Employment Agreement
This Agreement is entered into this 27th day of November,
1996, by and between THE XXXXX CORPORATION, a Delaware corporation
(the "Company"), and R. XXXXX XXXXXXX ("Employee").
WHEREAS, Employee has served the Company in an executive
capacity for more than ten (10) years pursuant to previously
existing oral agreements;
WHEREAS, the Company recognizes that the Employee's experience
has been and is expected to continue to be of great value to the
Company;
WHEREAS, the Company wishes this Agreement to be an incentive
for the Employee to continue with the Company secure in the
knowledge that he will be compensated for his efforts and his
accomplishments during the Term hereof;
WHEREAS, the Employee is willing to commit the performance of
his services for the Company upon the terms and conditions herein
set forth;
NOW THEREFORE, in consideration of the mutual covenants
contained herein, the Company hereby agrees to employ the Employee
and the Employee hereby agrees to accept such employment upon the
following terms and conditions:
1. Term. The term of Employee's employment (the "Term")
under this Agreement shall commence as of the date hereof and
continue until January 31, 1998. The word "Term" as used herein
includes any extensions thereof.
2. Duties and Responsibilities. During the Term the
Employee is engaged and shall perform such duties and
responsibilities for the Company as may be assigned to him by the
Chief Executive Officer of the Company consistent with the duties
previously performed by Employee. Employee's employment shall be
within 25 miles of Milwaukee, Wisconsin. The Employee may involve
himself in private investments and activities which do not
significantly conflict with his duties under this Agreement and may
serve as a director of such companies on whose board he elects to
serve providing said directorships do not significantly conflict
with his obligations as an Employee hereunder. After the Term,
neither the Company nor the Employee shall have any further
obligations hereunder.
3. Compensation During the Term. The Company agrees to pay
to the Employee during the Term a guaranteed minimum annual salary
at a rate of $125,000 per year. The guaranteed minimum salary
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hereunder shall be payable at intervals not less often than bi-
weekly and subject to usual payroll deductions. During the Term,
the Employee shall not be discriminated against with respect to any
other Company bonus plans or with respect to medical, hospital and
life insurance programs, pension program, and other similar welfare
benefit programs from time to time, in each case, made available to
the Company's officers as a class. The Company shall provide
Employee six (6) week's paid vacation. In addition, nothing herein
shall in any way cancel, reduce or otherwise affect the Employee's
rights to any stock options granted to him in the past or in the
future by the Board of Directors of the Company. During the Term,
the Company shall provide the Employee with office space,
secretarial assistance and other facilities, as may be required in
the proper performance of his duties and responsibilities and shall
reimburse him for expenses reasonably incurred by him the
performance of his duties.
4. Board of Directors
Employee shall during the Term of this contract, if requested,
serve on the Board of Directors of the Company at no additional
charge.
5. Termination By Company.
(a) Disability. During the Term in the event that Employee
shall, because of physical or mental incapacity, be unable
substantially to perform his duties for a period of at least three
(3) successive months and at the end of such period a physician
selected by the Company certifies that it appears unlikely that
Employee will be able to substantially perform his duties for an
indefinite additional period of time because of such physical or
mental incapacity, the Company shall have the right to terminate
the active employment of Employee and end the Term according to the
provision stated herein; provided, however, that in the event that
Employee shall not agree with the certification of disability made
by the physician selected by the Company, to which the Employee
will make himself available for and submit to such examination as
and when requested, Employee may select his own physician who shall
make a determination as to Employee's disability; in the event that
the physician so selected by Employee shall disagree with the
physician selected by the Company, the two physicians shall, within
thirty (30) days, select a third physician whose determination
shall be conclusive and binding on all parties hereto.
Notwithstanding anything herein to the contrary, the Company
may terminate the active employment of Employee and end the Term at
any time after Employee shall have been absent from his employment
for whatever cause, for a continuous period of more than four (4)
months.
In the event of any such termination pursuant to this
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paragraph 5(a), the Company shall continue to pay to the Employee,
through the end of the Term, a salary on a semi-monthly basis at a
rate equal to three-quarters of the guaranteed minimum annual
salary in effect on the date of such termination.
