EXHIBIT 10.66
EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made as of this 5th day of April, 1996, by and among
WINCUP HOLDINGS, INC., a Delaware corporation (the "Employer"), and X. XXXXXXXXX
XXXXXXXX (the "Executive").
RECITAL
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The Employer is the sole general partner of WinCup Holdings, L.P.
("WinCup L.P."), a Delaware limited partnership which manufactures and
distributes foam cups, containers and lids and plastic cups and containers.
The parties hereto desire to enter into this Agreement to provide for
the employment of Executive by Employer and for certain other matters in
connection with such employment, all as set forth more fully in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. Employment.
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Employer hereby employs Executive and Executive hereby accepts
employment as Vice President and Treasurer of Employer in accordance with the
terms and conditions hereinafter set forth.
2. Term.
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The term of this Agreement shall be three (3) years commencing on
April 22, 1996, ("Initial Term"), unless earlier terminated pursuant to
Paragraph 7 below; provided, however, that unless earlier terminated pursuant to
Paragraph 7 below, the
Initial Term of this Agreement shall thereafter be renewed from year to year
(each, a "Renewal Term") unless either party gives written notice of termination
to the other at least ninety (90) days prior to the expiration of such Initial
Term or Renewal Term, as the case may be. The Initial Term and any Renewal
Term(s) are hereinafter referred to, collectively, as the "Term."
3. Duties.
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Executive is engaged hereunder as Vice President and Treasurer of
Employer and agrees to perform such duties and services as are customarily
incident to such offices and such other duties and services as may be assigned
to him from time to time by the Board. During his employment hereunder,
Executive shall conduct himself at all times so as to advance the best interests
of Employer; and shall not undertake or engage in any other business activity
which interferes with the performance of his duties without the prior written
consent of Employer, except as stated in Paragraph 9(a)(v) below.
4. Compensation.
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For all services rendered by Executive under this Agreement,
Employer shall pay Executive (collectively, the "Compensation") (a) a bonus of
Sixty Four Thousand Dollars ($64,000), payable immediately upon the execution of
this Agreement by all the parties hereto, (b) a base salary of One Hundred
Twenty Five Thousand Dollars ($125,000) per annum, payable in equal semi-monthly
installments (the "Base Salary"), and (c) such additional compensation,
including bonus, if any, as
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the Board may determine from time to time in its sole discretion. The Base
Salary shall be reviewed annually during the Term and may be increased in the
sole and absolute discretion of the Board based on corporate policy and
Executive's performance.
5. Expenses.
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Executive is authorized to incur reasonable expenses for promoting
Employer's business, including expenses for entertainment, travel, and similar
items. Employer will reimburse Executive for all such expenses upon
presentation by Executive of appropriate vouchers itemizing such expenditures in
a form consistent with Employers' policy.
6. Fringe Benefits.
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a. During the Term of this Agreement, Executive shall be
entitled to such benefits of employment with Employer as are now or may
hereafter be in effect for salaried officers and employees of Employer including
without limitation such insurance, disability, medical, dental and other benefit
plans or programs as are now or hereafter established or maintained by Employer
for employees with duties comparable to those of Executive. Executive shall be
included in any profit-sharing, pension, retirement or other employee benefit
plan of Employer that may include as beneficiaries executive officers of
Employer, whether now in force or subsequently implemented by Employer.
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b. Executive shall also be entitled to reimbursement for all
reasonable moving expenses and relocation costs arising on account of any
relocation of Executive's residence within the first year of this contract.
Moving expenses and relocation costs include, but are not limited to, moving or
cartage company charges, hotel charges and meal costs. Relocation costs include,
but are not limited to, broker's commissions, loan closing costs, discount
points and other costs incident to the sale of Executive's current residence and
the purchase of a new residence.
