exv10w14



 






Exhibit 10.14




AMENDED AND RESTATED

EMPLOYMENT AGREEMENT




     This Amended and Restated Employment Agreement (this “Agreement”) is entered into as of
April 15, 2005 among Tarpon Industries, Inc., a Michigan corporation (“Tarpon”), Eugene
Welding Co., a Michigan corporation and a wholly-owned subsidiary of Tarpon (“EWCO”), and
Steelbank Tubular, Inc., a corporation amalgamated under the province of New Brunswick and a
wholly-owned subsidiary of Tarpon (together with Tarpon and EWCO, the “Companies”), and J.
Peter Farquhar (“Employee”).



     In consideration of the mutual covenants contained in this Agreement, the Companies and
Employee agree as follows:



     1. Employment.



     During the term of this Agreement (as defined in Sections 2 and 4), the Companies shall
employ Employee, and Employee hereby accepts such employment by the Companies, in accordance with
the terms and conditions set forth in this Agreement.



          (a) Position and Duties. Employee shall serve as Chief Executive Officer and Secretary
of the Companies or in such other position with the Companies, as the Boards of Directors of the
Companies shall, from time to time, specify. Employee shall perform all duties, services and
responsibilities and have such authority and powers for, and on behalf of, the Companies as are
customary and appropriate for such position designated by the Board and as are established from
time to time by, or in accordance with procedures established by, the Companies’ Boards of
Directors.




          (b) Performance. Employee shall perform the duties called for under this Agreement to
the best of his ability and shall devote all of his business time, energies, efforts and skill to
such duties during the term of his employment and shall not accept employment with any other
employer or business or engage in any other business of any nature whatsoever, in any capacity
whatsoever, unless approved in writing in advance by the Boards of Directors of the Companies.




     2. Term.



     The term of Employee’s employment under this Agreement shall begin on the date of this
Agreement and shall continue until January 13, 2007, at which time it shall expire, unless
terminated earlier pursuant to Section 4. Upon expiration of this Agreement, this Agreement shall
automatically renew for a one-year period on the same terms and conditions, unless either party
shall provide the other party with at least 180 days written notice of a desire not to renew this
Agreement.



 









 





     3. Compensation, Expenses and Benefits.



          As full compensation for Employee’s performance of his duties pursuant to this Agreement, the
Companies shall pay Employee during the term of this Agreement, and Employee shall accept as full
payment for such performance, the following aggregate amounts and benefits:




          (a) Salary. As salary for Employee’s services to be rendered under this Agreement, the
Companies shall pay Employee an aggregate annual salary of $250,000. Such salary shall be payable
semi-monthly in arrears, or at such other interval, not less frequent than monthly, as the
Companies shall designate.




          (b) Business Expenses. The Companies shall pay or reimburse Employee for all
reasonable, ordinary and necessary travel, entertainment, meals, lodging, and other out-of-pocket
expenses incurred by Employee in connection with the Companies’ businesses, for which Employee
submits appropriate receipts and which are consistent with the Companies’ policies or have been
authorized by the Companies’ Boards of Directors.




          (c) Options. Tarpon has granted Employee an option to purchase 50,000 common shares,
which were issued pursuant to the Tarpon’s Stock Option Plan (“Option Shares”), subject to
vesting restrictions determined by the Board of Directors.




          (d) Benefits. Employee shall be eligible to participate in all fringe benefits,
currently including major medical and dental insurance, a 401(k) plan and other employee benefit
plans, applicable to other similar employees of the Companies, when and if adopted and made
available during the term of this Agreement to employees with similar periods of service, subject
to any eligibility or other requirements for participating in such fringe benefits and to the
actual existence of the respective plans.




          (e) Indemnification; Directors and Officers Insurance. The Companies shall, to the
fullest extent authorized or permitted by the Michigan Business Corporation Act, defend, indemnify
and hold Employee, his heirs, executors, administrators and other legal representatives, harmless
from and against any and all claims, suits, debts, causes of action, proceedings or other actions,
at law or in equity, including costs and reasonable attorney fees which any person or entity may
have had, now has or may in the future have with respect to Employee’s service to the Companies as
an officer, director, employee or agent thereof. This provision shall survive the termination of
this Agreement. In addition, the Companies will use their best efforts to maintain appropriate
insurance for its directors and officers, which provides coverage of not less than $5,000,000.




