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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (Date of earliest event reported): July 18, 2008
POWELL INDUSTRIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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001-12488
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88-0106100 |
(State or other jurisdiction of
incorporation or organization)
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(Commission File Number)
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(I.R.S. Employer
Identification Number) |
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8550 Mosley Drive
Houston, Texas
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77075-1180 |
(Address of Principal
Executive Offices)
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(Zip Code) |
(713) 944-6900
(Registrants Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17CFR230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17CFR240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Action (17CFR240.14D-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17CFR240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
On July 18, 2008, Powell Industries, Inc. (the Company) and Thomas W. Powell entered into a
consulting agreement in connection with Mr. Powells retirement as discussed in Item 5.02 below.
Pursuant to such consulting agreement, Mr. Powell agreed to provide advice and perform certain
consulting services to the Company during the period commencing October 1, 2008 and ending
September 30, 2010, unless the agreement is earlier terminated pursuant to its terms. The Company
agreed to pay to Mr. Powell $60,000 per quarter during the term of such consulting agreement. A
copy of Mr. Powells consulting agreement is attached hereto as Exhibit 10.1. The consulting
agreement is incorporated by reference herein and the foregoing description of the consulting
agreement is qualified in its entirety by reference to such exhibit.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
On July 18, 2008, the Company announced that Thomas W. Powell, the Companys Chief Executive
Officer since 1984, will retire as Chief Executive Officer of the Company effective September 30,
2008. At that time, Patrick L. McDonald, who is currently the Companys President and Chief
Operating Officer, will succeed Mr. Powell as Chief Executive Officer. Mr. Powell will continue to
serve as Chairman of the Companys Board of Directors (the Board). This move is consistent with
the succession plan announced by the Company on February 26, 2007.
Mr. McDonald, who is 55,
has served as President and Chief Operating Officer of the Company
since February 26, 2007. He served as the general manager of the Companys Electrical Power
Products business in Houston from February 2006 to
February 2007. He has 24 years of professional
experience in the electrical business, including 22 years with Square D, now a part of Schneider
Electric, between 1979 and 2001. While at Square
D, he held numerous leadership positions in the areas of finance, operations and product marketing
and served as vice president of both the international and services divisions. Following his tenure
at Square D, he continued his senior management career as president of Delta Consolidated
Industries, a subsidiary of Danaher Corporation from 2001 to 2003. From 2003 until he joined the
Company, Mr. McDonald was on sabbatical. Mr. McDonald holds a Bachelor of Science degree from
Indiana University.
At a meeting on July 18, 2008, the Compensation Committee of the Board approved the following
changes to Mr. McDonalds compensation package commensurate with his promotion: (i) an increase in
Mr. McDonalds annual salary, effective upon his promotion on September 30, 2008, to $430,000 per
year, (ii) a cash bonus potential of up to the amount of his annual salary and (iii) a
performance-based equity incentive award with a potential value of up to 150% of the amount of Mr.
McDonalds annual salary. The discretionary compensation components under (ii) and (iii) above
will be determined by the Compensation Committee under its customary analysis of the Chief
Executive Officers total compensation package.
Item 8.01 Other Events.
On July 18, 2008, the Company announced the information discussed in Item 5.02 above. A copy
of the Companys press release is attached hereto as Exhibit 99.1. The press release is
incorporated by reference herein and the foregoing description of the press release is qualified in
its entirety by reference to such exhibit.
Item 9.01(d) Exhibits.
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Exhibit |
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Description |
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10.1 |
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Consulting Agreement dated July 18, 2008 between the Company and
Thomas W. Powell. |
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99.1 |
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Press Release dated July 18, 2008. |
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SIGNATURES
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 thereunto duly authorized.
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POWELL INDUSTRIES, INC.
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Date: July 24, 2008
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By: |
/s/ DON R. MADISON
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Don R. Madison |
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Executive Vice President
Chief Financial and Administrative Officer
(Principal Accounting and Financial Officer) |
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Exhibit Index
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Exhibit |
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Number |
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Description |
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10.1 |
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Consulting Agreement dated July 18, 2008 between the Company and
Thomas W. Powell. |
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99.1 |
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Press Release dated July 18, 2008. |
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exv10w1
Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (Agreement) by and between POWELL INDUSTRIES, INC. (the Company)
and THOMAS W. POWELL (Mr. Powell);
W I T N E S S E T H:
WHEREAS, Mr. Powell has most recently been the Companys Chief Executive Officer; and
WHEREAS, the Company recognizes the more than forty-four (44) years of exemplary service by
Mr. Powell to the Company.
