Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("AGREEMENT") is made and entered into as of the 7th day of
January, 2002, by and between SOVEREIGN SPECIALTY CHEMICALS, INC., a Delaware
corporation (the "COMPANY"), and XXXX X. XXXX (the "EMPLOYEE"). The Company and
the Employee are sometimes hereinafter collectively referred to as the "PARTIES"
and individually as a "PARTY." Certain capitalized terms used in this Agreement
are defined in Article VII hereof.
RECITALS
A. The Company is and will be engaged in the manufacture of lines of
adhesives, sealants and coatings. The Company wishes to employ the Employee, and
the Employee wishes to be employed by the Company, as the Company's President --
Industrial Division. As a condition of that employment, the Company requires
that an employment agreement be entered into pursuant to which the Employee
furnishes the Company with, among other things, certain covenants of the
Employee, including his covenant not to compete with the businesses of the
Company, its Subsidiaries and their Affiliates.
B. In order to induce the Employee to enter into this Agreement, and to
incentivize and reward his effort, loyalty and commitment to the Company,
concurrent with the execution and delivery of this Agreement the Company has
granted to the Employee a certain stock option (the "OPTION") to purchase shares
of Common Stock of the Company ("SHARES") under and pursuant to the terms of the
"Sovereign Specialty Chemicals, Inc. Stock Option Plan" (the "PLAN") and a Stock
Option Agreement in the form of Exhibit C attached hereto and by this reference
made a part hereof (the "STOCK OPTION AGREEMENT").
C. The Employee acknowledges that as a member of the Company's
management, he is one of the persons charged with primary responsibility for the
implementation of the Company's business plans, and that he will have regular
access to various confidential and/or proprietary information relating to the
Company, its Subsidiaries, their Affiliates and their businesses. Further, the
Employee acknowledges that his covenants to the Company hereinafter set forth,
specifically including but not limited to the Employee's covenant not to engage
in competition with the Company, its Subsidiaries, their Affiliates and their
businesses, are being made in partial consideration of the Company's grant of
the Option to the Employee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, and the mutual
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby mutually acknowledged, the parties
hereby agree as follows:
ARTICLE I
EMPLOYMENT RELATIONSHIP
1.1 EMPLOYMENT. Subject to the terms and conditions of this Agreement,
the Company hereby agrees to employ the Employee to serve as the Company's
President -- Industrial Adhesives Division, and the Employee hereby accepts such
employment, and agrees to perform his duties and responsibilities to the best of
his abilities in a diligent, trustworthy, businesslike and efficient manner.
1.2 DUTIES. The Employee shall have the normal and customary duties,
responsibilities and authority of a division President and shall perform such
other duties on behalf of the Company, its Subsidiaries and their Affiliates as
may be assigned to him by the Chief Executive Officer of the Company. In
connection with the Employee's performance of his duties, he shall report to the
Chief Executive Officer of the Company or, if designated by the Chief Executive
Officer, the President or Chief Operating Officer of the Company.
1.3 EXCLUSIVE EMPLOYMENT. While he is employed by the Company hereunder,
the Employee covenants to the Company that he will devote his entire business
time, energy, attention and skill to the Company, its Subsidiaries and their
Affiliates (except for permitted vacation periods and reasonable periods of
illness or other incapacity), and use his good faith best efforts to promote the
interests of the Company, its Subsidiaries and their Affiliates. The foregoing
shall not be construed as prohibiting the Employee from spending such time as
may be reasonably necessary to attend to his personal affairs and investments so
long as such activities do not conflict or interfere with the Employee's
obligations and\or timely performance of his duties to the Company, its
Subsidiaries and their Affiliates hereunder.
1.4 EMPLOYEE REPRESENTATIONS. The Employee hereby represents and
warrants to the Company that:
(a) the execution, delivery and performance by the Employee of
this Agreement and any other agreements contemplated hereby to which the
Employee is a party do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment
or decree to which the Employee is a party or by which he is bound;
(b) the Employee is not a party to or bound by any employment
agreement, non-competition agreement or confidentiality agreement with any
other person or entity (or if a party to such an agreement, the Employee
has disclosed the material terms thereof to the Board prior to the
execution hereof and promptly after the date hereof shall deliver a copy
of such agreement to the Board); and
(c) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of the
Employee, enforceable in accordance with its terms.
-2-
The Employee hereby acknowledges and represents that he has consulted with
independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
ARTICLE II
PERIOD OF EMPLOYMENT
2.1 EMPLOYMENT PERIOD. The Employee's employment hereunder shall
commence on the date hereof and shall continue hereunder until the date fixed by
the provisions of Section 2.2 hereof, subject to the early termination
provisions of Article V hereof (the "EMPLOYMENT PERIOD"), it being acknowledged
that the Company's fiscal year ends on December 31, and that the Employment
Period shall therefore be denominated in calendar years.
2.2 INITIAL TERM OF EMPLOYMENT PERIOD AND EXTENSION TERMS. The
Employment Period shall initially continue for a term commencing on the date
hereof and ending on December 31, 2004 (the "INITIAL TERM"). The Employment
Period shall be automatically extended for successive calendar years of the
Company following the expiration of the Initial Term (each such one year period
being hereinafter referred to as an "EXTENSION TERM") upon the same terms and
conditions provided for herein unless either party provides the other party with
advance written notice of its or his intention not to extend the Employment
Period; provided, however, that such notice must be delivered by the
non-extending party to the other party not later than ninety (90) days prior to
the expiration of the Initial Term or any Extension Term, as the case may be.
ARTICLE III
COMPENSATION
3.1 ANNUAL BASE COMPENSATION. During the Employment Period the Company
shall pay to the Employee an annual base salary (the "ANNUAL BASE COMPENSATION")
in the amount of $225,000.00. The Annual Base Compensation shall be paid in
regular installments in accordance with the Company's general payroll practices,
and shall be subject to all required federal, state and local withholding taxes.
