Attached files
file | filename |
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8-K - FORM 8-K - MRC GLOBAL INC. | y93462ke8vk.htm |
EX-3.1 - EX-3.1 - MRC GLOBAL INC. | y93462kexv3w1.htm |
EX-10.1 - EX-10.1 - MRC GLOBAL INC. | y93462kexv10w1.htm |
EX-10.2 - EX-10.2 - MRC GLOBAL INC. | y93462kexv10w2.htm |
Exhibit 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of November 15, 2011 (this Agreement), is by and
between McJunkin Red Man Holding Corporation, a Delaware corporation (the Company), and
James E. Braun (the Executive, together with the Company, the Parties).
WHERAS, the Company desires to employ the Executive as its Executive Vice President and Chief
Financial Officer; and
WHEREAS, the Executive desires to serve as the Companys Executive Vice President and Chief
Financial Officer on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other valid
consideration, the sufficiency of which is acknowledged, the Parties hereto agree as follows:
Section 1. Employment.
1.1. Term. The Company agrees to employ the Executive and the Executive agrees to be
employed by the Company, in each case pursuant to this Agreement, for a period ending on the
earlier to occur of (i) the third (3rd) anniversary of the date hereof and (ii) the termination of
the Executives employment in accordance with Section 3 hereof (the Term).
1.2. Duties. During the Term, the Executive shall serve as the Companys Executive
Vice President and Chief Financial Officer and in such other positions as an officer or director of
the Company and such affiliates of the Company as the Executive and the board of directors of the
Company (the Board) shall mutually agree from time to time. In such positions, the
Executive shall perform such duties, functions and responsibilities during the Term commensurate
with the Executives positions as reasonably directed by the Chief Executive Officer of the Company
(the CEO).
1.3. Exclusivity. During the Term, and excluding any periods of vacation and sick leave to
which the Executive is entitled, the Executive shall devote his full time and attention to the
business and affairs of the Company, shall faithfully serve the Company, and shall in all material
respects conform to and comply with the lawful and reasonable directions and instructions given to
him by the CEO, consistent with Section 1.2 hereof. During the Term, the Executive shall use his
best efforts to promote and serve the interests of the Company and shall not engage in any other
business activity, whether or not such activity shall be engaged in for pecuniary profit;
provided, however, that it shall not be a violation of this Agreement for the Executive to
engage in other outside business activities with the Boards prior written consent.
Section 2. Compensation.
2.1. Salary. As compensation for the performance of the Executives services
hereunder, during the Term, the Company shall pay to the Executive a salary at an annual rate of
Four Hundred Twenty-Five Thousand Dollars ($425,000), payable in accordance with the
Companys standard payroll policies (the Base Salary). The Base Salary will be
reviewed annually and may be adjusted upward by the Board (or a committee thereof) in its
discretion, based on competitive data and the Executives performance. No increase in Base Salary
shall limit or reduce any other right or obligation to the Executive under this Agreement and the
Base Salary shall not be reduced at any time (including after any such increase).
2.2. Annual Bonus. Beginning with the fiscal year that commences on January 1, 2012,
for each completed fiscal year occurring during the Term, the Executive shall be eligible to
receive additional cash incentive compensation pursuant to the annual bonus plan of the Company in
effect at the relevant time (the Annual Bonus). The Executives target Annual Bonus shall
be sixty-seven percent (67%) of the Executives Base Salary as in effect at the beginning of the
relevant fiscal year, with the actual Annual Bonus to be based upon such individual and/or Company
performance criteria established for each such fiscal year by the Board in consultation with the
CEO. In respect of fiscal year 2011, the Executive shall be eligible to receive a pro rata bonus
calculated based on actual performance through the end of the 2011 fiscal year and the number of
days that the Executive was employed by the Company during such year.
2.3. Equity Awards. Subject to the approval of the board of directors of the Company,
at its November 2011 meeting, the Executive shall be granted stock options in respect of shares of
common stock of the Company, with an aggregate grant date value of $3 Million Dollars ($3,000,000),
and with an exercise price per share equal to the fair market value of a share of common stock of
the Company as of the date of grant. All such stock options shall become vested over time in equal
installments on the third (3rd), fourth (4th) and fifth (5th) anniversaries of the date of grant,
conditioned on continued employment through each applicable vesting date and subject to accelerated
vesting under certain circumstances. In addition, in the future the Executive may be granted
additional equity awards in respect of shares of common stock of the Company, as determined by the
board of directors in its sole discretion from time to time.
