EXHIBIT 10.2
EMPLOYMENT (CHANGE IN CONTROL) AGREEMENT
AGREEMENT made effective as of this 12 day of October, 2009 by and between WSI Industries,
Inc., a Minnesota corporation with its principal offices at Wayzata, Minnesota (“WSI”) and Benjamin
Rashleger (the “Executive”).
WHEREAS, WSI considers the establishment and maintenance of a sound and vital management to be
essential to protecting and enhancing the best interests of WSI and its shareholders; and
WHEREAS, the Executive has made and is expected to make, due to Executive’s intimate knowledge
of the business and affairs of WSI, its policies, methods, personnel and problems, a significant
contribution to the profitability, growth and financial strength of WSI; and
WHEREAS, WSI, as a publicly held corporation, recognizes that the possibility of a Change in
Control may exist and that such possibility and the uncertainty and questions which it may raise
among management, may result in the departure or distraction of the Executive in the performance of
the Executive’s duties to the detriment of WSI and its shareholders; and
WHEREAS, Executive is willing to remain in the employ of WSI upon the understanding that WSI
will provide income security if the Executive’s employment is terminated under certain terms and
conditions; and
WHEREAS, it is in the best interests of WSI and its stockholders to reinforce and encourage
the continued attention and dedication of management personnel, including Executive, to their
assigned duties without distraction and to ensure the continued availability to WSI of the
Executive in the event of a Change in Control.
THEREFORE, in consideration of the foregoing and other respective covenants and agreements of
the parties herein contained, the parties hereto agree as follows:
1.
Term of Agreement
. This Agreement shall commence on the date hereof and
shall continue in effect until October 12, 2010. This Agreement shall automatically renew for
successive one-year periods unless WSI notifies the Executive of termination of the Agreement at
least sixty (60) days prior to the end of the initial term or any renewal term. Notwithstanding
the preceding sentence, if a Change in Control occurs, this Agreement shall continue in effect for
a period of 12 months from the date of the occurrence of a Change in Control. Notwithstanding
anything herein to the contrary, the Executive’s employment shall be at all times at the will of
WSI, and nothing in this Agreement shall prohibit or limit the right of WSI or Executive, prior to
a Change in Control, to terminate the employment of Executive for any reason or for no reason.
2.
Change in Control
. No benefits shall be payable hereunder unless there shall have
been a Change in Control, as set forth below.
(a) For purposes of this Agreement, a “Change in Control” of WSI shall be deemed to
occur when and if any of the following occur:
(i) any “person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) becomes a “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of WSI representing 50% or more
of the combined voting power of WSI’s then outstanding securities;
(ii) there ceases to be a majority of the Board of Directors comprised of:
(A) individuals who on the date hereof constituted the Board of WSI, and (B) any new
director (other than a director whose initial assumption of office is in connection
with an actual or threatened contest, including but not limited to a proxy or
consent solicitation, relating to the election of directors of WSI or a settlement
of such contest or consent solicitation) who subsequently was elected or nominated
for election by a majority of the directors who held such office immediately prior
to a Change in Control (the individuals designated in (A) and (B) shall be referred
to as the “Incumbent Directors”); or
(iii) WSI disposes of at least 75% of its assets, other than to an entity owned
50% or greater by WSI or any of its subsidiaries.
(b) A Change in Control which arises from a transaction or series of
transactions which are not authorized, recommended or approved by formal action
taken by a majority of the Incumbent Directors shall be referred to as an
“Unapproved Change in Control.” A Change in Control which has been authorized,
recommended or approved by a majority of the Incumbent Directors shall be referred
to as an “Approved Change in Control.”
3.
Termination Following Change in Control
. If a Change in Control shall have
occurred during the term of this Agreement and Executive’s employment is thereafter terminated,
Executive shall be entitled to the benefits provided in subsection 4(d) unless such termination is
(A) because of Executive’s Death or Retirement, (B) by WSI for Cause or Disability, or (C) by
Executive other than for Good Reason.
(a)
Disability; Retirement
. If, as a result of incapacity due to
physical or mental illness, the Executive shall have been absent from the full-time
performance of Executive’s duties with WSI for six consecutive months, and within 30 days
after written Notice of Termination is given the Executive shall not have returned to the
full-time performance of the Executive’s duties, WSI may terminate Executive’s employment
for “Disability”. Any question as to the existence of Executive’s Disability upon which
Executive and WSI cannot agree shall be determined by a qualified independent physician
selected by Executive (or, if the Executive is unable to make such selection, it shall be
made by any adult member of the Executive’s immediate family), and approved
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by WSI. The determination of such physician made in writing to WSI and to Executive
shall be final and conclusive for all purposes of this Agreement. Termination by Executive
of Executive’s employment based on “Retirement” shall mean retirement at or after the date
the Executive has attained age 65.
(b)
Cause
. Termination by WSI of Executive’s employment for “Cause” shall
mean: (i) the willful and continued failure of Executive to perform his essential duties;
(ii) the willful engaging by Executive in illegal conduct, or (iii) willful misconduct
materially injurious to WSI, which, in the case of clause (i) and (iii), the Executive has
not cured, in the sole opinion of the Board, determined in good faith, within 10 days of
receipt of the Notice of Termination. An act of Executive shall not be deemed “willful”
unless done or omitted to be done by Executive not in good faith and without reasonable
belief that the act or omission was in WSI’s best interests.
(c)
Good Reason
. Executive shall be entitled to terminate his employment for
Good Reason. For purposes of this Agreement, “Good Reason” shall mean, without Executive’s
express written consent, any of the following:
(i) the assignment to Executive of any duties inconsistent with Executive’s
status or position with WSI, or a substantial reduction in the nature or status of
Executive’s responsibilities from those in effect immediately prior to the Change in
Control;
(ii) a reduction by WSI in Executive’s annual base salary in effect immediately
prior to a Change in Control;
(iii) the relocation of Executive’s principal executive offices to a location
more than fifty miles from Executive’s principal office prior to the Change in
Control, except for required travel on WSI’s business to an extent substantially
consistent with Executive’s prior business travel obligations;
(iv) the failure by WSI to continue to provide Executive with benefits
substantially similar to those enjoyed by Executive under any of WSI’s pension, life
insurance, medical, health and accident, disability, deferred compensation,
incentive awards, incentive stock options, or savings plans in which Executive was
participating at the time of the Change in Control, the taking of any action by WSI
which would directly or indirectly materially reduce any of such benefits or deprive
Executive of any material fringe benefit enjoyed at the time of the Change in
Control, or the failure by WSI to provide Executive with the number of paid vacation
days to which Executive is entitled at the time of the Change in Control, provided,
however, that WSI may amend any such plan or programs as long as such amendments do
not reduce any benefits to which Executive would be entitled upon termination;
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(v) the failure of WSI to obtain a satisfactory agreement from any successor to
assume and agree to perform this Agreement, as contemplated in Section 7; or
(vi) any purported termination of Executive’s employment which is not made
pursuant to a Notice of Termination satisfying the requirements of subsection (e)
below; for purposes of this Agreement, no such purported termination shall be
effective.
(d)
Voluntary Termination Deemed Good Reason
. If an Unapproved Change in
Control occurs, Executive may voluntarily terminate his employment for any reason during the
period commencing on the 91st day following a Change in Control and ending on the 180th day
following a Change in Control. Any such termination shall be deemed “Good Reason” for all
purposes of this Agreement.
(e)
Notice of Termination
. Any purported termination of Executive’s employment
by WSI or by Executive shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 8. For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which shall indicate the specific termination provision in
this Agreement relied upon and shall set forth the facts and circumstances claimed to
provide a basis for termination of Executive’s employment.
(f)
Date of Termination
. For purposes of this Agreement, “Date of Termination”
shall mean:
(i) if Executive’s employment is terminated for Disability, 30 days after
Notice of Termination is given (provided that the Executive shall not have returned
to the full-time performance of the Executive’s duties during such 30 day period);
and
(ii) if Executive’s employment is terminated pursuant to subsections
(b), (c) or (d) above or for any other reason (other than Disability), the date
specified in the Notice of Termination (which, in the case of a termination pursuant
to subsection (b) above shall not be less than 10 days, and in the case of a
termination pursuant to subsection (c) or (d) above shall not be less than 10 nor
more than 30 days, respectively, from the date such Notice of Termination is given).
