EMPLOYMENT AGREEMENT (EXHIBIT 10T)
AGREEMENT dated as of September 1, 1995 between MISONIX, INC., a New
York corporation (hereinafter called the "Company") with offices at 0000 Xxx
Xxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000, and XXXXXX XXXXXXXX, residing at 00
Xxxxxx Xxxxx, Xxxxx Xxxx, Xxx Xxxx 00000 (hereinafter called the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to continue the services of Employee upon
the terms and conditions stated herein, and
WHEREAS, Employee desires to continue his employment by the Company upon
the terms and conditions stated herein.
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises contained herein, the parties hereby agree as follows:
1. Employment Term. The Company hereby agrees to employ Employee and
Employee agrees to enter the employ of the Company on the terms and conditions
set forth below for a term commencing on the date hereof and terminating August
31, 1996, unless sooner terminated as herein provided (such term of this
Agreement is herein referred to as the "term"). This Agreement will be
automatically renewed for successive one-year periods (a "Renewal Period")
unless the Company or the Employee elects not to renew by providing written
notice under paragraph 20 hereof to the contrary to the other party within
thirty (30) days preceding the end of the Term or a Renewal Period, unless
sooner terminated as hereinafter provided.
2. Duties. Subject to the authority of the Board of Directors of the
Company and the control and direction of the Company's Chairman of the Board,
Employee shall be employed as the Company's President and Chief Executive
Officer. Employee will perform such other duties and services of an executive
nature, commensurate with his position as the President and Chief Executive
Officer, as may from time to time be assigned to him by such persons.
3. Full Time. Employee agrees that he will devote his full time and
attention during regular business hours to the business and affairs of the
Company and that during the period of such employment, Employee will not,
without the prior permission of the Board of Directors or Chairman of the
Board, engage in any other business enterprise which requires the personal
time or attention of Employee. The foregoing shall not prevent the purchase,
ownership or sale by Employee of investments or securities of publicly held
companies and any other business which is not competitive and does not have
any business relations with the Company or any subsidiary
of the Company, provided the time or attention devoted by Employee to such
activities does not interfere with the performance of his duties hereunder.
4. Compensation. For the full prompt and faithful performance of all of
the duties and services to be performed by Employee hereunder, the Company
agrees to pay, and Employee agrees to accept, the amounts set forth below.
(a) As a base salary, Employee shall be paid during the Term at a
rate of $160,000 per annum, payable monthly or in such other manner as the
parties hereto shall determine.
(b) Not later that one hundred twenty (120) days after the end of
the fiscal year of the Company, the Company shall pay to Employee, as incentive
compensation, the following:
If operating earnings for fiscal 1996 is
less than $100,000 - None
$100,000 to $249,000 - 2-1/2% of all operating earnings
$250,000 to $499,000 - 5% of all operating earnings
over $500,000 - 10% of all operating earnings
For purposes hereof, "Operating Earnings" of the Company shall
mean, with respect to any fiscal year, the income, if any, of the Company for
such fiscal year as set forth in the audited, financial statements of the
Company included in its Annual Report to Stockholders for such fiscal year,
before deduction of taxes based on income or of the incentive compensation to
be paid to Employee for such fiscal year under this Agreement.
(c) The compensation provided for herein shall be in addition to any
retirement, profit sharing, insurance or similar benefit which may at any time
be payable to Employee pursuant to any plan or policy of the Company relating
to such benefits, which additional benefits shall be made available to Employee
on the same basis as they are generally made available to other employees of the
Company. Such compensation shall be in addition to any options which may be
granted under any Company stock option plan.
(d) The Company shall reimburse Employee in accordance with the
Company's policies for all reasonable travel, hotel, meal, and other expenses
properly incurred by him in he performance of his duties hereunder; provided,
however, that Employee shall be entitled to reimbursement only if lie furnishes
to the Company an itemized account and such other substantiation of such
expenditures as may reasonably be requested by the Company.
