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EXHIBIT 10.17
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made November 10, 1997, by and among AIRXCEL,
INC., a Delaware corporation (the "Company") and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"Executive").
WHEREAS, the Company, its parent corporation and CA Holding Company
(formerly Crispaire Corporation and referred to herein as "Crispaire") are
parties to an Asset Purchase Agreement effective October 17, 1997 (the
"Agreement"), and
WHEREAS, it is a condition precedent to the Company's obligations
under the Agreement that the Executive shall have entered into this Agreement
with the Company,
NOW, THEREFORE, in consideration of the employment and in further
consideration of these mutual covenants and agreements, the parties hereto, each
intending to be bound, covenant and agree as follows.
1. Definitions. In this Agreement:
"Board" means the board of directors of Holdco.
"Cause" means (i) a material breach of the Executive's covenants
under this Agreement or of any statutory or common law duty of loyalty to the
Company which, if capable of cure, is not cured within 15 days of the Executive
receiving written notice thereof; (ii) the commission by the Executive of a
felony, or any crime involving theft, dishonesty or moral turpitude or other act
causing material harm to the standing or reputation of the Company; (iii) the
commission by the Executive of act(s) or omission(s) which have or are likely to
have a material adverse effect on the business, operations, financial condition
or reputation of the Company; or (iv) any material misrepresentation or material
non-disclosure by the Executive to the Board. For purposes hereof, the Board
shall determine in its reasonable discretion and consistent with the foregoing,
which acts or omissions constitute "Cause."
"Disability" means the inability, due to illness, accident, injury,
physical or mental incapacity or other disability, of the Executive to carry out
effectively his duties and obligations to the Company or to participate
effectively and actively in the management of the Company or a Subsidiary of the
Company for a period of at least 90 consecutive days or for shorter periods
aggregating at least 120 days (whether or not consecutive) during any
twelve-month period, as determined in the reasonable judgment of the President.
"Holdco" means Airxcel Holdings, Inc., a Delaware corporation and
the parent corporation of the Company.
"Person" means any individual, corporation, partnership, firm,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government body or other entity.
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"President" means the president of Holdco.
"Stock Plan"means the RVP Products Holding Corp. 1997 Stock Option
Plan of Holdco, as amended from time to time.
"Subsidiary" means, with respect to any Person, any corporation of
which in excess of 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether any other class or classes of capital stock of such
corporation may have such voting power by reason of the happening of any
contingency) is directly or indirectly owned by such Person and/or one or more
Subsidiaries of such Person.
2. Employment.
(a) Agreement. The Company agrees to employ the Executive, and the
Executive hereby accepts employment with the Company, upon the terms and
conditions set forth in this agreement for the period beginning on the date
hereof and ending as provided in Section 4(a) (the "Employment Period"). The
Executive represents and warrants to the Company that there are no agreements or
arrangements, whether written or oral, in effect which would prevent him from
rendering services to the Company or which would be violated as a result of his
performance hereunder in accordance with the terms hereof.
(b) Position and Duties. During the Employment Period, the Executive
shall serve as Vice-President, Sales and Marketing of the "Crispaire" division
of the Company under the supervision and direction of ▇▇▇▇▇▇ ▇▇▇▇▇, or his
successor as the head of the "Crispaire" division. The Executive shall serve as
an officer of the Company in the Company's Crispaire division, and shall
exercise such authority and perform such duties as are commensurate with the
authority generally exercised and duties generally performed by the Executive
for Crispaire immediately prior to November 5, 1997. A general description of
the Executive's authority and duties is included in Exhibit A attached hereto
and incorporated herein by this reference. The Executive shall be required to
perform duties and services only at the location where the Executive was
employed immediately prior to November 5, 1997 or at such other mutually
acceptable location. The Executive shall devote his best efforts and his full
business time and attention (except for permitted vacation periods and
reasonable periods of illness or other incapacity) to the business and affairs
of the Company including, but not limited to, its day to day operations. The
Executive shall perform his duties and responsibilities to the best of his
abilities in a diligent, trustworthy, businesslike and efficient manner. Nothing
herein shall prevent the Executive from attending to the winding-up of the
business and affairs of Crispaire.
3. Base Salary and Benefits.
(a) Base Salary. During the Employment Period, the Executive's base
salary shall be $93,095.20 per annum, subject to annual increases as ▇▇▇▇▇▇
▇▇▇▇▇, or his successor as the head of the "Crispaire" division may in his
discretion determine in December of each year, beginning December 1997 (the
"Base Salary"), which salary shall be payable in regular installments in
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accordance with the Company's general payroll practices and shall be subject to
customary withholding.