(g)
Dispute of Termination
. If, within 10 days after any Notice of Termination
is given, the party receiving such Notice of Termination notifies the other party in good
faith that a dispute exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual written agreement of the
parties, or by a final judgement, order or decree of a court of competent jurisdiction in
accordance with subsection 11(a) (which is not appealable or
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the time for appeal therefrom having expired and no appeal having been perfected);
provided, that the date of Termination shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence. Notwithstanding the pendency of any such dispute,
WSI shall continue to pay Executive full compensation in effect when the notice giving rise
to the dispute was given (including, but not limited to, base salary) and continue Executive
as a participant in all compensation, benefit and insurance plans in which the Executive was
participating when the notice giving rise to the dispute was given, until the dispute is
finally resolved in accordance with this subsection. Amounts paid under this subsection are
in addition to all other amounts due under this Agreement and shall not be offset against or
reduce any other amounts under this Agreement.
4.
Compensation Upon Termination or During Disability
. Following a Change in Control
of WSI, as defined in subsection 2(a), upon termination of Executive’s employment or during a
period of Disability, Executive shall be entitled to the following benefits:
(a) During any period that Executive fails to perform full-time duties with WSI as a
result of a Disability, WSI shall pay Executive the base salary of the Executive at the rate
in effect at the commencement of any such period, until such time as the Executive is
determined to be eligible for long term disability benefits in accordance with WSI’s
insurance programs then in effect.
(b) If Executive’s employment shall be terminated by WSI for Cause or by Executive
other than for Good Reason or Retirement, WSI shall pay to Executive his full base salary
through the Date of Termination at the rate in effect at the time Notice of Termination is
given and WSI shall have no further obligation to Executive under this Agreement.
(c) If Executive’s employment shall be terminated by WSI for Disability or by Executive
for Retirement, or by reason of Death, WSI shall immediately commence payment to the
Executive (or Executive’s designated beneficiaries or estate, if no beneficiary is
designated) any and all benefits to which the Executive is entitled under WSI’s retirement
and insurance programs then in effect.
(d) If Executive’s employment by WSI shall be terminated (A) by WSI other than
for Cause or Disability or (B) by Executive for Good Reason, then Executive shall be
entitled to the benefits provided below:
(i) WSI shall pay Executive the Executive’s full base salary through the Date
of Termination at the rate in effect at the time the Notice of Termination is given;
(ii) In lieu of any further salary payments for periods subsequent to the
Date of Termination, WSI shall pay a severance payment (the “Severance
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Payment”) equal to the amount described in (A) or (B) below, whichever is
applicable: (A) if an Unapproved Change in Control occurs, 2.99 times the average of
the annual Compensation (as defined below) paid to Executive by WSI (or any
corporation (“Affiliate”) affiliated with WSI within the meaning of Section 1504 of
the Internal Revenue Code of 1986, as amended (the “Code”)) for the five calendar
years (or, if Executive has been employed by WSI for less than five years, the
number of complete calendar years of employment or portions thereof calculated on an
annualized basis) (the “Base Period”) preceding the earlier of the calendar year in
which a Change in Control of WSI occurred or the calendar year of the Date of
Termination; or (B) if an Approved Change in Control occurs, 1.0 times the average
of the annual Compensation (as defined below) for the Base Period. Such average
(including the effect of bonuses paid in the Base Period) shall be determined in
accordance with the temporary or final regulations promulgated under Section 280G(e)
of the Code. For purposes of this Section 4, “Compensation” payable to Executive by
WSI (or an Affiliate) shall mean every type and form of compensation includable in
Executive’s gross income for federal income tax purposes for each year, shall
include any voluntary salary deferral contributions to WSI’s cash or deferred
arrangement under the WSI profit sharing plan (the 401(k) contributions) and the WSI
cafeteria plan, but shall exclude taxable compensation recognized as the result of
the exercise of stock options or sale of the stocks acquired or any payments
actually or constructively received with respect to a plan of deferred compensation
between WSI and Executive. The Severance Payment shall be made within 60 days after
the Date of Termination, or such earlier date as any required rescission period in
respect of the release given by Executive under Section 5 has expired.
(iii) For the period of (A) 12 months following the Termination Date in
the event of an Approved Change in Control or (B) 36 months following the
Termination Date in the event of an Unapproved Change in Control, Executive shall be
entitled to continue participation in the life, disability, accident and health
insurance benefit plans of WSI substantially similar to those which the Executive is
receiving or entitled to receive immediately prior to the Notice of Termination.
WSI and Executive shall share the cost associated with such coverage as if Executive
were still actively employed by WSI. If Executive cannot be covered under any of
WSI’s group plans or policies, WSI shall reimburse Executive for his full cost of
obtaining comparable alternative group or individual coverage elsewhere, less any
contribution that Executive would have been required to make under WSI’s group plans
or policies. Benefits otherwise receivable by Executive pursuant to this paragraph
(iii) shall be reduced to the extent comparable benefits are actually received by
Executive during such period, and any such benefits actually received by Executive
shall be reported to WSI.
(iv) Notwithstanding the foregoing, the Severance Payment shall be reduced to
that maximum amount permitted such that no portion of the Severance
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Payment, together with any other payment or the value of any benefit received
or to be received by Executive (whether payable pursuant to the terms of this
Agreement, any other plan, agreement or arrangement with WSI or an Affiliate) that
is contingent upon a change in control of WSI as that term is defined in Section
280G of the Code would constitute a “parachute payment” within the meaning of
Section 280G(b)(2) of the Code or would be nondeductible solely by reason of the
application of such Section 280G. In determining the amount of the Severance
Payment, in full or as partially reduced as the case may be, payable pursuant to
this Section 4(d), the opinion of tax counsel selected by WSI and acceptable to
Executive with respect to all issues arising in connection with the application of
Section 280G of the Code to such payments and benefits shall be final and binding on
the parties. The Executive may elect to have the benefit continuation under Section
4(d)(iii) reduced or eliminated prior to any reduction of the Severance Payment.
(v) If it is established pursuant to a final determination of a court or an
Internal Revenue Service proceeding that, notwithstanding the good faith of
Executive and WSI in applying the terms of this Subsection 4(d), any portion of the
Severance Payment constitutes a “parachute payments” and would result in part or all
of such Severance Payment being nondeductible by WSI or its Affiliates by reason of
Section 280G of the Code, then Executive shall repay to WSI upon demand an amount
equal to the sum of: (1) that portion of the Severance Payment in excess of the
maximum amount that could have been paid to or for the Executive’s benefit without
any portion constituting a “parachute payment” and being nondeductible by reason of
section 280G of the Code; and (2) interest on the amount set forth in clause (1) of
this sentence at the applicable Federal rate (as defined in section 1274(d) of the
Code) from the date of Executive’s receipt of such excess until the date of such
payment.
(vi) The Severance Payment shall be in lieu of and offset the amount of
any payment or other benefits to which the Executive may be entitled to in
connection with the termination of employment pursuant to the provisions of WSI’s
Severance Pay Plan, as amended from time to time, or any successor to such policy.
(e) Executive shall not be required to mitigate the amount of any payment provided for
in this Section 4 by seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this Section 4 be reduced by any compensation earned by
Executive as the result of employment by another employer or by retirement benefits after
the Date of Termination, or otherwise except as specifically provided in this Section 4.
(f) In addition to all other amounts payable to Executive under this Section 4,
Executive shall be entitled to receive all benefits payable to the Executive under the WSI,
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Inc. Employee Savings Plan and any other plan or agreement relating to retirement
benefits or otherwise generally applicable to executive employees.
5.
General Release
. Executive agrees that the amounts payable to Executive under
Section 4 shall be contingent upon the execution by Executive of a release agreement with WSI,
which release agreement shall include language releasing and holding WSI and its affiliates,
officers, directors, shareholders, employees, agents and insurers harmless from any and all claims,
comply with all applicable laws and contain other provisions standard in such agreements.
6.
