EX-10.1 3 dex101.htm EMPLOYMENT AND CONSULTING AGREEMENT EMPLOYMENT AND CONSULTING AGREEMENT
Exhibit 10.1
EMPLOYMENT AND CONSULTING AGREEMENT
This EMPLOYMENT AND CONSULTING AGREEMENT (the “Agreement”), entered into on the 28th day of January, 2008, by and between SPECTRUM CONTROL, INC. (the “Company”) and XXXXXXX X. XXXXXXXXXX (“Xxxxxxxxxx”) is amended by this documents as of the 9th of November 2009.
B A C K G R O U N D
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(A) The Employment Term shall terminate upon the occurrence of any of the following events: (i) the end of the Employment Term; (ii) immediately upon the retirement or death of Xxxxxxxxxx; (iii) upon the close of business on the date the Company gives Xxxxxxxxxx notice of Termination for Just Cause (as defined below); or (iv) immediately upon the occurrence of the Permanent Disability of Xxxxxxxxxx (as defined below).
(B) For the purposes of this Agreement:
1. “Termination for Just Cause” shall mean termination of the employment of Xxxxxxxxxx for or as a result of (i) an act or acts by Xxxxxxxxxx, or any omission by Xxxxxxxxxx, constituting a felony; (ii) any act of fraud; or (iii) or any breach of the terms of this Agreement by Xxxxxxxxxx.
2. “Permanent Disability” shall mean Xxxxxxxxxx is unable to perform the essential functions of Xxxxxxxxxx’x job with or without reasonable accommodation as a result of a physical or mental disability or infirmity which has continued for more than one hundred twenty (120) consecutive days or for a period of two hundred (200) days within any three hundred sixty (360) day period. Xxxxxxxxxx agrees to submit medical evidence regarding any disability or infirmity, including making himself available for medical examination, as is reasonably requested by the Company. Xxxxxxxxxx agrees that the determination of his permanent disability by the Board of Directors shall be conclusive.
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(C) If Xxxxxxxxxx’x employment under this Agreement is terminated prior to the expiration of the Employment Term the parties agree that Xxxxxxxxxx shall be compensated as follows:
1. If Xxxxxxxxxx should retire or voluntarily leave the employment of the Company for any reason he shall only be entitled to receive the salary due him and any vacation pay which is accrued but unpaid as of the date of termination.
2. If Xxxxxxxxxx should be terminated by the Company other than Termination for Just Cause, he shall be entitled to receive the salary due him and any vacation pay which is accrued but unpaid as of the date of termination. He shall also receive a severance payment equal to twelve months of his then current salary, and a payment of the amount he received under the ARC for the prior fiscal corporate year. The severance payment and the ARC payment will be made in twelve equal monthly payments.
3. If Xxxxxxxxxx should be terminated due to Permanent Disability he shall be entitled to receive the salary due him and any vacation pay which is accrued but unpaid as of the date of termination. He shall also receive a severance payment equal to twelve months of his then-current salary. The severance payment shall be paid in twelve equal monthly installments.
4. If Xxxxxxxxxx is terminated is due to his death, Xxxxxxxxxx’x estate or legal representative shall be paid the salary due him and any vacation pay which is accrued but unpaid as of the date of his death. His estate shall receive a severance payment equal to twelve months of his then-current salary. The severance payment shall be paid in twelve equal monthly installments.
5. If Xxxxxxxxxx shall be Terminated for Just Cause he shall only receive the salary due him and any vacation pay which is accrued but unpaid as of the date of termination.
2. Xxxxxxxxxx agrees that the payments expressly provided by this section 5 shall be the sole and exclusive remedy and Xxxxxxxxxx covenants not to assert or pursue any other remedies, at law or in equity, with respect to his termination from employment during the Employment Term.
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(A) The Consulting Term shall terminate upon the occurrence of any of the following events: (i) the end of the Consulting Term; (ii) immediately upon the death of
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Xxxxxxxxxx; (iii) upon the close of business on the date the Company gives Xxxxxxxxxx notice of Termination for Just Cause; (iv) immediately upon the occurrence of the Permanent Disability of Xxxxxxxxxx; (v) delivery of thirty (30) days’ written notice from the Company to the Consultant; or (vi) delivery of thirty (30) days’ written notice from the Consultant to the Company (“Voluntary Termination”).