The Employee's Annual Base Compensation shall be reviewed by the Board annually,
and may, in the discretion of the Board be increased, provided that there shall
be no obligation on the part of the Company to increase the Employee's Annual
Base Compensation, further provided that in no event shall the Employee's Annual
Base Compensation be less than the greater of (i) the amount indicated in the
first sentence of this Section 3.1 or (ii) the highest amount such Annual Base
Compensation may have been increased to by the Board subsequent to the date of
this Agreement in its discretion.
3.2 POTENTIAL ANNUAL TARGET BONUSES. In respect of each calendar year
falling within the Employment Period, the Employee shall be eligible to earn an
annual bonus, depending upon the results of operation of the Company, its
Subsidiaries and their Affiliates and the personal performance of the Employee,
of up to fifty percent (50%) of the Employee's Annual Base Compensation for that
calendar year (the "POTENTIAL ANNUAL TARGET BONUS") in accordance with the terms
of a bonus plan which shall be adopted and maintained in effect by the Board for
that calendar year. The amount of the Potential Annual Target Bonus, if any,
which is earned by the
-3-
Employee (the "BONUSABLE AMOUNT") shall be paid by the Company to the Employee
no later than seventy-five (75) days following the close of the Company's
calendar year, provided that unless expressly provided otherwise herein, it
shall be a condition precedent to the Employee's right to receive any Bonusable
Amount that the Employee be employed by the Company on the last day of that
calendar year.
3.3 DISCRETIONARY BONUSES. In respect of each calendar year falling
within the Employment Period, the Company may pay a discretionary annual bonus
to the Employee (a "DISCRETIONARY BONUS") to be determined by the Board, in its
sole discretion. Any Discretionary Bonus shall be paid by the Company to the
Employee within seventy-five (75) days following the close of the Company's
calendar year, provided that unless expressly provided otherwise herein, it
shall be a condition precedent to the Employee's right to receive any
Discretionary Bonus that the Employee be employed by the Company on the last day
of that calendar year.
3.4 EXPENSES. During the Employment Period, the Employee shall be
entitled to reimbursement of all travel, entertainment and other business
expenses reasonably incurred in the performance of his duties for the Company,
upon submission of all receipts and accounts with respect thereto, and approval
by the Company thereof, in accordance with the business expense reimbursement
policies of the Company from time to time adopted by the Board.
3.5 VACATION. In respect of each calendar year falling within the
Employment Period, the Employee shall be entitled to such vacation time as the
Company customarily provides to its employees holding positions with the Company
comparable to the Employee's position, provided that unused vacation may be used
by the Employee in the following calendar year only in accordance with and as
permitted by the Company's then current vacation policies in effect from time to
time.
3.6 OTHER FRINGE BENEFITS. During the Employment Period, the Employee
shall be entitled to receive such of the Company's other fringe benefits as are
being provided to other employees of the Company holding senior executive
positions, including but not limited to health insurance benefits, disability
benefits and retirement benefits.
3.7 GRANT OF STOCK OPTION. Concurrently with the parties' execution and
delivery of this Agreement the Company has granted to the Employee the Option to
purchase an aggregate of 15,000 Shares pursuant to the terms of the Stock Option
Agreement as part consideration for the Employee's execution and delivery of
this Agreement to the Company.
ARTICLE IV
COVENANTS OF THE EMPLOYEE
4.1 PROPRIETARY RIGHTS. The Employee hereby expressly agrees that all
research, discoveries, inventions and innovations (whether or not reduced to
practice or documented), improvements, developments, methods, designs, analyses,
drawings, reports and all similar or related information (whether patentable or
unpatentable, and whether or not reduced to writing), trade secrets (being
information about the business of the Company, its Subsidiaries and their
-4-
Affiliates which is considered by the Company or any such Subsidiary or
Affiliate to be confidential and is proprietary to the Company or any such
Subsidiary or Affiliate) and confidential information, copyrightable works, and
similar and related information (in whatever form or medium), which (x) either
(i) relate to the Company's, its Subsidiaries' or their Affiliates' actual or
anticipated business, research and development or existing or future products or
services or (ii) result from any work performed by the Employee for the Company,
its Subsidiaries or any of their Affiliates and (y) are conceived, developed,
made or contributed to in whole or in part by the Employee during the Employment
Period ("WORK PRODUCT") shall be and remain the sole and exclusive property of
the Company, such Subsidiary or such Affiliate. The Employee shall communicate
promptly and fully all Work Product to the Board.
(a) WORK MADE FOR HIRE. The Employee acknowledges that, unless
otherwise agreed in writing by the Company, all Work Product eligible for
any form of copyright protection made or contributed to in whole or in
part by the Employee within the scope of the Employee's employment by the
Company during the Employment Period shall be deemed a "work made for
hire" under the copyright laws and shall be owned by the Company, its
Subsidiaries or their Affiliates, as applicable.
(b) ASSIGNMENT OF PROPRIETARY RIGHTS. The Employee hereby assigns,
transfers and conveys to the Company, and shall assign, transfer and
convey to the Company, all right, title and interest in and to all
inventions, ideas, improvements, designs, processes, trademarks, service
marks, trade names, trade secrets, trade dress, data, discoveries and
other proprietary assets and proprietary rights in and of the Work Product
(the "PROPRIETARY RIGHTS") for the Company's exclusive ownership and use,
together with all rights to xxx and recover for past and future
infringement or misappropriation thereof, provided that if a Subsidiary or
Affiliate of the Company is the owner thereof, such assignment, transfer
and conveyance shall be made to such Subsidiary or Affiliate, which shall
enjoy exclusive ownership and use, together with all rights to xxx and
recover for past and future infringement or misappropriation thereof.