7. Termination of Employment.
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a. Death of Executive. In the event of the death of Executive
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during the Term, this Agreement shall terminate and Employer shall have no
further obligation or liability hereunder except to pay to Executive's executor
or administrator the portion, if any, of the Compensation earned by Executive
for the period through the date of Executive's death, unless previously paid.
b. Total Disability. In the event of a mental or physical
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condition which in the reasonable opinion of the Board, based upon the
independent medical diagnosis of a physician engaged by Employer for that
purpose, renders Executive unable or incompetent to perform his duties hereunder
("Total Disability"), which condition continues for a period of ninety (90)
consecutive days during the Term of this Agreement, Employer shall have the
right to terminate Executive's employment hereunder by giving
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Executive ten (10) days' written notice thereof and, upon expiration of such
ten-day period, Employer shall have no further obligation or liability under
this Agreement except to pay to Executive the portion, if any, of Executive's
Compensation for the period through the date of termination which is due and
remains unpaid.
c. Resignation. Executive may voluntarily terminate his
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employment under this Agreement by giving Employer written notice effective at
the end of the current Term, not less than ninety (90) days prior to the
expiration thereof. Following the effective date of such resignation, Employer
shall have no further obligation or liability under this Agreement except to pay
to Executive the unpaid portion, if any, of the Executive's Compensation for the
period through the effective date of Executive's resignation which is due and
remains unpaid.
d. Discharge for Cause. The Employer may discharge Executive
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and thereby immediately terminate his employment under this Agreement at any
time for Cause (as hereinafter defined). "Cause" shall be defined as (a) gross
negligence of Executive; (ii) willful failure by the Executive to perform his
duties under this Agreement or material breach of any agreement made by
Executive herein which breach continues uncured for a period of thirty (30) days
after Executive has received written notice thereof; (iii) embezzlement or
conversion by Executive to his own use of any funds of Employer or any client of
Employer; (iv) destruction or conversion to his own use by
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Executive of any property of Employer, without Employer's consent; (v)
Executive's conviction of a felony; (vi) Executive's adjudication as an
incompetent; (vii) Executive's habitual intoxication; or (viii) Executive's drug
addiction. Employer's determination that Cause for termination of Executive's
employment hereunder exists shall be made in good faith by a majority of its
directors (other than Executive in the event Executive shall be a director of
Employer) based upon reasonable evidence presented to such directors. In the
event of termination for Cause, the Employer shall have no further obligations
or liabilities to Executive hereunder, except to pay to Executive, subject to
any claim which Employer may have against Executive for damages, the portion, if
any, of Executive's Compensation for the period through the date of termination
which is due and remains unpaid.
8. Non-Disclosure of Trade Secrets and Other Information.
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Executive agrees that he will not, during the Term of this
Agreement or at any time thereafter, use for himself or divulge to others any
secret or confidential information, knowledge, or data of Employer, developed by
him or obtained by him as a result of his employment, unless authorized by
Employer in writing. It is understood that this applies to information of either
a technical or commercial nature, including secret processes, formulas,
machinery, utensils, manufacturing techniques and arts, customer lists, market
information and the like. The terms 'secret' and 'confidential' shall include
all
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unpublished information and all information and data known to some but not to
all members of the trade or industry to whom such information or data would be
in any manner useful, but not information which Executive obtained, knew or
developed prior to commencing employment with Employer, whether published or
not.
All memoranda, notes, records, or other documents made or compiled
by Executive, or made available to Executive while employed by Employer, are
Employer's property and all copies thereof shall be delivered to Employer on
termination of Executive's employment or at any other time upon the request of
Employer.
9. Restrictive Covenant.
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a. Non-Competition.