(B) For the purposes of this Agreement:
1. “Termination for Just Cause” shall have the meaning set forth in Article I, Section 5(B)(1) above.
2. “Permanent Disability” shall have the meaning set forth in Article I, Section 5(B)(2) above.
(C) If Xxxxxxxxxx’x Consulting Agreement shall be terminated prior to the expiration of the Consulting Term the parties agree that Xxxxxxxxxx would be compensated as follows:
1. If during the Consulting Term the engagement of Xxxxxxxxxx is terminated by the Board of Directors or the Company, Xxxxxxxxxx shall be entitled to be compensated $100,000.00 annually for the remaining years of the Consulting Term under Terms and Conditions to be determined by the Board of Directors at the time of termination.
2. If Xxxxxxxxxx shall be terminated by the Board of Directors or the Company due to Permanent Disability the obligation to compensation Xxxxxxxxxx shall cease immediately upon such termination, provided however, that the Company shall pay Xxxxxxxxxx any portion of the annual fee ($100,000.00) “earned” but unpaid through the date of termination as determined by the Company.
3. If Xxxxxxxxxx should be terminated due to his death, the Company’s obligation to compensate Xxxxxxxxxx shall cease immediately upon such death, provided however, that the shall pay Xxxxxxxxxx’x estate any portion of the annual fee ($100,000.00) “earned” but unpaid through the date of termination.
4. If Xxxxxxxxxx shall be Terminated for Just Cause by the Board of Directors or the Company, the Company’s obligation to compensate Xxxxxxxxxx shall cease immediately upon such termination, provided however, that the Company shall pay Xxxxxxxxxx any portion of the annual fee ($100,000.00) “earned” but unpaid through the date of termination as determined by the Company.
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2. Xxxxxxxxxx agrees that the payments expressly provided by this section 6 shall be the sole and exclusive remedy and Xxxxxxxxxx covenants not to assert or pursue any other remedies, at law or in equity, with respect to his termination from engagement during the Contract Term.
ARTICLE III. MISCELLANEOUS PROVISIONS
(A) During the term of this Agreement and after the termination of this Agreement, Xxxxxxxxxx shall not, without the written consent of the board of directors of the Company, disclose to any other person, other than an employee of the Company or its subsidiaries and affiliates or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance by Xxxxxxxxxx of his duties hereunder, any Confidential Information obtained by him while in the employ, or engaged as a consultant, of the Company or its subsidiaries and affiliates. “Confidential Information” shall mean, without limitation, with respect to the contents of Company’s manuals, customers, estimating procedures, pricing structure, marketing plans, bidding procedures, the terms of any agreement of the Company or its subsidiaries and affiliates with any person, the terms of any past or present price quotations, or any related information, disclosure of which will be damaging to the Company or its subsidiaries and affiliates; provided, however, that Xxxxxxxxxx may disclose, upon ten (10) business days advance written notice to the Company, such information as may be ordered disclosed by a judge in connection with any judicial or administrative proceeding; and, providing further, that “Confidential Information” shall not include any information known generally to the public or the industry.
(B) Xxxxxxxxxx further covenants and agrees that every document, computer disk, computer software program, notation, record, diary, memorandum, development, investigation, or the like, and any method or manner of doing business of the Company or its subsidiaries or affiliates (or containing confidential information as provided above) made or acquired by Xxxxxxxxxx during, and in the course of, his employment or engagement as a consultant with the Company, is and shall be the sole and exclusive property of the Company, as applicable, and shall constitute “works-for-hire.” Xxxxxxxxxx will deliver the same (and every copy, disk, abstract, summary, or reproduction of same made by or for Xxxxxxxxxx or acquired by Xxxxxxxxxx) whenever Company may so require and in any event prior to or at the termination of said employment or engagement as a consultant.
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2. Covenant Not To Solicit; Covenant Not To Compete.
