UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: March 1, 2005
(Date of earliest event reported)
Griffon Corporation
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(Exact name of registrant as specified in its charter)
Delaware 1-6620 11-1893410
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification
incorporation) No.)
100 Jericho Quadrangle, Jericho, New York 11753
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(Address of principal executive offices) (Zip Code)
(516) 938-5544
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(Registrant's telephone number including area code)
N/A
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(Former name or former address, if changed since last report.)
Item 1.01. Entry into a Material Definitive Agreement.
Effective March 1, 2005, Griffon Corporation (the "Registrant") entered
into an employment agreement with Mr. Eric Edelstein (the "Employment
Agreement") pursuant to which Mr. Edelstein became employed by the Registrant as
its Executive Vice President and Chief Financial Officer. The Employment
Agreement has a three-year term, provides for (i) a base salary of $500,000 per
year and (ii) a bonus equal to the difference between 1% of the consolidated
pre-tax earnings, as defined, of the Registrant and the base salary paid to Mr.
Edelstein. The bonus through fiscal 2006 will be at a minimum annual rate of
$350,000. Mr. Edelstein is entitled to receive severance payments upon the
termination of his employment under certain circumstances, as more fully set
forth in the Employment Agreement, a copy of which is filed as Exhibit 10.1
hereto.
In order to induce Mr. Edelstein to enter into the Employment Agreement,
the Registrant granted him an option (the "Option") to purchase 250,000 shares
of the Registrant's common stock at a price of $22.94 per share, the closing
price of the common stock on March 1, 2005. The option has a seven year term, is
fully vested and becomes exercisable as to 50% of the shares after one year and
as to 100% of the shares after two years. A copy of the option is filed as
Exhibit 10.2 hereto.
There is no material relationship between the Registrant and any of its
affiliates and Mr. Edelstein, other than in respect of the Employment Agreement
and the Option.
Item 9.01 Financial Statements and Exhibits.
(c) 10.1 Employment Agreement dated as of March 1, 2005 between Griffon
Corporation and Eric Edelstein
10.2 Non-Qualified Stock Option Agreement
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SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GRIFFON CORPORATION
By: /s/Robert Balemian
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Robert Balemian, President
Dated: March 4, 2005
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Exhibit Index
10.1 Employment Agreement dated as of March 1, 2005 between Griffon
Corporation and Eric Edelstein
10.2 Non-Qualified Stock Option Agreement
4
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") dated as of March 1, 2005,
between Griffon Corporation, a Delaware corporation having an address at 100
Jericho Quadrangle, Jericho, New York 11753 (the "Company"), and Eric Edelstein,
residing at 17 Brentwood Drive, North Caldwell, NJ 07006 (the "Executive").
W I T N E S S E T H :
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WHEREAS, the Company wishes to employ the Executive, and the Executive is
willing to be so employed and to render services to the Company, all upon the
terms and subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. EMPLOYMENT. Subject to and upon the terms and conditions contained in
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this Agreement, the Company hereby agrees to employ Executive and Executive
agrees to enter the employ of the Company, for the period set forth in Paragraph
2 hereof, to render the services to the Company, its affiliates and/or
subsidiaries described in Paragraph 3 hereof.
2. TERM. Executive's term of employment under this Agreement shall commence
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on the date hereof (the "Agreement Date") and shall continue for a period
through and including the third anniversary of the Agreement Date (the
"Agreement Term") unless extended in writing by both parties or earlier
terminated pursuant to the terms and conditions set forth herein.
3. DUTIES.
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(a) Executive shall be employed as the Company's Executive Vice
President and Chief Financial Officer. It is agreed that Executive shall perform
his services in the Company's Jericho, New York offices, as well as in the
offices of the Company's affiliates and/or subsidiaries as required by his
duties and responsibilities, or in any other location mutually agreeable to the
parties.
(b) The Executive shall report to the Chief Executive Officer of
the Company or any other more senior executive officer appointed by the Board of
Directors and agrees to abide by all by-laws and applicable policies of the
Company promulgated from time to time by the Board of Directors of the Company.
4. EXCLUSIVE SERVICES AND BEST EFFORTS. Executive shall devote all of his
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working time, attention, best efforts and ability during regular business hours
exclusively to the service of the Company, its affiliates and subsidiaries
during the term of this Agreement. Nothing shall preclude Executive from (i)
serving on the board of directors of the companies for which he is a director on
the date hereof or such other boards as to which the Chairman of the Board gives
consent, (ii) engaging in charitable activities and community affairs or (iii)
managing his personal investments and affairs; provided, however, that such
activities do not materially interfere with the proper performance of his duties
and responsibilities as an executive officer of the Company.
