EMPLOYMENT AGREEMENT AS
AMENDED
This
EMPLOYMENT AGREEMENT AS AMENDED (“ Agreement
”) is entered into as of the 6th day of October 2009
between ROBBINS & MYERS, INC. , an Ohio corporation (the
“ Company ”), and PETER C. WALLACE
(“ Executive ”) under the following
circumstances:
A. Executive and
the Company entered into an Employment Agreement on June 28,
2006 (the “ Employment Agreement ”) that
superseded the letter agreement between the Company and Executive
dated May 18, 2004 (the “ Letter Agreement
”);
B. The Executive
and the Company amended and restated the Employment Agreement on
November 9, 2007 to conform the Employment Agreement to the
requirements of Section 409A of the Internal Revenue Code; and
further restated the Employment Agreement on October 9, 2008
to include an amendment adopted by the Board of Directors of the
Company (the “ Board ”) on October 9, 2008
relating to the calculation and payment of Executive’s annual
cash bonus in certain situations, and Executive and the Company now
desire to execute this Agreement that restates the terms of the
Employment Agreement as amended on October 6, 2009 to include
an amendment to such agreement adopted by the Board as of
October 6, 2009 relating to the calculation and payment of
Executive’s performance shares in certain situations;
and
C. The Board of
Directors continues to believe it is in the best interests of the
Company to further secure the services of Executive by entering
into this Agreement with Executive, and Executive desires to
continue in the employment of the Company upon the terms and
conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
CONTAINED HEREIN, THE COMPANY AND EXECUTIVE AGREE AS
FOLLOWS:
Section 1 . Employment . The Company
hereby agrees to continue to employ Executive, and Executive hereby
agrees to continue in the employment of the Company, during the
Term of Employment, which commenced on July 1, 2006, upon the
terms and conditions set forth herein, subject to earlier
termination in accordance with Section 5. The existing Letter
Agreement terminated on June 30, 2006.
Section 2 . Term of Employment . The
“ Term of Employment ” of Executive by the
Company under this Agreement is the period commencing on the
July 1, 2006 (the “ Effective Date ”) and
ending on the earlier to occur of (i) July 1, 2008 or
(ii) the first day of the month next following
Executive’s attainment of age 65 (“ Normal
Retirement Date ”); provided, however, that commencing on
July 1, 2007, and on each annual anniversary of such date
(such date and each annual anniversary thereof is hereinafter
referred to as the “ Renewal Date ”), the Term
of Employment shall be automatically extended an additional year so
as to terminate on the earlier
of (i) two
(2) years from such Renewal Date or (ii) the first day of
the month next following Executive’s Normal Retirement Date,
unless, at least 60 days prior to the Renewal Date, the
Company or Executive shall give notice that the Term of Employment
shall not be so extended in which event this Agreement shall
continue for the remainder of its then current term and terminate
as provided herein.
Section 3 . Position and Duties
.
(a)
Position . During the Term of Employment, the Company shall
employ Executive as, and Executive shall serve as, the President
and Chief Executive Officer of the Company, subject to the
supervising powers of the Board of Directors of the Company (the
“ Board ”).
(b)
Powers and Duties . Executive shall have those powers and
duties consistent with the position of President and Chief
Executive Officer in a company the size and nature of the Company,
which powers shall in all cases include, without limitation, the
power of supervision and control over, and responsibility for, the
general management and operations of the Company (including the
hiring and firing of employees and the appointment and termination
of senior officers other than executive officers), development and
implementation of a comprehensive strategic business plan,
supervision of the day-to-day executive management process, and
acting as spokesperson for the Company. All executive officers and
other officers with direct operational responsibilities shall
report directly to Executive unless Executive in his sole
discretion delegates such reporting responsibilities, in whole or
in part, to another executive. Executive agrees to devote
substantially all his working time and attention to the business of
the Company. Executive shall not, without the prior consent of the
Board, be directly or indirectly engaged in any other trade,
business or occupation for compensation requiring his personal
services during the Term of Employment. Nothing in this Agreement
shall preclude Executive from (i) engaging in charitable and
community activities or from managing his personal investments or
(ii) serving as a member of the board of directors of an
unaffiliated company not in competition with the Company, subject,
however, with respect to each such board membership, to approval by
the Company’s Board (not to be unreasonably withheld). During
the Term of Employment, Executive shall be nominated for
re-election as a member of the Board of Directors.
Section 4 . Compensation and Related Matters
.
(a)
Base Salary . During the Term of Employment commencing with
June 1, 2006, Executive shall be compensated at an annual base
salary of no less than $525,000 (the base salary, at the rate in
effect from time to time, is hereinafter referred to as the “
Base Salary ” and the Base Salary has been increased
to $700,000 as of the date of this Agreement). The Board, or a
committee thereof, shall review and may, if appropriate, at its
discretion, increase (but not decrease without Executive’s
written consent, except that no such consent shall be required in
the case of a general salary reduction that would affect at least
three of the persons who were named executive officers in the
Company’s proxy statement for its most recent annual meeting
of shareholders) the annual Base Salary during the Term of
Employment. Base Salary shall be reviewed annually and be adjusted
to reflect (among other factors) Executive’s performance in
regard to the corporate goals and objectives established for
Executive by the Board or a committee thereof. The Base Salary
shall be payable in equal semi-monthy installments.
