Exhibit
10.4
EMPLOYMENT
AGREEMENT
This Employment Agreement and its Exhibits (this Agreement), entered into the 23rd
day of April, 2008, effective as of January 1, 2008 is by and
between Dynamic Materials Corporation, a Delaware corporation (the Company), and Richard A.
Santa, a resident of the State of Colorado (Executive) (together, the parties).
Recitals
A. Executive has significant experience in
the management of companies and is willing to serve the Company on the terms
and subject to the conditions hereinafter set forth.
B. The Company desires to secure the
continued services of Executive subject to the terms and conditions hereinafter
set forth.
C. This agreement replaces, in its entirety,
that certain Employment Agreement between the Company and Executive dated March 3,
2005.
Agreement
In consideration of the foregoing and the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Employment.
The Company hereby employs Executive as Senior Vice President and Chief
Financial Officer of the Company reporting to the Chief Executive Officer of
the Company, and Executive hereby accepts such employment and agrees to perform
such duties and responsibilities as are assigned to him from time-to-time by
the Chief Executive Officer of the Company.
2. Full-time Best Efforts. Executive shall
devote his full and exclusive professional time and attention to the performance
of his obligations under this Agreement, and will at all times faithfully,
industriously and to the best of his ability, experience and talent, perform
all of this obligations hereunder.
Executive shall not, without the express written consent of the Company,
directly or indirectly, engage, alone or with others, in any other enterprises
or business concerns, nor render professional services to, own, control,
manage, consult with, be employed by, or otherwise have an interest in, any
such enterprises or concerns, during the term of his continued employment with
the Company. Without limiting the
generality of any other provision herein, transactions in securities of
publicly traded companies and other passive investment activities shall not be
considered prohibited by the foregoing sentence, except as such transactions
and activities may violate the Companys conflict of interest policy, if any,
in place from time to time.
3. Term of Agreement. This agreement
shall be effective on January 1, 2008 (the Effective Date) and
shall continue until December 31, 2008 (the Term), unless
otherwise terminated by either party pursuant to Section 5 below.
4. Compensation Reimbursement.
(a) Salary. During the term of this Agreement, the
Company shall pay Executive an annual salary (Salary) of $275,000
payable in accordance with the Companys standard payroll practices for
similarly situated employees. The compensation committee of the Companys
board of directors (the Compensation Committee) will review Executives
Salary at least annually and may increase (but not reduce) Executives Salary
in its sole discretion. All compensation
paid to Executive hereunder is subject to all deductions required by law.
(b) Bonus. Executive shall be eligible to receive a
non-discretionary annual bonus equal to 1.0% of the Companys 2008 net
income. Executive shall also be eligible
to receive a discretionary annual bonus in an amount up to 20% of Executives
Salary. The discretionary bonus will be
determined based on performance goals
and rules established by the
Compensation Committee. The bonus and
discretionary bonus, if any, will be payable before March 15, 2009. Executive is not guaranteed any bonus
payment.
(c) Stock
Incentives. Executive
shall be eligible to receive restricted shares of the common stock of the
Company under the Companys 2006 Stock Incentive Plan (the Incentive Plan)
subject to the terms and conditions of such plan and as granted by the
Compensation Committee. If the Company terminates Executives employment
for any reason other than Cause pursuant to Section 5(b), all restricted
stock held by Executive shall immediately vest, subject to the terms and
conditions of the Incentive Plan.
(d) Benefits. Executive shall receive the following
Company benefits:
(i) term
life insurance coverage in the amount of $415,000 which is in addition to the
standard term life insurance provided in the Companys standard benefit plan;
(ii) participation
in the Companys executive long-term disability plan, subject to any waiting
periods or exclusions required by the insurance provider;
(iii) five
weeks of vacation per year until such time as Executives length of service
entitles Executive to additional vacation;
(iv) participation
in the Companys standard benefit programs including health and dental
insurance, term life insurance, accidental death and dismemberment insurance,
short and long term disability, paid holidays and certain other standard
benefits provided by the Company;
(v) participation
in the Companys 401(k) retirement plan; and
(vi) reimbursement
of up to $5,000 of professional service fees for a financial planning and/or
tax consultant to advise Executive.
