Exhibit 10.14
EMPLOYMENT
AGREEMENT
by and between
JAMES G. PERKINS
and
MISSISSIPPI PHOSPHATES
CORPORATION
T
HIS
E
MPLOYMENT
A
GREEMENT is entered into effective as of
the 1 st day of January, 2008 (“
Effective Date ”), by and between M
ISSISSIPPI
P
HOSPHATES
C
ORPORATION
, a Delaware
corporation (“ Employer ”), and J
AMES
G. P
ERKINS
(“
Executive ”).
WHEREAS , Employer believes that the continued services
of Executive will be of substantial benefit to Employer and desires
to assure itself of the continued availability of such
services;
WHEREAS , Executive desires to continue employment with
Employer on the terms and subject to the conditions hereinafter
stated.
NOW, THEREFORE
, in consideration of the above
premises and other good and valuable consideration as herein
recited, the parties hereto agree as follows:
1. Employment; Term . Executive shall
serve as the Vice President and General Manager of Employer. The
principal place of employment will be within a 50-mile radius of
Pascagoula, Mississippi.
The initial term of this Agreement
shall begin as of the Effective Date and (subject to earlier
termination pursuant to the terms of this Agreement) shall
terminate on December 31, 2008 (the “ Initial
Term ”). Upon the expiration of the Initial Term, the
term of this Agreement shall be automatically renewed annually for
successive terms of one (1) year (each, a “ Renewal
Term ”), unless either party notifies the other party in
writing of the non-renewal of this Agreement at least sixty
(60) days prior to the expiration of the Initial Term or any
Renewal Term thereafter.
2. Duties and Responsibilities .
Executive shall report directly to the Employer’s Chief
Operating Officer. Executive shall be responsible for management of
the Employer’s manufacturing plant, and shall perform such
duties and responsibilities as may from time to time be determined
by the Chief Operating Officer. Executive shall be a full-time
employee of Employer and shall exert his best efforts and devote
substantially all of his time and attention to the affairs of
Employer. Executive shall cooperate fully with Employer’s
officers and employees in conjunction with their efforts to
develop, commercialize and market Employer products.
3. Compensation . Employer shall pay
to Executive for his services hereunder the following
compensation:
(a) Base Compensation .
Executive’s annual base salary shall be One Hundred
Ninety Thousand Dollars ($190,000) payable by Employer in
accordance with Employer’s payroll procedures (“
Base Compensation ”). Executive shall also be eligible
to participate in the Management Bonus Plan described in
Section 3(b)(i). Executive’s Base Compensation may be
increased from time to time by the Board of Directors of Employer,
but Executive’s annual base salary shall not be subject to
reduction unless Employer implements a salary reduction applicable
to all employees.
(b) Management Bonus Plan . Executive
shall be eligible to receive bonuses (“ Management
Bonuses ”) pursuant to Employer’s Management Bonus
Plan, the current version of which is attached hereto as Exhibit
A . Executive’s allocation of the Management Bonus Pool
shall not be less than twelve percent (12%) with respect to
any Management Bonus Plan year for which Executive
participates.
4. General Executive
Benefits . During the
term of this Agreement, Executive shall be entitled to the general
retirement, profit sharing, health and dental insurance, term life
insurance, long term disability insurance, salary continuation,
hospital or other plans which may now be in effect or which may
hereafter be adopted (“ Employee Benefits ”), it
being understood that Executive shall have the same rights and
privileges as other senior executive employees of Employer ,
except to the extent that such rights and privileges conflict with,
or duplicate, the benefits provided to Executive under this
Agreement. The proceeds of such life insurance shall be payable to
a beneficiary designated by Executive.
5. Business Expenses . During the
term of this Agreement, Employer will reimburse Executive for all
ordinary and necessary business expenses incurred by him in
connection with his employment upon timely submission by Executive
of receipts and other documentation in conformance with
Employer’s normal procedures, and in accordance with
applicable United States Treasury Regulations. The Employer shall
provide the appropriate forms to Executive to allow him to
adequately substantiate and account for such business
expenses.
6. Vacation . During the term of this
Agreement, Executive shall be entitled to paid vacation, paid
holidays and sick leave in accordance with Employer’s
standard policies, as may be amended from time to time.
7. Termination
.
(a) Termination for Cause .