Funding of Payments
. In order to assure the performance by WSI or its successor of
its obligations under this Agreement, WSI shall, no later than immediately prior to the closing of
the transaction that constitutes an Unapproved Change in Control, deposit in a so-called “rabbi
trust” or similar escrow arrangement an amount equal to the maximum payment that will be due the
Executive under the terms hereof. Under a written trust instrument, the Trustee shall be
instructed to pay to the Executive (or the Executive’s legal representative, as the case may be)
the amount to which the Executive shall be entitled under the terms hereof, and the balance, if
any, of the trust not so paid or reserved for payment shall be repaid to WSI. If and to the extent
there are not amounts in trust sufficient to pay Executive under this Agreement, WSI shall remain
liable for any and all payments due to Executive. In accordance with the terms of such trust, at
all times during the term of this Agreement Executive shall have no rights, other than as an
unsecured general creditor of WSI, to any amounts held in trust and all trust assets shall be
general assets of WSI and subject to the claims of creditors of WSI. With respect to an Approved
Change in Control, WSI’s obligations in this Section 6 shall not be mandatory but rather shall be
permissive.
7.
Successors; Binding Agreement
.
(a) WSI will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business and/or
assets of WSI to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that WSI would be required to perform it if no such succession had taken
place. Failure of WSI to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle Executive to
compensation from WSI in the same amount and on the same terms as he would be entitled
hereunder if he terminated his employment for Good Reason following a Change in Control,
except that for purposes of implementing the foregoing, the date on which any such
succession becomes effective shall be deemed the Date of Termination.
(b) This Agreement shall inure to the benefit of and be enforceable by Executive’s
personal or legal representatives, successors, heirs, and designated beneficiaries. If
executive should die while any amount would still be payable to Executive hereunder if the
Executive had continued to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement
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to the Executive’s designated beneficiaries, or, if there is no such designated
beneficiary, to the Executive’s estate.
8.
Notice
. For the purpose of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have been duly given when
delivered or mailed by United States registered or certified mail, return receipt requested,
postage pre-paid, addressed to the last known residence address of the Executive or in the case of
WSI, to its principal office to the attention of each of the then directors of WSI with a copy to
its Secretary, or to such other address as either party may have furnished to the other in writing
in accordance herewith, except that notice of change of address shall be effective only upon
receipt.
9.
Miscellaneous
. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing and signed by the
parties. No waiver by either party thereto at anytime of any breach by the other party to this
Agreement of, or compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or similar time. No agreements or representations, oral or otherwise, express
or implied, with respect to the subject matter hereof have been made by either party which are not
expressly set forth in this Agreement. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Minnesota.
10.
Validity
. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceablity of any other provision of this Agreement, which
shall remain in full force and effect.
11.
Arbitration and Award of Attorneys’ Fees
.
(a) Any dispute arising between the parties relating to this Agreement shall be
resolved by binding arbitration held in the City of Minneapolis pursuant to the Rules of the
American Arbitration Association, except as hereinafter expressly modified. If the
disputing and responding parties are unable to agree upon a resolution within forty-five
business days after the responding party’s receipt of written notice from the disputing
party setting forth the nature of the dispute, within the following ten business days the
disputing and responding parties shall select a mutually acceptable single arbitrator to
resolve the dispute or, if the parties fail or are unable to do so, each shall within the
following ten business days select a single arbitrator, and the two so selected shall select
a third arbitrator within the following ten business days. Such single arbitrator or, as
the case may be, panel of three arbitrators acting by majority decision, shall resolve the
dispute within sixty days after the date such arbitrator, or the last of them so selected,
is selected, or as soon thereafter as practicable. If either party refuses or fails to
select an arbitrator within the time therefor, the other party may do so on such refusing or
failing party’s behalf. The arbitrators shall have no power to award any punitive or
exemplary damages but may construe or interpret but shall not ignore or vary the terms of
this Agreement and shall be bound by controlling law. The parties acknowledge the
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Executive’s failure to comply with any confidentiality, non-solicit, and non-compete
provisions of any agreement to which the Executive is bound will cause immediate and
irreparable injury to WSI and that therefore the arbitrators, or a court of competent
jurisdiction if an arbitration panel cannot be immediately convened, will be empowered to
provide injunctive relief, including temporary or preliminary relief, to restrain any such
failure to comply. The arbitration award or other resolution may be entered as a judgment
at the request of the prevailing party by any court of competent jurisdiction in Minnesota
or elsewhere.
(b) In the event WSI fails to pay Executive any amounts owing to Executive under this
Agreement or to provide Executive any benefits to which Executive is ultimately determined,
by settlement, mediation, arbitration, or by any court or other decision making body with
jurisdiction, to be entitled to under this Agreement, WSI shall pay the legal expenses
(including reasonable attorneys’ fees, court costs and other out-of-pocket expenses),
incurred by Executive to enforce his rights under this Agreement and collect or obtain such
amounts or benefits.
12.
Confidential Information
. Executive will not while this Agreement is in effect or
after its expiration or termination, use, other than in connection with Executive’s employment with
WSI, or disclose any confidential information to any person not employed by WSI or not authorized
by WSI to receive such information without the prior written consent of WSI. Executive will use
reasonable and prudent care to safeguard, protect and prevent the unauthorized disclosure of
confidential information. The obligations contained in this Section 12 will survive for as long as
WSI in its sole judgment considers the information to be confidential information.
13.
Disclosure and Assignment
.
(a)
Disclosure
. Executive will disclose promptly in writing to WSI all
inventions, improvements, discoveries and writings and other works of authorship (“works”)
which are conceived, made, discovered or written jointly or singly on WSI time or on
Executive’s time, providing the invention, improvement, discovery, writing or other work is
capable of being used by WSI in the normal course of business, and all such inventions,
improvements, discoveries, writings and works are hereby assigned to, and belong solely and
exclusively to WSI.
(b)
Assignment
. Executive will sign and execute all instruments of assignment
and other papers to evidence divestiture of the entire right, title, and interest in such
inventions, improvements, discoveries, writings, or works in WSI, and will do all acts and
sign all papers that WSI may reasonably request, relating to applications for patents, to
patents, to copyrights, and to the enforcement and protection thereof. If such acts are
requested and performed when Executive is not a WSI employee, WSI will pay a fee, determined
by WSI, covering authorized time and expenses of Executive but no others.
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(c)
Limitations
. Notwithstanding anything in this Section 13 to the contrary,
Executive is hereby given NOTICE that the assignment and statement of WSI ownership does not
apply to any INVENTION for which no equipment, supplies, facility or trade secret
information of WSI was used and which was developed entirely on Executive’s own time, and
(1) which does not relate (i) directly to the business of WSI or (ii) to WSI’s actual or
demonstrably anticipated research or development, or (2) which does not result from any work
performed by Executive for WSI.
(d)
Survival of Obligations
.
(i) The obligations of this Section 13 survive the expiration or termination of
this Agreement.
(ii) This Agreement, or any termination hereof, has no effect on any other
Employee Agreement previously executed by Executive which remains in full force and
effect. To the extent there are any conflicts between this Agreement and such other
Agreement, this Agreement prevails.
(iii) Upon termination of employment, Executive will
not take or retain, and will return to WSI all WSI property of any
nature or kind.
14.
Other Agreements
. This Agreement constitutes our entire agreement and
supersedes all prior discussions, understandings and agreements with respect to a change in control
of WSI. This Agreement contains the entire understanding of the parties, except the Letter
Agreeement dated the date of this Agreement with respect to severance payments prior to a Change in
Control (the “Letter Agreement”), which shall remain in effect according to its terms and which, in
the event of conflict with this Agreement, the terms of this Agreement shall control. There shall
be no duplication of benefits on Executive’s behalf in this Agreement and the Letter Agreement in
the event of the termination of Executive’s employment following a Change in Control.
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WSI INDUSTRIES, INC.
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By
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/s/ Michael J. Pudil
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Michael J. Pudil
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Chief Executive Officer
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EXECUTIVE
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/s/ Benjamin Rashleger
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Benjamin Rashleger
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EXHIBIT 10.3
RESTRICTIVE COVENANT AGREEMENT
THIS RESTRICTIVE COVENANT AGREEMENT (“Agreement”) is entered into as of [
], by
and between [
] (“Employee”) and WSI Industries, Inc., (the “Company” or the
“Employer”).
IN CONSIDERATION of employment, and the Employment (Change in Control) Agreement and the other
benefits offered Employee dated this date between Employee and Employer, to which Employee was not
otherwise entitled to, the Company and Employee agree as follows:
1.
Confidential Information
.