5. COMPENSATION. As compensation for his services and covenants hereunder,
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the Company shall pay Executive the following:
(a) Base Salary. The Company shall pay Executive a base salary the
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"Base Salary") at the rate of $500,000 per year. The Base Salary shall be
payable in accordance with the regular payroll practices of the Company.
(b) Bonus Compensation. The Company shall pay Executive annual bonus
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compensation (the "Bonus Compensation") in an amount equal to the difference
between (i) one percent of the Company's consolidated pretax earnings, excluding
the amount of Bonus Compensation payable under this Section 5(b) (as determined
in accordance with general accepted accounting principles and reported in the
Company's Form 10-K) for each completed fiscal year during the term of this
Agreement, and (ii) the Base Salary received by the Executive pursuant to
Section 5(a), above. For the fiscal year 2005, such Bonus Compensation shall be
prorated to reflect the actual number of months worked by the Executive during
the fiscal year 2005 and the amount of Base Salary received by the Executive
therein. Any Bonus Compensation determined hereunder for the fiscal years 2005
and 2006 (including any Bonus Compensation subject to proration hereunder) shall
be no less than $350,000, which Bonus Compensation shall be pro rated for fiscal
2005.
(c) Options and Equity Awards. Upon his entering into this Agreement,
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the Company shall grant to the Executive 250,000 non-qualified stock options on
the terms set forth in a separate option agreement of even date. In addition,
the Company may grant to the Executive (from time to time) options to purchase
shares of the Company's common stock or other equity awards pursuant to the
terms of any Company stock incentive plan(s) then in effect and any related
stock agreement required to be executed in connection therewith. Such options or
other equity awards shall have such terms and conditions as shall be determined
by the Board of Directors.
6. BUSINESS EXPENSES. The Executive shall be reimbursed by the Company for
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those business expenses incurred by him which are reasonable and necessary for
the Executive to perform his duties under this Agreement upon submission of such
accounts and records as may reasonably be required by the policies established
from time to time by the Company.
7. EXECUTIVE BENEFITS.
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(a) During the Agreement Term, the Executive shall be entitled to such
insurance, disability and health and medical benefits and be entitled to
participate in such retirement plans or programs as generally made available to
executive officers and employees of the Company pursuant to the policies of the
Company; provided that the Executive shall be required to comply with the
conditions attendant to coverage by such plans and shall comply with and be
entitled to benefits only in accordance with the terms and conditions of such
plans. The Executive shall also be entitled to four (4) weeks paid vacation each
year at such times as does not interfere with the Executive's performance of his
duties hereunder. The Company may withhold from any benefits payable to the
Executive all federal, state, local and other taxes and amounts as shall be
permitted or required pursuant to law, rule or regulation.
(b) During the Agreement Term, the Executive shall be entitled to receive
from the Company a Company-leased automobile and the Company shall pay the
maintenance, fuel and tolls for such automobile. In addition, during the
Agreement Term, the Company shall reimburse the Executive for the reasonable
annual dues associated with the Executive's membership in a club of the
Executive's choosing. Executive acknowledges that some or all of the foregoing
may be deemed compensation to him.
8. DEATH AND DISABILITY.
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(a) The Agreement Term shall terminate on the date of the Executive's
death, in which event the Executive's Base Salary, a pro rata portion of his
Bonus Compensation in respect of the actual number of months worked in such
fiscal year and reimbursable expenses and benefits owing to Executive through
the date of the Executive's death shall be paid to his estate. Executive's
estate will not be entitled to any other compensation upon termination of this
Agreement pursuant to this Paragraph 8(a).
(b) If, during the Agreement Term, in the opinion of a duly licensed
physician acceptable to the Executive and the Company, the Executive because of
physical or mental illness or incapacity, shall become substantially unable to
perform the duties and services required of him under this Agreement for a
period of one hundred-twenty or more consecutive days or an aggregate of six
months in any twelve-month period, the Company may, upon at least thirty (30)
days' prior written notice (given at any time after the expiration of such
period) to the Executive of its intention to do so, terminate this Agreement as
of such date as may be set forth in the notice. In case of such termination, the
Executive shall be entitled to receive his Base Salary, a pro rata portion of
his Bonus Compensation in respect of the actual number of months worked in such
fiscal year and reimbursable expenses and benefits owing to the Executive
through the date of termination. Executive will not be entitled to any other
compensation upon termination of this Agreement pursuant to this Paragraph 8(b).