(e) Expense
Reimbursement. The
Company shall reimburse Executive for all travel expenses and other
disbursements incurred by Executive for or on behalf of the Company in the
performance of his duties hereunder, subject to and in accordance with the
Companys expense reimbursement policies and procedures, as in effect from
time-to-time.
5. Termination.
(a) The Company may terminate Executives
employment at any time for Cause (as hereinafter defined), effective
immediately upon written notice to Executive. Such notice shall specify that a
termination is being made for Cause and shall state the basis therefor. Any
termination under this subparagraph shall serve to relieve Executive of all his
duties and authority on behalf of the Company as of the date such notice states
the termination is to take effect. All
obligations of the Company to Executive hereunder shall terminate as of the
effective date of any such termination, except for obligations accrued prior to
such effective date. For purposes of
this Agreement, termination for Cause shall include any of the following that
detrimentally affect the Company:
(i) a
willful and substantial breach by Executive of the terms of this Agreement or
any written agreement between Executive and the Company that has a materially
adverse effect on the business and affairs of the Company;
(ii) the
failure by Executive to substantially perform, or the gross negligence in the
performance of, his duties hereunder for a period of fifteen days after the
Chief Executive Officer of the Company has made a written demand for
performance which specifically identities the manner in which he believes that
Executive has not substantially performed his duties;
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(iii) the
commission by Executive of a willful act or failure to act of misconduct which
is injurious to the Company, including, but not limited to, material violations
of any Company policy (such as the Companys code of ethics);
(iv) a
conviction or a plea of guilty or nolo contendere in connection with fraud or
any crime that constitutes a felony in the jurisdiction involved; or
(v) an
act of failure to act constituting fraud or dishonesty that compromises
Executives ability to act effectively as a high-level executive of the
Company.
(b) The Company may terminate Executives
employment for any reason other than Cause at any time upon the payment to
Executive of (i) an amount equal to one years Salary, which amount shall
be payable in twelve monthly payments (the Termination Payments), plus
(ii) a bonus for such period, based on the average bonus (if any) paid to
Executive for the two years preceding the termination; provided, that Executive
shall execute a release, prepared by the Company, releasing the Company from
all claims as a condition of receiving the Salary and bonus (if any) pursuant
to this Agreement. Such amounts received
under this provision shall be reduced to the extent that Executive accepts
other employment prior to the receipt of the final Termination Payment. Any termination under this subparagraph shall
serve to relieve Executive of all his duties and authority on behalf of the
Company as of the date such notice states the termination is to take
effect. All obligations of the Company
to Executive under this Agreement shall terminate as of the effective date of
any such termination, except for obligations accrued prior to such effective
date.
(c) Upon the termination of Executives
employment hereunder, neither Executive nor Executives beneficiary or estate
shall have any further rights or claims against the Company under this
Agreement except the right to receive:
(i) the
unpaid portion of the earned Salary computed on a pro rata basis to the date of
termination;
(ii) any
unpaid bonus owing under Section 4(b) or 5(b); and
(iii) reimbursement
for any expenses for which Executive shall not have theretofore been reimbursed
as provided in Section 4(e).
(d) Notwithstanding any other provision
of this Section 5, Executive shall have the right to terminate his
employment at any time upon sixty days written notice to the Company (or upon
such shorter notice as the Company may agree in writing in connection with such
termination). Any such termination by Executive shall be deemed effective upon
receipt by the Company of such notice.
Any termination under this subparagraph shall be effective as of the
date stated in the notice and shall serve to relieve both parties from all
their duties and obligations to one another hereunder after such date, except
for obligations accrued prior to such effective date.
