Exhibit 10.3
NORCROSS SAFETY PRODUCTS
L.L.C.
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“ Agreement ”), dated as of May 20, 2005,
is entered into by and between Norcross Safety Products L.L.C., a
Delaware limited liability company (the “ Company
”), and David F. Myers, Jr. (“ Executive
”). Certain capitalized terms used but not otherwise
defined herein are defined in Section 7 .
WHEREAS, the Company and the
Executive previously entered into an Employment Agreement dated as
of January 1, 2002; and
WHEREAS, the Company and the
Executive now wish to revise the terms and conditions of
Executive’s employment.
NOW, THEREFORE, the parties hereto,
in exchange for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be
legally bound, hereby agree as follows:
1.
Employment and Duties
.
(a)
The Company shall continue to employ
Executive, and Executive shall continue in employment with the
Company, as Chief Financial Officer and Executive Vice President of
the Company, pursuant to the terms and conditions of this
Agreement. Executive shall report to the President of the
Company.
(b)
Executive shall devote his best
efforts to the interests of the Company and, to the extent
requested, its Affiliates, which interests may change from time to
time, and shall devote all of his professional time and attention
to the business and affairs of the Company and such Affiliates;
provided that nothing herein shall prevent Executive, with
the prior written approval of the Board of Directors of Safety
Products Holdings, Inc. (the “Board”), from
serving as a director or trustee of other corporations or
businesses which are not in competition with the Company or its
Affiliates. Notwithstanding this
Section 1(b) or any other provision of this
Agreement to the contrary, Executive may commence seeking other
employment if Company, at least 90 days before the date referred to
in clause (i) of the first sentence of
Section 2(a) , shall not have offered to Executive in
writing to continue to employ Executive for at least two years, on
terms no less favorable to Executive than those existing at such
time.
(c)
Executive shall perform such duties
and functions commensurate with his position as may be reasonably
assigned or delegated to him from time to time by either the
President or the Board. Executive acknowledges that such
duties and functions may or may not involve performance of services
for or on behalf of Affiliates of the Company.
2.
Term and Termination
.
(a)
Term . The “ Term ” of
Executive’s employment is from the date hereof until the
“ Termination Date ,” which is defined as the
earlier of (i) the fifth anniversary of the date hereof or
(ii) the date of termination of Executive’s employment
pursuant to any one or more of Sections 2(b) , 2(c) ,
2(d) or 2(e) of this Agreement. Executive
is an at-will employee of the Company, and his employment may be
terminated by Executive, in his sole and arbitrary discretion, at
any time with or without Good Reason, or by the Company, in the
Company’s sole and arbitrary discretion, at any time with or
without Cause, by delivery of a written termination notice to the
other party.
(b)
Death . If Executive dies during the Term, the
Termination Date shall be the date of his death.
(c)
Disability
. If Executive becomes
Disabled during the Term, the Termination Date shall be the date as
of which such Disability is determined. Subject to applicable
law, “ Disability ” or “ Disabled
” means such physical, mental or psychological condition or
other impairment that prevents Executive from effectively
performing the duties of his employment for more than ninety (90)
calendar days in any six (6) consecutive months commencing on
the initial date of such condition or impairment. In
connection with any Disability (or possible Disability):
(i)
Executive (and Executive’s
spouse or whoever else is acting on his behalf) shall cooperate
with any physicians engaged or requested to be engaged by the
Company to examine Executive to determine whether or not Executive
is Disabled, and each of Executive and the Company irrevocably
consents to disclosure to each of them by any such physicians of
all matters relating to such examinations.
(ii)
The determination of Disability
shall be by agreement of the Company and Executive, or if
Executive’s condition is such that he is unable to
participate in such determination, then by agreement of the Company
and Executive’s spouse or whoever else is then acting on his
behalf, and if the parties involved in such determination are
unable to reach agreement within ten (10) days of a request by
either party, then the issue shall be decided by a physician chosen
by the Company and reasonably acceptable to Executive (or
Executive’s spouse or whoever else is then acting on his
behalf). The Company will pay all expenses incurred in the
determination of whether Executive is Disabled.
(d)
Termination By
Executive . If
Executive terminates his employment, with or without Good Reason,
the Termination Date shall be the date indicated on the written
termination notice given by Executive to the Company, which may not
be more than thirty (30) days nor less than fourteen (14) days from
its receipt by the Company; provided that upon
receipt of Executive’s termination notice, the Company may,
in its sole discretion, request that Executive cease his employment
activities prior to the date referenced in such notice, and
Executive shall promptly comply with such request, it being
understood that such request will
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not change the Termination Date
specified in this Section 2(d) or affect the
characterization of the termination of Executive’s
employment.
(e)
Termination by the
Company . If the
Company terminates the employment of Executive, with or without
Cause, the Termination Date shall be the date on which the
Company’s termination notice is given to Executive, or such
later date indicated on such termination notice, which may not be
more than thirty (30) days from its receipt by
Executive.