1.1
“Confidential Information” Defined
. “Confidential Information” means information
not generally known and proprietary to the Company or to a third party for whom the Company is
performing work, including, without limitation, information concerning any patents or trade
secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or
material, research and development, proprietary software, analysis, techniques, materials or
designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the
business of the Company, any vendor names, customer and supplier lists, databases, management
systems and sales and marketing plans, accounting and financial reports, evaluations, statements,
audits of the Company or other affiliated entity, any confidential secret development or research
work of the Company, or any other confidential information or proprietary aspects of the business
of the Company. All information which Employee acquires or becomes acquainted with during
Employee’s employment by the Company (including employment by an affiliated company), whether
developed by Employee or by others, which Employee has a reasonable basis to believe to be
Confidential Information, or which is treated by the Company as being Confidential Information,
shall be presumed to be Confidential Information.
1.2
Disclosures and Use by Employee.
Employee will not, during or at any time after
the term of employment under this Agreement, divulge, disclose or communicate to any person or
entity, or use for Employee’s benefit or for the benefit of any third party, in any manner
whatsoever, whether directly or indirectly, any information concerning any matters affecting or
relating to the business of Employer, including any of its customers, the prices it obtains or has
obtained from the sale of, or at which it sells or has sold, its products, or any other information
concerning its business, its manner of operation, its plans, processes, specifications,
merchandising techniques, or other data. Employee understands that such matters and information
are important, material, and confidential and are necessary to the effective and successful conduct
of Employer’s business and goodwill, and that any breach of the terms of this paragraph shall be a
material breach of this agreement.
1.3
Scope of Obligation
. The foregoing obligations of confidentiality shall not apply
to any knowledge or information which is now published or which subsequently
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becomes generally publicly known in the form in which it was obtained from the Company, other
than as a direct or indirect result of the breach of this Agreement by Employee.
1.4
Ownership Rights: Confidentiality.
Employee shall not acquire any rights
hereunder or during employment to any documents, records, tangible property, goodwill, trade
secrets, customer lists, proprietary interests, Confidential Information, or other property of
Employer, whether tangible or intangible. All such technical and business information of Employer,
including any records or documents which Employee shall compile while employed with Employer, are
to be considered confidential.
2.
Non-competition and Non-solicitation
.
2.1
Non-competition
.
(a)
During and After Employment.
Throughout the period of Employee’s
employment with Employer, and thereafter for the period described in Section 2.1(c)
set forth below, Employee shall not, for any reason whatsoever, directly or
indirectly, plan, organize, advise, own, manage, operate, control, be employed by,
participate in or be connected in any manner with the ownership, management,
operation or control of any business similar to the type of business conducted by
Employer, and will not conspire with others to do so as a shareholder, officer,
director, agent, employee, advisor, consultant or independent contractor of any
competing business. A competing business includes any corporation, limited
liability company, partnership, proprietorship, association, or other entity or
person engaged in developing, producing, designing, providing, soliciting orders
for, selling, distributing or marketing products or services that directly or
indirectly compete with any of the Company’s products, services or business.
Ownership by Employee, as a passive investment, of capital stock or other securities
of any corporation dissimilar from the Company shall not constitute a breach of this
Section 2.1(a).
(b)
Restriction as to Territory.
Employee’s agreement not to compete
against Employer shall extend throughout the territory where it actually does
business or may reasonably expect to do business and the territory where its
customers are located.
(c)
Restriction as to Duration.
The duration of this agreement not to
compete shall extend throughout the term of Employee’s employment with Employer and
for an additional twelve (12) months thereafter; provided, however, that the
duration of the foregoing covenant shall be extended beyond the time period set
forth herein for a period equal to the duration of any breach or default of such
covenant by Employee. Employee agrees that this restriction as to duration is
reasonable in light of the nature of Employee’s job.
(d)
Independent Covenant.
Employee’s agreement not to compete as set
forth in this Section 2.1 is understood to be an independent covenant and
2
agreement on Employee’s part which may be enforced against Employee regardless
of any claim Employee may have or assert against Employer.
(e)
Court Ruling
. In the event that the foregoing agreement not to
compete is determined by a court of competent jurisdiction to be excessive in its
duration or in the area to which it applies, it shall be considered modified and
valid for such duration and for such area as said court may determine to be
reasonable under the circumstances.
2.2
Non-solicitation
. Employee further agrees that Employee will not at any time
during employment with the Company and for the period of twelve (12) months following the last day
of employment with the Company, directly or indirectly, induce or influence any employee of the
Company to leave the employ of the Company or any consultant or other independent contractor for
the Company to change or terminate any relationship between that person and the Company.
2.3
Prohibited Activity
. Employee further agrees that, Employee will not, directly or
indirectly, assist or encourage any other person in carrying out, directly or indirectly, any
activity that would be prohibited by the above provisions of this Section 2 if such activity were
carried out by Employee, directly or indirectly, or induce any employee of the Company to carry
out, directly or indirectly, any such activity.
3.
Copy to New Employer
. Throughout the term of this Agreement, and for a period of
twelve (12) months thereafter, Employee will inform Employee’s new or prospective employer, prior
to accepting employment, of the existence of this Agreement and will provide such employer a copy
thereof.
4.
Termination
. Notwithstanding any termination of employment, Employee, in
consideration of employment through the date of such termination, shall remain bound by the
provisions of this Agreement, which specifically relate to periods, activities or obligations upon
or subsequent to the termination of Employee’s employment.
5.
Settlement of Disputes
.
5.1
Resolution of Certain Claims - Injunctive Relief
. Claims brought by the Company
asserting a violation of this Agreement, or seeking to enforce, by injunction or otherwise, the
terms this Agreement may be maintained by the Company in a lawsuit subject to the terms of Section
5.2. Employee agrees that, in addition to, but not to the exclusion of any other available remedy,
the Company shall have the right to enforce the provisions of this Agreement by applying for and
obtaining temporary and permanent restraining orders or injunctions from a court of competent
jurisdiction without the necessity of filing a bond therefore, and the Company shall be entitled to
recover from Employee its reasonable attorneys’ fees and costs in enforcing this Agreement.
5.2
Venue
. Any action at law, suit in equity, or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or from this Agreement or
any provision hereof, shall be litigated only in the courts of the state of Minnesota, or the
Federal District Court, District of Minnesota. Employee waives any right Employee may have to
transfer
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or change the venue of any litigation brought against Employee by the Company. Employee also
waives any claim of inconvenient forum.
5.3
Severability
. In the event any provision of this Agreement is found to be illegal
or unenforceable, such provision shall be severed or modified to the extent necessary to make it
enforceable, and as so severed or modified, the remainder of this Agreement shall remain in full
force and effect. Employee expressly stipulates that this Agreement be given the construction
which renders its provisions valid and enforceable to the maximum extent (not exceeding its express
terms possible under applicable law).
6.
Miscellaneous
.
6.1
Governing Law
. This Agreement is made under and shall be governed by and
construed in accordance with the laws of the state of Minnesota other than its law dealing with
conflicts of law.
6.2
Amendments
. No amendment or modification of this Agreement shall be deemed
effective unless made in writing and signed by both Employee and the Company.
6.3
No Waiver
. No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel to enforce any provision of this Agreement, except by a
statement in writing signed by the party against whom enforcement of the waiver or estoppel is
sought. Any written waiver shall not be deemed a continuing waiver unless specifically stated,
shall operate only as to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that specifically waived.
6.4
Assignment
. This Agreement shall not be assignable, in whole or in part, by the
Employee. This Agreement is freely assignable by the Company in connection with a sale of
substantially all of the equity or assets of the Company.
6.5
Effect of Agreement
.
Nothing contained in this Agreement is intended to create an
express or implied contract of employment or guarantee of employment. Employee agrees that
Employee is employed “at will” and agrees that the Company is not by reason of this Agreement
obligated to continue Employee’s employment at any time, for any reason.
6.6
Counterparts
. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
6.7
Captions and Headings
. The captions and paragraph headings used in this Agreement
are for convenience of reference only, and shall not affect the construction or interpretation of
this Agreement or any of the provisions thereof.
4
IN WITNESS WHEREOF, Employee and the Company have executed this Agreement as of the date set
forth in the first paragraph.
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WSI INDUSTRIES, INC.
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By:
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Its:
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EMPLOYEE
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[Restrictive Covenant Agreement entered into by Michael J. Pudil on October 7, 2009, Paul D. Sheely
on October 7, 2009 and Benjamin Rashleger on October 12, 2009.]
5
EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT (“Agreement”) is entered into as of October 7, 2009 by and between WSI
Industries, Inc. (the “Company”), and Michael J. Pudil (the “Executive”).
