Exhibit 10.8
AMENDED AND
RESTATED
EXECUTIVE EMPLOYMENT
AGREEMENT
This Amended and Restated Executive
Employment Agreement (this “Agreement”), dated as of
November 17, 2008 (the “Effective Date”), is made
by and between Constar International Inc., a Delaware corporation,
having its principal offices at One Crown Way, Philadelphia,
Pennsylvania 19154 (the “Company”), and Mr. James
C.T. Bolton (the “Executive”).
RECITALS
WHEREAS, the Executive is currently
employed by the Company as its senior vice president of
administration and strategic planning, pursuant to the terms of an
Employment Agreement dated November 20, 2002, as amended and
restated on May 23, 2003 (the “Original
Agreement”);
WHEREAS, the Company desires to
assure itself of the continued employment of the Executive and to
encourage his continued attention and dedication to the best
interests of the Company, by replacing the Original Agreement with
this amended and restated Agreement; and
WHEREAS, the Executive desires to
remain and continue in the employment of the Company in accordance
with the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises and mutual covenants herein contained, and intending
to be legally bound hereby, the Company and the Executive hereby
agree as follows:
1. Definitions
.
1.1. “Affiliate” means
any person or entity controlling, controlled by or under common
control with the Company.
1.2. “Board” means the
Board of Directors of the Company.
1.3. “Cause” means
(a) the Executive, in carrying out his duties under this
Agreement, engages in gross misconduct or gross negligence
resulting in a material adverse effect on the Company, (b) the
Executive embezzles any amount of the Company’s assets,
(c) the Executive is convicted (including a plea of guilty or
nolo contendere) of a felony involving moral turpitude,
(d) the Executive’s breach of any covenant contained in
Section 9 below, or (e) the Executive’s willful and
material failure to follow the lawful instructions of the
Company’s Board (consistent with Section 4 below). For
purposes of this Section 1.3, no act, or failure to act, on
the Executive’s part shall be considered
“willful” unless done, or omitted to be done, by him in
bad faith and without reasonable belief that his action or omission
was in the best interest of the Company. Any act or omission to act
by the Executive in reliance upon an opinion of counsel to the
Company shall not be deemed to be willful.
1.4. “Change in Control”
shall mean:
1.4.1. the acquisition after the
Effective Date by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934 (the “Exchange Act”)) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 30% of the combined voting
power of the voting securities of the Company entitled to vote
generally in the election of directors (the “Voting
Securities”); provided, however, that the following
acquisitions shall not constitute a Change in Control: (a) any
acquisition, directly or indirectly by or from the Company or any
subsidiary of the Company, or by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
subsidiary of the Company, (b) any acquisition by any
underwriter in connection with any firm commitment underwriting of
securities to be issued by the Company, or (c) any acquisition
by any corporation if, immediately following such acquisition, 70%
or more of the then outstanding shares of common stock of such
corporation and the combined voting power of the then outstanding
voting securities of such corporation (entitled to vote generally
in the election of directors), are beneficially owned, directly or
indirectly, by all or substantially all of the individuals and
entities who, immediately prior to such acquisition, were the
beneficial owners of the then outstanding common stock of the
Company (“Common Stock”) and the Voting Securities in
substantially the same proportions, respectively, as their
ownership, immediately prior to such acquisition, of the Common
Stock and Voting Securities; or
1.4.2. The occurrence after the
Effective Date of a reorganization, merger or consolidation, other
than a reorganization, merger or consolidation with respect to
which all or substantially all of the individuals and entities who
were the beneficial owners, immediately prior to such
reorganization, merger or consolidation, of the Common Stock and
Voting Securities beneficially own, directly or indirectly,
immediately after such reorganization, merger or consolidation 70%
or more of the then outstanding common stock and voting securities
(entitled to vote generally in the election of directors) of the
corporation resulting from such reorganization, merger or
consolidation in substantially the same proportions as their
respective ownership, immediately prior to such reorganization,
merger or consolidation, of the Common Stock and Voting Securities;
or
1.4.3. The occurrence after the
Effective Date of (a) a complete liquidation or substantial
dissolution of the Company, or (b) the sale or other
disposition of all or substantially all of the assets of the
Company, in each case other than to a subsidiary, wholly-owned,
directly or indirectly, by the Company or to a holding company of
which the Company is a direct or indirect wholly owned subsidiary
prior to such transaction; or
1.4.4. During any
period of twenty-four (24) consecutive months commencing upon
the Effective Date, the individuals at the beginning of any such
period who constitute the Board and any new director (other than a
director designated by a person or entity who has entered into an
agreement with the Company or other person or entity to effect a
transaction described in Sections 1.4.1, 1.4.2 or 1.4.3 above)
whose election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds ( 2 / 3 ) of the directors then
still in office who either were directors at the beginning of any
such period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a
majority of the Board.