Notwithstanding any other provisions of this Agreement, Employer
may, at any time, without prior notice, discharge the Executive
“For Cause.” For purposes of this Agreement, “For
Cause” shall mean the occurrence of any one of the following
events:
(i) Any illegal or dishonest conduct
which materially and adversely affects the reputation, goodwill, or
business position of Employer or which involves Employer funds or
assets; or
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(ii) Any reckless or intentional
material damage to property or business of Employer; or
(iii) Any material failure to follow
procedures, directives or policies of the Board of Directors of
Employer, which has not been cured within thirty (30) days (or
if such failure cannot be cured within thirty (30) days, the
Executive has not commenced and is not diligently pursuing such
cure) after written notice of such material failure is delivered to
Executive; or
(iv) Theft, embezzlement or
misappropriation of Employer property; or
(v) Any material breach by Executive
of the terms of this Agreement which has not been cured within
thirty (30) days (or if the breach cannot be cured within
thirty (30) days, the Executive has not commenced and is not
diligently pursuing such cure) after written notice of material
breach is delivered to Executive.
Termination pursuant to this
Section 7(a) shall result in Executive’s immediate
forfeiture of all rights and privileges under this Agreement,
excluding accrued Base Compensation and vacation and any awarded
but unpaid Management Bonus, allowing for deduction or set-off of
any amounts owed to Employer by Executive, with respect to which
Executive has previously agreed in writing that set-off is
permissible. Payment of any amounts due to Executive under this
Section 7(a) must be paid (unless otherwise set forth herein)
no later than thirty (30) days following the date of
termination of Executive’s employment. For purposes of this
Section 7. Termination , a Management Bonus shall be
deemed to be awarded as of the last day of the Initial or any
Renewal Term hereof and Executive’s proportionate share in
any “Management Bonus Pool” shall be twelve percent
(12%) for the Initial Term hereof and shall be
Executive’s actual proportion of the Management Bonus Pool
during the immediately preceding Initial or Renewal Term for any
Renewal Term (“Executive’s Proportionate
Share”).
(b) Termination for Good Reason; Termination
Without Cause .
(i) For purposes of this Agreement,
the following definitions shall apply:
(A) “ Termination For Good
Reason ” means the termination of Executive’s
employment with the Employer by Executive within twelve
(12) months of the occurrence of any one of the following
events:
(1) a material change in
Executive’s responsibilities and duties by the Board of
Directors of Employer, excluding however reasons For Cause, it
being understood that a change in job title or reporting lines will
not alone qualify as Good Reason;
(2) the failure of Employer to pay
Executive a material portion of his Base Compensation or any other
compensation that is to be paid to Executive;
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(3) Employer’s breach of any
material term of this Agreement, which has a material adverse
effect on Executive; or
(4) a Constructive Termination which
shall mean the actual termination of employment by Executive within
forty-five (45) days of an occurrence of any one of the
following actions without Executive’s expressed prior written
approval: (a) any material reduction of Executive’s Base
Compensation which is not part of a general, Board approved, salary
reduction applicable to all employees; (c) any material
reduction in Executive’s Employee Benefits that is not part
of a general, Board-approved, plan reducing Employee Benefits; or
(d) the change of Executive’s principal place of
employment to a location more than fifty (50) miles from
Pascagoula, Mississippi.
In the cases set forth above in
subparagraphs (1) through (3), the Executive must notify the
Employer, within ninety (90) days of the date of occurrence of
one of the events specified above, that such event has occurred and
the Employer shall then have thirty (30) calendar days to
remedy the situation under subparagraphs (1) and
(3) above, and shall have five (5) calendar days to
remedy the situation under subparagraph (2) above.
(B) “ Termination Without
Cause ” means the termination of Executive’s
employment by Employer for any reason other than (1) For
Cause, or (2) termination due to Executive’s death or
disability pursuant to Section 7(d) hereof.
(ii) Employer may terminate
Executive “Without Cause” by delivering to Executive
written notice of such termination, and Executive may terminate
this Agreement for “Good Reason” upon written notice.
In the event Executive’s employment is terminated Without
Cause by Employer or for Good Reason by Executive, Employer shall
pay to Executive an amount equal to the remaining Base Compensation
due to be paid to Executive through the end of the Initial Term or
any Renewal Term, whichever is applicable, plus accrued vacation,
plus Executive’s Proportionate Share of any awarded but
unpaid Management Bonus for the prior calendar year and a
Management Bonus for the year of termination calculated based on
“Annualized Income before Bonuses and Income Taxes,”
which shall mean Income before Bonuses and Income Taxes (as defined
in Exhibit A) through the last day of the month during which
termination occurs multiplied by a fraction the numerator of which
is twelve (12) and the denominator of which is number of
months during the Initial or any Renewal Term, as the case may be,
which begin prior to date that Termination occurs and
Executive’s Proportionate Share, together with Employee
Benefits through the end of the Initial Term or any Renewal Term,
whichever is applicable.