2.4. Employee Benefits. During the Term, the Executive shall be eligible to
participate in such health and other group insurance and other employee benefit plans and programs
of the Company as in effect from time to time on the same basis as other senior executives of the
Company.
2.5. Vacation. For each full calendar year during the Term, the Executive shall be
entitled to four (4) weeks of paid vacation.
2.6. Business Expenses. The Company shall pay or reimburse the Executive for all
commercially reasonable business out-of-pocket expenses that the Executive incurs during the Term
in performing his duties under this Agreement upon presentation of documentation and in accordance
with the expense reimbursement policy of the Company as approved by the Board (or a committee
thereof) and in effect from time to time.
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Section 3. Employment Termination.
3.1. Termination of Employment. The Company may terminate the Executives employment
for any reason during the Term, and the Executive may voluntarily terminate his employment for any
reason during the Term, in each case (other than a termination by the Company for Cause) at any
time upon not less than thirty (30) days notice to the other party. Upon the termination of the
Executives employment with the Company for any reason, the Executive shall be entitled to any Base
Salary earned but unpaid through the date of termination, any earned but unpaid Annual Bonus for
completed fiscal years, and any unreimbursed expenses in accordance with Section 2.6 hereof and, to
the extent not theretofore paid or provided, any other amounts or benefits required to be paid or
provided under any plan, program, policy or practice or other contract or agreement of the Company
and its affiliated companies through the date of termination of employment (collectively, the
Accrued Amounts).
3.2. Certain Terminations.
(a) Termination by the Company other than for Cause or Disability; Termination by
the Executive for Good Reason. If the Executives employment is terminated during the
Term (i) by the Company other than for Cause or Disability or (ii) by the Executive for Good
Reason, in addition to the Accrued Amounts the Executive shall be entitled to the following
payments and benefits: (x) the continuation of his Base Salary at the rate in effect
immediately prior to the date of termination for a period of twelve (12) months
(Severance Payments), (y) the continuation on the same terms as an active senior
executive of medical benefits the Executive would otherwise be eligible to receive as an
active senior executive of the Company for twelve (12) months or until such earlier time as
the Executive becomes eligible for medical benefits from a subsequent employer and (z) a pro
rata Annual Bonus for the fiscal year in which the termination occurs, based on the
Companys actual performance through the end of such fiscal year and the number of days the
Executive was employed during such fiscal year (the Pro Rata Annual Bonus Payment)
((x), (y) and (z) collectively referred to as the Severance Benefits). The
Companys obligations to pay and provide the Severance Benefits shall be conditioned upon:
(i) the Executives continued compliance with his obligations under Section 4 of this
Agreement and (ii) the Executives execution, delivery and non-revocation of a valid and
enforceable general release of claims (the Release) in the form attached hereto as
Exhibit A. In the event that the Executive breaches any of the covenants set forth
in Section 4 of this Agreement, the Executive will immediately return to the Company any
portion of the Severance Benefits that have been paid to the Executive pursuant to this
Section 3.2(a). Subject to Section 3.2(d), the Severance Payments will commence to be paid
to the Executive on the sixtieth (60th) day following the termination of the
Executives employment, provided that the Release has been executed, delivered and has
become irrevocable as of such date. The Pro Rata Annual Bonus Payment will be paid at the
time the Company ordinarily pays incentive bonuses to its executives.
(b) Termination upon Death or Disability. If the Executives employment is
terminated due to the Executives death or Disability, in addition to the Accrued
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Amounts,
the Executive (or the Executives estate, if applicable) shall be entitled to receive a Pro
Rata Annual Bonus Payment.