WHEREAS, the Company and Mr. Powell are desirous of establishing the financial and other terms
of Mr. Powells transition from the Company as Chief Executive Officer to that of a consulting
relationship with the Company;
NOW, THEREFORE, for and in consideration of the compensation to be paid Mr. Powell under this
Agreement and the mutual promises, covenants and undertakings contained in this Agreement, and for
other good and valuable consideration, the receipt of which is hereby acknowledged, and intending
to be legally bound hereby, the Company and Mr. Powell agree as follows:
1. Resignation as Director and Officer. Mr. Powell has resigned his position as Chief
Executive Officer of the Company as well as any other offices, positions or directorships he holds
with the Company and its affiliates (other than his position as a director of the Company (the
"Board) effective as of September 30, 2008. Mr. Powell shall provide services to the Company, in
accordance with the terms of this Agreement.
2. Consulting Arrangement.
(a) Services Period. The Company hereby engages Mr. Powell to provide advice
and consulting services during the period commencing October 1, 2008 and ending September
30, 2010, provided that such period may be earlier terminated as provided herein (the
Services Period). The Services Period will terminate immediately upon Mr. Powells death
or resignation, or, at the election of the Company, (i) if Mr. Powell materially breaches
any of his material obligations under this Agreement and such material breach is not cured
within a period of 30 days after written notice from the Company to Mr. Powell specifying
the breach, or (ii) upon written notice to Mr. Powell in the event Mr. Powell accepts other
employment or a consulting arrangement (inclusive of service on corporate boards) that
cumulatively impairs, as determined in good faith by the Board, Mr. Powells ability to
serve the interests of the Company 30 days after notice thereof to Mr. Powell and his
failure to terminate such arrangement.
(b) Extent of Services. During the Services Period, Mr. Powell shall provide
advice and consulting services to the Company as to such strategic initiatives and special
projects, and such other reasonable services as may be requested by the Company. It is
contemplated that during the Services Period Mr. Powell would, to the extent requested by
the Company, provide advice or assistance with respect to strategic planning, identifying
and evaluating business development and strategic opportunities (including mergers and
acquisitions) and customer and investor relations. During the Services Period Mr. Powell
shall carry out his duties under this Agreement under the direction of the Company. In
providing his advice and consulting services, Mr. Powell shall not be required to maintain
any specific work schedule and will devote such time that is
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reasonable and necessary to appropriately address those assignments as received from
the Company.
In connection with Mr. Powells services hereunder, Mr. Powell specifically agrees that
during the term of this Agreement that the Company shall have the right in its marketing and
investor relations efforts, as well as in its public information releases, to be able to use
Mr. Powells name, photographic image and to reasonably request quotes from Mr. Powell
regarding the Company, its business and the power industry.
(c) Confidential Information. Mr. Powell recognizes and acknowledges that in
his past executive capacity he has had, and during the Services Period he will have, access
to Confidential Information (as hereinafter defined) of the Company, its collaborators and
third parties with which the Company has established a relationship of confidentiality, and
that such information is a valuable, special and unique asset of the Company or such
collaborators or third parties. Therefore, as part of this Agreement, Mr. Powell agrees
that he will not, during or for a period of five (5) years after the term of the Services
Period, disclose any Confidential Information he obtains from the Company, as well as
Confidential Information developed as a result of services rendered hereunder, to any
person, firm, corporation or other entity for any improper reason or purpose nor use any
such Confidential Information for any purpose other than those contemplated by this
Agreement without the prior express written consent of the Company. As used in this
Agreement, the term Confidential Information will mean any and all confidential
information provided by the Company to Mr. Powell in the course of his prior and future
services to the Company, as well as Confidential Information developed as a result of
services rendered hereunder. Confidential Information includes, but is not limited to,
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confidential information about the Companys products, product development strategy and
timelines, processes and procedures, equipment, engineering designs and capabilities,
research efforts, marketing research and plans, financial data and projections, know-how,
trade secrets, inventions (whether or not patentable), ideas and other information of a
technical, scientific, strategic, legal or economic nature, relating to the future, present
or past business, operations, plans or assets of the Company, its collaborators or third
parties with which the Company has established a relationship of confidentiality, which
information has been or is provided by the Company to Mr. Powell during the course of Mr.