(b) Death. In the event of the death of the Employee, the
Term shall end and the Company shall make, until the end of the
Term, semi-monthly payments at a rate equal to three-quarters of
the guaranteed minimum annual salary in effect on the date of
death. The payments to be made under this Section 5(b) shall not
be reduced by reason of any insurance proceeds payable directly to
the Employee's beneficiaries or estate pursuant to insurance
carried or provided by the Company, and shall be made to such
beneficiary as the Employee may designate for that purpose in
written notice given to the Secretary of the Company prior to his
death, or if the Employee has not so designated, then to the
personal representative of his estate.
(c) Office Location. If Employee is required to travel more
than 25 miles from Milwaukee on a regular basis to perform his
duties hereunder, Employee may terminate this Agreement and receive
in full settlement thereof, the remaining unpaid balance of his
compensation due under paragraph 3 hereof.
6. Mitigation.
The Employee shall not be required to mitigate the amount of
any payments provided for in this Agreement by seeking other
employment or otherwise, and no payments required pursuant to this
Agreement shall be reduced as a result of any other income of
Employee, and any amounts due hereunder shall be absolute.
The Company shall maintain in full force and effect, for the
continued benefit of the Employee for the full Term of this
Agreement, all employee benefit plans and programs in which the
Employee was entitled to participate immediately prior to the date
of termination provided, that if the Employee's continued
participation in any such plan or program is barred by reason of
the operation of law, the Employee shall be entitled to receive an
amount equal to the contributions, payments, credits or allocations
made by the Company to him, to his account or on his behalf under
such plans and programs from which his continued participation is
barred.
7. Successors. The Company will require any successor to
all or substantially all of the business and/or assets of the
Company, to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Employee to compensation from the
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Company in the same amount and on the same terms as he would be
entitled to hereunder.
8. Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be deemed to
have been given when delivered personally or deposited in the U.S.
Mail in a registered, postage prepaid envelope addressed, if to the
Employee at his address set forth below, and if to the Company, c/o
Secretary, at the principal executive office of the Company, or to
such other addresses as either party shall designate by written
notice to the other.
9. Assignment. The Employee may not assign his rights or
obligations hereunder. The rights and obligations of the Company
hereunder shall inure to the benefit of and shall be binding upon
its respective successors and assigns.
10. Miscellaneous.
(a) This Agreement shall be subject to and governed by the
laws of the State of Wisconsin.
(b) The Company agrees to reimburse the Employee for all
costs and expenses incurred by him (including the reasonable fees
for his counsel) in enforcing any of his rights under this
Agreement, including the fees of any arbitrator.
(c) Failure to insist upon strict compliance with any
provisions hereof shall not be deemed a waiver of such provisions
or any other provision hereof.
(d) This Agreement constitutes and expresses the whole
Agreement of parties hereto in reference to any employment of
Employee by the Company, and in reference to any of the matters or
things herein provided for, or hereinbefore discussed or mentioned
in reference to such employment, all promises, representations and
understandings relative thereto herein merged. This Agreement may
not be modified except by an agreement in written executed by the
parties hereto.
(e) The invalidity or unenforceability of any provision
hereof shall not affect the validity or enforceability of any other
provisions.
(f) Any controversy or claim which shall arise between the
parties herein arising out of or relating to this Agreement, or the
breach thereof, may be settled by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association at the election of either party hereto. All such
arbitration proceedings shall be had in the City of Milwaukee,
State of Wisconsin. In the event of such arbitration, judgment
upon the award rendered by the arbitrator, may be entered in any
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court having jurisdiction thereof.
(g) The Company shall not be permitted to withhold any
payments due hereunder when such payments are due and any such
amounts due hereunder may not be withheld as set-off from any
obligations claimed against the Employee. In the event of any
dispute hereunder, all sums due hereunder shall be paid by the
Company in the amount and manner, and at the time or times,
provided for herein, subject to expedient resolution of such
disputes between the parties, and shall not be withheld pending
such resolution. Time is of the essence with respect to any and
all payments due hereunder.
(h) Nothing herein contained shall reduce or otherwise affect
any benefits previously earned and due to Employee at any time
hereafter under prior employment contracts with the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first above written.
THE XXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Chairman of the Board
EMPLOYEE
/s/ R. Xxxxx Xxxxxxx
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