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Notwithstanding the above, a “Change in
Control” shall not include any event, circumstance or
transaction which results from the action of any entity or group
which includes, is affiliated with or is wholly or partially
controlled by one or more executive officers of the Company and in
which the Executive participates.
1.5. “Disability” means
the Executive’s inability to render, for a period of six
consecutive months, services hereunder by reason of physical or
mental disability, as determined by the written medical opinion of
an independent medical physician mutually acceptable to the
Executive and the Company. If the Executive and the Company cannot
agree as to such an independent medical physician, each shall
appoint one medical physician and those two physicians shall
appoint a third physician who shall make such determination. In no
event shall the Executive be considered disabled for the purposes
of this Agreement unless the Executive is deemed disabled pursuant
to the Company’s long-term disability plan, if one is
maintained by the Company.
1.6. “Good Reason” means
and shall be deemed to exist if, without the prior express written
consent of the Executive, (a) the Executive suffers a material
adverse change in his reporting obligations, (b) the Executive
suffers a material adverse change in the duties, responsibilities
or effective authority associated with his titles and positions, as
set forth and described in Section 4 of this Agreement;
(c) a reduction by the Company of the Executive’s
“Base Salary” (as increased from time to time in
accordance with Section 5.1 below) or in the other
compensation and benefits (except for benefits payable under the
Company’s equity, incentive or bonus plans) below a level
which is substantially equivalent in the aggregate, to those
payable to the Executive hereunder, or a material adverse change in
the terms or conditions on which any such compensation or benefits
are payable as in effect on the date hereof or as the same may be
increased from time to time during the term of this Agreement;
(d) the Company discontinues the AIMSPP without immediately
replacing such plan with a plan that is the substantial economic
equivalent of such plan; (e) the Company fails to pay the
accrued Executive’s compensation or to provide for the
Executive’s accrued benefits when due; (f) the
Executive’s office location is moved to a location more than
30 miles from Philadelphia, Pennsylvania; or (g) the failure
or refusal of the “Company’s Successor” (as
defined in Section 8.2 below) to expressly assume this
Agreement in writing, and all of the duties and obligations of the
Company hereunder in accordance with Section 8.2.
1.7. “Restricted Period”
means the Term of Employment, plus (a) in the event the
Executive’s employment is terminated pursuant to
Section 6.4, the twenty-four (24) month period
immediately following such termination; or (b) in the event
the Executive’s employment is terminated for any other
reason, the twelve (12) month period immediately following
Executive’s termination of employment.
2. Employment
. Subject to the terms and
provisions set forth in this Agreement and specifically as provided
in Section 4.1, the Company hereby agrees that the Executive
shall at all times during the “Term of Employment” (as
defined in Section 3 below) be employed as the senior vice
president of administration and strategic planning for the Company,
and the Executive hereby accepts such employment.
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3. Term of
Employment . This
Agreement will become effective on the Effective Date. From and
after the Effective Date, this Agreement will govern the
Executive’s continued employment by the Company until that
employment ceases pursuant to Section 6 (such period of the
Executive’s employment is herein referred to as the
“Term of Employment”). Notwithstanding any other
provision of this Agreement to the contrary, to the extent that
this Agreement has not terminated in accordance with Section 6
prior to the third anniversary of the first Change in Control (as
defined above) that occurs following the Effective Date, this
Agreement shall terminate (other than as provided in
Section 10.13) on the third anniversary of such Change in
Control (with such termination constituting a “Change in
Control Non-renewal”) and, thereafter, the Executive shall
become an “at will” employee of the Company. Upon the
termination of Executive’s employment occurring on or after a
Change in Control Non-renewal (at which time the Executive will be
an “at will” employee of the Company), Executive will
not be entitled to any severance payments hereunder, including but
not limited to any severance payments to which he may otherwise
have been entitled had his employment been terminated during the
thirty-six month period immediately following a Change in
Control.
4. Positions, Responsibilities
and Duties .