Powells prior or future services to the Company, or are generated or identified by Mr.
Powell in connection with his services hereunder; provided, however, that Confidential
information will not include the following:
(1) information that at the time of disclosure to Mr. Powell is in the public
domain, or information that later becomes part of the public domain through no act
or omission of Mr. Powell in breach of his obligations hereunder;
(2) information received by Mr. Powell from a third party who did not acquire
such information on a confidential basis, either directly or indirectly, from the
Company and is not under a confidentiality agreement with the Company;
(3) information which Mr. Powell is compelled to disclose by operation of law.
In the event that Mr. Powell is requested by subpoena, civil investigation demand or similar
process to disclose any Confidential Information of the Company, he will provide prompt
notice of such potential disclosure to the Company so that an appropriate protective order
may be sought or a waiver of compliance with the provisions of this
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Agreement may be granted. If, in the absence of a protective order or the receipt of a
waiver hereunder, Mr. Powell is nonetheless legally required to disclose Confidential
Information, then in such event Mr. Powell may disclose such information without liability
hereunder, provided that the Company has been given such opportunity as may be reasonable
under the circumstances to review the text of such disclosure before it is made.
(d) Noncompetition. Mr. Powell agrees that to protect the Companys
Confidential Information, it is necessary to enter into the following restrictive covenants
which are ancillary to the enforceable promises between the Company and Mr. Powell in
Paragraph 2(c). Mr. Powell acknowledges that the business of designing, engineering,
manufacturing, distributing and servicing complex, custom-engineered solutions for power and
other critical process systems, in which the Company is engaged is very competitive. Mr.
Powell further acknowledges that the Companys operations are global, and the Company has
competitors and/or potential competitors throughout the world. Thus, the covenants in this
Paragraph 2(d) are intended to be worldwide restrictions. Accordingly, Mr. Powell hereby
agrees that, to protect the Companys Confidential Information, during the greater of the
Services Period or the period ending five (5) years after the Services Period hereof (the
Restrictive Period), he will not be engaged, directly or indirectly, as an executive,
director, consultant or an employee of an enterprise in the business of designing,
engineering, manufacturing, marketing, selling or developing products that are directly
competitive with those the Company was researching, developing or selling as of September,
2008 (collectively Company Products). Mr. Powell further agrees that during the
Restrictive Period he will not take
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any action intended to induce any employee of the Company or any affiliate of the
Company, to terminate his or her employment.
During the Restrictive Period, Mr. Powell shall provide the Company with written notice
and obtain Board approval (which will not be unreasonably withheld) prior to engaging in any
activity, as an employee, director, consultant or in any capacity, on Mr. Powells behalf or
for any person, association, or entity, that a reasonable person would view as being
competitive with the business of the Company.
Mr. Powell agrees that the restrictions stated in this provision are reasonably
required to protect the goodwill and other legitimate business interests of the Company,
given the Confidential Information of the Company that he possesses and shall possess in the
future as a result of his service under this Agreement. In addition, the restrictions are
narrowly tailored such that they are no greater than necessary to protect the goodwill and
other legitimate business interests of the Company.
(e) Work Product. Mr. Powell agrees that any design, invention, copyright or
trademark materials made or created as a result of or in connection with his duties
hereunder shall be the sole and exclusive property of the Company, and he hereby assigns and
transfers to the Company his entire right, title and interest in and to the foregoing. Mr.
Powell further agrees that, at the Companys request and expense, he will execute any deeds,
assignments or other documents necessary to transfer any such design, invention, copyright
or trademark materials to the Company and will cooperate with the Company or its nominee in
perfecting the Companys title (or the title of the Companys designee) in such materials.
During the term of this Agreement, Mr. Powell shall keep the Company informed of the
development of all designs, inventions or copyright materials
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made, conceived or reduced to practice by him, in whole or in part, alone or with
others, that either result from any work he may do for or at the request of the Company or
any affiliate of the Company or are related to the present or contemplated activities,
investigations or obligations of the Company or any affiliate of the Company. If any such
design, invention, or copyright material relating in any manner to the business of the
Company or any research and development of the Company or any affiliate of the Company is
disclosed by Mr. Powell within six (6) months after the termination of this Agreement, it
shall be presumed that such design, invention, copyright or trademark materials resulted or
were conceived from developments made during the period of this Agreement, and Mr. Powell
agrees that any such design, invention, copyright or trademark materials shall belong to the
Company.