WHEREAS, the parties previously entered into an employment agreement to provide for the
Executive’s services as Chief Executive Officer and President of the Company.
WHEREAS, the Executive is expected to eventually retire as Chief Executive Officer and the
parties decided to establish a transition period, by initially establishing a separate position of
President, which would provide the Company with the opportunity to proactively implement an orderly
succession plan.
WHEREAS, the parties desire to enter into a new employment agreement to set forth their mutual
understanding and agreement on their employment relationship including certain matters regarding
the possibility that Executive would eventually retire as Chief Executive Officer after a
transition period.
NOW, THEREFORE, in consideration of the promises and the respective undertakings of the
Company and Executive set forth below, the Company and Executive agree as follows:
1.
Employment
. The Company hereby employs Executive and Executive accepts such
employment as an executive officer of the Company reporting to the Company’s Board of Directors.
Except as expressly provided herein, termination of this Agreement by either party shall also
terminate Executive’s employment by the Company.
2.
Term
. Employment with the Company shall be for a term beginning on the date of
this Agreement and ending on December 31, 2011, subject to earlier termination as provided herein.
3.
Position and Duties
.
3.1
Service with Company
. During the term of this Agreement, Executive agrees to
perform such reasonable employment duties for the Company as shall arise in connection with his
position as Chief Executive Officer of the Company or as otherwise directed by the Company’s Board
of Directors (the “Board”). During the term of this Agreement, for so long as Executive’s
successor continues to serve in the position of President, Executive shall serve in a transitional
role to facilitate an orderly transition of Chief Executive Officer responsibilities to his
successor and provide such other services as may be reasonably requested by the Board or the
successor during the term.
3.2
Performance of Duties
. Executive agrees to serve the Company faithfully and to
the best of his ability, and to devote his full time attention and efforts to the business and
affairs of the Company during the term of this Agreement as is reasonably necessary to execute his
duties hereunder. The Executive agrees that during the term of this Agreement, he will not render
or perform services for any other corporation, firm, entity or person which are
inconsistent with the provisions of this Agreement or which are considered in business
competition with the Company.
4.
Compensation
.
4.1
Base Salary
. During the term of this Agreement, as compensation for all services
to be rendered by Executive under this Agreement, the Company shall pay to Executive an annualized
Base Salary (“Base Salary”) of $222,120.00. The Company shall pay the Base Salary in accordance
with normal Company payroll practices, subject to state and federal taxes, social security and any
other applicable withholdings. Notwithstanding the foregoing, the annualized Base Salary would be
reduced to $100,000 during any period of the term after December 31, 2009 in which Executive’s
successor continues to serve in the position of President.
4.2
Fringe Benefits
. Executive shall be entitled to such insurance, vacation, profit
sharing and other benefits as are currently available, subject to any limitations on such benefits
to officers, directors or highly paid employees in order that such benefit programs qualify under
federal and state law for favored tax or other treatment. Such benefit programs may be changed
from time to time by the Board provided they are changed uniformly for all officers of the Company.
Executive shall also be entitled to special medical benefits (as currently in effect).
4.3
Business Expenses
. The Company will pay or reimburse Executive for all reasonable
and necessary out-of-pocket expenses incurred by him for the benefit of the Company in the
performance of his duties under this Agreement, subject to compliance by Executive with the
Company’s policies for expense reimbursements.
5.
Restrictive Covenant Agreement
. In consideration of employment, and the severance
offered to Executive under Section 6, to which the Executive was not otherwise entitled to, the
Executive agrees to execute a Restrictive Covenant Agreement, attached hereto as
Exhibit A
.
6.
Termination and Payment to Executive
.
6.1
Termination Date
. This Agreement and Executive’s employment hereunder shall
terminate upon the occurrence of any one or more of the following:
(a)
Death
. In the event of Executive’s death, this Agreement and Executive’s
employment hereunder shall automatically terminate on the date of death.
(b)
Disability
. To the extent permitted by law, in the event of Executive’s physical
or mental disability that prevents Executive from performing the essential functions of Executive’s
duties under this Agreement (with or without reasonable accommodation) for a period of at least 90
consecutive days in any 12-month period or 120 non-consecutive days in any 12-month period,
Employer may terminate this Agreement and Executive’s employment hereunder upon giving written
notice of termination to Executive.
2
(c)
Termination by Employer for Cause
. Employer may, at its option, terminate this
Agreement and Executive’s employment hereunder for Cause (as defined below) upon giving written
notice of termination to Executive. “Cause” shall mean any of the following: (i) Executive has
engaged in dishonesty, illegal or other wrongful conduct substantially detrimental to the business
or reputation of the Company or any of its subsidiaries or affiliates; (ii) Executive has
developed or pursued interests substantially adverse to the Company or any of its subsidiaries or
affiliates; (iii) Executive has willfully and continuously failed to substantially perform his
duties with the Company (other than any such failure resulting from Executive’s incapacity due to
physical or mental disability), after written notice of such failure and opportunity to cure; or
(iv) Executive’s conviction of, or guilty plea or nolo contendere plea to a felony involving moral
turpitude, fraud or misrepresentation; provided that an act of Executive shall not be deemed
“willful” unless done or omitted to be done by Executive not in good faith and without reasonable
belief that the act or omission was in the Company’s best interests.
(d)
Without Cause by Employer
. Employer may, at its option, at any time terminate
this Agreement and Executive’s employment hereunder for no reason or for any reason whatsoever
(other than for Cause or as a result of Executive’s death or Disability) by giving written notice
of termination to Executive.
(e)
Termination by Executive.
Executive may terminate this Agreement and Executive’s
employment hereunder with or without Good Reason (as defined below) by giving thirty (30) days
prior written notice of termination to Employer. “Good Reason” shall mean, without Executive’s
express written consent, any of the following: (i) a material reduction in Executive’s Base Salary
or benefits required under this Agreement; (ii) a change in Executive’s reporting directly to the
Board of Directors; (iii) a material change in the geographic location at which Executive must
perform services for the Company; and (iv) any other action or inaction that constitutes a
material violation of this Agreement by the Company; provided that no such termination for Good
Reason shall be effective unless: (A) Executive provides written notice to the Chair of the
Compensation Committee of the Board of the existence of a condition specified in clauses (i)
through (iv) of this sentence within 90 days of the initial existence of the condition; (B) the
Company does not remedy such condition within 30 days of the date of such notice; and (C) Executive
terminates his employment within 90 days following the last day of the remedial period described
above.
6.2
Termination for Cause or by Executive without Good Reason
. In the event of a
termination of this Agreement and Executive’s employment hereunder pursuant to Sections 6.1 (c) or
6.1(e) (other than a termination for Good Reason), then this Agreement and Executive’s employment
with Employer shall terminate and Employer’s sole obligation under this Agreement or otherwise
shall be to: (i) pay to Executive any Base Salary earned, but not yet paid, prior to the effective
date of the termination of this Agreement and Executive’s employment hereunder (the “
Date of
Termination
”) and any earned but unused vacation and personal leave, payable in accordance with
Employer’s standard payroll practices; (ii) reimburse Executive for any expenses incurred by
Executive through the Date of such Termination in accordance with Section 4.3 above; and (iii) pay
and/or provide any amounts or benefits that are vested amounts or vested benefits or that Executive
is otherwise entitled to receive under any plan, program, policy or practice (with the exception of
those, if any, relating to severance) on
3
the Date of Termination, in accordance with such plan, program, policy, or practice (clauses
(i), (ii), and (iii) of this sentence are collectively referred to herein as the “
Accrued
Obligations
”).
