Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made, effective as
of August 21, 2007, by and between Gibraltar Industries, Inc.,
a Delaware corporation, with offices at 3556 Lake Shore Road,
Buffalo, New York 14219 (the “Company”), and Henning N.
Kornbrekke, an individual residing at ____________, Buffalo, New
York 14051 (the “Executive”).
RECITALS:
The Executive has been employed as
the President of the Company since February 2004 and as
President and Chief Operating Officer since December, 2004.
The Executive has made and is
expected to continue to make a major contribution to the
profitability, growth and financial strength of the Company. In
addition, the Company considers the continued services of the
Executive to be in the best interests of the Company and its
stockholders.
The Company and the Executive desire
to set forth in writing the terms and conditions upon which the
Executive will be employed as the Company’s President and
Chief Operating Officer.
CONSIDERATION:
NOW, THEREFORE, in consideration of
the conditions and covenants set forth in this Agreement, the
parties hereto agree as follows:
ARTICLE 1.
Employment and Duties
1.01 Employment . The Company
hereby agrees to, and does hereby employ the Executive, and the
Executive hereby agrees to and does hereby accept employment, as
the Company’s President and Chief Operating Officer. It is
contemplated that the Executive will
continue
to serve as the Company’s President and Chief Operating
Officer subject to the provisions of this Agreement and the right
of the Company to elect new officers. The Executive agrees that in
the event his employment with the Company is terminated for any
reason whatsoever, effective as of the date of such termination the
Executive will be deemed and construed, without any further action
on the part of the Executive (including, but not limited to, the
execution and delivery of a written resignation letter), to have
resigned: (a) from his position as President and Chief
Operating Officer; (b) from all other positions he may hold as
an officer or director or member of the management of any
corporation or other entity that is directly or indirectly owned by
the Company; and (c) from any and all other positions he may
hold with the Company or any of the Company’s direct or
indirect subsidiaries, whether as an officer or employee or as a
member of any committee, board or other executive or administrative
body.
1.02 Duties . During the
period of his employment under this Agreement the Executive shall
perform such executive duties and responsibilities as may be
assigned to him, from time to time, by the Board of Directors of
the Company and shall be subject, at all times, to the control of
the Company’s Board of Directors. The Executive may become a
director or trustee of any corporation or entity that does not
constitute a Competitive Operation as described in
Section 4.03 hereof; provided that, the Executive will not be
permitted to serve as a member of the board of directors of more
than three (3) companies whose shares are traded on a
nationally recognized stock exchange without first obtaining
approval of the Company’s Board of Directors. The Company
shall not require the Executive to perform services hereunder
outside the Buffalo, New York metropolitan area with such frequency
or duration as would require the Executive to move his residence
from the Buffalo, New York area.
ARTICLE 2.
Compensation and Fringe Benefits
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2.01 Base Salary . The annual
base salary of the Executive (hereinafter the “Base
Salary”) shall, for the 2007 calendar year, be equal to
$550,000. Accordingly, during the period beginning on the date this
Agreement becomes effective and ending December 31, 2007, the
Company shall pay to the Executive such amount as may be required,
when added to the amount of the base salary payments made to the
Executive prior to the date hereof, to pay to the Executive the
$550,000 amount of his Base Salary for 2007. The portion of the
Executive’s Base Salary for the 2007 calendar year which is
payable to the Executive after the date of this Agreement shall be
paid to the Executive in substantially equal installments, less
applicable withholding taxes on the dates that the Company issues
payroll checks to the employees of the Company’s corporate
offices located at 3556 Lake Shore Road, Buffalo, New York. The
Base Salary of the Executive for the 2008 and the 2009 calendar
years shall be such amount as may be recommended by the
Compensation Committee of the Company’s Board of Directors.
For the 2008 and the 2009 calendar years, the Executive’s
Base Salary shall be paid to the Executive in substantially equal
installments, less applicable withholding taxes at the same time
that the Company issues payroll checks to the employees of the
Company’s corporate offices located at 3556 Lake Shore Road,
Buffalo, New York. If, at any time after the date hereof the Base
Salary of the Executive is increased, the term “Base
Salary” as used in this Agreement shall mean the Base Salary
of the Executive as so increased.
2.02 Incentive Compensation .
Subject to the following provisions of this Section 2.02, the
Executive shall be entitled to participate in the Company’s
Management Incentive Compensation Plan (the “MICP”) and
the Company’s Long Term Incentive Plan (the
“LTIP”). Payment of the amount, if any, of any bonus
the Executive may become entitled to receive pursuant to the terms
of the MICP shall be made to the Executive in accordance with the
terms
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of the
MICP. The Executive shall also be entitled to additional bonuses
which the Compensation Committee of the Board of Directors of the
Company, in its sole discretion, may determine and approve.
2.03 Reimbursement of Expenses
. The Company shall reimburse the Executive for all reasonable
expenses which the Executive may, from time to time, incur on
behalf of the Company in the performance of his responsibilities
and duties under this Agreement, provided that the Executive
accounts to the Company for such expenses in the manner prescribed
by the Company.
2.04 401(k) Restoration Plan
.