(f)
Reversal of
Determination . If
Executive’s employment is terminated by the Company with
Cause or by Executive with Good Reason, and it is thereafter
judicially determined that Cause or Good Reason as appropriate for
such termination did not exist at the time of such termination,
then Executive’s employment shall be deemed to have been
terminated without Cause or Good Reason as appropriate as of the
Termination Date. If matters constituting Cause or Good
Reason as appropriate become known to the Company or to Executive
within 90 business days after Executive’s employment is
terminated, then either party may, by delivery of written notice to
the other party treat such termination as being with Cause or Good
Reason as appropriate.
(g)
Definition of Cause
. “ Cause ” for
termination of Executive’s employment by the Company means
Executive’s:
(i)
embezzlement or misappropriation of
funds;
(ii)
conviction of a felony involving
moral turpitude;
(iii)
commission of a material act of
dishonesty, fraud, or deceit;
(iv)
breach of any material provisions of
this Agreement or other agreement with the Company, Safety Products
Holdings, Inc., or any Subsidiary, to which he is a
party;
(v)
habitual or willful neglect of his
duties;
(vi)
breach of fiduciary duty to the
Company, Safety Products Holdings, Inc., or any Subsidiary,
involving personal profit; or
(vii)
material violation of any other duty
to the Company, Safety Products Holdings, Inc., or any
Subsidiary, or its members imposed by its managers or by
law.
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(h)
Definition of Good
Reason . “ Good
Reason ” for termination by Executive of
Executive’s employment means:
(i)
a material breach by the Company of
its obligations under this Agreement which is not cured (if
curable) within twenty (20) days after written notice by Executive
to the Company;
(ii)
the Company’s requiring
Executive to move his principal place of employment by more than 25
miles, other than for reasonable business travel, if such move
increases Executive’s commute from his primary residence,
without Executive’s written consent thereto; provided
that Executive must notify the Company in writing of his
intent to terminate his employment pursuant to this
Section 2(h)(ii) prior to the sixtieth day after
the earlier of (x) the date that the Company notifies Executive in
writing of its intent to relocate Executive and (y) the date that
such relocation occurs;
(iii)
the failure of any successor to the
Company to assume this Agreement as set forth in
Section 9(i); or
(iv)
the occurrence of a Change of
Control; provided that Executive must notify the
Company in writing of his intent to terminate his employment
pursuant to this Section 2(h)(iv) prior to the
sixtieth day after the date of the Change of Control.
3.
Compensation
.
(a)
Executive’s compensation for
his services hereunder shall consist of (i) Base Salary, plus
(ii) Bonus, if any, plus (iii) Benefits.
(b)
“ Base Salary ”
shall be paid by the Company to Executive at an annual rate of
$357,000 (subject to increase from time to time in the sole
discretion of the Board to reflect cost-of-living increases and as
merited to reflect Executive’s performance on behalf of the
Company and its Subsidiaries), payable in arrears in equal
bi-weekly installments. Under no circumstances may the Base
Salary be decreased during the Term.
(c)
“ Bonus ,” if
any, shall be targeted at 90% of Base Salary, based on targeted
EBITDA and Net Debt or other such financial criteria as may be
determined by the Board, consistent with the pay out
schedule for the Bonus plan attached as Exhibit A.
Targets for annual criteria will be subject to approval by the
Board. All Bonuses due hereunder shall be payable on or
before March 15 of the following year.
(d)
“ Benefits ”
consist of whatever, if any, health, hospitalization, sick pay,
life insurance, disability insurance, profit sharing, pension, 401
(k), and deferred compensation plans and programs that the Company
may have in effect from time to time for its employees who are not
members of a collective bargaining unit, all of which Executive
shall be entitled to participate in pursuant to their terms on a
basis commensurate with his position. By way of clarification
of the immediately preceding sentence, it is also agreed that the
parties hereto will
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use their reasonable best efforts to
enable Executive to participate in the Norcross Safety Products
L.L.C. Employees’ Pension Plan and the North Safety
Products Inc. Retirement Benefit Restoration Plan; provided
that such participation does not contravene any provision of
ERISA, the Code, other applicable law or any agreement by which the
Company is bound and can be achieved at a reasonable cost.
Executive shall also be entitled to four (4) calendar
weeks’ paid vacation each year, in addition to regularly
scheduled holidays. The Company may initiate, change and
discontinue any such plans and programs at any time;
provided that no such change shall be effective as to
Executive unless it is also effective as to the other senior
executives of the Company. If any of such plans or programs require
contributions by employees, Executive shall pay the contributions
required by his participation at a rate no greater than that
applicable to any senior executive of the Company. Company shall
pay Executive a monthly automobile allowance of $700.
4.