6.3
Death, Disability, Termination without “Cause” or by Executive for “Good Reason” or
End of Term
. If Executive is terminated without Cause, Executive terminates his employment for
Good Reason, Executive dies or becomes Disabled during the term of this Agreement or Executive
continues to be employed by the Company until this Agreement terminates on December 31, 2011, upon
execution of a release of claims against the Company similar to the attached
Exhibit B
(other than
in the event of death) no later than the date set forth in that Exhibit B, and following expiration
of the rescission period described therein:
(a) the Company will pay all Accrued Obligations as provided in Section 6.2 above;
(b) the Company will pay Executive a lump sum severance payment equal to $335,000
(approximately 18 months base salary), less applicable taxes and withholdings, on a date that is
six months and 1 day after the effective date of Executive’s termination of employment, except
that, in the event of death or Disability, payment shall be made no later than 30 days after the
date of death or determination of Disability; and
(c) except in the event of death of Executive, the Company will continue to be responsible to
pay the same portion of the monthly premium that it paid immediately prior to Executive’s
employment (the “Employer Premium”) towards Executive’s group health, dental and life insurance
(and special medical) for the eighteen (18) month period following such termination, provided
Executive elects continuation of coverage following separation and continues to be eligible for
continuation coverage under COBRA. In the event the Company’s payment of the Employer Premium is
required to be delayed under Treas. Reg. §1.409A-3(i)(2), the Executive shall be responsible to pay
any COBRA premium due during such delay, and the Company shall reimburse to the Executive, in a
lump sum, at the same time as the payment set forth in Section 6.3(b) the cumulative Employer
Premiums that the Executive paid prior to that date, and thereafter the Company shall pay the
Employer Premium at such time as such premiums are due. Upon the expiration of the eighteen (18)
month period following termination, the Company shall pay Executive a lump sum payment in an amount
equal to the Employer Premium multiplied by the number of months in the period starting with the
first month immediately following the eighteen (18) month period following termination and ending
with the month in which the earlier of the following dates occurs: (i) the date Executive reaches
age 65 or (ii) the date Executive is expected to qualify for Medicare; and
(d) the unvested portion of all outstanding stock options shall become fully vested as of the
last day of Executive’s employment and Executive shall have the ability to exercise all vested
stock options during such eighteen (18) month period following Executive’s termination; provided no
stock option shall be exercisable after its original expiration date, and (b) the restrictions on
all outstanding restricted stock awards shall lapse as of the last day of the Executive’s
employment. The provisions of this Section 6.3 shall supersede any provisions of the stock option
and restricted stock award agreement that is inconsistent herewith, and shall be deemed an
amendment to any such agreement executed by the Company and the Executive. The terms of this
Agreement have been approved by the Compensation Committee of the Board in
4
compliance with the terms of the Company’s 2005 Stock Plan.
The Company and the Executive shall take all steps necessary (including with regard to any
post-termination services by Executive) to ensure that any termination of employment described in
this Section 6.3 constitutes a “separation from service” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), and notwithstanding anything contained
herein to the contrary, the date of such separation from service shall be the date of termination
of employment under this Agreement.
6.4
Effect of Termination
. Notwithstanding any termination of this Agreement,
Executive, in consideration of his employment thereunder to the date of such termination shall
remain bound by the provisions of this Agreement which specifically relate to periods, activities
or obligations upon or subsequent to the termination of Executive’s employment.
6.5
Surrender of Records and Property
. Upon termination of his employment with the
Company, Executive shall deliver promptly to the Company all records, manuals, books, blank forms,
documents, letters, memoranda, notes, notebooks, reports, data, tables, calculations or copies
thereof, computers, cellular phones or any other equipment which are the property of the Company or
which relate in any way to the business products, practices or techniques of the Company, and all
other property, trade secrets and confidential information of the Company, including, but not
limited to, all documents which in whole or in part contain any trade secrets, proprietary or
Confidential Information of the Company, which in any of the cases are in his possession or under
his control.
6.6
No Additional Pay/Benefits
. Except as specifically set forth above, no
post-termination payments or benefits will be provided to Executive following the termination of
Executive’s employment, including any incentive pay or other bonus, during which the severance pay
is paid, unless otherwise provided under law or agreed to by the parties in writing and such
agreement is not contrary to or otherwise prohibited by a plan document.
6.7
Board Status
. Nothing herein shall be construed as a contractual right of the
Executive to serve as a Chairman or as a member of the Board of Directors.
6.8
Grantor Trust
. No later than 5 business days following the earlier of (i) a
“change in control” of the Company (as defined in Treas. Reg. §1.409A-3(i)(5)), (ii) the
termination of Executive by the Company without Cause, (iii) the termination by Executive of his
employment for Good Reason or (iv) December 31, 2011, provided Executive continues to be employed
by the Company through such date, the Company shall establish an irrevocable grantor trust in a
form substantially similar to the form of trust set forth in Rev. Proc. 92-64, as modified by
Notice 2000-56, and deposit the amounts required to be paid Executive under the terms of Section
6.3(b) and Section 6.3(c) in cash with the trustee in trust, which will be the initial principal of
the trust to be held, administered and disposed of by trustee as provided in such trust agreement
and this Agreement.
5
7.
Miscellaneous
.
7.1
Governing Law
. This Agreement is made under and shall be governed by and
construed in accordance with the laws of the state of Minnesota other than its law dealing with
conflicts of law.
7.2
Venue
. Any action at law, suit in equity, or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or from this Agreement or
any provision hereof, shall be litigated only in the courts of the state of Minnesota, County of
Hennepin, or the Federal District Court, District of Minnesota, Fourth Division. Executive waives
any right Executive may have to transfer or change the venue of any litigation brought against
Executive by the Company. Executive also waives any claim of inconvenient forum.
7.3
Severability
. To the extent any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted therefrom and the remainder of such provision and of
this Agreement shall be unaffected and shall continue in full force and effect. In furtherance and
not in limitation of the foregoing, should the duration or geographical extent of, or business
activities covered by, any provision of this Agreement be in excess of that which is valid and
enforceable under applicable law, then such provision shall be construed to cover only that
duration, geographical extent or business activities which may be valid and enforceable under
applicable law. Executive acknowledges the uncertainty of the law in this respect and expressly
stipulates that this Agreement be given the construction which renders its provisions valid and
enforceable to the maximum extent (not exceeding its express terms possible under applicable law.)
7.4
Prior Agreements
. This Agreement contains the entire agreement of the parties
relating to the employment of Executive by the Company and the ancillary matters discussed therein,
including all Exhibits and supersedes all prior agreements and understandings with respect to such
matters, including without limitation the Employment (Change in Control) Agreement dated January
11, 2001, as amended, and the Employment Agreement dated October 22, 1993, as amended, and the
parties thereto have made no agreements, representations or warranties relating to such employment
or ancillary matters except as expressly set forth herein.
7.5
Withholding Taxes
. The Company may withhold from any benefits payable under this
Agreement all federal, state, city or other taxes as shall be required pursuant to any law or
governmental regulation or ruling. It is intended that any amounts payable under this Agreement
will comply with Section 409A of the Code, and treasury regulations relating thereto, so as not to
subject Executive to the payment of any interest and tax penalty which may be imposed under Section
409A of the Code, provide however that the Executive, and not the Company shall be responsible for
any such interest and tax penalties. The timing of the payments or benefits provided herein may be
modified to so comply with Section 409A of the Code.
7.6
Amendments
. No amendment or modification of this Agreement shall be deemed
effective unless made in writing and signed by both Executive and the Company.
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7.7
No Waiver
. No term or condition of this Agreement shall be deemed to have been
waived, nor there any estoppel to enforce any provision of this Agreement, except by a statement in
writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any
written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate
only as to the specific term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically waived.
7.8
Assignment
. This Agreement shall not be assignable, in whole or in part, by the
Executive. This Agreement shall be binding upon and inure to the benefit of the Company and its
successors and assigns and upon any person acquiring, by merger, consolidation, purchase of assets
or otherwise, all or substantially all of the assets and business of the Company, and the successor
shall be substituted for the Company under this Agreement.
7.9
Legal Fees
. The Company shall reimburse Executive for the reasonable, and
appropriately documented, fees and expenses of legal counsel to Executive in connection with the
negotiation and execution of this Agreement, up to a maximum total reimbursement of $5,000.
7.10
Counterparts
. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
7.11
Captions and Headings
. The captions and paragraph headings used in this
Agreement are for convenience of reference only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions thereof.
IN WITNESS WHEREOF, Executive and the Company have executed this Agreement as of the date set
forth in the first paragraph.
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WSI Industries, Inc.
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By
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/s/ Paul D. Sheely
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Its Chief Financial Officer
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Executive
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/s/ Michael J. Pudil
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Michael J. Pudil
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7
EXHIBIT A
RESTRICTIVE COVENANT AGREEMENT
THIS RESTRICTIVE COVENANT AGREEMENT (“Agreement”) is entered into as of October 7, 2009, by
and between Michael J. Pudil (“Employee”) and WSI Industries, Inc., (the “Company” or the
“Employer”).