(c) Definitions. For purposes of this Section 3.2, the following terms shall
have the following meanings:
(1) Cause shall mean the Executives (i) continuing failure, for more
than 10 days after the Companys written notice to the Executive thereof, to perform
such duties as are reasonably requested by the Company; (ii) failure to observe
material policies generally applicable to officers or employees of the Company
unless such failure is capable of being cured and is cured within 10 days of the
Executive receiving written notice of such failure; (iii) failure to cooperate with
any internal investigation of the Company; (iv) commission of any act of fraud,
theft or financial dishonesty with respect to the Company or indictment or
conviction of any felony; (v) material violation of the provisions of this Agreement
unless such violation is capable of being cured and is cured within 10 days of the
Executive receiving written notice of such violation; (vi) chronic absenteeism; or
(vii) abuse of alcohol or another controlled substance.
(2) Disability shall mean the Executive is entitled to receive
long-term disability benefits under the long-term disability plan of the Company in
which Executive participates, or, if there is no such plan, the Executives
inability, due to physical or mental ill health, to perform the essential functions
of the Executives job, with or without a reasonable accommodation, for 180 days
during any 365 day period irrespective of whether such days are consecutive.
(3) Good Reason shall mean (i) a material and adverse change in the
Executives duties or responsibilities, or (ii) a reduction in the Executives Base
Salary or target Annual Bonus.
(d) Section 409A Specified Employee. If the Executive is a specified
employee for purposes of Section 409A of the United States Internal Revenue Code of 1986,
as amended (the Code), and the regulations thereunder, to the extent required to
comply with Section 409A of the Code, any Severance Benefits required to be made pursuant to
Section 3.2(a) which are subject to Section 409A of the Code shall not commence until one
day after the day which is six (6) months from the date of termination, with the first
payment equaling six (6) months of his Base Salary at the rate in effect immediately prior
to the date of termination. For purposes of this Agreement, the Executives employment with
the Company shall be considered to have terminated when the Executive incurs a separation
from service with the Company within the meaning of Section 409A(a)(2)(A)(i) of the Code,
and applicable administrative guidance issued thereunder.
3.3. Exclusive Remedy. The foregoing payments and benefits upon termination of the
Executives employment shall constitute the exclusive severance benefits due the Executive upon a
termination of his employment under this Agreement.
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3.4. Resignation from All Positions. Upon the termination of the Executives
employment with the Company for any reason, the Executive shall be deemed to have resigned, as of
the date of such termination, from all positions he then holds as an officer, director, employee
and member of the Board (and any committee thereof) and the board of directors (and any committee
thereof) of any of the Companys affiliates.
3.5. Cooperation. Following the termination of the Executives employment with the
Company for any reason, the Executive agrees to reasonably cooperate with the Company upon
reasonable request of the Board and to be reasonably available to the Company with respect to
matters arising out of the Executives services to the Company and its subsidiaries. The Company
shall pay the Executive a reasonable fee for any such services and promptly reimburse the Executive
for expenses reasonably incurred in connection with such matters.
Section 4. | Unauthorized Disclosure; Non-Competition; Non-Solicitation; Interference with Business Relationships; Proprietary Rights. |
4.1. Unauthorized Disclosure. The Executive agrees and understands that in the
Executives position with the Company, the Executive will be exposed to and will receive
information relating to the confidential affairs of the Company and its affiliates, including,
without limitation, technical information, intellectual property, business and marketing plans,
strategies, customer information, software, other information concerning the products, promotions,
development, financing, expansion plans, business policies and practices of the Company and its
affiliates and other forms of information considered by the Company and its affiliates to be
confidential or in the nature of trade secrets (including, without limitation, ideas, research and
development, know-how, formulas, technical data, designs, drawings, specifications, customer and
supplier lists, pricing and cost information and business and marketing plans and proposals)
(collectively, the Confidential Information). The Executive agrees that at all times
during the Executives employment with the Company and thereafter, the Executive shall not disclose
such Confidential Information, either directly or indirectly, to any individual, corporation,
partnership, limited liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality thereof (each a
Person) other than in connection with the Executives employment with the Company without
the prior written consent of the Company and shall not use or attempt to use any such information
in any manner other than in connection with his employment with the Company, unless required by law
to disclose such information, in which case the Executive shall provide the Company with written
notice of such requirement as far in advance of such anticipated disclosure as possible. This
confidentiality covenant has no temporal, geographical or territorial restriction. Upon
termination of the Executives employment with the Company, the Executive shall promptly supply to
the Company all property, keys, notes, memoranda, writings, lists, files, reports, customer lists,
correspondence, tapes, disks, cards, surveys, maps, logs, machines, technical data and any other
tangible product or document which has been produced by, received by or otherwise submitted to the
Executive during the Executives
employment with the Company, and any copies thereof in his (or capable of being reduced to
his) possession; provided, however, that the Executive may retain his full rolodex or
similar address and telephone directories.