5. Vacation. Employee shall be entitled to a reasonable vacation which
shall be for such periods as are consistent with vacation time taken by other
similar employees and which shall be taken at such time or times as shall be
mutually determined by the Company and Employee.
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6. Death. In the event of the death of Employee during the Term or a
Renewal Period, this Agreement and the employment of Employee hereunder shall
terminate on the date of the death of Employee. The estate of Employee (or such
persons as Employee shall designate in writing) shall be entitled to receive,
and the Company agrees to pay, the base salary of Employee provided,by
paragraph 4(a) and the additional benefits, if any, provided by paragraph 4(c),
in each instance computed up to the end of the sixth month after the month in
which death occurs.
7. Disability. In the event that Employee shall be unable to perform,
because of illness or incapacity, physical or mental, the duties and services to
be performed by him hereunder for a consecutive period of four (4) months, the
Company may terminate this Agreement after the expiration of such period.
Employee shall be entitled to receive the base salary provided by paragraph 4(a)
and the additional benefits, if any, provided by paragraph 4(c), in each
instance computed up to the date of termination.
8. Payment Upon Death or Disability. In the event of the termination @of
this Agreement as provided in paragraph 6 or 7 hereof, the additional benefits
required to be paid need not be paid by the Company until 120 days after the
computation by the Company of the amount due, if any, except where limited
by terms of benefits plans. If any computation or determination shall be
required for any period less than a quarter, such computation or determination
shall be made by taking a proportionate part of the particular quarter.
9. Non-Competition.
(a) Employee covenants and agrees that, during the Term or a Renewal
Period and for a period of one year after he ceases being an employee of the
Company, Employee will not, directly or indirectly, own, manage, operate or
control, or participate in the ownership, management operation or control of,
any business competing directly with the business conducted on the date of
termination hereof by the Company; provided, however, that Employee may own
not more than 1% of the outstanding securities of any class of any corporation
engaged in any such business, if such securities are listed on a national
securities exchange or regularly traded in the over-the-counter market by a
member of a national securities association.
(b) Employee covenants and agrees that, throughout the Term or a
Renewal Period and for a period of one year after lie ceases being an employee
of the Company, he will not directly or indirectly induce any person associated
with or employed by the Company or any subsidiary of the Company to leave the
employ of or terminate his association with the Company, or any subsidiary of
the Company, or solicit the employment of any such person on his own behalf or
on behalf of any other business enterprise.
(c) If any term of this paragraph 9 is found by any court having
jurisdiction to be too broad, then and in that case, such term shall
nevertheless remain effective, but shall be considered amended (as to the time
or area or otherwise, as the case may be) to a point considered by said court as
reasonable, and as so amended shall be fully enforceable.
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(d) In the event that Employee shall violate any provision of this
Agreement (including but not limited to the provisions of this paragraph 9),
then Employee hereby consents to the granting of a temporary or permanent
injunction against him by any court of competent jurisdiction prohibiting
him from violating any provision of this Agreement. In any proceeding for
an injunction and upon any motion for a temporary or permanent injunction,
Employee agrees that his ability to answer in damages shall not be a bar or
interposed as a defense to the granting of such temporary or permanent
injunction against Employee. Employee further agrees that the Company will not
have an adequate remedy at law in the event of any breach by Employee
hereunder and that the Company will suffer irreparable damage and injury if
Employee breaches any of the provisions of this Agreement.
10. Termination for Cause. The Company may terminate this Agreement
without liability (other than for payments accrued to the date of Termination)
if Employee's employment is terminated "for cause". The term "for cause" shall
mean, for the purposes of this Agreement (i) a material breach by Employee of
the provisions of this Agreement, (ii) the commission by Employee of a fraud
against the Company or the conviction of Employee for committing, aiding or
abetting a felony, a fraud, a crime involving moral turpitude or a business
crime, or (iii) the knowing possession or use of illegal drugs or prohibited
substances, unless pursuant to a prescription authorized by a licensed medical
practitioner, the excessive drinking of alcoholic beverages which impairs
Employee's ability to perform his duties hereunder, and the appearance
(reasonably determined) during hours of employment of being under the influence
of such drugs, substances or alcohol.