9. TERMINATION FOR CAUSE.
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(a) The Company may terminate the employment of the Executive under this
Agreement for Cause (as hereinafter defined). Upon such termination, the Company
shall be released from any and all further obligations under this Agreement,
except that the Company shall be obligated to pay the Executive his Base Salary,
reimbursable expenses and
benefits owing to the Executive through the date of termination. Executive will
not be entitled to any other compensation upon termination of this Agreement
pursuant to this Paragraph 9(a).
(b) As used herein, the term "Cause" shall mean: (i) the willful and
continued failure by the Executive to substantially perform the Executive's
duties (other than any such failure resulting from incapacity due to physical or
mental illness) after a demand for substantial performance has been delivered to
the Executive by the Company, which demand identifies the manner in which it is
believed that the Executive has not substantially performed the Executive's
duties; (ii) conviction of a felony involving moral turpitude or acts of
dishonesty against the Company; (iii) the Executive's breach of the provisions
of Paragraph 12 hereof; or (iv) the Executive's willful misconduct or
insubordination which is materially injurious to the Company. For purposes of
this paragraph, no act or failure to act on the Executive's part shall be
considered as willful unless done, or omitted to be done, by the Executive not
in good faith and without reasonable belief the action or omission was in the
best interests of the Company.
10. TERMINATION WITHOUT CAUSE. Notwithstanding anything to the contrary
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herein, including without limitation Paragraph 2 hereof, the Company may
terminate the employment of the Executive without Cause. Upon any such
termination, the Company shall be released from any and all further obligations
under this Agreement, except that the Company shall be obligated to pay to the
Executive severance compensation at the rate of $850,000 per annum, reimbursable
expenses and benefits owing to the Executive for the balance of the Agreement
Term prorated (as required) to reflect the actual number of months remaining in
such Agreement Term. Such severance compensation shall be paid in equal monthly
installments, with the first such installment commencing on the last day of the
month in which the Executive's employment so terminates. In the event of any
breach by the Executive of the covenants contained in Paragraph 12 hereof, the
Company shall be released from any further obligation to pay the severance
compensation specified herein. The Executive will not be entitled to any other
compensation upon termination of this Agreement under this Paragraph 10.
11. TERMINATION FOLLOWING A CHANGE IN CONTROL.
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(a) For purposes of this Agreement, a "Change in Control" shall mean (i)
any "Person" (as such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of Griffon Corporation representing twenty percent
(20%) or more of the combined voting power of Griffon Corporation's (then)
outstanding securities; or (ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board of
Directors of Griffon Corporation cease for any reason to constitute at least a
majority thereof; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by
Griffon's stockholders, was approved by a vote of at least a majority of the
directors then comprising the incumbent Board shall be considered as though such
individual were a member of the incumbent Board; or (iii) the Company is a party
to any consolidation or merger of Griffon Corporation in which it is not the
continuing or surviving corporation or pursuant to which its shares of common
stock would be converted into cash, securities, or other property or any sale,
lease, exchange, or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company; or (iv)
approval by the
stockholders of Griffon Corporation of any plan or proposal for the liquidation
or dissolution of the Company.
(b) For purposes of this Agreement, "Good Reason" shall mean (i)
reduction in the Executive's (then) current Base Salary as in effect immediately
preceding the Change in Control; (ii) diminution, reduction or other adverse
change in Bonus Compensation or other incentive compensation opportunities
available to the Executive immediately preceding the Change in Control; (iii)
the Company's failure to pay the Executive any amounts otherwise earned, vested
or due under any compensation plan or human resources policy of the Company as
in effect immediately preceding the Change in Control; (iv) diminution of the
Executive's title, position, authority or responsibility immediately preceding
the Change in Control; (v) assignment to the Executive of duties incompatible
with the position occupied by the Executive immediately preceding the Change in
Control; (vi) a change in the organizational position to which the Executive
directly reports immediately preceding the Change in Control; or (vii)
relocation of the Company's principal offices to a location more than 35 miles
from the location of such offices immediately preceding the Change in Control.
(c) If, after any Change in Control (as defined herein) shall have
occurred, the Executive's employment shall be terminated within eighteen (18)
months of the date of such Change in Control (i) by the Company other than for
death, disability or Cause or (ii) by the Executive for Good Reason, the
Executive shall be entitled to certain severance benefits as provided herein in
accordance with Paragraphs 11(d) through 11(h) hereof (the "Severance
Benefits").