4.1. Positions . During the
Term of Employment, the Executive shall be employed and serve as
the senior vice president of administration and strategic planning
for the Company. In such position, the Executive shall have the
duties, responsibilities and authority normally associated with the
office and position of senior vice president of administration and
strategic planning of a publicly-traded corporation. The Executive
shall report to the Board, the chief executive officer and the
chief financial officer. The chief information officer and his
staff shall report to the Executive and/or his designees.
Notwithstanding the above, the Executive shall not be required to
perform any duties and responsibilities which would be likely to
result in a non-compliance with or violation of any applicable law
or regulation.
4.2. Duties . During the Term
of Employment, the Executive shall have responsibility for and
authority over the continuous process of development,
implementation and improvement of Constar’s strategic plan
and of Constar’s business processes for the Company and its
Affiliates. Additionally, during the Term of Employment, the
Executive shall devote substantially all of his business time,
during normal business hours, to the business and affairs of the
Company and the Executive shall use his reasonable best efforts to
perform faithfully and efficiently the duties and responsibilities
contemplated by this Agreement; provided, however, that the
Executive shall be allowed, to the extent such activities do not
substantially interfere with the performance by the Executive of
his duties and responsibilities hereunder, to (a) manage the
Executive’s personal, financial and legal affairs, and
(b) serve on corporate, civic or charitable boards or
committees.
5. Compensation and Other
Benefits .
5.1. Base Salary . During the
Term of Employment, the Executive shall receive a base salary per
annum payable in accordance with the Company’s normal payroll
practices of no less than US $247,614, which the Board shall review
annually and may, in its sole discretion, increase (but not
decrease) (“Base Salary”).
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5.2. Annual Bonus . During
the Term of Employment, the Executive shall participate in the
Company’s Annual Incentive & Management Stock
Purchase Plan (the “AIMSPP”) as maintained by the
Company from time to time for the benefit of senior executives. In
respect of each calendar year during the Term of Employment,
beginning in calendar year 2003, the Executive shall be eligible
for an annual bonus (the “Bonus”) if the Executive
and/or the Company achieves performance goals established by the
Board in good faith and consistent with the AIMSPP.
5.3. Retirement and Savings
Plans . During the Term of Employment, the Executive shall be
eligible to participate in all, pension, retirement, savings,
401(k) and other employee pension benefit plans, policies and
programs (the “Retirement Plans”) maintained by the
Company from time to time for the benefit of senior executives
and/or other employees. However, nothing in this Section 5.3
shall be construed to require the Company to establish or maintain
any such Retirement Plans.
5.4. Supplemental Executive
Retirement Plan . During the Term of Employment, the Executive
shall participate in the Company’s Supplemental Executive
Retirement Plan (the “SERP”) as maintained by the
Company from time to time for the benefit of senior
executives.
5.5. Welfare Benefit Plans .
During the Term of Employment, the Executive, the Executive’s
spouse, if any, and his eligible dependents, if any, shall be
eligible to participate in and be covered on the same basis as
other senior executive officers of the Company under all the
welfare benefit plans, policies and/or programs maintained by the
Company from time to time including, without limitation, all
medical, hospitalization, dental, disability, life, accidental
death and dismemberment and travel accident insurance plans,
policies and/or programs (the “Welfare Plans”).
However, nothing in this Section 5.5 shall be construed to
require the Company to establish or maintain any such Welfare
Plans. The Welfare Plans and the Retirement Plans are sometimes
referred to collectively herein as the “Benefit
Plans.”
5.6. Expense Reimbursement .
During and in respect of the Term of Employment, the Executive
shall be entitled to receive prompt reimbursement for expenses
incurred by the Executive in performing his duties and
responsibilities hereunder in accordance with the Company’s
policy for senior executives of the Company. Notwithstanding
anything herein to the contrary or otherwise, except to the extent
any expense, reimbursement or in-kind benefit provided pursuant to
Section 5.5 and this Section 5.6 does not constitute a
“deferral of compensation” within the meaning of
Section 409A of the Internal Revenue Code of 1986, as amended
from time to time, and its implementing regulations and guidance
(“Section 409A”) (a) the amount of expenses
eligible for reimbursement or in-kind benefits provided to the
Executive during any calendar year will not affect the amount of
expenses eligible for reimbursement or in-kind benefits provided to
the Executive in any other calendar year, (b) the
reimbursements for expenses for which the Executive is entitled to
be reimbursed shall be made on or before the last day of the
calendar year following the calendar year in which the applicable
expense is incurred and (c) the right to payment or
reimbursement or in-kind benefits hereunder may not be liquidated
or exchanged for any other benefit.