(b) Bonus. During the Employment Period, the Executive will be
eligible for an annual performance bonus ("Bonus") for each fiscal year ending
on or after December 31, 1997 payable within seventy-five (75) days following
the close of such fiscal year computed as provided in Exhibit B attached hereto
and incorporated herein by reference.
(c) Other Benefits. During the Employment Period, the Executive
shall also be covered by the Company's standard benefits package available to
all similarly situated employees as now existing or as may be hereafter revised.
(d) Stock Plan. The Executive shall be entitled to participate in
the Stock Plan.
4. Term and Severance.
(a) Term. The Employment Period shall end on the earlier of (i)
October 31, 2000, (ii) the Executive's death or, at the Company's option and
upon notice to the Executive, the Executive's Disability, (iii) the actual
termination date following the voluntary termination by the Executive pursuant
to Section 4(e) below or (iv) the actual termination date following a resolution
of the Board terminating the Executive with or without Cause.
(b) Termination for Cause. Subject to Section 7(d), if the
Employment Period is terminated by the Company for Cause, the Executive shall be
entitled to receive a pro-rated portion of the Bonus for that year based on the
number of days actually employed during the fiscal year (payable as and when
such Bonus would have been determined but for the termination) and shall receive
as severance compensation his Base Salary and other benefits (excluding any
Bonus) during the 3 months following the date of such termination.
(c) Termination Without Cause. If the Employment Period is
terminated by the Company without Cause, the Executive shall be entitled to a
prorated portion of his bonus based on the number of days actually employed
during the fiscal year (payable as and when such Bonus would have been
determined but for the termination) and shall receive as severance compensation
his Base Salary and other benefits (including any Bonus) during the period
through October 31, 2000.
(d) Death or Disability. If the Executive's employment is terminated
as a result of his death or Disability, the Company shall pay to the Executive
or his estate, as applicable, (i) all previously earned and accrued Base Salary,
(ii) a pro-rated portion of the Bonus based upon the number of days actually
employed during the fiscal year in which such termination occurred (payable as
and when such Bonus would have been determined but for the termination), and
(iii) his Base Salary and other benefits (excluding any Bonus) during the 3
months following the date of such termination.
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(e) Resignation. The Executive agrees that no severance compensation
shall be payable in the event of termination by resignation; provided that the
Executive shall be entitled to Base Salary and other benefits (including a
pro-rated portion of the Bonus based upon the number of days actually employed
during the fiscal year in which such termination occurred payable as and when
such Bonus would have been determined but for the termination) through the
actual termination date following the resignation. The Executive may terminate
his employment with the Company at any time during the Employment Period upon
three months' prior written notice to the Board. During the three month period
after such notice, the Executive shall continue his employment in accordance
herewith until an actual termination date as notified to the Executive by the
Board, which date shall be no later than the last day of such three month
period. The Executive shall obtain the agreement of any Person offering to
employ him any time during the period prior to his termination under this
Section 4(e), that, and the Executive agrees that, during such period, that
Person shall not disclose to third parties, including any of its employees who
do not then have an immediate need to know, that it has agreed to employ the
Executive.
(f) No Further Obligations. The Executive acknowledges that the
payments referred to in this Section 4 constitute the only payments which the
Executive shall be entitled to receive from the Company hereunder in the event
of any termination of his employment and that except for such payments the
Company shall not have any further liability or obligation to him (or his legal
representative, as the case may be) hereunder or otherwise in respect of his
employment. Nothing herein shall affect any requirement or benefit under COBRA,
HIPA, ERISA or any retirement or other benefit plan available to the Executive.
5. Confidential Information. The Executive acknowledges that the
information, observations and data obtained by him in the course of his
employment by the Company concerning the business or affairs of the Company or
any of its Subsidiaries ("Confidential Information") are the property of the
Company or such Subsidiary. The Executive agrees that he will not disclose to
any unauthorized person or use for his own account any Confidential Information
without the prior written consent of the Board, unless and to the extent that
the aforementioned matters become generally known to and available for use by
the public other than as a result of the Executive's acts or omissions to act.
The Executive shall deliver to the Company at the termination of such
Executive's employment, or at any other time the Company may request, all
memoranda, notes, plans, records, reports, computer tapes and software and other
documents and data (and copies thereof) relating to the Confidential
Information, Work Product (as defined below) and the business of the Company or
any Subsidiary which he may then possess or have under his control.