(d) The Company shall pay the Executive's Base Salary through the date
of termination at the rate which is the higher of the (then) current annual rate
or the annual rate in effect immediately prior to the date of any Change in
Control. The Company shall also pay the Executive the amount, if any, of any
unpaid earned annual bonus for the preceding fiscal year, as well as a pro rata
portion of the higher of (i) the earned annual bonus for the preceding fiscal
year or (ii) the projected annual bonus for the current fiscal year, based on
the number of month worked by the Executive in the year in which the termination
of employment occurs. In addition, the Company shall continue in full force and
effect through the date of termination the Executive's participation in all
stock purchase or stock option plans, all health and welfare benefit plans, and
all insurance and disability plans as may be in effect at the date of the Change
in Control.
(e) Subject to Paragraph 11(f) hereof, the Company shall pay as
Severance Benefits to the Executive on or before the fifth (5th) day following
the date of termination of employment, a lump sum payment ("the lump sum
payment") equal to two and ninety-nine one hundredths (2.99) times the sum of
(i) the Executive's Base Salary at the rate which is the higher of the (then)
current annual rate or the annual rate in effect immediately prior to the date
of any Change in Control and (ii) the average of the annual Bonus Compensation
received by the Executive for each of the last three fiscal years. Such lump sum
payment shall be subject to all applicable Federal, state and local income and
FICA taxes including all required withholding amounts.
(f) The Severance Benefits payable to the Executive shall be adjusted
as set forth in this Paragraph 11(f). If the lump sum payment under Paragraph
10(e) hereof and
all other payments or benefits (as defined in Section 280(G)(b)(A)(i) of the
Internal Revenue Code of 1986, as amended (the "Code") which the Executive has
received or has the right to receive from the Company as a result of any Change
in Control would (in the aggregate) constitute an "excess parachute payment" (as
defined in the Code), the lump sum payment under Paragraph 11(e) hereof shall be
decreased by the smallest amount that will eliminate any such excess parachute
payment. In no event shall the Severance Benefits exceed the amount which is
deductible by the Company in accordance with Section 280(G) of the Code.
(g) For the continued benefit of the Executive and his dependents, the
Company shall maintain in full force and effect until the earlier of (i) three
(3) years after the date of termination or (ii) the Executive's commencement of
full-time employment with a new employer, all employee health and welfare
benefit plans and programs (including, but not limited to, medical insurance,
health and accident insurance, life insurance and disability income programs)
for which the Executive was eligible immediately prior to the date of
termination, provided that the Executive's continued participation is possible
under the general terms and provisions of such plans and programs, and subject
further to such periodic changes in such plans and programs as are generally
applicable to all participants in such plans and programs.
(h) The Executive shall not be required to mitigate or offset the
amount of any Severance Benefits or other benefits provided under this Paragraph
11 by seeking employment or otherwise, nor, except as provided in Paragraph
11(g) hereof, shall the amount of any payment provided under this Paragraph 11
be reduced by any compensation earned by the Executive as the result of
employment by another employer after the date of termination from the Company.
12. DISCLOSURE OF INFORMATION AND RESTRICTIVE COVENANTS.
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(a) The Executive acknowledges that, as a result of his employment, he
will be in a confidential relationship with the Company and will have access to
confidential information and trade secrets of the Company, its subsidiaries and
affiliates. For the purposes of this Agreement, "Confidential Information" shall
mean:
(i) All information relating to proprietary products or services, whether
existing or in various stages of research and development, which are not
generally known to the public or within the industry or trade in which the
Company or its subsidiaries or affiliates competes (such as know-how,
specifications, technical data, engineering data, processes, techniques,
methodologies, and strategies) and the physical embodiments of such
information (such as drawings, schematics, specification sheets, instructor
manuals, course materials, training aids, video cassettes, transparencies,
slides, taped recordings of presentations, proposals, printouts, studies,
contracts, maintenance manuals, documentation, and any other written or
machine-readable expressions of such information as are fixed in any
tangible media).
(ii) All information concerning or relating to the way Company or its
subsidiaries or affiliates conducts its respective business which is not
generally known to the public (such as internal business procedures,
controls, plans, licensing techniques and practices, supplier, subcontractor
and prime contractor names and contracts
and other vendor information, computer system passwords and other computer
security controls, financial information, distributor information,
information supplied by clients and customers of the Company or its
subsidiaries or affiliates and employee data) and the physical embodiments
of such information (such as check lists, samples, services and operational
manuals, contracts, proposals, print-outs, correspondence, forms, listings,
ledgers, financial statements, financial reports, financial and operational
analyses, financial and operational studies, management reports of every
kind, databases, employment records pertaining to employees and consultants
other than Employee, and any other written or machine-readable expressions
of such information as are fixed in any tangible media).
