EMPLOYMENT AGREEMENT
This Agreement hereinafter called "the Agreement" is made and entered
into by and between Canisco Resources, Inc. ("the Company"), a Delaware
corporation, of 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, 00000 and Xxxxxxx X.
Xxxxx, ("the Executive") of 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxxxx 00000.
1.
EMPLOYMENT AND DUTIES OF THE EXECUTIVE
The Company hereby continues the employment of the Executive and the
Executive does hereby accept such employment as an executive of the Company and
agrees to perform the duties reasonably required by him by the Board of
Directors of the Company to the best of his ability. The services required of
the Executive shall be substantially the same as the services required of the
Executive by the Company prior to the Agreement. The Executive shall not be
required to relocate the Executive's residence without agreement between the
Executive and the Company. However, the Company may require the Executive to
provide such services in other geographical areas of the United States, provided
that the time and extent of such services shall not render the Executive's
travel and absence from his residence unreasonably burdensome. The Executive
shall devote his entire time, attention and energies to the business of the
company and its affiliates and shall not enter into the service of, or be
employed in any capacity or for any purpose whatsoever by any other person, firm
or corporation other than the Company and its affiliates or engage in
industrial, marine or commercial painting business as more particularly provided
in Article 4 hereof, without the express prior written consent of the Company,
it being the intention of the Company and the Executive that this employment
represents a full-time duty and responsibility. The expenditure of
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a reasonable amount of time for personal, outside business and charitable
activities do not materially interfere with the services required to be rendered
to the Company hereunder. The making of personal investments and the conduct of
private business affairs shall not be prohibited hereunder.
2.
TERM AND TERMINATION
A. The terms of the Agreement shall commence upon the effective date of
this document and shall terminate on the earlier to occur of the
Executive's death or on the happening of the following events:
1) Not less than twelve (12) months from the time the Company
gives notice in writing of termination.
2) Not less than twelve (12) months from the time the Executive
shall give notice of termination in writing to the Company.
3) Whenever the Company or the Executive shall mutually agree in
writing to a termination when the period of notice may be
altered or waived by mutual consent.
4) In the event that the Executive neglects, refuses or fails
faithfully and diligently to render services to the extent and
in the manner herein provided or otherwise commits a breach of
the Agreement other than by reason of his physical or mental
disability or death and provided further that the Executive
shall have had fifteen (15) days prior notice and opportunity
to cure and has failed to cure such breach within the
aforesaid fifteen (15) day period in the reasonable judgement
of the Board of Directors of the Company.
5) Embezzlement or gross malfeasance.
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3.
COMPENSATION
A. As full compensation for the services to be rendered by the Executive
hereunder, including but not limited to, and as consideration for the
observance of the provisions of Article 4 hereof, the Company shall pay
the Executive and the Executive shall accept, a salary and bonus
pursuant to the terms of Schedule A attached hereto. In the event that
the Executive's employment shall be terminated by death or for any
reason provided in Article 2 (1), (2) or (3) hereof, the Company shall
only be obligated to pay the Executive or his legal representative, as
the case may be, any unpaid portion of his salary or bonus at the rate
herein provided, which would have been earned had the Executive
remained in the employment of the Company until the end of the calendar
month in which such termination occurs. In addition, the Executive
shall be entitled to other compensation and/or benefits as provided for
in Article 3, C. and D. of this Agreement. In the event that the
Executive's employment shall be terminated by virtue of Article 2 (4)
or (5) the Company shall not be obliged to pay the Executive any part
of the bonus earned in the accounting period or any bonus earned, but
unpaid, in respect of the prior accounting period.
B. In the event that the Executive is unable to render services to the
extent and in the manner provided herein as a result of physical or
mental disability for a period of ninety (90) consecutive days, the
Company shall pay the Executive his full salary for such period, and
shall in addition pay the Executive as bonus an amount equal to that
proportion of the bonus calculated as payable to the Executive for the
whole accounting period as that portion of the
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accounting period ending ninety (90) consecutive days after the
commencement date of such disability bears to the whole accounting
period.
C. The company shall purchase at its expense for the benefit of the
Executive disability income insurance in face amount sufficient to
provide monthly payments to the Executive in an amount equal to sixty
percent (60%) of the Executive's monthly salary per month for the
period commencing the first day succeeding ninety (90) consecutive days
from the commencement of such disability as determined pursuant to the
terms of Article 3, B. hereof and ending upon the earlier of the
Executive's death or 65th birthday. Failure of the Company to purchase
said insurance will not waive the Company's obligation to provide such
benefit.
D. The Company shall make available to the Executive on a full-time basis,
an automobile for use in connection with the Company's business and
shall reimburse the Executive for all ordinary and necessary expense in
connection with such use. Participation in group life, major medical,
and other employee benefit plans, vacations and other provisions of the
Executive's employment not herein specifically provided for, shall be
consistent with the benefits provided the Executive prior to this
Agreement.
4.
COMPETITIVE RESTRICTIONS
A. In order to render effective the Agreement of the Executive relating to
the Company or any affiliated company's trade secrets, and as
consideration for the execution of the Agreement by the Company, the
Executive agrees that he will not, during the term of his employment
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with the Company and for a period of one (1) year hereafter: (a) for
himself, or as stockholder, director, officer, partner, agent,
consultant or employee of any other person, firm or corporation, render
any services in connection with any business which is engaged in
industrial, marine or commercial painting and related contracting
services to or for any customer of the company or any affiliated
company for which any such company performed services during the twelve
(12) months preceding the termination of the Agreement, or (b) solicit
or assist others in soliciting any employee of the Company or any of
its affiliates or subsidiaries to terminate their employment with the
Company or any of its affiliates or subsidiaries.