(a) The
Company currently maintains a non-qualified plan of deferred
compensation for certain of its executives which is known as the
“Gibraltar 401(k) Restoration Plan”, as amended. During
the period of the Executive’s employment with the Company
pursuant to this Agreement, the Executive shall be entitled to
participate in the Gibraltar 401(k) Restoration Plan as the same
may be amended from time to time following the date of this
Agreement.
2.05 Tax Qualified Plans . The
Executive shall be entitled to participate in all tax qualified
pension, profit sharing, 401(k) or other tax qualified plans
maintained, from time to time, by the Company for the employees of
the Company who are employed at the Company’s Buffalo, New
York Corporate offices.
2.06 Group Welfare Benefits .
During the period of the Executive’s employment under the
terms of this Agreement, the Executive shall be eligible to
participate in the group health and welfare benefits plans and
programs which are maintained by the Company for exempt salaried
employees employed at the Company’s Buffalo, New York
corporate offices
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Notwithstanding the foregoing, the Company shall have no obligation
to maintain or provide such group welfare benefits to the Executive
unless the Executive pays to the Company, on a monthly basis, the
employee portion of any costs associated with the maintenance and
provision of such benefits by the Company to exempt salaried
employees employed by the company at its Buffalo, New York
corporate offices. In addition, during the period of the
Executive’s employment under the terms of this Agreement, the
Executive shall be eligible to participate in the group health and
welfare plans and programs maintained by the Company for its
executive officers.
2.07 Vacation and Other
Benefits . During each full year of the Executive’s
employment hereunder, the Executive shall be entitled to paid
vacations for such reasonable periods of time as may be prescribed
in the Company’s vacation policy in effect for salaried
employees employed at the Company’s Buffalo, New York
corporate offices. For purposes of determining the amount of paid
vacation which the Executive is entitled to receive, all of the
Executive’s years of service with the Company or any of its
affiliates shall be included. In addition, the Executive shall be
entitled to receive the fringe benefits which have previously been
provided to him in his capacity as President and Chief Executive
Officer of the Company together with all other employment benefits
and participate in such other employee benefit plans as may, from
time to time, be provided or maintained by the Company for salaried
employees employed at the Company’s Buffalo, New York
corporate offices.
ARTICLE 3.
Term and Termination
3.01 Term .
(a)
(a) The period of employment of the Executive under this
Agreement shall begin on the date hereof and, provided that the
Company delivers a written notice to the
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Executive on or prior to September 1, 2010, which written
notice states that the Company is electing not to renew the period
of the Executive’s employment hereunder, shall end on
December 31, 2010 (unless terminated sooner as provided for in
Section 3.01(b) hereof). If the Company does not deliver the
written notice described in the preceding sentence to the Executive
by September 1, 2010, the period of the Executive’s
employment hereunder shall automatically be extended for an
additional period of twelve (12) consecutive months beginning
January 1, 2011 and ending December 31, 2011 (such twelve
(12) consecutive month period and any subsequent twelve
(12) consecutive month period hereinafter described in this
Section 3.01(a) being hereinafter referred to as a
“Renewal Term”). If the period of the Executive’s
employment pursuant to this Agreement is renewed on January 1,
2011 (as provided for in the preceding sentence) or any subsequent
January1 (pursuant to the provisions of the following sentence),
unless terminated sooner as provided for in Section 3.01(b) hereof,
the period of the Executive’s employment pursuant to this
Agreement shall end at the end on the last day of the then
applicable Renewal Term provided that, on or before September 1 of
the then applicable Renewal Term, the Company delivers a written
notice to the Executive which states that the Company is electing
not to renew the period of the Executive’s employment
hereunder. In the event that the Company does not deliver such a
written notice to the Executive on or before September 1,
2010, or September 1 of any subsequent Renewal Term, a new Renewal
Term of twelve (12) consecutive months shall automatically
begin on the next following January 1 (the day immediately
following the end of the then applicable Renewal Term) and end on
the next following December 31.
(b) Notwithstanding
anything to the contrary contained in Section 3.01(a) above,
the period of the Executive’s employment pursuant to this
Agreement shall be terminated
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upon the
death of the Executive and may be terminated as provided for in
Sections 3.02, 3.03, 3.04, 3.05 and 3.06 hereof.
3.02 Termination For Cause .
Notwithstanding the provisions of Section 3.01 hereof, the
Company may terminate the Executive’s employment hereunder at
any time for Cause (as defined below), by delivering to the
Executive a written notice of termination setting forth the date on
which such termination is to be effective and specifying in
reasonable detail the facts and circumstances claimed to provide a
basis for the termination.
For
purposes of this Agreement, the Company shall have
“Cause” to terminate the Executive’s employment
hereunder if the Compensation Committee determines (and provides
the Executive a written statement of its determination) that the
Executive has engaged in egregious acts or omissions which have
resulted in material injury to the Company and its business;
provided that, the Executive shall not, under any circumstances, be
deemed to have engaged in egregious acts or omissions if:
(a) the acts or omissions have been committed or omitted by
the Executive in connection with the implementation of policies or
procedures or strategic initiatives which have been disclosed to
the Board of Directors of the Company; and (b) the Board of
Directors of the Company has not directed the Executive not to
implement any such policies, procedures or strategic
initiatives.