          (f) Future Events. The Companies and Employee hereby acknowledge and agree that the
parties may from time-to-time review the terms and conditions contained in this Agreement and
engage in discussions regarding possible amendments to this Agreement; provided, however, no party
hereto shall be obligated to amend this Agreement at any time.




          (g) Bonus. Employee will be eligible to participate in any bonus plan established by
the Compensation Committee of the Boards of Directors that is applicable to the
Company’s executive officers, and may receive up to 50% of his salary as additional compensation
under the bonus plan.




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          (h) Club Membership. In the event that that the Companies consummate a transaction in
which they directly, or through their wholly-owned subsidiaries, acquire 100% of the outstanding
common stock or substantially all of the assets of a company (a “Transaction”), the
Companies shall, subsequent to such Transaction and for the remainder of the term of this
Agreement, pay Employee’s (i) one-time membership initiation fee at Olympia Field Golf Club, not to
exceed $40,000, and (ii) related annual dues and monthly membership fees, provided that such dues
and fees do not to exceed $10,000 per year.




          (i) Vacation. Employee shall be entitled to four weeks of paid vacation time in
accordance with the Companies’ current vacation policies.




          (j) Automobile. The Companies shall provide Employee with an automobile allowance of
an aggregate of $750 a month.




     4. Termination



          (a) Death. Employee’s employment under this Agreement shall terminate immediately upon
Employee’s death.




          (b) Disability. Employee’s employment under this Agreement shall terminate, at any of
the Company’s option, immediately upon notice to Employee given after Employee’s “total
disability,” but no earlier than the later of (i) the day after 6 consecutive months during which
Employee suffers from a “total disability”, and (ii) the day that Employee is eligible to begin
receiving disability benefits under the insurance policy or its equivalent. “Total disability”
shall mean Employee’s physical or mental condition entitling him to disability benefits, after the
passage of time, pursuant to the insurance policy, assuming such condition continues, all, if
permitted by such insurance policy or its equivalent, as determined by a doctor chosen by the
Companies and a doctor chosen by Employee, and, if necessary, a doctor mutually chosen by such
doctors. Employee shall continue to receive compensation pursuant to Section 3 during the period
prior to termination of Employee’s employment pursuant to this Section 4(b), if Employee’s
employment is not otherwise terminated pursuant to this Agreement, less any disability benefits
Employee receives pursuant to the insurance policy with respect to such period. There shall be no
such deduction for disability benefits received by Employee if Employee pays the premiums on such
disability insurance policy.




          (c) With Cause. Each of the Companies shall have the right, upon written notice to
Employee, to terminate Employee’s employment under this Agreement for “Cause.” Such termination
shall be effective immediately upon Employee’s receipt of such written notice. “Cause” means (1)
any material breach by Employee of this Agreement, (2) any material breach by Employee of his
fiduciary duties to any of the Companies, (3) material failure to perform his duties under this
Agreement continuing for 30 days following written notice by any of the Companies of such material
failure which notice shall specify the act or omission constituting such material failure, gross
neglect, abuse of office amounting to a breach of trust, fraud, any willful violation of any law,
rule or regulation (other than traffic violations and similar offenses), which
violation shall have a material adverse effect upon any of the Companies, or (4) any act of theft
or dishonesty by Employee.




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          (d) Without Cause. Each of the Companies and Employee shall each have the right, upon
written notice to the other, to terminate Employee’s employment under this Agreement without cause.
Such termination shall be effective 30 days after such notice is deemed given pursuant to Section
15(a).




          (e) With Good Reason. The Employee shall have the right, upon written notice to the
Companies, to terminate his employment with the Companies under this Agreement for Good Reason.
Such termination shall be effective immediately upon the Companies’ receipt of such written notice.
“Good Reason” means (i) a material change in Employee’s responsibilities or duties without his
prior written consent, or (ii) a material breach by the Companies of this Agreement.