(f) Compliance With Companys Code of Business Conduct and Company Policies.
During the Services Period Mr. Powell will comply with the Companys Code of Business
Conduct and, during the Services Period, will comply with the provisions of the Companys
Employee Handbook that are not in conflict with the terms hereof.
3. Compensation and Benefits.
(a) Base Compensation. The Company agrees to pay Mr. Powell for the services
provided under this Agreement compensation of $240,000. This annual compensation shall be
paid in consecutive and equal quarterly installments of $60,000 each during the term hereof.
(b) Office and Administrative Support. During the Services Period, the
Company, at the Companys sole cost and expense, will provide Mr. Powell with executive
office space, customary office equipment and reasonable information
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technology resources at the Companys offices, and secretarial assistance. During the
Services Period, Mr. Powell will be entitled to use of a Company owned or leased automobile
of substantially the same quality and on substantially the same terms as provided to Mr.
Powell during his employment with the Company as its Chief Executive Officer.
(c) Expenses. Mr. Powell will be entitled to reimbursement from the Company
for reasonable business and travel expenses that are incurred in connection with the
performance of his duties under this Agreement. Mr. Powells expenses shall be reimbursed
to him at the end of each quarter during the term hereof.
(d) Services as a Director. Mr. Powells continuing service as a
non-executive member of the Board of the Company, including as Chairman, shall not in any
way be affected as a result of any compensation he receives under the terms of this, or any
other agreement with the Company, and he shall continue to be entitled to all compensation
and benefits as received by other members of the Board.
4. General.
(a) Notices. Any notice required or permitted to be given under this Agreement
will be sufficient if in writing and sent by certified mail, return receipt requested, to
the respective address of each of the parties on the signature page hereof and if to the
Company, to the attention of the President.
(b) No Waiver. No failure by either party hereto at any time to give notice of
any breach by the other party of, or to require compliance with, any condition or provision
of this Agreement will be deemed a waiver of similar or dissimilar provisions or conditions
at the same time or at any prior or subsequent time.
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(c) Successor Obligations and Assignment. The rights and obligations of the
Company under this Agreement will inure to the benefit of and be binding upon the successors
and assigns of the Company. Mr. Powell cannot assign any of his rights, benefits or
obligations under this Agreement, except for any assignment of any of the rights to receive
payments and benefits hereunder in connection with family financial planning by Mr. Powell,
which assignment shall be subject to the prior written consent of the Company and which
consent will not be unreasonably withheld. Mr. Powells rights and benefits under this
Agreement will not be subject to involuntary assignment, alienation or transfer, whether by
operation of law or otherwise, without the prior written consent of the Company.
Notwithstanding the foregoing, Mr. Powell may assign his rights and obligations under this
Agreement to a corporation or limited liability company owned and controlled by him;
provided that all services shall be performed on behalf of such corporation or company by
Mr. Powell, and no such assignment shall relieve Mr. Powell from personal responsibility and
liability for his covenants and obligations hereunder.
(d) Amendment. This Agreement may not be modified or any provision hereof
waived or amended except by an agreement in writing executed by both the Company and Mr.
Powell.
(e) Governing Laws. This Agreement will be subject to and governed by the laws
of the State of Texas without regard to any laws relating to choice or conflicts of laws and
shall be payable and performable in Houston, Harris County, Texas.
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(f) Withholding of Taxes. The Company may withhold from any compensation,
payments or benefits under this Agreement all federal, state or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
(g) Headings. The Paragraph headings have been inserted for purposes of
convenience and will not be used for interpretive purposes.
(h) Severability. If, as the result of the determination of a court of
competent jurisdiction, it is determined that any provision of this Agreement is invalid or
unenforceable, then the invalidity or unenforceability of that provision will not affect the
validity or enforceability of any other provision of this Agreement, and all other
provisions will remain in full force and effect.