(iii) All information pertaining to the marketing plans and strategies of
the Company, its subsidiaries or affiliates; forecasts and projections;
marketing practices, procedures and policies; financial data; discounts;
margins; costs; credit terms; pricing practices, procedures and policies;
goals and objectives; quoting practices, procedures and policies; and
customer data including customer lists, contracts, representatives,
requirements and needs, specifications, data provided by or about
prospective existing or past customers and contract terms applicable to such
customers, and the physical embodiments of such information (such as license
agreements, customer lists, print-outs, databases, marketing plans,
marketing reports, strategic business plans, marketing analyses and
management reports, seminar and class attendee rosters, trade show or
exhibit attendee listings, listings of potential customers and leads, and
any other written or machine-readable expressions of such information as are
fixed in any tangible media).
(iv) Any information in addition to the foregoing which is not generally
known to the public or within the industry or trade in which the Company or
its subsidiaries or affiliates competes which gives it any advantage over
its competitors, and the physical embodiments of such information in any
tangible form, whether written or machine-readable in nature.
(v) Employee acknowledges and agrees that the Confidential Information
identified in subparagraphs (i) through (iv), above, constitutes trade
secrets of the Company.
(vi) The general skills, knowledge and experience gained during the
Agreement Term, and information publicly available or generally known within
the industry or trade in which Company or its subsidiaries or affiliates
competes, is not considered Confidential Information.
(b) Executive will not, during the term of this Agreement or at any
time thereafter, use, or disclose to any third party any Confidential
Information or use any Confidential Information except as required in the course
of providing services to the Company hereunder.
(c) Executive will not, during the term of this Agreement and for a
period of one (1) year thereafter, directly or indirectly, under any
circumstance other than at the
direction and for the benefit of the Company, engage in or participate in any
business activity, including, but not limited to, acting as a director, officer,
employee, agent, independent contractor, partner, consultant, licensor or
licensee, franchisor or franchisee, proprietor, syndicate member, shareholder or
creditor or with a person having any other relationship with any other business,
company, firm occupation or business activity, in any geographic area in which
the Company does business that is, directly or indirectly, competitive with any
business conducted by the Company or any of its subsidiaries or affiliates
during the term of this Agreement or thereafter. Should Executive own 5% or less
of the issued and outstanding shares of a class of securities of a corporation
the securities of which are traded on a national securities exchange or in the
over-the-counter market, such ownership shall not cause Executive to be deemed a
shareholder under this Paragraph 12(c).
(d) Executive will not, during the term of this Agreement and for a
period of one (1) year thereafter, on his behalf or on behalf of any other
business enterprise, directly or indirectly, under any circumstance other than
at the direction and for the benefit of the Company, solicit or induce any
creditor, customer, supplier, officer, employee or agent of the Company or any
of its subsidiaries or affiliates to sever its relationship with or leave the
employ of any of such entities.
(e) This Paragraph 12 and Paragraphs 13, 14 and 15 hereof shall survive
the expiration or termination of this Agreement for any reason.
(f) It is expressly agreed by Executive that the nature and scope of
each of the provisions set forth above in this Paragraph 12 are reasonable and
necessary. If, for any reason, any aspect of the above provisions as it applies
to Executive is determined by a court of competent jurisdiction to be
unreasonable or unenforceable, the provisions shall only be modified to the
minimum extent required to make the provisions reasonable and/or enforceable, as
the case may be. Executive acknowledges and agrees that his services are of a
unique character and expressly grants to the Company or any subsidiary,
successor or assignee of the Company, the right to enforce the provisions above
through the use of all remedies available at law or in equity, including, but
not limited to, injunctive relief.
13. COMPANY PROPERTY. All Confidential Information which Executive shall
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prepare or receive from the Company shall remain the Company's sole and
exclusive property. Upon termination of this Agreement, Executive shall promptly
return to the Company all Confidential Information in his possession and
Executive further represents that he will not copy or cause to be copied, print
out or cause to be printed out any Confidential Information or other materials
originating with or belonging to the Company. Executive additionally represents
that, upon termination of his employment with the Company, he will not retain in
his possession any such Confidential Information software, documents or other
materials.