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4.2. Non-Competition. By and in consideration of the Companys entering into this
Agreement and the payments to be made and the benefits to be provided hereunder and in further
consideration of the Executives exposure to the Confidential Information of the Company and its
affiliates, the Executive agrees that the Executive shall not, during the Executives employment
with the Company (whether during the Term or thereafter) and for a period of twelve (12) months
thereafter (the Restriction Period), directly or indirectly, own, manage, operate, join,
control, be employed by, or participate in the ownership, management, operation or control of, or
be connected in any manner with, including, without limitation, holding any position as a
stockholder, director, officer, consultant, independent contractor, employee, partner, or investor
in, any Restricted Enterprise (as defined below) and in connection with the Executives association
directly or indirectly engage in any activity that is similar to any activity that the Executive
was engaged in with the Company during the 12 months preceding the date of termination;
provided, that in no event shall ownership of one percent (1%) or less of the outstanding
securities of any class of any issuer whose securities are registered under the Securities Exchange
Act of 1934, as amended, standing alone, be prohibited by this Section 4.2, so long as the
Executive does not have, or exercise, any rights to manage or operate the business of such issuer
other than rights as a stockholder thereof. For purposes of this paragraph, Restricted
Enterprise shall mean any Person that is actively engaged in any geographic area in any
business which is either (i) in competition with the business of the Company or any of its
subsidiaries or affiliates or (ii) proposed to be conducted by the Company or any of its
subsidiaries or affiliates in their respective business plans as in effect at that time. During
the Restriction Period, upon request of the Company, the Executive shall notify the Company of the
Executives then-current employment status.
4.3. Non-Solicitation of Employees. During the Restriction Period, the Executive
shall not directly or indirectly contact, induce or solicit (or assist any Person to contact,
induce or solicit) for employment any person who is, or within twelve (12) months prior to the date
of such solicitation was, an employee of the Company or any of its affiliates.
4.4. Interference with Business Relationships. During the Restriction Period (other
than in connection with carrying out his responsibilities for the Company and its affiliates), the
Executive shall not directly or indirectly contact, induce or solicit (or assist any Person to
contact, induce or solicit) any customer or client of the Company or its subsidiaries to terminate
its relationship or otherwise cease doing business in whole or in part with the Company or its
subsidiaries, or directly or indirectly interfere with (or assist any Person to interfere with) any
material relationship between the Company or its subsidiaries and any of its or their customers or
clients so as to cause harm to the Company or its affiliates.
4.5. Extension of Restriction Period. The Restriction Period shall be tolled for any
period during which the Executive is in breach of any of Sections 4.2, 4.3 or 4.4 hereof.