1. Agreement Not To Compete During Employment With, Or While Engaged As A Consultant Of, The Company
Xxxxxxxxxx agrees that, during his employment with the Company, while engaged as a consultant by the Company, and any period during which Xxxxxxxxxx may be receiving severance benefits, he shall not directly or indirectly, for compensation or otherwise, alone or as an agent, principal, partner, officer, employee, trustee, director, stockholder, or in any other capacity, (1) own, manage, operate, join, control; (2) participate in the ownership, management, operation or control of; (3) furnish any capital to or be connected in any manner with; or (4) provide any services as an employee or as a consultant for any business which competes within the marketplace with the business of the Company or its subsidiaries and affiliates for which Xxxxxxxxxx has performed services.
Xxxxxxxxxx further agrees that, for a six month period following the later of separation of employment, the termination of the consulting engagement or the completion of any severance benefits hereunder for any reason (Xxxxxxxxxx’x “Date of Separation”), he shall not directly or indirectly engage in the following, or aid or counsel any other person to engage in, the following:
(a) approach or attempt to induce any employee of the Company or its subsidiaries and affiliates to leave his or her employment;
(b) approach or solicit for business any person or company who has been a customer of the Company or its subsidiaries and affiliates at any time within the twelve-month period immediately prior to the Date of Separation;
(c) approach or solicit for business any person or company to whom the Company or its subsidiaries and affiliates for which Xxxxxxxxxx has performed services, submitted a formal written proposal within the twelve-month period immediately prior to the Date of Separation; or
(d) accept employment with a competitor to perform similar duties for a person or company unless (1) Xxxxxxxxxx was terminated by Company without cause prior to the end of the Employment Term, or (2) the Company agrees to provide Xxxxxxxxxx with written approval to accept such employment.
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benefits arising out of any violation of this section, including, without limitation, estimated future earnings. In the event that the provisions of this section should ever be deemed to exceed the time, geographic, product or any other limitations permitted by applicable law, then such provisions shall be deemed reformed to the maximum permitted by applicable law.
(C) Jurisdiction. Company and Xxxxxxxxxx intend to and do hereby confer jurisdiction to enforce the covenants set forth in this section upon the courts of Erie, Pennsylvania. If the courts of said jurisdiction hold such covenants unenforceable in whole or in part, it is the intention of Company and Xxxxxxxxxx that such determination not bar or in any way adversely affect the right of Company and its affiliates to equitable relief and remedies hereunder in courts of any other jurisdiction as to breaches or violations of this section, such covenants being, for this purpose, severable into diverse and independent covenants.
5. Injunctive Relief. Xxxxxxxxxx expressly acknowledges that any breach or threatened breach by Xxxxxxxxxx of any of the terms set forth in Article I, Section 2; Article III, Section 1; or Article III, Section 2 of this Agreement may result in significant and continuing injury to the Company, the monetary value of which may be impossible to establish. Therefore, Xxxxxxxxxx agrees to submit to the jurisdiction of the courts (federal or state) of the Commonwealth of Pennsylvania and agrees that the Company shall be entitled to injunctive relief in Pennsylvania or any other jurisdiction and any other court of appropriate jurisdiction. The provisions of this section shall survive the Employment Term.
8. Governing Law and Venue. This Agreement takes effect on the date hereof and shall be governed by, construed and enforced, in accordance with the laws of the Commonwealth of Pennsylvania without regard to conflict of law principles.
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valid unless in writing and signed by or on behalf of the party who is bound. A waiver of the breach of any term or condition of this Agreement shall not be deemed to constitute a waiver of any subsequent breach of the same or any other term or condition. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any person or circumstance, shall, for any reason and to any extent, be held invalid or unenforceable, such invalidity and unenforceability shall not affect the remaining provisions hereof and the application of such provision to other persons or circumstances, all of which shall be enforced to the greatest extent permitted by law. The compensation provided to Xxxxxxxxxx pursuant to this Agreement shall be subject to any withholdings and deductions required by any applicable tax laws. Any amounts payable to Xxxxxxxxxx hereunder after the death of Xxxxxxxxxx shall be paid to Xxxxxxxxxx’x estate or legal representative. The headings in this Agreement are inserted for convenience of reference only and shall not be part of or control or affect the meaning of any provision. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered (which deliveries may be made by telefax) shall be deemed to be an original, and all of which counterparts taken together shall constitute but one and the same instrument.
