termination of
employment for Cause, the Executive shall be responsible for the
payment of any COBRA premiums.
5.4. Voluntary Termination
by EDGEN . If EDGEN voluntarily terminates the
Executive’s employment hereunder pursuant to Section 4.4
hereof, EDGEN shall have no further obligations hereunder after the
Termination Date, except (a) the payment for the greater of
either the 12-month period immediately following the Termination
Date or the remainder of the Employment Term of the Annual Base
Salary (as in effect during the year of such termination) payable
in accordance with EDGEN’s customary payroll practices;
(b) the payment of the premiums, co-payments and deductible
expenses due by the Executive for EDGEN-sponsored
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medical and health benefits (or the
reimbursement of COBRA premiums), but only to the extent permitted
by such policies or plans, or as otherwise required by law;
provided , however , if the Executive becomes
eligible for coverage under any other medical and