(e) If Executive dies during the term of
his employment hereunder, this Agreement shall automatically terminate as of
the date of his death and the parties shall be relieved from their respective
duties and obligations to one another as of the effective date of any such
termination. Executives estate or
designated beneficiaries shall receive any accrued but unpaid portion of
Executives Salary and the bonus, if any, he would have received in respect of
the portion of the fiscal year prior to his termination, payable at the same
time as bonuses are paid to other executives and any other amounts owing to
Executive under Section 5(c). If
Executive is unable to fully and satisfactorily perform any of the essential
functions of his position by reason of disability, with or without reasonable
accommodation as may be required under law, for a period of at least ninety
consecutive calendar days, this Agreement and Executives employment hereunder
may be terminated at the election of the Company, effective upon sixty days
written notice given at any time after such consecutive ninety day period of
continuous disability elapses, provided Executive continues to be suffering
from such disability at the time notice of such termination is given by the
Company. In the event of termination under
the previous sentence, the parties shall be relieved from their respective
duties and obligations to one another from and after the date such termination
takes effect. Executive shall receive
any accrued but unpaid portion of Executives Salary and the bonus, if any, he
would have
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received in respect of the portion of the
fiscal year prior to his termination, payable at the same time as bonuses are
paid to other executives and any other amounts owing to Executive under Section 5(c). Should Executives disability, if any, be of
an intermittent nature, the disability shall nonetheless be considered to be
continuing during any period of time that the disability abates for seven or
less consecutive calendar days, but any such intermittent periods during which
the disability has abated for seven or less consecutive calendar days shall not
be counted for purposes of determining the consecutive ninety day period of continuous
disability following which the Company may elect to give notice of termination.
For purposes of this subparagraph (e), disability shall mean
that Executive is unable, by reason of physical or mental sickness or illness,
injury, or incapacity, to perform any of the essential functions of his regular
employment by the Company. Executive
shall be considered to be suffering from a disability if he is determined to be
disabled by any disability insurer insuring Executive on the date the condition
of disability commenced. In the event
there is no disability determination made by a relevant insurer, Executive
shall be considered to be suffering from a disability if, in the opinion of a
qualified physician selected by mutual agreement of Executive and the Company,
Executive is determined to be unable to perform any of the essential functions
of his regular employment by the Company by reason of any physical or mental
sickness, injury, or incapacity. In the
event Executive and the Company cannot agree upon the selection of a qualified
physician, each party shall appoint a qualified physician of his or its choice
and the two physicians so appointed shall mutually select a qualified physician
to render the subject opinion as to whether or not Executive is suffering from
a disability as defined above. A qualified
physician shall mean a person who is licensed to practice medicine and
prescribe and administer prescription drugs and/or to perform surgery in the
state of Executives residence at the time of the commencement of the believed
disability (or is so licensed in such other state as the parties shall
reasonably agree is a convenient place in which to examine Executive and/or
review his medical records) and who is acting within the scope of his/her
medical license and qualified by his/her licensure, certification, training or
experience to render the subject opinion.
(f) In
the event of any termination of this Agreement in connection with which
Executive is entitled by law or is allowed by the Company to continue his
coverage under the Companys health, dental, eye and other medical insurance
policies, Executive shall be responsible for paying the cost of all insurance
premiums and charges necessary to keep such coverage in force during any period
of time that such coverage is so continued following termination.
6. Proprietary Information and Non-Competition
Agreements. Executive
shall be bound by the terms of the Companys standard form of the Key Employee
Proprietary Information and Inventions Agreement, attached hereto as Exhibit A,
and the Non-Competition and Non-Solicitation Agreement, attached hereto as Exhibit B,
from and after the date hereof.
7. Miscellaneous.
(a) Judicial Limitation. In the event that any provision of this
Agreement is more restrictive than permitted by the law of the jurisdiction in
which the Company seeks enforcement thereof, the provisions of this Agreement
shall be limited only to that extent that a judicial determination finds the
same to be unreasonable or otherwise enforceable. Such invalidity or unenforceability
shall not affect any other terms herein, but such term shall be deemed deleted,
and such deletion shall not affect the validity of the other terms thereof. In
addition, if any one or more of the terms contained in this Agreement shall for
any reason be held to be excessively broad or of an overly long duration, that
term shall be construed in a manner to enable it to be enforced to the extent
compatible with applicable law. Moreover, notwithstanding any judicial
determination that any provision of this Agreement is not specifically enforceable the parties
intend that the Company shall nonetheless be entitled to recover monetary
damages as a result of any breach hereof.
(b) Injunctive
Relief. In view of the
nature of the rights in goodwill, business reputation and prospects of the
Company to be protected under this Agreement, Executive understands and agrees
that the Company could not be reasonably or adequately compensated in damages
in an action at law for Executives breach of his obligations hereunder.