(c) FURTHER INSTRUMENTS. At the request of the Company (its
Subsidiaries or their Affiliates, as the case may be), at all times during
the Employment Period and thereafter, the Employee will promptly and fully
assist the Company (its Subsidiaries or their Affiliates, as the case may
be) in effecting the purpose of the foregoing assignment, including but
not limited to the further acts of executing any and all documents
necessary to secure for the Company (its Subsidiaries or their Affiliates,
as the case may be) such Proprietary Rights and other rights to all Work
Product and all confidential information related thereto, providing
cooperation and giving testimony.
(d) INAPPLICABILITY OF SECTION 4.1 IN CERTAIN CIRCUMSTANCES. The
Company expressly acknowledges and agrees that, and the Employee is hereby
advised that, this Section 4.1 does not apply to any invention for which
no equipment, supplies, facilities or trade secret information of the
Company, its Subsidiaries or any of their Affiliates was used and which
was developed entirely on the Employee's own time, unless (i) the
invention relates to the business of the Company, its Subsidiaries or any
of their Affiliates
-5-
or to the Company's, its Subsidiaries' or any of their Affiliates' actual
or demonstrably anticipated research or development or (ii) the invention
results from any work performed by the Employee for the Company, its
Subsidiaries or any of their Affiliates.
4.2 OWNERSHIP AND COVENANT TO RETURN DOCUMENTS, ETC. The Employee agrees
that all Work Product and all documents or other tangible materials (whether
originals, copies or abstracts), including without limitation, price lists,
quotation guides, outstanding quotations, books, records, manuals, files, sales
literature, training materials, customer records, correspondence, computer disks
or print-out documents, contracts, orders, messages, phone and address lists,
invoices and receipts, and all objects associated therewith, which in any way
relate to the business or affairs of the Company, its Subsidiaries and their
Affiliates either furnished to the Employee by the Company, its Subsidiaries or
any of their Affiliates or are prepared, compiled or otherwise acquired by the
Employee during the Employment Period, shall be the sole and exclusive property
of the Company, such Subsidiaries or such Affiliates. The Employee shall not,
except for the use of the Company, its Subsidiaries or any of their Affiliates,
use, copy or duplicate any of the aforementioned documents or objects, nor
remove them from the facilities of the Company or such Subsidiaries or such
Affiliates, nor use any information concerning them except for the benefit of
the Company, its Subsidiaries and their Affiliates, either during the Employment
Period or thereafter. The Employee agrees that he will deliver all of the
aforementioned documents and objects that may be in his possession to the
Company on the termination of his employment with the Company, or at any other
time upon the Company's request, together with his written certification of
compliance with the provisions of this Section 4.2 in the form of Exhibit A to
this Agreement in accordance with the provisions of Section 5.3 hereof.
4.3 NON-DISCLOSURE COVENANT. During the Employment Period and at all
times thereafter, the Employee shall not, either directly or indirectly,
disclose to any "unauthorized person" or use for the benefit of the Employee or
any person or entity other than the Company, its Subsidiaries or their
Affiliates any Work Product or any knowledge or information which the Employee
may acquire while employed by the Company (whether before or after the date of
this Agreement) relating to (i) the financial, marketing, sales and business
plans and affairs, financial statements, analyses, forecasts and projections,
books, accounts, records, operating costs and expenses and other financial
information of the Company, its Subsidiaries and their Affiliates, (ii) internal
management tools and systems, costing policies and methods, pricing policies and
methods and other methods of doing business, of the Company, its Subsidiaries
and their Affiliates, (iii) customers, sales, customer requirements and usages,
distributor lists, of the Company, its Subsidiaries and their Affiliates, (iv)
agreements with customers, vendors, independent contractors, employees and
others, of the Company, its Subsidiaries and their Affiliates, (v) existing and
future products or services and product development plans, designs, analyses and
reports, of the Company, its Subsidiaries and their Affiliates, (vi) computer
software and data bases developed for the Company, its Subsidiaries or their
Affiliates, trade secrets, research, records of research, models, designs,
drawings, technical data and reports of the Company, its Subsidiaries and their
Affiliates and (vii) correspondence or other private or confidential matters,
information or data whether written, oral or electronic, which is proprietary to
the Company, its Subsidiaries and their Affiliates and not generally known to
the public (individually and collectively "CONFIDENTIAL INFORMATION"), without
the Company's prior written permission. For purposes of this Section 4.3, the
term
-6-
"UNAUTHORIZED PERSON" shall mean any person who is not (i) an officer or
director of the Company or an employee of the Company for whom the disclosure of
the knowledge or information referred to herein is necessary for his performance
of his assigned duties, or (ii) an employee, officer or director of a Subsidiary
or Affiliate of the Company for whom the disclosure of the knowledge or
information referred to herein is necessary for his performance of his assigned
duties, or (iii) a person expressly authorized by the Company to receive
disclosure of such knowledge or information. The Company expressly acknowledges
and agrees that the term "Confidential Information" excludes information which
is (A) in the public domain or otherwise generally known to the trade, or (B)
disclosed to third parties other than by reason of the Employee's breach of his
confidentiality obligation hereunder or (C) learned of by the Employee
subsequent to the termination of his employment hereunder from any other party
not then under an obligation of confidentiality to the Company, its Subsidiaries
and their Affiliates. Further, the Employee covenants to the Company that in the
Employee's performance of his duties hereunder, the Employee will violate no
confidentiality obligations he may have to any third persons.