3.03 Termination Without Cause
. Notwithstanding anything to the contrary contained in
Section 3.01(a) hereof, the Company may, at any time on or
after the date hereof, terminate the Executive’s employment,
without Cause (as “Cause” is defined in
Section 3.02 above), by delivering a written notice of
termination to the Executive. Upon delivery by the Company to the
Executive of a written notice of termination as provided for
herein, the Executive’s employment hereunder shall be
terminated effective as of the end of the ninety (90)
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day
period beginning on the day following the date the Company delivers
the written notice of termination to the Executive. For purposes of
Section 6.02 hereof, if, as provided for by
Section 3.01(a) hereof, on or before September 1 of any
applicable Renewal Term, the Company delivers a written notice to
the Executive which states that the Company is electing not to
renew the period of the Executive’s employment hereunder, the
termination of the Executive’s employment with the Company
which will occur on the expiration of the Term or any Renewal Term
immediately following the Company’s delivery of such written
notice to the Executive shall not be deemed and construed to be a
termination of the Executive’s employment by the Company
without “Cause” and, instead, shall be deemed and
construed to be a retirement by the Executive from his
employment.
3.04 Termination by the
Executive .
(a)
(a) Notwithstanding anything to the contrary contained in
Section 3.01(a) hereof, the Executive may terminate his
employment hereunder at any time by delivering a written notice of
termination to the Company. Upon delivery by the Executive to the
Company of a written notice of termination as provided for herein,
the Executive’s employment hereunder shall be terminated
effective as of the end of the ninety (90) day period
beginning on the day following the date on which the Executive
delivers the written notice of termination to the Company.
(b) For
purposes of this Agreement, the Executive’s termination of
his employment pursuant to this Section 3.04 shall be deemed
to be a “Good Reason Termination” if the reason that
the Executive has terminated his employment (which reason shall be
specifically set forth in the written notice of termination which
is delivered by the Executive to the Company) is that: (i) the
Executive has been assigned duties or responsibilities that are
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substantially inconsistent with the position, duties,
responsibilities and status of the Company’s President and
Chief Operating Officer; or (ii) the Executive’s Base
Salary has been reduced; or (iii) the Executive is required to
move his residence from the Buffalo, New York metropolitan area as
a result of a relocation of the Company’s Buffalo, New York
corporate offices or a change in the duties of the Executive; or
(iv) the Company breaches any of its material obligations
under this Agreement; or (v) the Company breaches any of its
obligations under this Agreement which is not material, and such
breach is not cured by the Company within thirty (30) days
following the Company’s receipt of written notice of such
breach from the Executive.
3.05 Disability . If, during
the period of the Executive’s employment hereunder, it is
determined by either the Company or the Executive that the
Executive suffers from a Total and Permanent Disability, the party
that makes the determination that the Executive suffers from a
Total and Permanent Disability shall provide written notice to the
other party of such determination and, effective as of the last day
of the calendar month in which such written notice is delivered,
the Executive’s employment with the Company hereunder shall
be deemed to be terminated. For purposes of this Agreement, the
Executive shall be deemed to suffer from a Total and Permanent
Disability if the Executive’s personal physician certifies in
writing that the Executive is unable to engage in any substantial
gainful activity by reason of any medically determinable physical
or mental impairment that can be expected to result in death or can
be expected to last for a continuous period of not less than twelve
(12) months.
3.06 Retirement . The
Executive may retire from his employment effective at any time on
or after the date he attains age sixty five (65) by delivering
to the Company a written notice of his intent to terminate his
employment with the Company and retire, which written notice shall
set forth the date on which such retirement (and its related
termination of employment) is to be
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effective. Upon delivery by the Executive to the Company of the
written notice of his intent to terminate his employment hereunder
and retire (as provided for above) the Executive shall be deemed to
have retired from his employment with the Company effective as of
the date the Executive’s retirement is to be effective as
specified in the written notice which the Executive delivers to the
Company containing the notice of his intent to terminate and
retire; provided however, that notwithstanding the foregoing, if
the date on which the Executive’s retirement is to be
effective as set forth in the written notice which the Executive
delivers to the Company is less than thirty (30) days
following the date on which the Executive delivers the written
notice of his intention to retire to the Company, the
Executive’s retirement from his employment with the Company
shall, notwithstanding anything to the contrary contained in the
written notice which the Executive delivers to the Company
containing notice of his intention to retire, be effective at the
end of the thirty (30) day period following the date the
Executive delivers written notice of his intention to retire to the
Company.
ARTICLE 4.
Confidentiality; Non-Compete Provisions
4.01 Confidentiality . During
the period of the Executive’s employment hereunder and for a
period of three (3) years following a termination, for any
reason whatsoever, of the Executive’s employment hereunder,
the Executive agrees that he will not, without the written consent
of the Board of Directors of the Company, disclose to any person
(other than a person to whom disclosure is reasonably necessary or
appropriate in connection with the performance by the Executive of
his duties as an ex
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