Accordingly, Executive specifically agrees that the Company shall be entitled
to temporary and permanent injunctive relief to enforce the provisions of this
Agreement and that such relief may be granted without the necessity of proving
actual damages. This provision with respect to injunctive relief shall not,
however, diminish the right of the Company to claim and recover damages in
addition to injunctive relief.
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(c) Waiver. The failure of the Company to enforce at
any time of the provisions of this Agreement or to require any performance by
Executive of the provisions hereof shall in no way be construed to be a waiver
of such provisions or to affect either the validity of this Agreement, or any part
hereof, or the right of the Company thereafter to enforce each and every
provision in accordance with the terms of this Agreement.
(d) Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provisions were omitted.
(e) Binding
Effect. This Agreement
shall be binding upon the parties, their successors, executors and heirs.
(f) Assignability. This Agreement shall be freely assignable by
the Company and shall inure to the benefit of its successors and assigns.
(g) Entire
Agreement. This Agreement,
including the Key Employee Proprietary Information and Inventions Agreement and
the Non Competition Agreement referred to herein, and which are incorporated
herein and made a part hereof by reference, embody the entire agreement and
understanding of the parties hereto and supersede all prior agreements or
understanding (whether written or oral) with respect to the subject matter
hereof.
(h) Governing
Law and Venue. The
validity of this Agreement and any of its terms and provisions, as well as the
rights and duties of the parties hereunder, shall be governed by the laws of
the State of Colorado (without regard to its conflicts of law doctrines) and
the venue for any action to enforce or to interpret this Agreement shall be in
a court of competent jurisdiction located in the State of Colorado and each of
the parties consent to the jurisdiction of such court in any such action or
proceeding and waives any objection to venue laid therein.
(i) Amendments. This agreement may not be amended,
altered or modified other than by a written agreement between the parties
hereto.
(j) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which shall together constitute one and the same instrument. This Agreement
shall become binding when one or more counterparts hereof shall bear the
signatures of all the parties indicated as the signatories hereto.
(k) Notices. All notices, requests, demands and other
communications under the Agreement shall be given in writing and shall be
served either personally, by facsimile or delivered by first class mail,
registered or certified, return receipt requested, postage prepaid and properly
addressed to the parties as noticed herein. Notice shall be deemed received
upon the earliest of actual receipt, confirmed facsimile or three (3) days
following mailing pursuant to this section.
If to Executive:
Richard A. Santa
6910 Pawnee Way
Niwot, CO 80503
If to the Company:
Dynamic Materials Corporation
Attention: Chief Executive Officer
5405 Spine Road
Boulder, CO 80301
Facsimile: (303) 604-1897
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(l) Interpretation. Each party has had the opportunity and
has reviewed and revised this Agreement (and has had an opportunity to consult
with counsel if desired) and, therefore, the rule of construction
requiring that any ambiguity be resolved against the drafting party shall not
be employed in the interpretation of this Agreement. The section headings
contained in this Agreement are for convenience and reference purposes only and
shall not affect in any way the meaning and interpretation of this Agreement.
(m) Attorneys
Fees and Costs. If either
party shall commence any action or proceeding against the other to enforce the
provisions hereof, or to recover damages as a result of the alleged breach of
any provisions hereof, the prevailing party therein shall be entitled to
recover all reasonable costs incurred in connection therewith, including
reasonable attorneys fees.
[Signature Page Follows]
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Acknowledgment
Each partys signature below acknowledges that the
party has read this document fully, that the party fully understands and agrees
to its contents and effect, that the party understands that it is a legally
binding document, that the party is mentally and physically competent and
capable of reading, understanding and signing this Agreement, and that the
party has signed this document voluntarily and of its own free will, and not as
a result of any pressure or coercion.
Each partys signature below further acknowledges that the party has had
the opportunity to consult with an attorney about the meaning and effect of the
terms of this Agreement and that each party has in fact consulted with an
attorney of the partys own choosing about this Agreement.
This Agreement is executed as of the date first set above:
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DYNAMIC MATERIALS
CORPORATION
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By:
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/s/ Yvon Cariou
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Yvon Cariou
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President and Chief
Executive Officer
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EXECUTIVE
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/s/
Richard A. Santa
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Richard A. Santa
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[EXHIBITS OMITTED]
[Company-Wide Form Of Certain Employment Agreements]
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2009
AMENDMENT TO EMPLOYMENT AGREEMENT
This 2009 Amendment to Employment Agreement (this Amendment), entered into the 4th day of February, 2009, effective as of January 1, 2009, is
by and between Dynamic Materials Corporation, a Delaware corporation (the Company), and Richard A.