4.4 ANTI-PIRATING AND NON-INTERFERENCE COVENANTS. The Employee covenants
to the Company that while the Employee is employed by the Company hereunder and
for the two (2) year period thereafter (the "NON-SOLICITATION PERIOD"), he will
not, for any reason, directly or indirectly: (a) solicit, hire, or otherwise do
any act or thing which may induce any other employee of the Company, its
Subsidiaries or their Affiliates to leave the employ or otherwise interfere with
or adversely affect the relationship (contractual or otherwise) of the Company,
its Subsidiaries and their Affiliates with any person who is then or thereafter
becomes an employee of the Company, its Subsidiaries and their Affiliates; or
(b) do any act or thing which may interfere with or adversely affect the
relationship (contractual or otherwise) of the Company, its Subsidiaries and
their Affiliates with any customer or vendor of the Company, its Subsidiaries
and their Affiliates or induce any such customer or vendor to cease doing
business with the Company, its Subsidiaries and their Affiliates.
4.5 COVENANT NOT TO COMPETE. The Employee expressly acknowledges that
(i) the Company is and will be engaged in the manufacture of lines of adhesives,
sealants and coatings; (ii) the Employee is one of a limited number of persons
who has extensive knowledge and expertise relevant to the businesses of the
Company, its Subsidiaries and their Affiliates; (iii) the Employee's performance
of his services for the Company hereunder will afford him full and complete
access to and cause him to become highly knowledgeable about the Company's, its
Subsidiaries' and their Affiliates' Confidential Information; (iv) the
agreements and covenants contained in this Section 4.5 are essential to protect
the business and goodwill of the Company, its Subsidiaries and their Affiliates
because, if the Employee enters into any activities competitive with the
businesses of the Company, its Subsidiaries and their Affiliates, he will cause
substantial harm to the Company or its Subsidiaries and Affiliates; and (v) his
covenants to the Company, its Subsidiaries and their Affiliates set forth in
this Section 4.5 are being made in partial consideration of the Company's grant
of the Option to him. Accordingly, the Employee hereby agrees that while he is
employed by the Company hereunder and for the one (1) year period thereafter
(the "NON-COMPETITION PERIOD"), he shall not directly or indirectly own any
interest in, invest in, lend to, borrow from, manage, control, participate in,
consult with, become employed by, render services to, or in any other manner
whatsoever engage in, any business which is competitive with any lines of
business
-7-
actively being engaged in by the Company, its Subsidiaries and their Affiliates
or actively (and demonstrably) being considered by the Company, its Subsidiaries
and their Affiliates for entry into on the date of the termination of the
Employment Period, within any states or geographical regions in which any such
line of business is being conducted or in which the Company, its Subsidiaries
and their Affiliates is or are actively (and demonstrably) considering engaging
in on the date of the termination of the Employment Period. The preceding to the
contrary notwithstanding, the Employee shall be free to make investments in the
publicly traded securities of any corporation, provided that such investments do
not amount to more than 1% of the outstanding securities of any class of such
corporation.
4.6 REMEDIES FOR BREACH. If the Employee commits a breach, or threatens
to commit a breach, of any of the provisions of this Article IV, the Company and
its Subsidiaries shall have the right and remedy, in addition to any other
remedy that may be available at law or in equity, to have the provisions of this
Article IV specifically enforced by any court having equity jurisdiction,
together with an accounting therefor, it being expressly acknowledged and agreed
by the Employee that any such breach or threatened breach will cause irreparable
injury to the Company and its Subsidiaries and that money damages will not
provide an adequate remedy to the Company and its Subsidiaries. Such injunction
shall be available without the posting of any bond or other security, and the
Employee hereby consents to the issuance of such injunction. The Employee
further agrees that any such injunctive relief obtained by the Company or its
Subsidiaries shall be in addition to, and not in lieu of, monetary damages and
any other remedies to which the Company or its Subsidiaries may be entitled.
Further, in the event of an alleged breach or violation by the Employee of any
of the provisions of Sections 4.4 or 4.5 hereof, the Non-Solicitation Period
and\or the Non-Competition Period, as the case may be, shall be tolled until
such breach or violation has been cured. The parties agree that in the event of
the institution of any action at law or in equity by either party to enforce the
provisions of this Article IV, the losing party shall pay all of the costs and
expenses of the prevailing party, including reasonable legal fees, incurred in
connection therewith. If any covenant contained in this Article IV or any part
thereof is hereafter construed to be invalid or unenforceable, the same shall
not affect the remainder of such covenant or any other covenants, which shall be
given full effect, without regard to the invalid portions, and any court having
jurisdiction shall have the power to modify such covenant to the least extent
necessary to render it enforceable and, in its modified form, said covenant
shall then be enforceable.
ARTICLE V
TERMINATION OF EMPLOYMENT
5.1 TERMINATION AND TRIGGERING EVENTS. Notwithstanding anything to the
contrary elsewhere contained in this Agreement, the Employment Period shall
terminate at the expiration of the Initial Term or any Extension Term, or prior
to the expiration of the Initial Term or any Extension Term upon the occurrence
of any of the following events (hereinafter referred to as "TRIGGERING EVENTS"):
(a) the Employee's death; (b) the Employee's Total Disability; (c) the
Employee's Resignation; (d) the Employee's Resignation with Good Grounds; (e) a
Termination by the Company for Cause; or (f) a Termination by the Company
Without Cause.
-8-
5.2 RIGHTS UPON OCCURRENCE OF A TRIGGERING EVENT. Subject to the
provisions of Section 5.3 hereof, the rights of the parties upon the occurrence
of a Triggering Event prior to the expiration of the Initial Term or any
Extension Term shall be as follows:
(a) RESIGNATION AND TERMINATION BY THE COMPANY FOR CAUSE: If the
Triggering Event was the Employee's Resignation or a Termination by the
Company for Cause, the Employee shall be entitled to receive his Annual
Base Compensation and accrued but unpaid vacation through the date thereof
in accordance with the policy of the Company, and to continue to
participate in the Company's health, insurance and disability plans and
programs through that date and thereafter, only to the extent permitted
under the terms of such plans and programs.