     5. Effects of Expiration or Termination



          (a) If this Agreement expires or Employee’s employment under this Agreement is terminated
pursuant to Sections 4(a), (b) or (c), or if Employee resigns pursuant to Section 4(d), or upon
expiration of this Agreement, the Companies’ obligations under this Agreement, including
obligations under Section 3, shall end except for the Companies’ joint and several obligation to:
(i) reimburse Employee (or his estate) for all out-of-pocket expenses incurred and unpaid pursuant
to Section 3(b) and other benefits actually due pursuant to Sections 3(d), accrued and unpaid
through the date of termination; (ii) pay to Employee (or his estate) any salary compensation,
pursuant to Section 3(a), actually earned, accrued and unpaid through the date of termination and
(iii) indemnify employee as provided under Section 3(e).




          (b) Except as otherwise provided in Section 5(b)(i), if Employee’s employment under this
Agreement is terminated by any of the Companies pursuant to Section 4(d) or by Employee pursuant to
Section 4(e), in addition to its obligations under Section 5(a), the Companies, jointly and
severally, shall be obligated to pay to Employee an amount equal to the aggregate annual
compensation described in Sections 3(a), (h) and (j) (“General Severance Payment”). Such
General Severance Payment shall be payable in equal installments over a period of 12 months
beginning on the effective date of such termination. During such 12 month period, Employee shall
continue his medical and dental benefits set forth in Section 3(d) and the Companies shall pay the
premiums related thereto.





(i) Notwithstanding the foregoing, in the event that Employee is terminated pursuant
to Section 4(d) within 6 months after a Change of Control of Tarpon, the Companies,
jointly and severally, shall be obligated to pay to Employee, in lieu of the General
Severance Payment, an amount equal to 2 times the aggregate annual compensation
described in Sections 3(a), (h) and (j) (“CIC Severance Payment”). Such CIC
Severance Payment shall be payable in equal installments over a period of 24 months
beginning on the effective date of such termination. During such 24 month period,
Employee shall continue his medical and dental benefits set forth in Section 3(d)
and the Companies shall pay the premiums related thereto. For purposes of this
Agreement, the term “Change in Control of Tarpon” shall mean an event in which any person or entity has become the
beneficial owner (as the term “beneficial owner” is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Securities and Exchange Act) of
securities of



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Tarpon representing a majority of the then-outstanding securities
entitled to vote generally in the election of directors of Tarpon. Notwithstanding
the foregoing, the passive investment in a majority of the then-outstanding
securities of Tarpon by one or more mutual funds shall not constitute a Change in
Control of Tarpon.



     (c) Termination of Employee’s employment under this Agreement shall not affect any party’s
rights and obligations under Sections 3 (subject to the limitations set forth in Sections 5(a) and
(b)), 5, 7, 8, 9, 10 and 11, such rights and obligations shall continue and survive the termination
of Employee’s employment and this Agreement, for any reason, notwithstanding any breach of this
Agreement by Employee or by any of the Companies.



     6. Conflicts of Interest.



     While employed by the Companies, Employee shall not, directly or indirectly:



          (a) participate in any way in the benefits of transactions between the Companies, its
subsidiaries and their suppliers or customers, or have personal financial transactions with any of
the Companies’ or their subsidiaries’ suppliers or customers, including, without limitation, having
a financial interest in the Companies’ or its subsidiaries’ suppliers or customers, or making loans
to, or receiving loans from, the Companies’ or their subsidiaries’ suppliers or customers;




          (b) realize a personal gain or advantage from a transaction in which the Companies or their
subsidiaries have an interest or use information obtained in connection with Employee’s employment
with the Companies for Employee’s personal advantage or gain; or




          (c) accept any offer to serve as an officer, director, partner, consultant, agent or manager
with, or to be employed in a sales or technical capacity by, a person or entity which does business
with the Companies or their subsidiaries.




     7. Solicitation of Employees and Consultants.



     Upon expiration of this Agreement or termination of Employee’s employment with the Companies
under this Agreement, with or without cause, by either the Companies or Employee, Employee shall
not for a period of one year following the date of such termination, directly or indirectly:



          (a) solicit or attempt to hire any person who is then employed by, or is a consultant to, the
Companies or their subsidiaries or who, to Employee’s knowledge, was employed by, or was a
consultant to, the Companies or their subsidiaries at any time during the year before the
termination of Employee’s employment with the Companies under this Agreement; or




          (b) encourage any such person to terminate his or her employment or consultation with the
Companies or their subsidiaries.