(i) If a dispute arises out of or related to this Agreement and the dispute cannot be
settled through direct discussions, the Company and Mr. Powell agree that they will first
endeavor to settle the dispute in an amicable fashion through the use of a mediator. The
mediator will be mutually agreed to by the parties and each party will pay an equal share of
the cost of such mediator. If such efforts fail to resolve the dispute, then any and all
claims, demands, causes of action, disputes, controversies and other matters in question
arising out of or relating to this Agreement, any of its provisions, or the relationship or
the separation of the relationship, between the parties, whether sounding in contract, tort
or otherwise, whether provided by statute or the common law, for damages or any other relief
(all of which are referred to herein for purposes of Paragraph 5(i) as Disputes), will be
resolved by binding arbitration. The demand for arbitration will be made within a
reasonable period of time after the Dispute has arisen and prior to the time such Dispute
would be barred by the applicable statute of limitations
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for legal or equitable proceedings. The arbitration proceeding will be conducted in
Houston, Texas, by a panel of three arbitrators. Each party will select one arbitrator, and
the two selected arbitrators will select the third arbitrator. If for any reason, all three
arbitrators are not selected pursuant to the foregoing process, the American Arbitration
Association will select the arbitrator(s) necessary to complete the panel. The enforcement
of this agreement to arbitrate, the validity, construction and interpretation of this
agreement to arbitrate will be governed by the Federal Arbitration Act and the Commercial
Arbitration Rules then in effect with the American Arbitration Association.
IN WITNESS WHEREOF, the parties have executed this Agreement in multiple counterparts each of
which constitute the original as of the 18th day of July, 2008.
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POWELL INDUSTRIES, INC.
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By: |
/s/
Patrick L. McDonald |
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Name: |
Patrick L. McDonald |
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Title: |
President |
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Address: |
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8550 Mosley
Houston, Texas 77075 |
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/s/ Thomas
W. Powell |
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Thomas W. Powell |
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Address: |
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1386 CR 224
Giddings, TX 78942 |
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exv99w1
Exhibit 99.1
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Contacts:
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Don R. Madison, CFO |
FOR IMMEDIATE RELEASE |
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Powell Industries, Inc.
713-947-4422 |
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Ken Dennard / ksdennard@drg-e.com
Karen Roan / kcroan@drg-e.com
DRG&E / 713-529-6600 |
POWELL INDUSTRIES ANNOUNCES
NEW CEO TO SUCCEED TOM POWELL
Tom Powell sets retirement date of September 30, 2008
HOUSTON JULY 21, 2008 Powell Industries, Inc. (NASDAQ: POWL), a leading manufacturer of
equipment and systems for the management and control of electrical energy and other critical
processes, today announced that Tom Powell, age 67, will retire as Chief Executive Officer,
effective September 30, 2008, the end of the current fiscal year. At that time Patrick L.
McDonald, age 55, current President and Chief Operating Officer, will succeed Mr. Powell as
President and Chief Executive Officer. Mr. Powell will continue to serve as non-executive Chairman
of the Board.
Tom Powell stated, We initially announced this succession plan over a year ago to ensure a
smooth transition. I have worked closely with Pat and am confident that he will continue to build
on Powells past achievements and lead it to even greater success in the future. I know that we
have the right leadership team in place for the future of Powell, its employees and its
shareholders.
Pat McDonald said, I am very proud to be a part of the leadership team here at Powell and am
extremely enthusiastic about this opportunity. We have excellent prospects in front of us and an
exceptional group of employees. I look forward to the possibilities, challenges and future success
of the Company.
This move is consistent with the succession plan announced by Powell on February 26, 2007, at
which time Mr. McDonald was named President and Chief Operating Officer of the Company. McDonald,
who has 24 years of professional experience in the electrical business, joined Powell in February
2006 as general manager of Powells Electrical Power Products business in Houston and became a
member of Powells board of directors on May 30, 2008.
Powell Industries, Inc., headquartered in Houston, designs, manufactures and packages systems and
equipment for the control, distribution and management of electrical energy and other dynamic
processes. Powell provides products and services to large industrial customers such as utilities,
oil and gas producers, refineries, petrochemical plants, pulp and paper producers, mining
operations, commuter railways and other vehicular transportation facilities. For more
information, please visit www.powellind.com.
Any forward-looking statements in the preceding paragraphs of this release are made pursuant
to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Investors
are cautioned that such forward-looking statements involve risks and uncertainties in that actual
results may differ materially from those projected in the forward-looking statements. In the
course of operations, we are subject to certain risk factors, including but not limited to
competition and competitive pressures, sensitivity to general economic and industrial conditions,
international political and economic risks, availability and price of raw materials and execution
of business strategy. For further information, please refer to the Companys filings with the
Securities and Exchange Commission, copies of which are available from the Company without charge.
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