(b) DEATH OR TOTAL DISABILITY: If the Triggering Event was the
Employee's death or Total Disability, the Employee (or the Employee's
designated beneficiary) shall be entitled to receive the Employee's Annual
Base Compensation and accrued but unpaid vacation through the date thereof
plus a pro rata portion of the Employee's Potential Annual Target Bonus
for the calendar year in which such death or Total Disability occurred
(based on the number of days the Employee was employed during the
applicable calendar year), in accordance with the policy of the Company,
and to continue to participate in the Company's health, insurance and
disability plans and programs through the date of termination and
thereafter only to the extent permitted under the terms of such plans and
programs.
(c) TERMINATION BY COMPANY WITHOUT CAUSE OR RESIGNATION BY
EMPLOYEE WITH GOOD GROUNDS: If the Triggering Event was a Termination by
the Company Without Cause or a Resignation by the Employee With Good
Grounds, the Employee shall be entitled to receive his Annual Base
Compensation and accrued but unpaid vacation through the date thereof
plus, in the case of either (i) Resignation by the Employee with Good
Grounds or (ii) a Termination By the Company Without Cause in the
discretion of the Chief Executive Officer of the Company, a pro rata
portion of the Employee's Potential Annual Target Bonus for the calendar
year in which such Triggering Event occurred (based on the number of days
the Employee was employed during the applicable calendar year), payable in
accordance with the Company's normal payroll practices, provided that in
addition, for each month of the Severance Period the Employee shall also
(x) be paid an amount equal to one-twelfth (1/12th) of an amount equal to
the sum of (A) his then current Annual Base Compensation plus (B) his then
current Potential Annual Target Bonus, payable in accordance with the
Company's normal payroll practices, and (y) continue to participate in the
Company's health, insurance and disability plans and programs
(collectively, the "ADDITIONAL SEVERANCE BENEFITS"); further provided that
the Employee shall be entitled to receive such Additional Severance
Benefits during the Severance Period if and only if the Employee has
executed and delivered to the Company the General Release substantially in
form and substance as set forth in Exhibit B to this Agreement and only so
long as the Employee has not breached any of his covenants to the Company
set forth in Article IV of this Agreement.
-9-
(d) CESSATION OF ENTITLEMENTS AND COMPANY RIGHT OF OFFSET. Except
as otherwise expressly provided herein, all of the Employee's rights to
salary, employee benefits, fringe benefits and bonuses hereunder (if any)
which would otherwise accrue after the termination of the Employment
Period shall cease upon the date of such termination. The Company may
offset any loans, cash advances or fixed amounts which the Employee owes
the Company or its Affiliate against any amounts it owes the Employee
under this Agreement.
5.3 SURVIVAL OF CERTAIN OBLIGATIONS AND TERMINATION CERTIFICATE. The
provisions of Articles IV, VI and VIII shall survive any termination of the
Employment Period, whether by reason of the occurrence of a Triggering Event or
the expiration of the Initial Term or any Extension Term. Immediately following
the termination of the Employment Period, the Employee shall promptly return to
the Company all property required to be returned to the Company pursuant to the
provisions of Section 4.2 hereof and execute and deliver to the Company the
Termination Certificate attached hereto as Exhibit A and by this reference made
a part hereof.
ARTICLE VI
ASSIGNMENT
6.1 PROHIBITION OF ASSIGNMENT BY EMPLOYEE. The Employee expressly agrees
for himself and on behalf of his executors, administrators and heirs, that this
Agreement and his obligations, rights, interests and benefits hereunder shall
not be assigned, transferred, pledged or hypothecated in any way by the
Employee, his executors, administrators or heirs, and shall not be subject to
execution, attachment or similar process. Any attempt to assign, transfer,
pledge, hypothecate or otherwise dispose of this Agreement or any such rights,
interests and benefits thereunder contrary to the foregoing provisions, or the
levy of any attachment or similar process thereupon shall be null and void and
without effect and shall relieve the Company of any and all liability hereunder.
6.2 RIGHT OF COMPANY TO ASSIGN. This Agreement shall be assignable and
transferable by the Company to any successor-in-interest without the consent of
the Employee.
ARTICLE VII
DEFINITIONS
"AFFILIATE" means each of the Company's Subsidiaries.
"BOARD" means the Board of Directors of the Company.
"RESIGNATION" means the voluntary termination of employment hereunder by
the Employee which is not a Resignation with Good Grounds (except if made in
contemplation of a Termination by the Company for Cause), provided that if such
action is taken by the Employee without the giving of at least ninety (90) days
prior written notice, such termination of employment shall not be a
"Resignation," but instead shall constitute a Termination for Cause.
-10-
"RESIGNATION WITH GOOD GROUNDS" means a voluntary termination of the
Employee's employment hereunder on account of, and within sixty (60) days after,
the occurrence of one or more of the following events:
(i) the assignment to the Employee of any duties inconsistent in
any material respect with the Employee's position (including status,
offices and titles), authority, duties or responsibilities as contemplated
by Section 1.2 hereof which results in a diminution of the Employee's
position, excluding for this purpose an isolated, insubstantial or
inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of written notice thereof given by the
Employee;
(ii) the Employee's Annual Base Compensation and\or Potential
Annual Target Bonus is\are decreased below the amount of his then Annual
Base Compensation and\or Potential Annual Target Bonus fixed by the
applicable provisions of Sections 3.1 and 3.2 hereof (provided that so
long as the aggregate sum of the Employee's Annual Base Compensation and
Potential Annual Target Bonus in respect of any calendar year during the
Employment Term are not decreased, the Company shall be free to decrease
the Potential Annual Target Bonus for that year and commensurately
increase the Annual Base Compensation for that year without any affect on
the subsequent calendar year Annual Base Compensation and Potential Annual
Target Bonus, it being expressly acknowledged by the Employee that the
operating result achievement criteria for the payment of any of the
Potential Annual Target Bonus by the Company, its Subsidiaries and their
Affiliates shall be determined by the Board, in its absolute discretion)
or the Employee's benefits under any material employee benefit plan,
program or arrangement of the Company (other than a change that affects
all Employees of the Company) are materially reduced from the level in
effect upon the Employee's commencement of participation therein; or
(iii) the failure of the Company to comply with any of the
provisions of this Agreement, other than an isolated, insubstantial or
inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of written notice thereof given by the
Employee.