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Executive agrees that, so long as he is employed by Employer
pursuant to this Agreement, he will not, directly or indirectly, as a sole
proprietor, member of a partnership, stockholder, investor, officer or director
of a corporation, or as an employee, agent, associate or consultant of any
person, partnership or corporation other than Employer or in any other capacity
except as provided in Paragraph 9(a)(v) below:
(i) own, manage, operate, participate in, perform services
for or otherwise carry on a business similar to or competitive with the business
of Employer within the United States; provided that ownership of not more than
five percent (5%) of the issued and outstanding shares of a class of securities
of a corporation the securities of which are traded on
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a national security exchange or in the over-the-counter market shall not be
deemed ownership of the issuer of such shares for the purposes of this section;
(ii) induce or attempt to persuade any employee of Employer
or any of its affiliates to terminate such employment relationship in order to
enter into any such relationship with such person or to enter into any such
relationship on behalf of any other business organization in competition with
Employer or any of its affiliates;
(iii) solicit any business related to the business conducted
by Employer from any clients, customers, or prospective or former clients or
customers of Employer or its affiliates; or
(iv) perform services of any nature for any entity which
engages in or conducts any business that competes with, restricts or interferes
with the business of Employer.
(v) Nothing in this Paragraph 9(a) shall be construed to
prevent the Executive from taking advantage or developing corporate
opportunities which have first been presented to Employer for development, but
which Employer elects not to pursue.
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b. Injunctive Relief. Without limiting the right of Employer or
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any of its successors or permitted assigns to pursue all other legal and
equitable rights available to it for violation of the covenants set forth in
subparagraph 9(a) hereof, it is agreed that such other remedies cannot fully
compensate Employer and its successors and assigns for such a violation and that
Employer and its successors and assigns shall be entitled to injunctive relief
to prevent violation or continuing violation hereof. It is the intent and
understanding of each party hereto that if, in any action before any court or
agency legally empowered to enforce this covenant, any term, restriction,
covenant or promise is found to be unreasonable and for that reason
unenforceable, then such term, restriction, covenant or promise shall be deemed
modified to the extent necessary to make it enforceable by such a court or
agency.
10. Arbitration.
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Except as provided in subparagraph 9(b) hereof, any controversy or
claim arising out of or relating to this Agreement or the breach thereof shall
be settled by arbitration in Philadelphia, Pennsylvania, in accordance with the
rules of the American Arbitration Association and any decision made in
accordance with such rules shall be binding on all parties in interest, and
judgment upon any award rendered may be entered in any court having jurisdiction
thereof.
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11. Waiver of Breach.
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The waiver by Employer or Executive, as the case may be, of a
breach of any provision of this Agreement by Executive or Employer, as the case
may be, will not operate or be construed as a waiver of any subsequent breach by
Executive or Employer, as the case may be.
12. Entire Agreement.
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This instrument contains the entire Agreement of the parties with
respect to the employment of Executive by Employer. It may not be changed
orally, but only by an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification, extension or discharge is
sought.
13. Severability.
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If any provision of this Agreement shall be invalid or
unenforceable, in whole or in part, such provision shall be deemed to be
modified or restricted to the extent and in the manner necessary to render the
same valid and enforceable, or shall be deemed excised from this Agreement, as
the case may require, and this Agreement shall be construed and enforced to the
maximum extent permitted by law, as if such provision had been originally
incorporated herein as so modified or restricted, or as if such provision had
not been originally incorporated herein, as the case may be.
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14. Notices.
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All notices required or permitted to be given hereunder shall be
in writing and shall be deemed to have been given when actually received. If
such notice is mailed, it shall be deposited, registered or certified, return
receipt requested, in the United States mail, or by commercial overnight courier
such as Federal Express, addressed to the intended recipient as follows:
If to the Executive:
Xx. X. Xxxxxxxxx Xxxxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Employer:
WinCup Holdings, Inc.
000 Xxxxxxxxxxxx Xxxxxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Chairman
Any party hereto may from time to time change its address for the purpose of
notice to that party by a similar notice specifying a new address, but no such
change shall be deemed to have been given until it is actually received by the
parties sought to be charged with its contents.
15. Bind and Inure.
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This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors in interest.
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16. Governing Law.
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This Agreement is made in and shall be construed in accordance
with and governed by the laws of the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement on the day and year first above written.
EMPLOYER:
WINCUP HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Chairman
EXECUTIVE
/s/ X. Xxxxxxxxx Xxxxxxxx
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X. Xxxxxxxxx Hastings
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