6. Inventions and Patents. The Executive agrees that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, and all similar or related information which relates to the Company's
or any of its Subsidiaries' actual or anticipated business, research and
development or existing or future products or services and which are conceived,
developed or made by the Executive in the course of his employment by the
Company or any of its Subsidiaries ("Work Product") belong to the Company or
such Subsidiary. The Executive will promptly disclose such Work Product to
▇▇▇▇▇▇ ▇▇▇▇▇ or his successor as head of the "Crispaire" division of the Company
or the Board and, at no expense to the Executive perform
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all actions reasonably requested by ▇▇▇▇▇▇ ▇▇▇▇▇ or his successor as head of the
"Crispaire" division or the Board (whether during or after the Executive's
employment period) to establish and confirm such ownership (including, without
limitation, assignments, consents, powers of attorney and other instruments).
7. Nonsolicitation.
(a) The Executive acknowledges that in the course of his employment
with the Company and its Subsidiaries he has become familiar, and he will become
familiar, with the Company's and its Subsidiaries' trade secrets and with other
Confidential Information and that his services have been and will be of special,
unique and extraordinary value to the Company and its Subsidiaries. Therefore,
the Executive agrees that, during the time he is employed by the Company and its
Subsidiaries and for 2 years after any voluntary termination, termination
without Cause, or termination for Cause of the Executive's employment (the
"Nonsolicitation Period"), the Executive shall not solicit or attempt to divert
or appropriate on behalf of any third party or on the Executive's own behalf,
any business from any customer of the Company with which the Executive had
contact in the course of his employment with Crispaire during the two-year
period prior to the date of termination, for purposes competitive with any
business in which the Company or its Subsidiaries engage or plan to engage.
(b) During the Nonsolicitation Period, the Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of the Company or any Subsidiary to leave the employ of the Company
or such Subsidiary, or in any way interfere with the relationship between the
Company or any Subsidiary and any employee thereof, (ii) hire any person (other
than persons employed in a clerical or non-professional position) who was an
employee of the Company or any Subsidiary within the six month period preceding
the date of such hiring, or (iii) induce or attempt to induce any customer,
supplier, licensee or other business relation of the Company or any Subsidiary
with which the Executive had contact in the course of his employment with
Crispaire during the two year period prior to the date of termination, to cease
doing business with the Company or such Subsidiary, or in any way interfere with
the relationship between any such customer, supplier, licensee or business
relation and the Company or any Subsidiary.
(c) If, at the time of enforcement of this Section 7, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law.
(d) In the event of a breach or a threatened breach by Executive of
any of the provisions of this Section 7, the Company, in addition and
supplementary to any other rights and remedies existing in its favor, may apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violations
of the provisions hereof. Without limiting the Company's other remedies, in the
event of the
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Executive's breach of any of the covenants in this Section 7, as determined by a
court of competent jurisdiction, the Company will have no further obligation to
pay any of the amounts payable by it pursuant to Sections 3 or 4.
(e) In the event of a breach of any of the Company's monetary
obligations under this Agreement, as determined by a court of competent
jurisdiction, the Executive shall not be bound by this Section 7.
8. Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when delivered personally, mailed
by certified or registered mail, return receipt requested and postage prepaid,
or sent via a nationally recognized overnight courier, or sent via facsimile to
the recipient. Such notices, demands and other communications will be sent to
the address indicated below:
To the Company:
Airxcel, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice):
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To the Executive:
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With a copy to (which shall not constitute notice):
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, L.L.C.
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party.
9. Miscellaneous.
(a) Survival. The representations and warranties made herein survive
the execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby.
(b) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Complete Agreement. As of the Effective Date, this Agreement
embodies the complete agreement and understanding among the parties and
supersedes any prior under standings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
(d) Counterparts. This Agreement may be executed in separate
counterparts which taken together constitute one agreement.
(e) Governing Law. The construction, validity and interpretation of
this Agreement will be governed by and construed in accordance with the domestic
laws of the State of New York, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of New York.
(f) Remedies. Each of the parties hereto is entitled to enforce its
rights hereunder specifically, to recover damages and costs (including
reasonable attorneys' fees) caused by any breach of any provision of this
Agreement and to exercise all other rights existing in its favor hereunder or at
law. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of this Agreement and that any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or deposit) for specific performance and/or other
injunctive relief in order to enforce or prevent any breach hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first written above.
AIRXCEL, INC.
By:
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Its:
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