     8. Covenant Not to Compete.



     During the term of Employee’s employment under this Agreement and for a period of one year
following expiration of this Agreement or the termination of Employee’s employment with the



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Companies under this Agreement pursuant to Section 4, Employee shall not, directly or indirectly,
himself, or through or for an individual, person or entity wherever located:




          (a) engage in any activities, perform any services in connection with any products, or sell
any products, which are reasonably likely to compete with the activities or services performed by,
or products sold by, the Companies or their subsidiaries during the term of Employee’s employment
under this Agreement; or




          (b) be employed by, consult with, own any capital stock of, or have any financial interest of
any kind in, any individual, person or entity, wherever located, which conducts a business in which
any of the Companies or their subsidiaries are engaged during the term of Employee’s employment
under this Agreement; provided, that Employee may own, for investment purposes only, up to 3% of
the stock of any such publicly traded company whose stock is either listed on a national stock
exchange or on The Nasdaq National Market (if Employee is not otherwise affiliated with such
business).




     9. Solicitation of Companies Customers.



     Upon expiration of this Agreement or termination of Employee’s employment with the Companies
under this Agreement, with or without cause, by either the Companies or Employee, Employee shall
not, directly or indirectly, at any time within one year after the date of such termination,
solicit any entity that, to Employee’s knowledge, was a customer of the Companies or their
subsidiaries within the year before the date of such termination, to perform services or supply
products for such customer of a similar nature to those services performed or products provided by
the Companies or their subsidiaries to such customer during the term of such employment under this
Agreement.



     10. Return of Documents.



     Upon expiration of this Agreement or termination of Employee’s employment with the Companies
for any reason, all documents, procedural manuals, guides, specifications, plans, drawings, designs
and similar materials, diaries, records, customer lists, notebooks, and similar repositories of or
containing confidential information, including all copies thereof, then in Employee’s possession or
control, whether prepared by Employee or others, shall be left with, or forthwith returned by
Employee to, the Companies.



     11. Companies’ Remedies.



     Employee acknowledges and agrees that the covenants and undertakings contained in Sections
1(b), 6, 7, 8, 9 and 10 of this Agreement relate to matters which are of a special, unique and
extraordinary character and that a violation of any of the terms of such Sections will cause
irreparable injury to the Companies, the amount of which will be difficult, if not impossible, to
estimate or determine and which cannot be adequately compensated. Therefore, Employee agrees that
the Companies, in addition to any other available remedies under applicable law, shall be entitled,
as a matter of course, to an injunction, restraining order or other equitable relief from any court
of competent jurisdiction, restraining any violation or threatened violation of any such terms by
Employee and such other persons as the court shall order.



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     12. Employee’s Remedies.



          (a) Employee’s remedy against the Companies for breach of this Agreement is the collection of
any compensation due him as provided in Section 3 and such other remedies available to Employee
under law or in equity.




          (b) Notwithstanding anything contained in this Agreement, the removal of Employee as a
director of Tarpon, with or without cause, shall not be deemed to trigger any rights under this
Agreement, including, but not limited to Employee’s rights under Section 5.




     13. Assignment.



     The Companies shall not be required to make any payment under this Agreement to any assignee
or creditor of Employee, other than to Employee’s legal representative or his estate on death or
disability. Employee’s obligations under this Agreement are personal and may not be assigned,
delegated or transferred in any manner and any attempt to do so shall be void. Employee, or his
legal representative, shall have no rights by way of anticipation or otherwise to assign or
otherwise dispose of any right of Employee under this Agreement. The Companies may assign this
Agreement without Employee’s consent to any successor to the Companies’ business. This Agreement
shall be binding upon, and shall inure to the benefit of, the Companies, Employee and their
permitted successors and assigns.



     14. Companies’ Obligations Unfunded.



     Except for any benefits under any benefit plan of the Companies that are required by law or by
express agreement to be funded, it is understood that the Companies’ obligations under this
Agreement are not funded, and it is agreed that the Companies shall not be required to set aside or
escrow any monies in advance of the due date of the payment of such monies to Employee.



     15. Notices.



          (a) To Employee. Any notice to be given under this Agreement by the Companies to
Employee shall be deemed to be given if delivered to Employee in person or three business days
after mailed to him by certified or registered mail, postage prepaid, return receipt requested, to:




J. Peter Farquhar

21242 Georgetown Rd.

Frankfort, IL 60423


or at such other address as Employee shall have advised the Companies in writing.