"SEVERANCE PERIOD" means the twelve (12) month period immediately
following the date of the termination of the Employment Period.
"SUBSIDIARY" means, with respect to any person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such person or entity or one or more of
the other Subsidiaries of such person or entity or a combination thereof, or
(ii) if a limited liability company, partnership, association or other business
entity, a majority of the partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by any
person or entity or one or more Subsidiaries of such person or entity or a
combination thereof For purposes hereof, a person or persons shall be deemed to
have a majority ownership interest in a
-11-
limited liability company, partnership, association or other business entity if
such person or persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
"TERMINATION BY THE COMPANY FOR CAUSE" means termination by the Company of
the Employee's employment for:
(i) misappropriation of any significant monies or significant
assets or properties of the Company;
(ii) conviction of a felony or a crime involving moral turpitude;
(iii) substantial and repeated failure to comply with directions of
the Chief Executive Officer of the Company, or any other superior;
(iv) gross negligence or willful misconduct;
(v) chronic alcoholism or drug addiction together with the
Employee's refusal to cooperate with or participate in counseling and/or
treatment of same; or
(vi) any willful action or inaction of the Employee which, in the
reasonable opinion of the Board, constitutes dereliction (willful neglect
or willful abandonment of assigned duties), or a material breach of
Company policy or rules which, if susceptible to cure, is not cured by the
Employee within five (5) days following the Employee's receipt of written
notice from the Company advising the Employee with reasonable specificity
as to the action or inaction viewed by the Board to be dereliction or a
material breach of Company policy or rules;
provided that the termination of the Employee's employment hereunder by the
Company shall not be deemed a Termination by the Company for Cause unless and
until there shall have been delivered to the Employee a written notice from the
Chief Executive Officer of the Company (after reasonable notice to and an
opportunity for the Employee (alone and in person) to have a meeting with the
Chief Executive Officer of the Company) finding that in the good faith opinion
of the Chief Executive Officer of the Company, the Employee was guilty of the
conduct set forth in one or more of such clauses.
"TERMINATION BY THE COMPANY WITHOUT CAUSE" means a termination of the
Employee's employment by the Company which is not a Termination by the Company
for Cause, provided that the termination of the Employment Period on account of
the failure of the Company to extend the Employment Period in accordance with
the provisions of Section 2.2 hereof shall constitute a Termination by the
Company Without Cause.
"TOTAL DISABILITY" means the Employee's inability, because of illness,
injury or other physical or mental incapacity, to perform his duties hereunder
(as determined by the Board in good
-12-
faith) for a continuous period of one hundred eighty (180) consecutive days, or
for a total of one hundred eighty (180) days within any three hundred sixty
(360) consecutive day period, in which case such Total Disability shall be
deemed to have occurred on the last day of such one hundred eighty (180) day or
three hundred sixty (360) day period, as applicable.
ARTICLE VIII
GENERAL
8.1 NOTICES. All notices under this Agreement shall be in writing and
shall be deemed properly sent, (i) when delivered, if by personal service or
reputable overnight courier service, or (ii) when received, if sent (x) by
certified or registered mail, postage prepaid, return receipt requested, or (y)
via facsimile transmission (provided that a hard copy of such notice is sent to
the addressee via one of the methods of delivery or mailing set forth above on
the same day the facsimile transmission is sent); to the recipient at the
address indicated below:
Notices to Employee:
Xxxx X. Xxxx
00 Xxxxxxx Xxx
Xxxxxxx, XX 00000
Notices to Company:
Sovereign Specialty Chemicals, Inc.
X/X Xxxxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile (000) 000-0000
With Copies to:
Xxxxxx X. Xxxxxxxxx, Esq.
XxXxxxx Xxxxx & Xxxxx
000 Xxxx Xxxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile (000) 000-0000
Xxxxxxx X. Xxxxxxxx, Esq.
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Facsimile (0000) 000-0000
-13-
Xxxxxxxxx X. Xxxxx, Esq.
AEA Investors Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile (000) 000-0000
8.2 GOVERNING LAW. This Agreement shall be subject to and governed by
the laws of the State of Illinois without regard to any choice of law or
conflicts of law rules or provisions (whether of the State of Illinois or any
other jurisdiction), irrespective of the fact that the Employee may become a
resident of a different state.
8.3 BINDING EFFECT. The Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns, and the Employee and his
executors, administrators, personal representatives and heirs.
8.4 COMPLETE UNDERSTANDING. This Agreement constitutes the complete
understanding among the parties hereto with regard to the subject matter hereof,
and supersedes any and all prior agreements and understandings relating to the
employment of the Employee by the Company.
8.5 AMENDMENTS. No change, modification or amendment of any provision of
this Agreement shall be valid unless made in writing and signed by all of the
parties hereto.
8.6 WAIVER. The waiver by the Company of a breach of any provision of
this Agreement by the Employee shall not operate or be construed as a waiver of
any subsequent breach by the Employee. The waiver by the Employee of a breach of
any provision of this Agreement by the Company shall not operate as a waiver of
any subsequent breach by the Company.