IN CONSIDERATION of employment, and the severance and other benefits offered Employee under
the Employment Agreement dated this date between Employee and Employer, to which Employee was not
otherwise entitled to, the Company and Employee agree as follows:
1. Confidential Information.
1.1
“Confidential Information” Defined
. “Confidential Information” means information
not generally known and proprietary to the Company or to a third party for whom the Company is
performing work, including, without limitation, information concerning any patents or trade
secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or
material, research and development, proprietary software, analysis, techniques, materials or
designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the
business of the Company, any vendor names, customer and supplier lists, databases, management
systems and sales and marketing plans, accounting and financial reports, evaluations, statements,
audits of the Company or other affiliated entity, any confidential secret development or research
work of the Company, or any other confidential information or proprietary aspects of the business
of the Company. All information which Employee acquires or becomes acquainted with during
Employee’s employment by the Company (including employment by an affiliated company), whether
developed by Employee or by others, which Employee has a reasonable basis to believe to be
Confidential Information, or which is treated by the Company as being Confidential Information,
shall be presumed to be Confidential Information.
1.2
Disclosures and Use by Employee.
Employee will not, during or at any time after
the term of employment under this Agreement, divulge, disclose or communicate to any person or
entity, or use for Employee’s benefit or for the benefit of any third party, in any manner
whatsoever, whether directly or indirectly, any information concerning any matters affecting or
relating to the business of Employer, including any of its customers, the prices it obtains or has
obtained from the sale of, or at which it sells or has sold, its products, or any other information
concerning its business, its manner of operation, its plans, processes, specifications,
merchandising techniques, or other data. Employee understands that such matters and information
are important, material, and confidential and are necessary to the effective and successful conduct
of Employer’s business and goodwill, and that any breach of the terms of this paragraph shall be a
material breach of this agreement.
1.3
Scope of Obligation
. The foregoing obligations of confidentiality shall not apply
to any knowledge or information which is now published or which subsequently becomes generally
publicly known in the form in which it was obtained from the Company, other than as a direct or
indirect result of the breach of this Agreement by Employee.
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1.4
Ownership Rights: Confidentiality.
Employee shall not acquire any rights
hereunder or during employment to any documents, records, tangible property, goodwill, trade
secrets, customer lists, proprietary interests, Confidential Information, or other property of
Employer, whether tangible or intangible. All such technical and business information of Employer,
including any records or documents which Employee shall compile while employed with Employer, are
to be considered confidential.
2.
Non-competition and Non-solicitation
.
2.1
Non-competition
.
(a)
During and After Employment.
Throughout the period of Employee’s
employment with Employer, and thereafter for the period described in Section 2.1(c)
set forth below, Employee shall not, for any reason whatsoever, directly or
indirectly, plan, organize, advise, own, manage, operate, control, be employed by,
participate in or be connected in any manner with the ownership, management,
operation or control of any business similar to the type of business conducted by
Employer, and will not conspire with others to do so as a shareholder, officer,
director, agent, employee, advisor, consultant or independent contractor of any
competing business. A competing business includes any corporation, limited
liability company, partnership, proprietorship, association, or other entity or
person engaged in developing, producing, designing, providing, soliciting orders
for, selling, distributing or marketing products or services that directly or
indirectly compete with any of the Company’s products, services or business.
Ownership by Employee, as a passive investment, of capital stock or other securities
of any corporation dissimilar from the Company shall not constitute a breach of this
Section 2.1(a).
(b)
Restriction as to Territory.
Employee’s agreement not to compete
against Employer shall extend throughout the territory where it actually does
business or may reasonably expect to do business and the territory where its
customers are located.
(c)
Restriction as to Duration.
The duration of this agreement not to
compete shall extend throughout the term of Employee’s employment with Employer and
for an additional twelve (12) months thereafter; provided, however, that the
duration of the foregoing covenant shall be extended beyond the time period set
forth herein for a period equal to the duration of any breach or default of such
covenant by Employee. Employee agrees that this restriction as to duration is
reasonable in light of the nature of Employee’s job.
(d)
Independent Covenant.
Employee’s agreement not to compete as set
forth in this Section 2.1 is understood to be an independent covenant and agreement
on Employee’s part which may be enforced against Employee regardless of any claim
Employee may have or assert against Employer.
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(e)
Court Ruling.
In the event that the foregoing agreement not to
compete is determined by a court of competent jurisdiction to be excessive in its
duration or in the area to which it applies, it shall be considered modified and
valid for such duration and for such area as said court may determine to be
reasonable under the circumstances.
2.2
Non-solicitation
. Employee further agrees that Employee will not at any time
during employment with the Company and for the period of twelve (12) months following the last day
of employment with the Company, directly or indirectly, induce or influence any employee of the
Company to leave the employ of the Company or any consultant or other independent contractor for
the Company to change or terminate any relationship between that person and the Company.
2.3
Prohibited Activity
. Employee further agrees that, Employee will not, directly or
indirectly, assist or encourage any other person in carrying out, directly or indirectly, any
activity that would be prohibited by the above provisions of this Section 2 if such activity were
carried out by Employee, directly or indirectly, or induce any employee of the Company to carry
out, directly or indirectly, any such activity.
3.
Copy to New Employer.
Throughout the term of this Agreement, and for a period of
twelve (12) months thereafter, Employee will inform Employee’s new or prospective employer, prior
to accepting employment, of the existence of this Agreement and will provide such employer a copy
thereof.
4.
Termination
. Notwithstanding any termination of employment, Employee, in
consideration of employment through the date of such termination, shall remain bound by the
provisions of this Agreement, which specifically relate to periods, activities or obligations upon
or subsequent to the termination of Employee’s employment.
5.
Settlement of Disputes
.
5.1
Resolution of Certain Claims - Injunctive Relief
. Claims brought by the Company
asserting a violation of this Agreement, or seeking to enforce, by injunction or otherwise, the
terms this Agreement may be maintained by the Company in a lawsuit subject to the terms of Section
5.2. Employee agrees that, in addition to, but not to the exclusion of any other available remedy,
the Company shall have the right to enforce the provisions of this Agreement by applying for and
obtaining temporary and permanent restraining orders or injunctions from a court of competent
jurisdiction without the necessity of filing a bond therefore, and the Company shall be entitled to
recover from Employee its reasonable attorneys’ fees and costs in enforcing this Agreement.
5.2
Venue
. Any action at law, suit in equity, or judicial proceeding arising
directly, indirectly, or otherwise in connection with, out of, related to or from this Agreement or
any provision hereof, shall be litigated only in the courts of the state of Minnesota, or the
Federal District Court, District of Minnesota. Employee waives any right Employee may have to
transfer or change the venue of any litigation brought against Employee by the Company. Employee
also waives any claim of inconvenient forum.
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5.3
Severability
. In the event any provision of this Agreement is found to be illegal
or unenforceable, such provision shall be severed or modified to the extent necessary to make it
enforceable, and as so severed or modified, the remainder of this Agreement shall remain in full
force and effect. Employee expressly stipulates that this Agreement be given the construction
which renders its provisions valid and enforceable to the maximum extent (not exceeding its express
terms possible under applicable law).
6.
Miscellaneous
.
6.1
Governing Law
. This Agreement is made under and shall be governed by and
construed in accordance with the laws of the state of Minnesota other than its law dealing with
conflicts of law.
6.2
Amendments
. No amendment or modification of this Agreement shall be deemed
effective unless made in writing and signed by both Employee and the Company.
6.3
No Waiver
. No term or condition of this Agreement shall be deemed to have been
waived, nor there any estoppel to enforce any provision of this Agreement, except by a statement in
writing signed by the party against whom enforcement of the waiver or estoppel is sought. Any
written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate
only as to the specific term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically waived.
6.4
Assignment
. This Agreement shall not be assignable, in whole or in part, by the
Employee. This Agreement is freely assignable by the Company in connection with a sale of
substantially all of the equity or assets of the Company
6.5
Effect of Agreement
.
Nothing contained in this Agreement is intended to create an
express or implied contract of employment or guarantee of employment. Employee agrees that
Employee is employed “at will” and agrees that the Company is not by reason of this Agreement
obligated to continue Employee’s employment at any time, for any reason.
6.6
Counterparts
. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
6.7
Captions and Headings
. The captions and paragraph headings used in this Agreement
are for convenience of reference only, and shall not affect the construction or interpretation of
this Agreement or any of the provisions thereof.
