Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT
AGREEMENT
This AMENDED AND RESTATED AGREEMENT
made as of the 30th day of April, 2004 by and between CRAIG S.
KIEFER , an individual residing at 415 Carriage Creek Lane,
Friendswood, TX 77546 (the “ Executive ”),
EDGEN CARBON PRODUCTS GROUP, L.L.C. , a Louisiana limited
liability company (the “ Company ”), and
EDGEN CORPORATION , a Nevada corporation (“
Parent ”).
W I T N E S S E T
H
WHEREAS, the Executive serves as the
President of the Company, which is a wholly-owned subsidiary of
Parent, pursuant to an Employment Agreement, dated April 3,
2002 (the “ Prior Agreement ”), by and between
the Company and the Executive;
WHEREAS, Parent and the Company seek
to utilize the Executive’s knowledge, experience, talents and
abilities; Parent and the Company desire to employ the Executive as
the President of the Company, and the Executive desires to be so
employed, subject to the terms and conditions set forth herein;
and
WHEREAS, the Executive and the
Company 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.
Subject to the terms and conditions hereinafter set forth,
the Company and Parent hereby agree to employ the Executive, and
the Executive hereby agrees to serve as the President of the
Company, effective on April 30, 2004. 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 (the
“ Board of Directors ”) and/or by Parent’s
Chief Executive Officer, or his designee (collectively the “
Chief Executive Officer ”). The Executive further
agrees to use his best efforts to promote the interests of the
Company and of Parent, and to devote his full business time and
entire energies and skill to the business and affairs of the
Company and of Parent in accordance with the directions and orders
of the Board of Directors and/or the Chief Executive Officer;
provided, however , that it shall not be a violation of this
Agreement for the Executive to serve on corporate, civic, or
charitable boards or committees or manage personal investments, as
long as such activities do not interfere in any substantial respect
with the Executive’s responsibilities hereunder.
2. Term of Employment.
The Executive’s “ Employment Term ”
pursuant to this Agreement shall commence on the date hereof (the
“ Effective Date ”) and, unless terminated
earlier pursuant to Section 4 hereof, shall terminate upon the
first anniversary of the Effective Date; provided, however, that
the Employment Term shall automatically be extended on a day-by-day
basis (so that the remaining taint shall always be one
(1) year) unless either the Company or the Executive
elects not to renew such term by giving written notice (an “
Employment Expiration Notice ”) thereof; provided,
further, however , that if the Executive is terminated pursuant
to Section 4 below, there shall be no automatic daily renewal
of the Employment Term. The Employment Term shall terminate on the
one (1) year anniversary of the date of receipt of the
Employment Expiration Notice by the Employee or the Employer, as
applicable.
3. Compensation and Other
Related Matters.
3.1. Base Salary.
As compensation for the services rendered by the Executive
hereunder, the Company 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 One Hundred Eighty Thousand
Dollars ($180,000.00) per annum (the “ Annual Base
Salary ”). The Company’s obligation to pay the
Annual Base Salary shall begin to accrue on the Effective Date and
shall be paid in accordance with the
Company’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 recommendation of the Chief
Executive Officer to 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, the Executive shall be entitled to receive an
annual bonus (the “ Annual Bonus ”) in the
amount and calculated in the manner set forth on Schedule A
annexed hereto. The Annual Bonus shall be payable by the Company to
the Executive with respect to each year ending on December 31
by March 15 of the following year.
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 the Company while the Executive is
employed hereunder one (1) 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 the
Company’s policies from time to time in effect for executive
officers of the Company; provided, that, 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 hereafter instituted by the Company and
applicable to its executive officers generally; provided that, the
Company shall pay all premium, copayment and deductible expenses of
the Executive in respect of such Company plans and
policies;
(c) participation, subject to
classification requirements and continued maintenance thereof by
the Company in other employee benefit plans, such as pension and
profit sharing plans, which are from time to time applicable to the
Company’s executive officers generally; and
(d) an automobile allowance of
One Thousand Dollars ($1,000) 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. The Company shall reimburse the Executive, upon the
presentation of appropriate receipts, for all 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 the Company hereunder.
3.4. Expenses.
During the Employment Term, the Executive shall be entitled
to receive prompt reimbursement from the Company of all travel,
entertainment and out-of-pocket expenses which are reasonably and
necessarily incurred by the Executive in the performance of his
duties hereunder; provided that the Executive properly accounts
therefor in accordance with the Company’s policies as in
effect from time to time and such expenses are approved by the
Chief Executive Officer.
4.
Termination.
4.1. Disability.
In the event that at any time during the Employment
Tem’, the Executive, due to physical or mental injury,
illness, disability or incapacity, including
“disability” within the meaning of the disability
plan(s) which the Company then has in effect entitling the
Executive to benefits thereunder (“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
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(12) month period, the Company
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.
4.2. Death. The
Executive’s employment shall terminate immediately upon the
death of the Executive.