Termination Provisions
.
(a)
If the Company terminates
Executive’s employment with Cause or if Executive terminates
his employment without Good Reason, then Executive shall be
entitled to:
(i)
receive Base Salary and Benefits for
the period ending on the Termination Date; and
(ii)
receive any unpaid Bonus for any
calendar year ending prior to the year in which the Termination
Date occurs.
(b)
If the Company terminates
Executive’s employment without Cause (which shall include,
without limitation, Company’s not offering Executive
continued employment with the Company in accordance with the second
sentence of Section 1(b)), if Executive terminates his
employment with Good Reason, or if Executive’s employment
terminates by reason of his death or Disability, then Executive
shall be entitled to receive the following, except that
(v) shall not apply in the case of Executive’s
death:
(i)
Base Salary and Benefits for the
period ending on the Termination Date;
(ii)
any unpaid Bonus for any calendar
year ending prior to the year in which the Termination Date
occurs;
(iii)
any Bonus for the calendar year in
which the Termination Date occurs, pro rated based on the portion
of Base Salary paid to Executive by the Company in such year if
financial targets are met for the year in which the Termination
Date occurs; and
(iv)
if , and only if, Executive (or his
guardian or personal representative, as the case maybe), within 30
days after the Termination Date, signs and delivers to the Company
a complete general release of claims for facts
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and circumstances existing before
the date of such release in the form of Exhibit B, Base Salary
for the period commencing on the Termination Date and ending two
years thereafter, together with any other Benefits as may be
provided under the terms of any applicable written plan, program or
arrangement of the Company applicable to senior executives of the
Company (including automobile allowance). If Executive does
not comply with the terms of this Section 4(b)(V)
within 30 days after the Termination Date, the Company shall not be
responsible for any further payments to Executive.
Notwithstanding the foregoing, in
the event that the Executive’s employment has terminated
because the Company has not offered Executive continued employment
with the Company in accordance with the second sentence of
Section l(b), any payments or benefits that Executive
would be entitled to receive from the Company in the second year of
the severance period shall be reduced by the amounts of any
payments or benefits (but the reduction for benefits shall only be
for benefits of a substantially similar nature) that Executive
shall be entitled to receive during and with respect to the second
year of the severance period from other employment (including
self-employment). Executive shall promptly report to the
Company all payments or benefits from other employment (including
self-employment) Executive is entitled to receive during and with
respect to the second year of such severance period.
(c)
Any amounts owed by the Company to
Executive pursuant to Section 4(b)(v) shall be paid at
such times and in such manner as if the termination giving rise to
such payments had not occurred (with the Company retaining the
right to prepay all or any portion of such amount at any time in
its sole discretion); provided that in the event that
Executive’s employment has been terminated for the reason
described in Section 2(h)(iv), amounts owed to Executive shall
be paid in a single lump sum within ten days of the effective date
of Executive’s resignation, discounted to present value at a
7% annual rate.
(d)
The Company’s obligation to
make any payments or Benefits available to Executive pursuant to
this Section 4 shall, be conditioned upon
Executive’s continued and continuing compliance with the
terms and conditions of this Agreement (including, without
limitation, Section 6 hereof) and shall constitute
Company’s sole obligation, and the sole obligation of
Company’s Affiliates, to Executive (or any Person making any
claim through Executive or regarding his employment by Company or
any Affiliate) in respect of Company’s termination of
Executive’s employment hereunder or any breach by Company
hereof respecting which Executive terminates his employment
hereunder.
(e)
Except as otherwise specified
herein, if Executive’s employment terminates on any date
other than the last day of a month, Executive’s compensation
for that month shall be calculated on the basis of a fraction, the
numerator of which shall be the number of days during that month
that Executive shall have been in the Company’s employ and
the denominator of which shall be the number of days in that
month.
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(f)
In the event that Executive’s
employment is terminated for Cause, the Company may offset any
amounts Executive owes it or its Affiliates pursuant to any written
agreement, note or other instrument relating to indebtedness for
borrowed money to which Executive is a party, or pursuant to any
other liability or obligation by which Executive is bound, in each
case which is due or becomes due within ninety days after Executive
is to be paid such amounts hereunder against any amounts it owes
Executive hereunder, upon providing written notice to Executive of
such offset.
5.
Expenses . The Company shall reimburse Executive
for all reasonable expenses incurred in the performance of his
duties in accordance with the expense reimbursement policy of the
Company with respect to senior executives of the Company in effect
at the time.
6.
Noncompetition, Nonsolicitation,
Confidentiality .
As a material inducement to the
Company to enter into this Agreement and in consideration of the
payment by the Company of the compensation detailed herein to
Executive:
(a)
During the period (the “
Noncompete Period ”) beginning on the date hereof and
ending 18 months after the Termination Date, Executive shall not,
without the prior written consent of the Company (which consent may
be granted or