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IN WITNESS WHEREOF, Employee and the Company have executed this Agreement as of the date set
forth in the first paragraph.
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WSI INDUSTRIES, INC.
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By:
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Its:
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EMPLOYEE
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Michael J. Pudil, individually
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EXHIBIT B
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (hereafter “Agreement”) is entered into by and between
Michael J. Pudil (hereinafter referred to as “Pudil,” “you” or “your”) and WSI Industries, Inc.
(“WSI”).
RECITALS:
WHEREAS, Pudil was employed by WSI as an at-will employee under the terms of the certain
Employment Agreement dated as of October 7, 2009 (“Employment Agreement”), which means that either
Pudil or WSI may terminate that employment relationship at any time with or without cause; and
WHEREAS, effective
, WSI and Pudil separated their employment relationship
(“Separation Date”); and
WHEREAS, in accordance with the Employment Agreement, WSI has offered Pudil severance to which
Pudil was not otherwise entitled to, in return for a release of all claims against WSI;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants
herein, and for other good and valuable consideration, the receipt and sufficiency of which is
specifically acknowledged by Pudil and WSI, the parties knowingly and voluntarily agree as follows:
7.
Payment of Accrued Obligations
. WSI will pay and provide to you the Accrued
Obligations as set forth in Section 6.3(a) of the Employment Agreement, subject to applicable
withholding, at the time and in the manner provided therein.
8.
Payment of Severance and Other Benefits
. WSI will pay you the amounts set forth in
Section 6.3(b) and (c) of the Employment Agreement, subject to applicable withholding, at the time
and in the manner provided therein, following expiration of the rescission period described in
Paragraph 5 of this Agreement and WSI’s receipt of Exhibit A, signed and dated by you after
expiration of the rescission period. Exhibit A is your certification that you have taken no steps
to exercise your right of rescission.
9.
Release
. In consideration for the benefits outlined in Section 2 above, you agree
to the following:
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a.
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You hereby release, agree not to sue, and forever discharge
WSI, Inc., its affiliates, and related entities, and its officers, governors,
members, agents, employees, successors and assigns, from any and all manner of
claims, demands, actions, causes of action, administrative claims, liability,
damages, claims for punitive or liquidated damages, claims for attorneys’ fees,
costs and disbursements, individual or class action claims, or demands of any
kind whatsoever, you have or might have against them or
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B-1
any of them, whether known or unknown, in law or equity, contract or tort,
arising out of or in connection with your employment with WSI, or the
termination of that employment, or otherwise, and however originating or
existing, from the beginning of time through the date of your signing this
Agreement.
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b.
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This release includes, without limiting the generality of the
foregoing, any claims you may have for wages, bonuses, commissions, penalties,
deferred compensation, vacation pay, separation pay and/or benefits,
defamation, improper discharge (based on contract, common law, or statute,
including any federal, state or local statute or ordinance prohibiting
discrimination or retaliation in employment), the Minnesota Human Rights Act,
Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination
in Employment Act, as amended by the Older Workers Benefit Protection Act, the
Americans with Disabilities Act, Minn. Stat. § 181.932, Minn. Stat.§ 176.82 and
any claim for discrimination or retaliation based on a protected class under
state or federal law. You hereby waive any and all relief not provided for in
this Agreement.
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c.
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You affirm that you have not caused or permitted, and to the
full extent permitted by law, will not cause or permit to be filed (to the
extent that you are able to control such filing), any charge, complaint, or
action of any nature or type against WSI, and its successors and assigns,
including but not limited to any action or proceeding raising claims arising in
tort or contract, or any claims arising under federal, state or local laws,
including discrimination laws.
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10.
Consideration Period
. You may review this Agreement with an attorney of your
choosing. You have 21 days from
, 20___, to consider whether you wish to sign it. You
acknowledge that if you sign this Agreement before the end of the 21 day period, it is your
voluntary decision to do so, and you waive the remainder of the 21 day period.
11.
Rescission
. You are hereby notified of your right to rescind this Agreement
within seven (7) calendar days of your signing to reinstate federal claims under the Age
Discrimination in Employment Act and your right to rescind this Agreement within 15 calendar days
with regard to claims arising under the Minnesota Human Rights Act. In order to be effective, the
rescission must be in writing and delivered to Paul Sheely, Vice
President - Finance, WSI
Industries, Inc., 213 Chelsea Road, Monticello, MN 55362, by hand or by mail within the required
period; and if delivered by mail, the rescission must be postmarked within the required period,
properly addressed to Paul Sheely and sent by certified mail, return receipt requested. This
Agreement will be effective upon the expiration of the 15 day period without rescission. You
understand that if you rescind this Agreement in accordance with this paragraph, you will not
receive the severance payment described in Paragraph 1 above.
12.
Return of All Property
. You acknowledge return of all WSI property, including
keys, credit cards, security access cards, codes, personal computers, memoranda, data, records,
notes and other information in your possession or under your control in any media form. You
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will be permitted supervised access to the computer you used during employment to copy and
remove all personal data and software.
13.
Non-Disclosure of Confidential Information
. By signing this Agreement, you
acknowledge and agree that you have had access in your employment with WSI to confidential
information of and further acknowledge and agree that the release or disclosure of any confidential
information will cause WSI irreparable injury. By signing this Agreement, you acknowledge that you
have not used or disclosed, and agree that you will not at any time use or disclose, directly or
indirectly, to any other entity or person, any confidential information of WSI.
14.
Confidentiality of this Agreement
. You also promise and agree not to disclose the
contents and terms of this Agreement. You agree that the only people with whom you may discuss
this Agreement are your spouse and legal and financial advisors, provided they agree to keep the
information confidential or as otherwise required by law. WSI may disclose the terms of this
Agreement to its officers, directors, outside auditors, and employees or agents who have a
legitimate need to know the terms of the Agreement in the course of performing their duties or as
required by law or regulation of the Securities and Exchange Commission. Other than as set forth
above, the terms of the Agreement shall not be disclosed, except pursuant to written authorization
by the other party.
15.
Non-disparagement
. The parties agree that they will not disparage or defame each
other in any respect or make any negative comments concerning the employment relationship, the
termination thereof, or the matters contained in this Agreement. You agree that you will not
assist or encourage any individual or group of individuals to bring or pursue a lawsuit, charge,
complaint or grievance, or in making any other demand against WSI, or any of its officers,
employees, or agents.
16.
No Admission
. This Agreement shall not in any way be construed as an admission by
WSI of any liability or unlawful conduct whatsoever. WSI specifically denies any liability or
unlawful conduct.
17.
Severability
. In the event that any provision of this Agreement is found to be
illegal or unenforceable, such provision shall be severed or modified to the extent necessary to
make it enforceable, and as so severed or modified, the remainder of this Agreement shall remain in
full force and effect.
18.
Governing Law
. This Agreement shall be governed and construed in accordance with
laws of the State of Minnesota, other than its law dealing with conflicts of law.
19.
Entire Agreement
. This Agreement contains the full agreement between you and WSI
and may not be modified, altered, or changed in any way, except by written agreement signed by the
parties. The parties agree that this Agreement supersedes and terminates any and all other written
and oral agreements and understandings between the parties on this matter. You are not eligible
for any other payment or benefits, except for those expressly described in this Agreement, provided
that you sign and do not rescind this Agreement. Notwithstanding the foregoing, the terms of the
Restrictive Covenant Agreement and any remaining terms under the
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Employment Agreement between you and WSI that continue following your termination of
employment shall remain in full force and effect.
20.
Acknowledgement of Release
. By signing this Agreement, you acknowledge that you
have read this Agreement, including the release of claims contained in this Agreement, and
understand that the release of claims is a full and final release of all claims you may have
against WSI and the other entities and individuals covered by the release. By signing, you also
acknowledge and agree that you have entered into this Agreement knowingly and voluntarily.
WSI Industries, Inc.
I have read and understand and agree to the terms and conditions set forth above and have signed
this Agreement freely, voluntarily and with full knowledge and understanding of its meaning.
Dated
, 20__
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EXHIBIT A
to
SEPARATION AGREEMENT AND RELEASE
CERTIFICATION
, 20__
WSI Industries, Inc.
Dear
:
This letter, signed and dated more than 15 days after I signed the Separation Agreement and Release
between WSI and me dated
, 20___, is to certify that I have taken no steps to
exercise my right of rescission, as described in the Agreement.
Sincerely,
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