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(b)
Annual Bonus . In addition to the Base Salary provided for
in Section 4(a), the Company shall provide annual cash bonus
awards to Executive under its Senior Executive Annual Cash Bonus
Plan or substantially equivalent successor plan (the “
Annual Bonus Plan ”) in accordance with such plan and
any financial performance targets thereunder (the “ Annual
Bonus ”) each fiscal year of the Company during the Term
of Employment. For the Company’s fiscal year ending
August 31, 2006, Executive’s target incentive
opportunity under the Annual Bonus Plan has been fixed at 60% of
Base Salary (the target bonus as a percentage of Base Salary, as in
effect from time to time, is hereinafter referred to as the “
Target Bonus Percentage ” and the Target Bonus
Percentage has been increased to 80% as of the date of this
Agreement). The Target Bonus Percentage shall be reviewed annually
for increase (but not decrease without Executive’s consent)
by the Board or a committee thereof.
(c)
Additional Compensation . Executive may be awarded
additional compensation, including equity-based incentive awards,
such as, stock options, performance shares and restricted shares,
pursuant to the Company’s 2004 Stock Incentive Plan As
Amended or any future incentive compensation or long-term
compensation program established for the senior executive officers
of the Company (collectively the “ Incentive Compensation
Programs ”), in an appropriate manner for the position
occupied by Executive and consistent with his performance as
evaluated by the Board. Except as otherwise provided herein,
compensation granted under such plans will be subject to the actual
provisions and conditions applicable to such plans.
(d)
Expenses . During the Term of Employment, Executive shall be
entitled to receive prompt reimbursement for all reasonable
expenses incurred by Executive in performing services hereunder,
including all expenses of travel and living while away from home on
business or at the request of and in the service of the Company,
provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the
Company.
(e)
Other Benefits . The Company shall maintain in full force
and effect, and Executive shall be entitled to continue to
participate in, all of the Company’s employee benefit plans
and arrangements in effect on the Effective Date hereof in which
Executive participates or plans or arrangements providing Executive
with at least equivalent benefits thereunder (the “
Benefit Plans ”). Such plans and arrangements shall,
among other things, provide to Executive personal leave days, sick
days and vacation time, short-term and long-term disability
coverage, tax counseling, and family medical coverage. Executive
shall be entitled to participate in, or receive benefits under, any
employee benefit plan or arrangement made available by the Company
in the future to its senior executives, subject to and on a basis
consistent with the terms, conditions and overall administration of
such plans and arrangements. Nothing paid to Executive under any
Benefit Plan shall be deemed to be in lieu of the Base Salary and
Annual Bonus payable to Executive pursuant to Sections 4(a) and
(b). Any payments or benefits payable to Executive hereunder in
respect of any fiscal year during which Executive is employed by
the Company for less than the entire year shall, unless otherwise
provided in the applicable plan or arrangement, be prorated in
accordance with the number of days in such fiscal year during which
he is so employed.
(f)
Non-Exclusivity . Nothing in this Agreement shall prevent
Executive from being entitled to receive any additional
compensation or benefits as approved by the
Company’s
3
Board;
provided, however, that in no event shall the Company make any
loans to Executive that are in violation of the Sarbanes-Oxley Act
of 2002, as such act may be amended or supplemented from time to
time, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder.
Section 5 . Termination .
(a)
Termination of Employment Other Than by Executive .
Executive’s employment hereunder may be terminated without
any breach of this Agreement only under the following
circumstances:
(1) Death .
Executive’s employment hereunder shall terminate upon his
death.
(2)
Disability . If the Company determines in good faith that
the Disability of Executive has occurred (pursuant to the
definition of “Disability” set forth below), it may
give to Executive written notice of its intention to terminate
Executive’s employment. In such event, Executive’s
employment with the Company shall terminate effective on the 30th
day after the date of such notice, provided that, within such
30-day period, Executive shall not have returned to full-time
performance of Executive’s duties. For purposes of this
Agreement, “ Disability ” means disability
(either physical or mental) which, at least one hundred eighty
(180) days after its commencement, is determined by a
physician selected by the Company or its insurers and acceptable to
Executive or Executive’s legal representative to be total and
permanent (such agreement as to acceptability not to be withheld
unreasonably).
(3) Cause .
The Company has the right to terminate Executive’s employment
for Cause, and such termination shall not be a breach of this
Agreement by the Company. “ Cause ” means
termination of employment for one of the following reasons:
(i) the willful and continued failure of Executive to perform
substantially Executive’s duties with the Company or one of
its Subsidiaries (other than any such failure resulting from
incapacity due to physical or mental illness), after a written
demand for substantial performance is delivered to Executive by the
Board which specifically identifies the manner in which the Board
believes that Executive has failed to substantially perform his
duties and such failure is not cured within thirty (30) days
of such written notice; (ii) an act or acts of dishonesty
taken by Executive and intended to result in substantial personal
enrichment of Executive at the expense of the Company;
(iii) the willful engaging by Executive in illegal conduct or
gross misconduct; or (iv) a clearly established violation by
Executive of the Company’s Code of Conduct that is materially
and demonstrably injurious to the Company. Further, for purposes of
this Section 5(a), no act, or failure to act, on
Executive’s part shall be deemed “willful
”
if done, or omitted to be done, by
Executive in good faith and with a reasonable belief that his
action or omission was in the best interest of the
Company.
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(b)
Termination of Employment by Executive for Good Reason .
Executive may terminate his employment hereunder for Good Reason,
provided that Executive shall have delivered a Notice of
Termination within ninety (90) days after the occurrence of
the event of Good Reason giving rise to such termination. For
purposes of this Agreement, “ Good Reason ”
shall not mean a termination resulting from non-renewal of this
Agreement or the occurrence of any of the events listed in the
following subsections of this Section 5(b) if they occurred in
connection with the termination of Executive’s employment
because of Disability or for Cause. “ Good Reason
” shall mean the occurrence of one or more of the following
circumstances, without Executive’s express written consent,
that are not remedied by the Company within thirty (30) days
of receipt of Executive’s Notice of Termination except that
no 30-day period shall apply if the reason for termination is a
Change of Control
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