8.7 VENUE, JURISDICTION, ETC. The Employee hereby agrees that any suit,
action or proceeding relating in any way to this Agreement may be brought and
enforced in the Circuit Court of Xxxx County of the State of Illinois or in the
District Court of the United States of America for the Northern District of
Illinois, Eastern Division, and in either case the Employee hereby submits to
the jurisdiction of each such court. The Employee hereby waives and agrees not
to assert, by way of motion or otherwise, in any such suit, action or
proceeding, any claim that the Employee is not personally subject to the
jurisdiction of the above-named courts, that the suit, action or proceeding is
brought in an inconvenient forum or that the venue of the suit, action or
proceeding is improper. The Employee consents and agrees to service of process
or other legal summons for purpose of any such suit, action or proceeding by
registered mail addressed to the Employee at his or her address listed in the
business records of the Company. Nothing contained herein shall affect the
rights of the Company to bring suit, action or proceeding in any other
appropriate jurisdiction. The Employee and the Company do each hereby waive any
right to trial by jury, he or it may have concerning any matter relating to this
Agreement.
8.8 SEVERABILITY. If any portion of this Agreement shall be for any
reason, invalid or unenforceable, the remaining portion or portions shall
nevertheless be valid, enforceable and carried into effect.
-14-
8.9 HEADINGS. The headings of this Agreement are inserted for
convenience only and are not to be considered in the construction of the
provisions hereof.
8.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which, taken together, shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its duly authorized officers and its corporate seal to be hereunto affixed, and
the Employee has hereunto set his hand on the day and year first above written.
COMPANY: EMPLOYEE:
SOVEREIGN SPECIALTY CHEMICALS,
INC., a Delaware Corporation
__________________________
Xxxx X. Xxxx
By:_______________________________
Chairman of the Board
-15-
EXHIBIT A
TO
EMPLOYMENT AGREEMENT
BETWEEN
SOVEREIGN SPECIALTY CHEMICALS, INC.
AND
XXXX X. XXXX
TERMINATION CERTIFICATE
This is to certify that, except as permitted by the Employment Agreement
(as defined below) I do not have in my possession, nor have I failed to return,
any software, inventions, designs, works of authorship, copyrightable works,
formulas, data, marketing plans, forecasts, product concepts, marketing plans,
strategies, forecasts, devices, records, data, notes, reports, proposals,
customer lists, correspondence, specifications, drawings, blueprints, sketches,
materials, patent applications, continuation applications, continuation-in-part
applications, divisional applications, other documents or property, or
reproductions of any aforementioned items belonging to SOVEREIGN SPECIALTY
CHEMICALS, INC. (the "COMPANY"), its Subsidiaries and their Affiliates,
successors or assigns.
I further certify that I have complied with all the terms of the
Employment Agreement dated January 7, 2002 between the Company and me (the
"EMPLOYMENT AGREEMENT"), relating to the reporting of any Work Product (as that
term is defined therein), conceived or made by me (solely or jointly with
others) covered by the Employment Agreement.
I acknowledge that the provisions of the Employment Agreement relating to
Confidential Information, as defined in the Employment Agreement, continue in
effect beyond the termination of the Employment Agreement, as set forth therein.
Finally, I further acknowledge that the provisions of the Employment
Agreement relating to my (i) anti-pirating, (ii) noninterference and (iii)
non-competition covenants to the Company, its Subsidiaries and their Affiliates,
remain in effect following the date of my termination of employment with the
Company.
Date:______________ __________________________________
Employee
EXHIBIT B
TO
EMPLOYMENT AGREEMENT
BETWEEN
SOVEREIGN SPECIALTY CHEMICALS, INC.
AND
XXXX X. XXXX
GENERAL RELEASE
I, Xxxx X. Xxxx, in consideration of and subject to the performance by
SOVEREIGN SPECIALTY CHEMICALS, INC., a Delaware corporation (the "COMPANY"), of
its material obligations under the Employment Agreement, dated as of the date as
of January 7, 2002 (the "AGREEMENT"), do hereby release and forever discharge as
of the date hereof the Company, its Subsidiaries and their Affiliates (as those
terms are defined in the Agreement) and all present and former directors,
officers, agents, representatives, employees, successors and assigns of the
Company, its Subsidiaries and their Affiliates and their direct or indirect
owners (collectively, the "RELEASED PARTIES") to the extent provided below.
1. I understand that any payments or benefits paid or granted to me under
Section 5.2(c) of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to
which I was already entitled. I understand and agree that I will not
receive the payments and benefits specified in Section 5.2(c) of the
Agreement unless I execute this General Release and do not revoke this
General Release within the time period permitted hereafter or breach this
General Release.
2. Except as provided in paragraph 4 of this General Release, I knowingly and
voluntarily release and forever discharge the Company and the other
Released Parties from any and all claims, controversies, actions, causes
of action, cross-claims, counterclaims, demands, debts, compensatory
damages, liquidated damages, punitive or exemplary damages, other damages,
claims for costs and attorneys' fees, or liabilities of any nature
whatsoever in law and in equity, both past and present (through the date
of this General Release) and whether known or unknown, suspected, or
claimed against the Company or any of the Released Parties which I, my
spouse, or any of my heirs, executors, administrators or assigns, may
have, which arise out of or are connected with my employment with, or my
separation from, the Company (including, but not limited to, any
allegation, claim or violation, arising under: Title VII of the Civil
Rights Act of 1964, as amended; the Civil Rights Act of 1991; the Age
Discrimination in Employment Act of 1967, as amended (including the Older
Workers Benefit Protection Act); the Equal Pay Act of 1963, as amended;
the Americans with Disabilities Act of 1990; the Family and Medical Leave
Act of 1993; the Civil Rights Act of 1866, as amended; the Worker
Adjustment Retraining and Notification Act; the Employee Retirement Income
Security Act of 1974; any applicable Employee Order Programs; the Fair
Labor Standards Act; or their state or
local counterparts; or under any other federal, state or local civil or
human rights law, or under any other local, state, or federal law,
regulation or ordinance; or under any public policy, contract or tort, or
under common law; or arising under any policies, practices or procedures
of the Company; or any claim for wrongful discharge, breach of contract,
negligent or intentional infliction of emotional distress, defamation; or
any claim for costs, fees, or other expenses, including attorneys' fees
incurred in these matters) (all of the foregoing collectively referred to
herein as the "CLAIMS").