4.6. Proprietary Rights. The Executive shall disclose promptly to the Company any and
all inventions, discoveries, and improvements (whether or not patentable or registrable under
copyright or similar statutes), and all patentable or copyrightable works, initiated, conceived,
discovered, reduced to practice, or made by him, either alone or in conjunction with others, during
the Executives employment with the Company and related to the business or activities of
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the
Company and its affiliates (the Developments). Except to the extent any rights in any
Developments constitute a work made for hire under the U.S. Copyright Act, 17 U.S.C. § 101, et
seq., that are owned ab initio by the Company and/or its applicable affiliate, the Executive
assigns all of his right, title and interest in all Developments (including all intellectual
property rights therein) to the Company or its nominee without further compensation, including all
rights or benefits therefore, including without limitation the right to sue and recover for past
and future infringement. The Executive acknowledges that any rights in any Developments
constituting a work made for hire under the U.S. Copyright Act, 17 U.S.C § 101, et seq., are owned
upon creation by the Company and/or its applicable affiliate as the Executives employer. Whenever
requested to do so by the Company, the Executive shall execute any and all applications,
assignments or other instruments which the Company shall deem necessary to apply for and obtain
trademarks, patents or copyrights of the United States or any foreign country or otherwise protect
the interests of the Company and its affiliates therein. These obligations shall continue beyond
the end of the Executives employment with the Company with respect to inventions, discoveries,
improvements or copyrightable works initiated, conceived or made by the Executive while employed by
the Company, and shall be binding upon the Executives employers, assigns, executors,
administrators and other legal representatives. In connection with his execution of this
Agreement, the Executive has informed the Company in writing of any interest in any inventions or
intellectual property rights that he holds as of the date hereof as set forth on Exhibit B hereto
(the Existing Inventions). Notwithstanding anything to the contrary herein, the
Developments shall not include any Existing Inventions. If the Company is unable for any reason,
after reasonable effort, to obtain the Executives signature on any document needed in connection
with the actions described in this Section 4.6, the Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as the Executives agent and
attorney in fact to act for and on the Executives behalf to execute, verify and file any such
documents and to do all other lawfully permitted acts to further the purposes of this Section 4.6
with the same legal force and effect as if executed by the Executive.
4.7. Confidentiality of Agreement. Other than with respect to information required to
be disclosed by applicable law, the Parties agree not to disclose the terms of this Agreement to
any Person; provided the Executive may disclose this Agreement and/or any of its terms to
the Executives immediate family, financial advisors and attorneys, so long as the Executive
instructs every such Person to whom the Executive makes such disclosure not to disclose the terms
of this Agreement further.
4.8. Remedies. The Executive agrees that any breach of the terms of this Section 4
would result in irreparable injury and damage to the Company for which the Company would have no
adequate remedy at law; the Executive therefore also agrees that in the event of said breach or any
threat of breach, the Company shall be entitled to an immediate injunction and restraining order to
prevent such breach and/or threatened breach and/or continued breach by the Executive and/or any
and all Persons acting for and/or with the Executive, without having to
prove damages, in addition to any other remedies to which the Company may be entitled at law
or in equity, including, without limitation, the obligation of the Executive to return any
Severance Benefits paid or provided by the Company to the Executive. The terms of this paragraph
shall not prevent the Company from pursuing any other available remedies for any breach or
threatened breach hereof, including, without limitation, the recovery of damages from
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the
Executive. The Executive and the Company further agree that the provisions of the covenants
contained in this Section 4 are reasonable and necessary to protect the businesses of the Company
and its affiliates because of the Executives access to Confidential Information and his material
participation in the operation of such businesses.
Section 5. Representations.
The Executive represents and warrants that (i) he is not subject to any contract, arrangement,
policy or understanding, or to any statute, governmental rule or regulation, that in any way limits
the Executives ability to be employed by the Company, to enter into this Agreement or to perform
his obligations to the Company and (ii) he is not otherwise unable to enter into and fully perform
his or its obligations under this Agreement.
Section 6. Non-Disparagement.
The Executive agrees not to make any statement (other than statements made in connection with
carrying out his responsibilities for the Company and its affiliates) that is intended to become
public, or that should reasonably be expected to become public, and that criticizes, ridicules,
disparages or is otherwise derogatory of the Company or any of its subsidiaries, affiliates,
employees, officers, directors or stockholders. The Company and its subsidiaries and affiliates
shall advise their officers and directors not to make any such statement regarding the Executive.
Section 7. Withholding.
The Company may withhold from any amounts payable under this Agreement such Federal, state
local or foreign taxes as shall be required to be withheld pursuant to any applicable law or
regulation. The Executive shall be solely responsible for the payment of all taxes relating to the
payment or provision of any amounts or benefits hereunder.
Section 8. Miscellaneous.
8.1. Indemnification. The Company shall indemnify the Executive to the fullest extent
provided under the Companys By-Laws. The Company shall also maintain director and officer
liability insurance in such amounts and subject to such limitations as the Board shall, in good
faith, deem appropriate for coverage of directors and officers of the Company.