11. Severance. If the Company terminates this Agreement or the
Employee's employment with the Company for any reason whatsoever, the Company
shall pay to the Employee as a lump sum payment an amount equal to the salary of
the Employee for the immediately preceding six (6) months. This Section 11
shall survive any termination or expiration of this Employment Agreement.
12. Change of Control. In the event there shall be a change in the
present Company as hereinafter defined, or in any person directly or indirectly
presently controlling the Company, as hereinafter defined, Employee shall have
the option, exercisable within six (6) months of his becoming aware of such
event, to terminate this Agreement forthwith. Upon such termination, Employee
shall have the right to immediately receive as a lump sum payment an amount
equal to the salary of the Employee for the immediately preceding six (6)
months.
For purposes of this Agreement, a change in control of the Company,
or in any person directly or indirectly controlling the Company, shall mean:
(a) a change in control as such term is presently defined in Rule
12b-2 under the Securities Exchange Act of 1934 ("Exchange Act"); or
(b) if any "person" (as such term is used in Section 13(d) and 14(d)
of the Exchange Act) other than the Company or any "person" who on the date of
this Agreement is a
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director or officer of the Company, become tire "beneficial owner" (as
defined in Rule 13(d)-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty percent (20%) of the voting power
of the Company's then outstanding securities; or
(c) if during any period of two (2) consecutive years during the
term of this Agreement, individuals who at the beginning of such period
constitute the Board of Directors cease for any reason to constitute at
least a majority thereof, unless the election of each director who is
not a director at the beginning of such period has been approved in advance by
directors representing at least two-thirds (2/3) of the directors then in
office who were directors at the beginning of the period."
13. No Impediments. Employee warrants and represents that he is free
to enter into this Agreement and to perform the services contemplated thereby
and that such actions will not constitute a breach of, or default under, any
existing agreement.
14. No Waiver. The failure of any of the parties hereto to enforce any
provision hereof on any occasion shall not be deemed to be a waiver of any
preceding or succeeding breach of such provision or of any other provision.
15. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto and no amendment, modification or waiver of
any provision herein shall be effective unless in writing, executed by the party
charged therewith.
16. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with, and shall be governed by, the laws of the State of
New York applicable to agreements to be wholly performed therein without giving
effect to principles of conflicts of law.
17. Binding Effect. This Agreement shall bind and inure to the benefit
of the parties, their successors and assigns.
18. Assignment and Delegation of Duties. This Agreement may not be
assigned by the parties hereto except that the Company shall have the right to
assign this Agreement in connection with a sale or transfer of all or
substantially all of its assets, a merger or consolidation. This Agreement is
in the nature of a personal services contract and the duties imposed hereby are
non-delegable.
19. Paragraph Headings. The paragraph headings herein have been inserted
for convenience of reference only and shall in no way modify or restrict any of
the terms or provisions hereof.
20. Notices. Any notice under the provisions of this Agreement shall be
given by registered or certified mail, return receipt requested, directed to
the addresses set forth above, unless notice of a new address has been sent
pursuant to the terms of this paragraph.
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21. Unenforecability; Severability. If any provision of this Agreement
is found to be void or unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall nevertheless be binding upon the
parties with the same force and effect as though the unenforceable part has
been severed and deleted.
22. Counterparts. This Agreement may be executed in one or more
counterpart, all of which shall be deemed to be duplicate originals.
IN WITNESS WHEREOF, The parties hereby have caused this Agreement to be
executed as of the date first above written.
MISONIX, INC.
By: /s/ Xxxxx Xxxxxxxxxxx V.P.
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XXXXXX XXXXXXXX
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