The foregoing limitations shall not prohibit the Executive from owning
stock in any publicly owned corporation so long as such ownership is
not coupled with the rendition of services described in the preceding
sentence. In the event that the provisions of this paragraph should
ever be deemed to exceed the time, geographic or occupational
limitations permitted by the applicable laws, the Executive and the
Company agree that such provisions shall be and are hereby modified to
the maximum time, geographical or occupational limitations permitted by
the applicable laws.
B. The Executive agrees that he will not, during or after the term of this
Agreement, use or disclose to any person, firm, company, partnership,
business trust, individual or other business entity any trade secrets
or proprietary information concerning the Company's or any of its
affiliates' products, services, business, proposed products and
services, marketing strategy and research and development activities;
except that nothing herein shall be construed to prohibit him from
using or disclosing such information if it shall become public
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knowledge other than by or as a result of disclosure by a person not
having a right to make such disclosures and complying with legal
process.
C. The Executive agrees that all memoranda, notes, records, charts,
formulae and other documents made, compiled or received, held or used
by the Executive while employed by the Company concerning any phase of
the Company's or any affiliated company's business or its trade
secrets, shall be the Company's property and shall be delivered by the
Executive to the Company on the termination of the Agreement or at an
earlier time upon request of the Company.
D. The Executive agrees promptly to disclose in writing to the company any
invention or discovery made by him during his employment, whether
during or after working hours, which relates to any matter or product
dealt in by the Company or any of its affiliates or related in any
manner to the Company's or any of its affiliates' business, and such
inventions and discoveries shall be the Company's or such affiliates'
sole property. Upon the Company's request, whether during or after the
term of his employment, the Executive shall execute and assign to the
Company or one or more of its affiliates all applications for
copyrights and letters patent of the United States and such foreign
countries as the Company may designate, and shall deem necessary to
vest in the Company or such affiliates the sole ownership of all
exclusive rights in and to such inventions and discoveries, as well as
the copyrights and/or patents. If services in connection with
application for copyrights and/or patents are performed by or at the
Company's request after the termination of his employment, the Company
shall pay him reasonable compensation for such services rendered after
termination of this Agreement.
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E. The Executive agrees that his violation of any of the provisions of
this Agreement shall cause immediate and irreparable harm to the
Company and, in such event, (i) any Incentive Payment which is
otherwise payable to the Executive pursuant to the terms of this
Agreement shall immediately be forfeited, and (ii) an injunction
restraining the Executive from such violation may be entered against
him in addition to any other relief available to the Company. In the
event an injunction is issued against any such conduct by the
Executive, the period referred to in Paragraph 4, A. of this Agreement
shall continue until the later of the expiration of the period set
forth therein or one (1) year from the date a final judgement enforcing
such provisions is entered and the time for appeal has lapsed.
F. In addition to all other remedies at law or in equity which the Company
will or may have for the breach of this covenant by the Executive, the
Company shall have in the event of any breach or attempted or
threatened breach of this covenant, the right to obtain an injunction
against the Executive prohibiting such breach or such attempted or
threatened breach, merely by proving the existence of such breach and
without the necessity of proving either inadequacy of legal remedies or
irreparable harm.
5.
MISCELLANEOUS
A. In any provision of the Agreement shall be held to be invalid, illegal
or unenforceable for any reason whatsoever, (i) the validity, legality
or enforceability of the remaining provisions of the Agreement shall
not in any way be affected or impaired and (ii) to the fullest extent
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possible, the provisions of the Agreement shall be construed as to give
effect to the intent manifested by the provision held invalid, illegal
or unenforceable.
B. No supplement, modification or amendment of the Agreement shall be
binding unless executed in writing by the Company and Executive. No
waiver of any of the provisions of the Agreement or action by either
party shall be deemed or shall constitute a waiver of any other
provision (whether or not similar) nor shall such waiver constitute a
continuing waiver.
C. Any requests, notices or other communications given or required to be
given under this Agreement shall be in writing and service thereof
shall be sufficient if sent by hand, by certified or registered mail,
return receipt requested, with postage prepaid, or by telegram,
facsimile transmission or other similar means of communication by mail
as aforesaid to Xxxxxxx X. Xxxxx at 0000 Xxxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxx Xxxxxx 00000 and to the Company at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
Each party may, by like notice, designate a different address to which
notices should thereafter be sent. Unless the Agreement shall otherwise
provide, any notice given in accordance with this Paragraph shall be
deemed to have been given when received.
D. Except as otherwise provided for, this Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the
Company. This Agreement shall not be assignable by the Executive.
E. This Agreement constitutes the entire Agreement of the Company and the
Executive as to the subject matter hereof, superseding all prior
written or prior or contemporaneous oral
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understandings or agreements and may not be modified or amended except
by writing designated as a modification which specifically refers to
this Agreement and is signed by both parties hereto. This Agreement may
be executed simultaneously in two or more counterparts, each of which
shall be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or amount for more than one such
counterpart.
F. The parties acknowledge that the Change of Control Senior Executive
Severance Agreement has been executed simultaneously herewith. In the
event the Executive is terminated and compensated pursuant to the
Change of Control Agreement, the terms and conditions of this
Employment Agreement shall be null and void, including but not limited
to the restrictive covenants contained herein.
G. The parties hereto agree that the Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of
Delaware.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date written below.
Canisco Resources, Inc.
By: /s/ X. Xxxxxxxx
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Chairman
Compensation Committee
Date: 11/15/96
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By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
"Executive"
Date: 1/23/97
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