8.2. Amendments and Waivers. This Agreement and any of the provisions hereof may be
amended, waived (either generally or in a particular instance and either retroactively or
prospectively), modified or supplemented, in whole or in part, only by written agreement signed by
the Parties; provided, that the observance of any provision of this Agreement may be waived
in writing by the party that will lose the benefit of such provision as a result of such waiver.
The
waiver by any party hereto of a breach of any provision of this Agreement shall not operate or
be construed as a further or continuing waiver of such breach or as a waiver of any other or
subsequent breach, except as otherwise explicitly provided for in such waiver. Except as otherwise
expressly provided herein, no failure on the part of any party to exercise, and no delay in
exercising, any right, power or remedy hereunder, or otherwise available in respect hereof at
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law
or in equity, shall operate as a waiver thereof, nor shall any single or partial exercise of such
right, power or remedy by such party preclude any other or further exercise thereof or the exercise
of any other right, power or remedy.
8.3. Assignment; No Third-Party Beneficiaries. This Agreement, and the Executives
rights and obligations hereunder, may not be assigned by the Executive, and any purported
assignment by the Executive in violation hereof shall be null and void. Nothing in this Agreement
shall confer upon any Person not a party to this Agreement, or the legal representatives of such
Person, any rights or remedies of any nature or kind whatsoever under or by reason of this
Agreement.
8.4. Notices. Unless otherwise provided herein, all notices, requests, demands,
claims and other communications provided for under the terms of this Agreement shall be in writing.
Any notice, request, demand, claim or other communication hereunder shall be sent by (a) personal
delivery (including receipted courier service) or overnight delivery service, (b) facsimile during
normal business hours, with confirmation of receipt, to the number indicated, (c) reputable
commercial overnight delivery service courier or (d) registered or certified mail, return receipt
requested, postage prepaid and addressed to the intended recipient as set forth below:
If to the Company: | McJunkin Red Man Holding Corporation | |||||
2 Houston Center, Suite 3100 | ||||||
909 Fannin Street | ||||||
Houston, TX 77010 | ||||||
Attention: Legal Department | ||||||
Facsimile: (713) 655-0159 | ||||||
with a copy to: | Fried, Frank, Harris, Shriver & Jacobson LLP | |||||
One New York Plaza | ||||||
New York, NY 10004 | ||||||
Attention: Robert C. Schwenkel and Murray Goldfarb | ||||||
Facsimile: (212) 859-4000 | ||||||
If to the Executive: | James E. Braun, at his principal office | |||||
at the Company (during the Term), and | ||||||
at all times to his principal residence as | ||||||
reflected in the records of the Company. |
All such notices, requests, consents and other communications shall be deemed to have been
given when received. Either party may change its facsimile number or its address to which
notices, requests, demands, claims and other communications hereunder are to be delivered by
giving the other Party notice in the manner then set forth.
8.5. Governing Law. This Agreement shall be construed and enforced in accordance
with, and the rights and obligations of the Parties shall be governed by, the laws of the State of
New York, without giving effect to the conflicts of law principles thereof.
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8.6. Severability. Whenever possible, each provision or portion of any provision of
this Agreement, including those contained in Section 4 hereof, will be interpreted in such manner
as to be effective and valid under applicable law but the invalidity or unenforceability of any
provision or portion of any provision of this Agreement in any jurisdiction shall not affect the
validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity
or enforceability of this Agreement, including that provision or portion of any provision, in any
other jurisdiction. In addition, should a court or arbitrator determine that any provision or
portion of any provision of this Agreement, including those contained in Section 4 hereof, is not
reasonable or valid, either in period of time, geographical area, or otherwise, the Parties agree
that such provision should be interpreted and enforced to the maximum extent which such court or
arbitrator deems reasonable or valid.
8.7. Entire Agreement. From and after the date hereof, this Agreement shall
constitute the entire agreement between the Parties, and supersede all prior representations,
agreements and understandings (including any prior course of dealings), both written and oral,
between the Parties with respect to the subject matter hereof.
8.8. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts shall together constitute one and
the same instrument.
8.9. Binding Effect. This Agreement shall inure to the benefit of, and be binding on,
the successors of each of the Parties, including, without limitation, the Executives heirs and the
personal representatives of the Executives estate and any successor to all or substantially all of
the business and/or assets of the Company.