          (b) To the Companies. Any notice to be given by Employee to the Companies shall be
deemed to be given three business days after mailed by certified or registered mail, postage
prepaid, return receipt requested, to:




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Tarpon Industries, Inc./Eugene Welding Co./Steelbank Tubular, Inc.

2420 Wills St.

Marysville, MI 48040



With a copy to:



Patrick T. Duerr, Esq.

Honigman Miller Schwartz and Cohn LLP

2290 First National Building

660 Woodward Ave.

Detroit, Michigan 48226-3506


or at such other address as the Companies shall have advised Employee in writing.




     16. Amendments.



     This Agreement shall not be amended, in whole or in part, except by an agreement in writing
signed by the Companies and Employee.



     17. Entire Agreement.



     This Agreement constitutes the entire agreement between the parties with respect to the
subject matter of this Agreement and all prior agreements or understandings, oral or written, are
merged in this Agreement and are of no further force or effect. The parties acknowledge that they
are not relying on any representations, express or implied, oral or written, (relating to any
aspect of Employee’s current or future employment or otherwise), except for those stated in this
Agreement. Employee further acknowledges that his sole rights and remedies with respect to any
aspect of his employment or termination of his employment are provided for in this Agreement.



     18. Captions.



     The captions of this Agreement are included for convenience only and shall not affect the
construction of any provision of this Agreement.



     19. Governing Law and Forum.



     This Agreement, its construction, and the determination of any rights, duties or remedies of
the parties arising out of or relating to this Agreement, shall be governed by, and interpreted in
accordance with, the laws of the state of Michigan, except for any provisions of Michigan law which
direct the application of other states’ laws, and except that if any provision of this Agreement
would be illegal, void, invalid or unenforceable under such Michigan laws, then the laws of such
other jurisdiction which would render such provisions valid and enforceable shall govern so far as
is necessary to sustain the validity and enforceability of the terms of this Agreement. Each party
consents to be subject to personal jurisdiction of the courts of Michigan, and any lawsuit or other
court action or proceeding relating to, or arising out of, this Agreement or Employee’s employment
with the Companies shall be instituted only in the state or federal court of proper jurisdiction in
the



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state of Michigan and those courts shall have exclusive jurisdiction over any case or
controversy arising out of or relating to this Agreement.



     20. Severability.



     All provisions, agreements, and covenants contained in this Agreement are severable, and in
the event any of them shall be held to be illegal, void or invalid by any competent court or under
any applicable law, such provision shall be changed to the extent reasonably necessary to make the
provision, as so changed, legal, valid and binding. If any provision of this Agreement is held
illegal, void or invalid in its entirety, the remaining provisions of this Agreement shall not in
any way be affected or impaired, but shall remain binding in accordance with their terms.



     21. No Waiver.



     No waiver of any provision of this Agreement shall be valid unless in writing and signed by
the party against whom enforcement of the waiver is sought. The waiver by either party of any
breach of any provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.



     22. Consultation with Counsel.



     Employee acknowledges that he has been given the opportunity to consult with his personal
legal counsel concerning all aspects of this Agreement and the Companies have urged Employee to so
consult with such counsel.



     23. Conflicts.



     Employee represents and warrants that his execution, delivery and performance of this
Agreement will not (i) constitute a breach or violation of any agreement or arrangement to which he
is a party or by which the is bound; (ii) constitute a violation of any order, judgment or decree
to which he is a party; or (iii) require the consent of any third party.



[remainder intentionally left blank]




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     IN WITNESS WHEREOF, the Companies and Employee have duly executed this Amended and Restated
Employment Agreement as of the date and year first above written.



	 	 	 	 	 	 	 
	 
	 	Tarpon Industries, Inc.
	 
	 	 	 	 	 	 
	

	 	By:	 	/s/ JAMES T. HOUSE
	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	Its:
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Eugene Welding Co.
	 
	 	 	 	 	 	 
	

	 	By:	 	/s/ JAMES T. HOUSE
	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	Its:
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	Steelbank Tubular, Inc.
	 
	 	 	 	 	 	 
	

	 	By:	 	/s/ JAMES T. HOUSE
	 
	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	Its:
	

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	/s/ J. PETER FARQUHAR
	 
	 	 
	 
	 	J. Peter Farquhar







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