| SPECTRUM CONTROL, INC. | ||
| By: |
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| Name: G.A. Xxxx | ||
| Title: Chairman of the Board | ||
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| Name: Xxxxxxx X. Xxxxxxxxxx |
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CONSULTING AGREEMENT
THIS AGREEMENT (this “Agreement”), dated as of the 11th day of January, 2011 (the “Effective Date”), is between Xxxxxxx Consulting, LLC, a Limited Liability Company formed under Delaware law (“Company”) with an address at , and GCC International (Panama) Corp., a Panamanian corporation having an office at (“GCC”).
NOW, THEREFORE, the Company and GCC agree as follows:
(a) The term of this Agreement will commence on the Effective Date and continue until the first anniversary of the Effective Date (the “Term”). Thereafter, the Term will be automatically renewed for successive terms of one (1) year, each upon the same terms and conditions set forth in this Agreement. Either party may terminate this Agreement for any reason upon thirty (30) days prior written notice by the terminating party to the other party.
(b) GCC hereby engages the Company, and the Company agrees, to provide consulting services to GCC on an as-needed basis with respect to such matters relating to the Business as GCC may reasonably request (the “Services”).
(c) The Company will be paid an annual consulting fee of $ for the rendering of the Services by the Company to GCC, payable periodically throughout the year, as mutually agreed by the parties for the following factors:
(i) increase to the number of employees of GCC;
(ii) increases to the profit of GCC;
(iii) greater volume of business of GCC; and
(iv) contests or races by customers of GCC that GCC wins.
(d) GCC will reimburse the Company for reasonable out-of pocket expenses, which are incurred by the Company in rendering the Services. For all such expenses, the Company must furnish to GCC statements, receipts and vouchers as and when required by and to the reasonable satisfaction of, GCC.
(e) The Company may hire or assign its own personnel (the “Peresonnel”), on the Company’s own terms (and without the consent of GCC), to undertake the Services.
(a) The Company and the Personnel, in performance of their obligations hereunder, will have access to, and will gain knowledge with respect, to trade secrets, know-how, financial results and information, processes and techniques, technical production and cost data, methods of doing business, information concerning customers and suppliers, and related confidential and proprietary information that is unique to the Business of GCC (such unique information, herein referred to as the “Confidential Information”).
(b) The Company acknowledges that unauthorized disclosure or misuse of the Confidential Information by the Company or the Personnel from and after the date hereof will result in irreparable damage to GCC. The Company also acknowledges and agrees with GCC that covenants by the Company not to make disclosure of the Confidential Information are essential to the growth and stability of the Business in the hands of GCC. Accordingly, the Company agrees and covenants not to use or disclose from and after the date hereof any Confidential Information obtained by the Company or the Personnel while rendering the Services pursuant to this Agreement, other than in the performance of their obligations under this Agreement, and the Company indemnifies GCC for any breach of this Section 2 by itself or any of the Company’s personnel. The provisions of this Section shall survive the expiration or termination of this Agreement.
3. Equitable Remedies; Severability.
(a) Because a remedy at law for any breach of the provisions of Section 2 hereof will be inadequate, in addition to all other remedies available to the parties, the parties shall have the remedies of a restraining order, injunction or other equitable relief to enforce the provisions of Sections 2.
(b) In the event that any one or more of the restrictions in Section 2 is found to be unreasonable by a court of competent jurisdiction, the parties shall agree and submit to the reduction of said restrictions as such court may determine to be reasonable. In the event that any restriction set forth in Section 2 hereof is found to be unreasonable or otherwise invalid in any jurisdiction, in whole or in part, the parties hereby agree that such restrictions shall remain and be valid in all other jurisdictions.
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| XXXXXXX CONSULTING, LLC | ||||
| By: |
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| Xxxxxx Xxxxxxx, Member | ||||
| GCC INTERNATIONAL (PANAMA) CORP. | ||||
| By: |
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| Name: |
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| Title: |
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