14. REMEDY. It is mutually understood and agreed that Executive's services
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are special, unique, unusual, extraordinary and of an intellectual character
giving them a peculiar value, the loss of which cannot be reasonably or
adequately compensated in damages in an action at law. Accordingly, in the event
of any breach of this Agreement by Executive, including, but not limited to, the
breach of the non-disclosure, non-solicitation and non-compete clauses
hereunder, the Company shall be entitled to equitable relief by way of
injunction or otherwise in addition to damages the Company may be entitled to
recover. In addition, the Company shall be
entitled to reimbursement from Executive, upon request, of any and all
reasonable attorneys' fees and expenses incurred by it in enforcing any term or
provision of this Agreement.
15. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. (a) In order to induce the
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Company to enter into this Agreement, Executive hereby represents and warrants
to the Company as follows: (i) Executive has the legal capacity and unrestricted
right to execute and deliver this Agreement and to perform all of his
obligations hereunder; (ii) the execution and delivery of this Agreement by
Executive and the performance of his obligations hereunder will not violate or
be in conflict with any fiduciary or other duty, instrument, agreement,
document, arrangement or other understanding to which Executive is a party or by
which he is or may be bound or subject; and (iii) Executive is not a party to
any instrument, agreement, document, arrangement or other understanding with any
person (other than the Company) requiring or restricting the use or disclosure
of any confidential information or the provision of any employment, consulting
or other services.
(b) Executive hereby agrees to indemnify and hold harmless the Company
from and against any and all losses, costs, damages and expenses (including,
without limitation, its reasonable attorneys' fees) incurred or suffered by the
Company resulting from any breach by Executive of any of his representations or
warranties set forth herein.
16. NOTICES. All notices given hereunder shall be in writing and shall be
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deemed effectively given when mailed, if sent by registered or certified mail,
return receipt requested, addressed to Executive at his address set forth on the
first page of this Agreement and to the Company at its address set forth on the
first page of this Agreement, Attention: Chief Executive Officer, with a copy to
Kramer Coleman Wactlar & Lieberman, P.C., 100 Jericho Quadrangle, Jericho, New
York 11753, Attention: Nancy Lieberman, Esq., or at such address as such party
shall have designated by a notice given in accordance with this Paragraph 16.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
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of the parties with respect to its subject matter and no change, alteration or
modification hereof may be made except in writing signed by the parties hereto.
Any prior or other agreements, promises, negotiations, understandings or
representations not expressly set forth in this Agreement are of no force or
effect.
18. SEVERABILITY. If any provision of this Agreement shall be unenforceable
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under any applicable law, then notwithstanding such unenforceability, the
remainder of this Agreement shall continue in full force and effect.
19. AMENDMENTS, MODIFICATIONS, WAIVERS. No amendment, modification or
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waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by each of the parties hereto, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
20. ASSIGNMENT. Neither this Agreement, nor any of Executive's rights,
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powers, duties or obligations hereunder, may be assigned by Executive. This
Agreement shall be binding upon and inure to the benefit of Executive and his
heirs and legal representatives and the Company and its successors and assigns.
Successors of the Company shall include, without limitation, any corporation or
corporations acquiring, directly or indirectly, all or substantially all
of the assets of the Company, whether by merger, acquisition, consolidation,
purchase or otherwise, and such successor shall thereafter be deemed "the
Company" for the purpose hereof.
21. APPLICABLE LAW. This Agreement shall be deemed to have been made,
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drafted, negotiated and the transactions contemplated hereby consummated and
fully performed in the State of New York and shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflicts of law rules thereof. Nothing contained in this Agreement shall be
construed so as to require the commission of any act contrary to law, and
whenever there is any conflict between any provision of this Agreement and any
statute, law, ordinance, order or regulation, the latter shall prevail, but in
such event any provision of this Agreement so affected shall be curtailed and
limited only to the extent necessary to bring it within the legal requirements.
22. JURISDICTION AND VENUE. It is hereby irrevocably agreed that all
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disputes or controversies between the Company and Executive arising out of, in
connection with or relating to this Agreement must be brought in the United
Stated District Court for the Eastern District of New York and designated as a
"Long Island Action" (or if subject matter jurisdiction is lacking in such
court, the jurisdiction of the New York Supreme Court for the County of Nassau).