8.10. General Interpretive Principles. The name assigned this Agreement and headings
of the sections, paragraphs, subparagraphs, clauses and sub clauses of this Agreement are for
convenience of reference only and shall not in any way affect the meaning or interpretation of any
of the provisions hereof. Words of inclusion shall not be construed as terms of limitation herein,
so that references to include, includes and including shall not be limiting and shall be
regarded as references to non-exclusive and non-characterizing illustrations.
8.11. Mitigation. Notwithstanding any other provision of this Agreement, (a) the
Executive will have no obligation to mitigate damages for any breach or termination of this
Agreement by the Company, whether by seeking employment or otherwise and (b) the amount of any
payment or benefit due the Executive after the date of such breach or termination will not be
reduced or offset by any payment or benefit that the Executive may receive from any other source.
8.12. Section 409A Compliance. This Agreement is intended to comply with Section 409A
of the Code (to the extent applicable) and, to the extent it would not adversely impact the
Company, the Company agrees to interpret, apply and administer this Agreement in the least
restrictive manner necessary to comply with such requirements and without resulting in any
diminution in the value of payments or benefits to the Executive.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first written
above.
McJUNKIN RED MAN HOLDING CORPORATION |
||||
By: | /s/ Andrew R. Lane | |||
Name: | Andrew R. Lane | |||
Title: | Chairman, President & Chief Executive Officer |
|||
/s/ James E. Braun | ||||
James E. Braun |
[Employment Agreement with J. Braun]
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Exhibit A
Release
1. In consideration of the payments and benefits to be made under the Employment Agreement,
dated as of November 1, 2011 (the Employment Agreement), to which James E. Braun (the
Executive) and McJunkin Red Man Holding Corporation (the Company) (each of the
Executive and the Company, a Party and collectively, the Parties) are parties,
the sufficiency of which the Executive acknowledges, the Executive, with the intention of binding
himself and his heirs, executors, administrators and assigns, does hereby release, remise, acquit
and forever discharge the Company and each of its subsidiaries and affiliates (the Company
Affiliated Group), their present and former officers, directors, executives, shareholders,
agents, attorneys, employees and employee benefit plans (and the fiduciaries thereof), and the
successors, predecessors and assigns of each of the foregoing (collectively, the Company
Released Parties), of and from any and all claims, actions, causes of action, complaints,
charges, demands, rights, damages, debts, sums of money, accounts, financial obligations, suits,
expenses, attorneys fees and liabilities of whatever kind or nature in law, equity or otherwise,
whether accrued, absolute, contingent, unliquidated or otherwise and whether now known or unknown,
suspected or unsuspected, which the Executive, individually or as a member of a class, now has,
owns or holds, or has at any time heretofore had, owned or held, arising on or prior to the date
hereof, against any Company Released Party including, but not limited to, those arising out of or
relating to (i) the Employment Agreement, (ii) the Executives employment with the Company or any
of its subsidiaries and affiliates, or (iii) any termination of such employment, including claims
(a) for severance or vacation benefits, unpaid wages, salary or incentive payments, (b) for breach
of contract, wrongful discharge, impairment of economic opportunity, defamation, intentional
infliction of emotional harm or other tort, (c) for any violation of applicable state and local
labor and employment laws (including, without limitation, all laws concerning unlawful and unfair
labor and employment practices) and (d) for employment discrimination under any applicable federal,
state or local statute, provision, order or regulation, and including, without limitation, any
claim under Title VII of the Civil Rights Act of 1964 (Title VII), the Civil Rights Act
of 1988, the Fair Labor Standards Act, the Americans with Disabilities Act (ADA), the
Employee Retirement Income Security Act of 1974, as amended (ERISA), the Age
Discrimination in Employment Act (ADEA), and any similar or analogous state statute,
excepting only:
(A) rights of the Executive arising under, or preserved by, this Release or Section 3
of the Employment Agreement;
(B) the right of the Executive to receive COBRA continuation coverage in accordance
with applicable law;
(C) claims for benefits under any health, disability, retirement, life insurance or
other similar employee benefit plan (within the meaning of Section 3(3) of ERISA) of the
Company Affiliated Group; and
(D) rights to indemnification the Executive has or may have under the by-laws or
certificate of incorporation of any member of the Company Affiliated Group or as an insured
under any directors and officers liability insurance policy now or previously in force.