Santa, a resident of the State of Colorado (Executive). This
Amendment amends the Employment Agreement
dated April 23, 2008 to be effective as of January 1,
2008, between the Company and Executive
(the Agreement).
In consideration of the foregoing and the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Term.
Section 3 of the Agreement is hereby amended by replacing 2008
with 2009 in both occurrences.
2. Salary. Section 4(a) of the Agreement is
hereby amended by replacing $275,000 with $284,625.
3. Non-discretionary Annual Bonus. Section 4(b) of
the Agreement is hereby amended to read in its entirety as follows:
(b) Bonus.
Executive shall be eligible to receive a non-discretionary annual bonus
equal to an amount equal to 1.0% of the Companys
2009 net income up to an amount equal to 125% of such Executives Salary and
thereafter 0.5% of the Companys 2009 net income. Executive shall also be eligible to receive a
discretionary annual bonus in an amount up to 20% of Executives Salary. The discretionary bonus will be determined
based on performance goals and rules established by the Compensation
Committee. The bonus and discretionary
bonus, if any, will be payable before March 15, 2010. Executive is not guaranteed any bonus payment.
4. Miscellaneous. All other provisions of the Agreement shall
remain effective.
In witness whereof, the parties have
executed this Amendment as of the date set forth above.
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DYNAMIC MATERIALS
CORPORATION
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By:
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/s/ Yvon Cariou
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Yvon Cariou
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President and Chief
Executive Officer
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EXECUTIVE
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/s/
Richard A. Santa
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Richard A. Santa
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2010
AMENDMENT TO EMPLOYMENT AGREEMENT
This 2010 Amendment to Employment Agreement (this Amendment), entered into the 5th day
of March, 2010, effective as of January 1, 2010, is by and between
Dynamic Materials Corporation, a Delaware corporation (the Company), and Richard A.
Santa, a resident of the State of Colorado (Executive). This
Amendment further amends the Employment Agreement dated April 23, 2008 to
be effective as of January 1, 2008, between the Company and Executive, as amended by the 2009 Amendment
(the Agreement).
In consideration of the foregoing and the mutual covenants and promises
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Term.
Section 3 of the Agreement is hereby amended to read in its
entirety as follows:
This agreement
shall be effective on January 1, 2010 (the Effective Date) and
shall continue until December 31, 2012 (the Term), unless
otherwise terminated by either party pursuant to Section 5 below.
2. Termination. Section 5(b) of
the Agreement is hereby amended to read in its entirety as follows:
(b) The Company may terminate Executives
employment for any reason other than Cause at any time upon the payment to
Executive of (i) an amount equal to the greater of (A) the remaining
Salary payable through the Term of this Agreement, or (B) one years
Salary, which amount shall be payable in equal monthly payments (the Termination
Payments), plus (ii) a bonus for such period, equal to (X) the
amount of the average bonus (if any) paid to Executive for the two years
preceding the termination, multiplied by (Y) three, two or one if the
Executives employment is terminated pursuant to this Section 5(b) during
the first, second or third, respectively, 12-month period of the Term;
provided, that Executive shall execute a release, prepared by the Company,
releasing the Company from all claims as a condition of receiving the Salary
and bonus (if any) pursuant to this Agreement.
Such amounts received under this provision shall be reduced to the
extent that Executive accepts other employment prior to the receipt of the
final Termination Payment. Any
termination under this subparagraph shall serve to relieve Executive of all his
duties and authority on behalf of the Company as of the date such notice states
the termination is to take effect. All
obligations of the Company to Executive under this Agreement shall terminate as
of the effective date of any such termination, except for obligations accrued
prior to such effective date.
3. Miscellaneous. All other provisions of the Agreement shall
remain effective.
In witness whereof, the parties have
executed this Amendment as of the date set forth above.
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DYNAMIC MATERIALS
CORPORATION
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By:
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/s/ Yvon Cariou
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Yvon Cariou
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President and Chief
Executive Officer
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EXECUTIVE
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/s/
Richard A. Santa
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Richard A. Santa
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