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5.7. Vacation and Fringe
Benefits . During the Term of Employment, the Executive shall
be entitled to at least four weeks paid vacation each calendar
year, plus paid time off due to illness or personal reasons in
accordance, in all such cases, with Company policy.
5.8. Equity Compensation .
During the Term of Employment, the Executive shall be eligible to
participate in and receive awards under the Company’s 2007
Stock-Based Incentive Compensation Plan, and any other equity-based
incentive plans as maintained by the Company from time to time for
the benefit of senior executives.
6. Termination
. For purposes of determining under
Section 409A whether there has been a “separation from
service” with the meaning of Treasury Regulation
Section 1.409A-1(h) (or any successor regulation), the
Executive shall be deemed to have incurred a separation from
service if his employment has been terminated in accordance with
Sections 6.1 through Section 6.6 hereof and he is performing
less than 20% of the average level of bona fide services he was
performing for the Company in the immediately preceding 36-month
period (“Separation From Service”).
6.1. Termination Due to Death
. In the event of the Executive’s death, the
Executive’s estate or his legal representative, as the case
may be, shall be entitled to: (a) any Base Salary earned but
unpaid as of the date of death and Base Salary continuation through
the end of the month in which the Executive’s death occurs;
(b) a pro-rata payment for the year of the Executive’s
death equal to the “target” Bonus plus the matching
incentive under the AIMSPP (the “Total Award”) for such
year multiplied by a fraction, the numerator which is the number of
days transpired in the calendar year up to and including the date
of the death of the Executive, and the denominator of which is 365;
(c) immediate payment of any unpaid expense reimbursements and
unused accrued vacation days through the date of the
Executive’s death; and (d) any other payments and/or
benefits which the Executive, the Executive’s estate or the
Executive’s legal representative is entitled to receive under
any of the Benefit Plans, the AIMSPP, the SERP or otherwise in
accordance with the terms of such plan or arrangement.
6.2. Termination Due to the
Executive’s Disability . Upon 30 days prior written
notice to the Executive, the Company may terminate the
Executive’s employment hereunder due to Disability. In such
event, the Executive or his legal representative, as the case may
be, shall be entitled to: (a) any Base Salary earned but
unpaid as of the date of the Executive’s termination due to
Disability and Base Salary continuation through the end of the
month in which such termination occurs; (b) a pro-rata payment
for the year of termination equal to the Total Award under the
AIMSPP for such year multiplied by a fraction, the numerator of
which is the number of days transpired in the calendar year up to
and including the date on which the Executive is terminated by the
Company due to Disability, and the denominator of which is 365,
payable within 30 days following the date the Separation From
Service occurs; (c) immediate payment of any unpaid expense
reimbursements, deferred compensation and unused accrued vacation
days through the date of the Separation from Service; and
(d) any other payments and/or benefits which the Executive or
the Executive’s legal representative is entitled to receive
under any of the Benefit Plans, the AIMSPP, the SERP or otherwise
in accordance with the terms of such plan or
arrangement.
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6.3. Termination Without Cause or
by the Executive for Good Reason Prior to Change in Control .
Prior to a Change in Control and upon 30 days prior written notice
to the Executive, the Company may terminate the Executive’s
employment hereunder without Cause. Prior to a Change in Control
and upon 30 days prior written notice to the Company the Executive
may terminate his employment hereunder with the Company for Good
Reason. In either such event (unless the Executive has incurred a
termination under Section 6.1 or 6.2 above), the Executive
shall be entitled to, upon execution and effectiveness of a release
in substantially the form attached as Exhibit A and upon
resignation by the Executive from the Board: (a) Base Salary
earned but unpaid as of the date of the Executive’s
termination; (b) a lump sum payment equal to one times Base
Salary plus one times the Total Award under the AIMSPP for
the year in which such termination occurs; (c) continuation of
medical benefits in effect as of the date of termination for a
period of one year following the date of termination at the
Company’s sole expense and following the expiration of this
coverage period, COBRA continuation coverage under the
Company’s medical plan for 18 months in accordance with
applicable law at the Executive’s sole expense provided that
the Executive is not enrolled in another group health plan;
provided that to the extent that the foregoing medical benefits are
deemed to be a “deferral of compensation” within the
meaning of Section 409A, the provision of such benefits will
be subject to the second sentence of Section 5.6;
(d) immediate payment of any unpaid expense reimbursements and
unused accrued vacation days through the date of termination; and
(e)