2. The Executive acknowledges and agrees that this Release is not to be construed in any way
as an admission of any liability whatsoever by any Company Released Party, any such liability being
expressly denied.
3. This Release applies to any relief no matter how called, including, without limitation,
wages, back pay, front pay, compensatory damages, liquidated damages, punitive damages, damages for
pain or suffering, costs, and attorneys fees and expenses.
4. The Executive specifically acknowledges that his acceptance of the terms of this Release
is, among other things, a specific waiver of his rights, claims and causes of action under Title
VII, ADEA, ADA and any state or local law or regulation in respect of discrimination of any kind;
provided, however, that nothing herein shall be deemed, nor does anything contained
herein purport, to be a waiver of any right or claim or cause of action which by law the Executive
is not permitted to waive.
5. As to rights, claims and causes of action arising under the ADEA, the Executive
acknowledges that he has been given but not utilized a period of twenty-one (21) days to consider
whether to execute this Release. If the Executive accepts the terms hereof and executes this
Release, he may thereafter, for a period of seven (7) days following (and not including) the date
of execution, revoke this Release as it relates to the release of claims arising under the ADEA.
If no such revocation occurs, this Release shall become irrevocable in its entirety, and binding
and enforceable against the Executive, on the day next following the day on which the foregoing
seven-day period has elapsed. If such a revocation occurs, the Executive shall irrevocably forfeit
any right to payment and provision of the Severance Benefits (as defined in the Employment
Agreement), but the remainder of the Employment Agreement shall continue in full force.
6. Other than as to rights, claims and causes of action arising under the ADEA, this Release
shall be immediately effective upon execution by the Executive.
7. The Executive acknowledges and agrees that he has not, with respect to any transaction or
state of facts existing prior to the date hereof, filed any complaints, charges or lawsuits against
any Company Released Party with any governmental agency, court or tribunal.
8. The Executive acknowledges that he has been advised to seek, and has had the opportunity to
seek, the advice and assistance of an attorney with regard to this Release, and has been given a
sufficient period within which to consider this Release.
9. The Executive acknowledges that this Release relates only to claims which exist as of the
date of this Release.
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10. The Executive acknowledges that the Severance Benefits he is receiving in connection with
this Release are in addition to anything of value to which the Executive is entitled from the
Company and are more than adequate consideration for the execution of this Release.
11. Each provision hereof is severable from this Release, and if one or more provisions hereof
are declared invalid, the remaining provisions shall nevertheless remain in full force and effect.
If any provision of this Release is so broad, in scope, or duration or otherwise, as to be
unenforceable, such provision shall be interpreted to be only so broad as is enforceable.
12. This Release constitutes the complete agreement of the Parties in respect of the subject
matter hereof and shall supersede all prior agreements between the Parties in respect of the
subject matter hereof except to the extent set forth herein.
13. The failure to enforce at any time any of the provisions of this Release or to require at
any time performance by another party of any of the provisions hereof shall in no way be construed
to be a waiver of such provisions or to affect the validity of this Release, or any part hereof, or
the right of any party thereafter to enforce each and every such provision in accordance with the
terms of this Release.
14. This Release may be executed in several counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same instrument. Signatures
delivered by facsimile shall be deemed effective for all purposes.
15. This Release shall be binding upon any and all successors and assigns of the Executive and
the Company.
16. Except for issues or matters as to which federal law is applicable, this Release shall be
governed by and construed and enforced in accordance with the laws of the State of New York without
giving effect to the conflicts of law principles thereof.
[signature page follows]
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IN WITNESS WHEREOF, this Release has been signed by or on behalf of each of the Parties, all
as of ___________________________.
McJUNKIN RED MAN HOLDING CORPORATION |
||||
By: | ||||
Name: | Andrew R. Lane | |||
Title: | Chairman, President & Chief Executive Officer |
|||
James E. Braun | ||||
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Exhibit B
Existing Inventions
None.