3. I represent that I have made no assignment or transfer of any right,
claim, demand, cause of action, or other matter covered by paragraph 2 of
this General Release.
4. I and the Company mutually agree that this General Release does not waive
or release any rights or claims that I may have under: (a) the Age
Discrimination in Employment Act of 1967, which arise after the date I
execute this General Release; and (b) any agreements to which I and the
Company are parties pertaining to any shares or options to purchase shares
of capital stock of the Company owned by me. I acknowledge and agree that
my separation from employment with the Company in compliance with the
terms of the Agreement shall not serve as the basis for any claim or
action (including, without limitation, any claim under the Age
Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release shall
be given full force and effect according to each and all of its express
terms and provisions, including those relating to unknown and unsuspected
Claims (notwithstanding any state statute that expressly limits the
effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree that this
waiver is an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms of the
Agreement. I further agree that in the event I should bring a Claim
seeking damages against the Company, or in the event I should seek to
recover against the Company in any Claim brought by a governmental agency
on my behalf, this General Release shall serve as a complete defense to
such Claims. I further agree that I am not aware of any pending charge or
complaint of the type described in paragraph 2 as of the execution of this
General Release.
6. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at
any time to be an admission by the Company, any Released Party or myself
of any improper or unlawful conduct.
7. I agree that I will forfeit all amounts payable by the Company pursuant to
the Agreement if I challenge the validity of this General Release,
provided that nothing herein contained in this Agreement shall prohibit or
bar me from filing a charge, including a challenge to the validity of the
Agreement, with the United States Equal Employment Opportunity Commission
("EEOC"), or any state or local fair employment practices agency, or from
-2-
participating in any investigation, hearing or proceeding conducted by the
EEOC, or any state or local fair employment practices agency. I also agree
that if I violate this General Release by suing the Company or the other
Released Parties, I will pay all costs and expenses of defending against
the suit incurred by the Released Parties, including reasonable attorneys'
fees, and return all payments received by me pursuant to the Agreement.
8. I agree that this General Release is confidential and agree not to
disclose any information regarding the terms of this General Release,
except to my immediate family and any tax, legal or other counsel I have
consulted regarding the meaning or effect hereof or as required by law,
and I will instruct each of the foregoing not to disclose the same to
anyone.
9. Any non-disclosure provision in this General Release does not prohibit or
restrict me (or my attorney) from responding to any inquiry about this
General Release or its underlying facts and circumstances by the
Securities and Exchange Commission ("SEC"), the EEOC (or a state or local
fair employment practices agency), the National Association of Securities
Dealers, Inc. ("NASD"), any other self-regulatory organization or
governmental entity.
10. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding. I
understand and agree that my cooperation may include, but not be limited
to, making myself available to the Company upon reasonable notice for
interviews and factual investigations; appearing at the Company's request
to give testimony without requiring service of a subpoena or other legal
process; volunteering to the Company pertinent information; and turning
over to the Company all relevant documents which are or may come into my
possession all at times and on schedules that are reasonably consistent
with my other permitted activities and commitments. I understand that in
the event the Company asks for my cooperation in accordance with this
provision, the Company will reimburse me solely for reasonable travel
expenses, including lodging and meals, upon my submission of receipts.
11. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect any
rights or claims arising out of any breach by the Company or by any
Released Party of the Agreement.
12. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under applicable
law, but if any provision of this General Release is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule
in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been
contained herein.
-3-
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(a) I HAVE READ IT CAREFULLY;
(b) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP IMPORTANT
RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER THE AGE DISCRIMINATION
IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII OF THE CIVIL RIGHTS ACT
OF 1964, AS AMENDED; THE EQUAL PAY ACT OF 1963, THE AMERICANS WITH
DISABILITIES ACT OF 1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED;
(c) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(d) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE EXECUTING IT AND I
HAVE DONE SO OR, AFTER CAREFUL READING AND CONSIDERATION I HAVE CHOSEN NOT
TO DO SO OF MY OWN VOLITION;
(e) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF THIS RELEASE
SUBSTANTIALLY IN ITS FINAL FORM ON _______________ ____, ____ TO CONSIDER
IT AND THE CHANGES MADE SINCE THE ______________ _____, _____VERSION OF
THIS RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY
PERIOD;
(f) THE CHANGES TO THE AGREEMENT SINCE ____________ ___, _____ EITHER ARE NOT
MATERIAL OR WERE MADE AT MY REQUEST.
(g) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF THIS RELEASE TO
REVOKE IT AND THAT THIS RELEASE SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE
UNTIL THE REVOCATION PERIOD HAS EXPIRED;
(h) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY AND WITH THE
ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH RESPECT TO IT; AND
(i) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT BE AMENDED,
WAIVED, CHANGED OR MODIFIED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY
AN AUTHORIZED REPRESENTATIVE OF THE COMPANY AND BY ME.
DATE: _______________ ____, _________ ___________________________________
-4-
EXHIBIT C
TO
EMPLOYMENT AGREEMENT
BETWEEN
SOVEREIGN SPECIALTY CHEMICALS, INC.
AND
XXXX X. XXXX
STOCK OPTION AGREEMENT