Each party irrevocably and unconditionally commits to the in personam
jurisdiction of such Court and waives, to the fullest extent permitted by law,
any objections which it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding brought in such court, any claim that any
such suit, action or proceeding brought in such court has been brought in an
inconvenient forum and the right to object, with respect to any such suit,
action or proceeding brought in such court, that such court does not have
jurisdiction over the person of such party. In any suit, action or proceeding,
each party waives, to the fullest extent it may effectively do so, personal
service of any summons, complaint or other process and agrees that the service
thereof may be made by certified or registered mail, addressed to such party at
its address set forth in Section 16 hereof. Each party agrees that a final
non-appealable judgment in any such suit, action or proceeding brought in such a
court shall be conclusive and binding.
23. FULL UNDERSTANDING. Executive represents and agrees that he fully
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understands his right to discuss all aspects of this Agreement with his private
attorney, that to the extent, if any that he desired, he availed himself of this
right, that he has carefully read and fully understands all of the provisions of
this Agreement, that he is competent to execute this Agreement, that his
agreement to execute this Agreement has not been obtained by any duress and that
he freely and voluntarily enters into it, and that he has read this document in
its entirety and fully understands the meaning, intent and consequences of this
document which is that it constitutes an agreement of employment.
24. COUNTERPARTS. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
GRIFFON CORPORATION
BY:
--------------------------------
NAME:
TITLE:
EXECUTIVE
-----------------------------------
ERIC EDELSTEIN
NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of the 1st day of March, 2005, between GRIFFON CORPORATION, a
Delaware corporation, (hereinafter called the "Company") and ERIC EDELSTEIN
(hereinafter called "Optionee").
W I T N E S S E T H:
WHEREAS, concurrently herewith the Company and the Optionee intend to enter into
an employment agreement (the "Employment Agreement") pursuant to which the
Optionee shall be employed as an Executive Vice President and Chief Financial
Officer of the Company; and
WHEREAS, in order to induce Optionee to enter into the Employment Agreement, the
Company has determined that it is advisable to grant to Optionee an award of
certain options to purchase the Company's common stock, par value $.25 per share
(the "Common Stock"); and
WHEREAS, the Optionee is only willing to enter into the Employment Agreement if
the Company enters into this option agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to Optionee an option to
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purchase a total of 250,000 shares of the authorized and unissued
Common Stock of the Company (the "Option") at an exercise price of
$22.94 per share, which is the closing price of the Common Stock on
the date hereof. The within Option is immediately vested and is
exercisable in accordance with Section 2 hereof.
2. Exercisability and Term of Option. The within Option may be exercised
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at any time before the Expiration Date in the following amounts:
As to 50% of the shares of Common Stock, on or after March 1, 2006
As to 100% of the shares of Common Stock, on or after March 1, 2007
The rights represented by this Option are exercisable at the option of
the holder hereof in whole at any time, or in part from time to time,
within the periods above specified at the price specified in Section 1
hereof. The within Option may be exercised by Optionee at any time
prior to February 28, 2012 (the "Expiration Date"); provided, that in
the event of the prior termination or expiration of the Employment
Agreement or Optionee's employment with the Company on or before March
1, 2007, whether under the Employment Agreement or otherwise, the
Optionee shall have until May 1, 2007 to exercise the within Option;
provided, further, that in the event of any termination or expiration
of the Employment Agreement or Optionee's employment with the Company
prior to the Expiration Date but after March 1, 2007, whether under
the Employment Agreement or otherwise, the Optionee shall have a
period of sixty (60) days from such termination or expiration to
exercise the within Option, but in no event shall the Option be
exercisable after the Expiration Date.
3. Anti-dilution. The price per share at which shares of Common Stock may
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be purchased hereunder, and the number of such shares to be purchased
upon exercise hereof, are subject to change or adjustment as follows:
(A) In case the Company shall, while this Option remains unexercised,
in whole or in part, and in force, effect a recapitalization of such
character that the shares of Common Stock purchasable hereunder shall
be changed into or become exchangeable for a larger or smaller number
of shares, then, after the date of record for effecting such
recapitalization, the number of shares of Common Stock which the
holder hereof shall be entitled to purchase hereunder shall be
increased or decreased, as the case may be, in direct proportion to
the increase or decrease in the number of shares of Common Stock by
reason of such recapitalization, and the purchase price hereunder per
share of such recapitalized Common Stock shall, in the case of an
increase in the number of such shares, be proportionately reduced, and
in the case of a decrease in the number of such shares, shall be
proportionately increased. For the purpose of this subsection (A), a
stock dividend, stock split up or reverse split shall be considered as
a recapitalization and as an exchange for a larger or smaller number
of shares, as the case may be.