4.3. Cause. The
Company 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 the Company and/or Parent;
(iii) the willful failure by the Executive to follow the
directions of the Board of Directors or the Chief Executive
Officer; (iv) the Executive’s habitual drunkenness as
determined in the reasonable discretion of the Board of Directors
or use of illegal substances; (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 the
Company and/or Parent which the Board of Directors of the Company
in its reasonable discretion deems to be good and sufficient cause;
provided, that the Executive shall receive a Termination Notice
with respect to a termination for Cause pursuant to subsections
(iii), (v) and/or (vi) hereof and the Executive shall
have the thirty (30) days following his receipt of the
Termination Notice to cure the breach specified therein prior to
his employment being terminated for Cause pursuant
thereto.
4.4. Voluntary Termination
by Company. The Company 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.
4.5. Termination by Company
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 Harvest Partners III, L.P. 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 of Parent, including 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 or (ii) all or substantially all of the
consolidated assets of Parent. The Company may terminate the
employment of the Executive hereunder in conjunction with any
Change of Control in accordance with Section 5.6 hereof by
delivery to the Executive of a Termination Notice (as defined
above), effective as of the date stated in the Termination
Notice.
4.6. Executive’s
Resignation for Good Reason. After a Change of Control,
the Executive may terminate his employment for Good Reason in
accordance with Section 5.6. For purposes hereof, “Good
Reason” shall mean, without the Executive’s consent:
(i) the assignment to the Executive of any duties inconsistent
in any material respect with the Executive’s position
(including status, offices, duties and reporting relationships),
authority, duties or responsibilities as contemplated by
Section 1 hereof, or any other action by the Company which
results in a significant diminution in such position, authority,
duties, or responsibilities, excluding any isolated and inadvertent
action not taken in bad faith and which is remedied by the Company
within ten (10) days after receipt of notice thereof from the
Executive; (ii) any failure by the Company to comply with any
of the
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provisions of Section 3 hereof
other than an isolated and inadvertent failure not committed in bad
faith and which is remedied by the Company within ten
(10) days after receipt of notice thereof from the Executive;
(iii) the Executive’s being required to relocate to a
principal place of employment more than fifty (50) miles from
his principal place of employment with the Company as of the
Effective Date or (iv) delivery by the Company of a notice
discontinuing the automatic extension provision of Section 2
hereof.
5. Compensation 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, the Company 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 the
Company during such Disability Period. Thereafter, if the
Executive’s employment hereunder is terminated pursuant to
Section 4.1 hereof; the Company shall have no further
obligations hereunder after the Termination Date other than the
payment of (a) the Annual Base Salary (as in effect during the
year of such termination) payable in accordance with the
Company’s customary payroll practices (less any compensation
payable to the Executive under the applicable disability insurance
plan(s) of the Company), for the twelve (12) month period
immediately following the Termination Date and (b) the
Executive’s pro rata portion of the Annual Bonus due pursuant
to Section 3,2 hereof for the calendar year in which such
termination occurs (based upon the number of days during such year
that the Executive was employed over 365 days prior to
termination), payable on the same date as such 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,
the Company shall have no further obligations hereunder after the
date of the Executive’s death other than the payment to the
Executive’s estate, legal representative, heirs or other
beneficiaries of (a) the Annual Base Salary (as in effect
during the calendar year of such death) payable in accordance with
the Company’s customary payroll practices, for the twelve
(12) month period immediately following the date of the
Executive’s death, and (b) the Executive’s pro
rata portion of the Annual Bonus due pursuant to Section 3.2
hereof for the calendar year in which such death occurred (based
upon the number of days during such year that the Executive was
employed over 365 days prior to death), payable on the same
date as such Annual Bonus would have been payable for such year
pursuant to Section 3.2 hereof had the Employment Term not
been so terminated.
5.3. Cause. If
the Executive’s employment is terminated by the Company for
Cause pursuant to Section 4.3 hereof; the Company 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. The Company shall not be
obligated to make any bonus payments to the Executive pursuant to
Section 3.2 hereof for the calendar 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.
5.4. Voluntary Termination
by Company. If the Company voluntarily terminates the
Executive’s employment hereunder pursuant to Section 4.4
hereof; the Company shall have no further obligations hereunder
after the Termination Date other than the payment of (a) (i)
one (1) year of the Annual Base Salary (as in effect during
the year of such termination) payable in accordance with the
Company’s customary payroll practices, and (ii) at no
greater out-of-pocket
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expense to the Company than incurred
prior to termination, the Company-sponsored medical and health
benefits (or the reimbursement of COBRA premiums) previously made
available to the Executive, but only to the extent permitted by
such policies or plans, or as otherwise required by law, and
(b) the Annual Bonus due pursuant to Section 3.2 hereof
for the calendar year in which such termination occurs, payable on
the same date as such Annual Bonus would have been payable for such
calendar year pursuant to Section 3.2 hereof had the
Employment Term not been so terminated.
5.5. Termination by
Executive. If at any time during the Employment Term, the
Executive terminates his employment with the Company and Parent for
any reason whatsoever other than Good Reason pursuant to
Section 4.6 hereof, the Company 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. The Company shall not be
obligated and shall be released from all obligations to make any
bonus payments to the Executive pursuant to Section 3.2
hereof, if any, for the calendar year in which such
terminatio