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EXAMPLE : Assume that Executive’s employment is
terminated on June 15 of the Initial Term and that Income
before Bonuses and Income Taxes through June 30 of the Initial
Term is Fifteen Million Dollars ($15,000,000). Therefore,
Annualized Income before Bonuses and Income Taxes is Fifteen
Million Dollars multiplied by 12/6 or Thirty Million Dollars
($30,000,000) and the Executive’s Proportionate Share is
twelve percent (12%). Accordingly, Executive’s Management
Bonus for the year of termination is determined as
follows:
Annualized Income before Bonuses and
Taxes—$30,000,000
Beginning
Equity—$93,631,873
Executive’s Proportionate
Share—12%
Effective Tax
Rate—38.25%
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(30,000,000 x (1 - .3825))
– (.10 x 93,631,873)
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x .12
|
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10 + (1-.3825)
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Executive’s Bonus =
$103,547.68
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The Compensation described above
shall be paid in one lump sum payment and (unless provided
otherwise herein), it must be paid no later than the fifteenth day
of the third calendar month following the date of termination of
the Executive’s employment. All of the Employee Benefits
payable, other than health coverage, must be paid or reimbursed no
later than December 31, of the second year following the year
of termination of the Executive’s employment. Nothing in this
subsection 7(b)(ii) or elsewhere in this Section 7, shall
not be construed or deemed to supersede any Employee Benefits or to
reduce or limit Employee Benefits otherwise payable to Executive
upon termination, provided that no duplication of any Employee
Benefits shall occur as a result hereof.
(c) Resignation . Executive may resign
by giving Employer thirty (30) days written notice of his
intent to resign. Upon resignation, Executive shall have no claim
to any future payments under the terms of this Agreement, excluding
accrued Base Compensation, accrued vacation and any awarded but
unpaid Management Bonus, allowing for deduction or set-off of any
amounts owed to Employer by Executive hereunder, with respect to
which Executive has agreed in writing that set-off is permissible.
All amounts payable under this Section 7(c) must be paid no
later than thirty (30) days following termination of
Executive’s employment.
(d) Termination Because of
Death or Disability .
This Agreement shall be terminated because of Executive’s
death or disability. For the purposes of this Section 7(d),
Executive is deemed disabled if he is unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months. In the event that this
Agreement is terminated due to death of Executive, Employer shall
pay in one lump sum to Executive’s estate the amount
of
5
Base Compensation
and accrued vacation due to Executive through the end of the month
in which such death occurs within thirty (30) days of death.
Payment of any awarded but unpaid Management Bonus to the estate
must be made in no event later than (i) end of the calendar
year in which Executive’s death occurs or (ii) the
fifteenth (15 th ) day of the third
calendar month following the date of the Executive’s death.
In the event that this Agreement is terminated due to disability of
Executive, Employer shall pay to Executive the amounts and Employee
Benefits described in Section 7(b)(ii) hereof.
(e) Specified Employee .
Notwithstanding any provision set forth in this Agreement to the
contrary, if the Executive is considered a “specified
employee” at the time of his termination of employment that
creates a “separation from service,” as that term is
defined in Treasury Regulations § 1.409A-1(h), then while
the Executive is a specified employee no distributions of
compensation shall be made to the Executive during the first six
(6) months following his separation from service, unless the
Executive dies after his separation from service. During the six
(6) month period of time the amounts otherwise payable shall
be accumulated and paid to the Executive in a lump sum payment on
the first day of the seventh month following the separation from
service. The compensation held by the Employer may not be assigned
by the Executive or made available to his creditors.
8. Ownership Acknowledgment
and Assignment .
(a) For purposes of this Agreement the following
definition shall apply: “Work Product” means all
conceptual, technological, operating, training, marketing or other
ideas, processes, designs, developments, and materials,
specifically including all inventions, discoveries, improvements,
enhancements, computer programs, mask works, written or other
materials in any way pertaining to the existing or contemplated
business, products or services of Employer, that Executive may
develop or conceive of while employed by Employer, alone or with
others, during or after working hours, and with or without the use
of the resources of Employer. The determination of whether a Work
Product exists should be made according to whether the development
has any possible significance to Employer in Employer’s
existing or contemplated business, regardless of whether it is
technically eligible for protection under patent, copyright, mask
work, trade secret law or other proprietary rights or intellectual
property laws.
(b) Executive acknowledges and agrees that all Work
Product shall be considered made for hire by Executive for Employer
and prepared