(B) In the case of any consolidation of the Company with, or merger of
the Company into, any other Company, or in case of any sale or
conveyance of all or substantially all of the assets of the Company in
connection with a plan of complete liquidation of the Company, then,
as a condition of such consolidation, merger or sale or conveyance,
adequate provision shall be made whereby the holder hereof shall
thereafter have the right to purchase and receive, upon the basis and
upon the terms and conditions specified in this Option and in lieu of
shares of Common Stock immediately theretofore purchasable and
receivable upon the exercise of the rights represented hereby, such
shares of stock or securities as may be issued in connection with such
consolidation, merger or sale or conveyance with respect to or in
exchange for the number of outstanding shares of Common Stock
immediately therefore purchasable and receivable upon the exercise of
the rights represented hereby had such consolidation, merger or sale
or conveyance not taken place, and in any such case appropriate
provision shall be made with respect to the rights and interests of
the holder of this Option to the end that the provisions hereof shall
be applicable as nearly as may be in relation to any shares of stock
or securities thereafter deliverable upon the exercise hereof.
4. Non-Transferability of Option. The Option granted under this
-------------------------------
Agreement shall not be transferable otherwise than by will or the laws
of descent and distribution or to the extent permitted by the Board of
Directors of the Company or the Compensation Committee of the Board of
Directors.
5. Purchase for Investment. To the extent that, at the time of exercise
-----------------------
of the within Option, the underlying shares have not been registered
for sale under the Securities Act or 1933, as amended, the Optionee
represents, on behalf of himself and any transferees permitted by the
terms of the Plan, that any shares of Common Stock purchased pursuant
to this Agreement will be acquired in good faith for investment and
not for resale or distribution, and Optionee on behalf of himself and
said person or persons, agrees that each notice of the exercise of the
within Option shall contain or be accompanied by a representation in
writing signed by him or said person or persons, as the case may be,
in form satisfactory to the Company, that the shares of Common Stock
to be purchased pursuant to such notice are being so acquired and will
not be sold except in compliance with applicable securities laws.
6. Covenant of the Company. The Company covenants and agrees that all
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shares may be delivered upon the exercise of this Option and will,
upon delivery, be fully paid and non-assessable, and, without limiting
the generality of the foregoing, the Company covenants and agrees that
it will at all times to reserve or hold available a sufficient number
of shares of Common Stock to cover the number of shares issuable upon
the exercise of this Option.
7. Rights as Shareholder. This Option shall not entitle the holder hereof
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to any voting rights or other rights as a shareholder of the Company,
or to any other rights whatsoever except the rights herein expressed,
and no dividends shall be payable or accrue in respect of this Option
or the interest represented hereby or the shares purchasable hereunder
until or unless, and except to the extent that, this Option shall be
exercised.
8. Information. The Company will transmit to the holder of this Option
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such information, documents and reports as are generally distributed
to shareholders of the Company concurrently with the distribution
thereof to such shareholders.
9. Notices. Notices to be given to the holder of this Option shall be
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deemed to have been sufficiently given if delivered or mailed,
addressed in the name and at the address of such holder appearing in
the records of the Company, and if mailed, sent first class registered
or certified mail, postage prepaid. The address of the Company is 100
Jericho Quadrangle, Jericho, New York 11753, and the Company shall
give written notice of any change of address to the holder hereof.
10. Applicable Law. This Agreement and the legal relations among the
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parties hereto shall be governed by and construed in accordance with
the laws of the State of New York applicable to contracts made and
performed therein.
11. Consent to Jurisdiction and Waivers. The parties hereto irrevocably
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consent that any legal action or proceeding against any of them under,
arising out of or in any manner relating to, this Agreement or any
other document delivered in connection herewith, may be brought in any
court of the State of New York located within Nassau County or in the
United States District Court for the Eastern District of New York. By
the execution and delivery of this Agreement, the parties expressly
and irrevocably consent and submit to the personal jurisdiction of any
of such courts in any such action or proceeding. The parties further
irrevocably consent to the service of any complaint, summons, notice
or other process relating to any such action or proceeding by delivery
thereof to it by hand or by any other manner permitted by law. The
parties hereby expressly and irrevocably waive any claim or defense in
any such action or proceeding based on any alleged lack of personal
jurisdiction, improper venue or forum non convenient or any similar
basis.
IN WITNESS WHEREOF, the Company has caused this Option to be executed and
delivered as of the date first above written.
GRIFFON CORPORATION
By: /s/Patrick Alesia
--------------------------------
PATRICK ALESIA, Vice President
/s/Eric Edelstein
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ERIC EDELSTEIN, Optionee