CHEMFAB CORPORATION
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of the 5th day of August, 1997, by and
between Xxxx X. Xxxxxxxx, Xx., an individual residing at 00 Xxxxxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxx 00000 (the "Employee"), and Chemfab Corporation, a Delaware
corporation with its principal place of business at 000 Xxxxxx Xxxxxxx Xxxxxxx,
Xxxxxxxxx, Xxx Xxxxxxxxx 00000 (the "Employer").
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
Section l. Freedom to Contract. The Employee hereby represents that he is
free to enter into this Agreement and that he has not made and will not make any
agreement in conflict with this Agreement.
Section 2. Employment and Effective Date. This Agreement is effective
as of August 5, 1997 (the "Effective Date"). As of the Effective Date, the
Employer hereby continues to employ the Employee, and the Employee hereby
accepts his continued employment by the Employer, as Executive Vice President
and Chief Operating Officer through January 3, 1998 (the "Change Date"). As of
September 8, 1997 (the "Transition Date" ) the Duties and Authority of the
President and Chief Executive Officer will be delegated to the Employee by the
then current President and Chief Executive Officer. This delegation of
authority will be effective during the period from the Transition Date through
the Change Date. As of the Change Date, the Employer hereby agrees to employ
and Employee agrees to be employed by the Employer, as President and Chief
Executive Officer of the Employer, upon the terms and conditions set forth
herein.
Section 3. Duties and Authority. Subject to the general direction and
control of the board of directors of the Employer (the "Board of Directors") and
effective as of the Transition Date, the Employee hereby agrees to use his best
efforts, including the highest standards of professional competence and
integrity, and shall devote his full business time and effort, in and to his
employment and the duties of his office hereunder and shall not engage in any
other business activity except that Employee may engage from time to time in
such personal investment activities, as do not interfere with his day-to-day
responsibilities to the Employer. Employee's authority, including without
limitation his authority to bind Employer to contracts, instruments and
expenditures of any kind and to dispose of or encumber corporate assets, shall
not be less than that specified in or incidental to the terms of Section 3.7 of
Employer's By-Laws as presently in effect, and not less than that customary to
the office of President and Chief Executive Officer of an industrial
corporation. At any time when any class of securities of the Employer is
registered under section 12 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or when the Employer is required to file reports under
section 15 of the Exchange Act: (i) the Employee shall report directly and
exclusively to the Board of Directors, and (ii) the Employer shall each year
nominate, and make best efforts to cause the election of, the Employee to a seat
on the Board of Directors.
Section 4. Term; Termination; Rights Upon Termination.
(a) This Agreement shall take effect as of the Effective Date,
and shall remain in full force and effect until terminated in accordance with
the provisions hereof. Notwithstanding anything else herein contained, the
provisions of Sections 6 and 7, and any rights under other provisions hereof
which are vested at the time of termination of employment, shall survive the
termination of this Agreement and of Employee's employment hereunder.
(b) The Employer may at any time immediately terminate the employment
of the Employee under this Agreement for Cause (as hereinafter defined), upon
thirty (30 days) written notice. For purposes of this Agreement, the term
"Cause" shall mean gross or willful misconduct leading to his being convicted of
a felony. "Cause" shall not include unsatisfactory performance of duties except
as provided above. The Employee may at any time immediately terminate his
employment under this Agreement for Reason (as hereinafter defined), upon thirty
(30 days) written notice. For purposes of this Agreement, the term "Reason"
shall mean (x) a material breach by the Employer of any term of this Agreement,
(y) any event of bankruptcy or insolvency in respect of Employer, or (z) any
reduction in the duties or authority of Employee to a level less than customary
to the office of President and Chief Executive Officer of an industrial
corporation (subject to the terms of Employer's By-Laws as presently in effect).
Subject to the remainder of this Section 4, either party may at any time
terminate the employment of Employee under this Agreement upon ninety (90) days'
written notice to the other party, without Cause or Reason, as the case may be.
(c) In the event that the Employer terminates the employment of the
Employee for Cause as described in Section 4(b) hereof, or Employee terminates
such employment without Reason, then the Employer shall pay and provide to the
Employee at the time otherwise due under Section 5 hereof: all Salary due to the
Employee under said Section 5 that had accrued through the time of such
termination (whether owed currently, or on a deferred basis (in which case it
shall be paid on a deferred basis), all in accordance with the terms of Section
5); all benefits due to the Employee under said Section 5 that had accrued
through the time of such termination; and all Bonus due to the Employee under
said Section 5 that had accrued through the fiscal yearend of the Employer most
recently preceding (or coinciding with) the date of such termination (whether
owed currently, or on a deferred basis (in which case it shall be paid on a
deferred basis), all in accordance with the terms of Section 5 ) . In addition
to the foregoing, if the Employer terminates the employment of the Employee
based upon the Employee becoming "permanently disabled", which shall mean that
the occurrence of a mental or physical condition has rendered the Employee
incapable of performing his duties for any period of six (6) consecutive months
and such incapacity is confirmed as continuing at the end of such period by
expert medical opinion, then the Employer shall pay and provide to the Employee,
at the time otherwise due under Section 5 hereof: (x) in respect of a period
(the "Waiting Period") commencing on the date of such termination and continuing
until such time as benefits under both any group long-term disability insurance
policy and any supplemental individual long-term disability insurance policy
maintained at such time by Employer and covering the permanent disability of the
Employee begin to be payable and the Employee begins to receive payments of such
benefits under both such policies: (A) all benefits that would have accrued to
the Employee under said Section 5 if the Employee had continued to be employed
by the Employer under the terms of this Agreement throughout the Waiting Period;
and (B) the excess of: (I) all Salary that would have accrued to the Employee at
the annual contractual rate under said Section 5 (whether owed currently, or on
a deferred basis (in which case it shall be paid on a deferred basis), all in
accordance with the terms of Section 5) if the Employee had continued to be
employed by the Employer under the terms of this Agreement throughout the
Waiting Period, over (II) the amount of any cash benefits actually received by
Employee in respect of the Waiting Period on account of any group short-term or
group or supplemental long-term disability insurance policy maintained by
Employer; and (y) an amount (a "Pro Rata Bonus Amount") computed by multiplying
(A) the fraction computed by dividing (.1) the number of days elapsed in the
fiscal year in which the termination occurred up to and through the effective
date of the termination, by (II) 365, -by (B) the amount of Bonus that would
have been due to the Employee under Section 5 hereof if Employee had remained
employed under the terms of this Agreement through the end of the fiscal year in
which the termination occurs (whether owed currently, or on a deferred basis (in
which case it shall be paid on a deferred basis), all in accordance with the
terms of Section 5).
(d) In the event that the employment of the Employee is terminated as a
result of the death of the Employee, then the Employer shall: (i) pay and
provide to the estate, heirs or devisees of the Employee, at the time otherwise
due under Section 5 hereof, (A) all Salary due to the Employee under said
Section 5 that had accrued to the time of his death and all Salary that would
have accrued to the Employee at the annual contractual rate under said Section 5
if the Employee had continued to be employed by the Employer under the terms of
this Agreement for a period of nine (9) months commencing on the date of the
Employee's death (in each case whether owed currently, or on a deferred basis
(in which case it shall be paid on a deferred basis), all in accordance with the
terms of Section 5), (B) all Bonus due to the Employee under said Section 5 that
had accrued through the fiscal yearend of the Employer most recently preceding
(or coinciding with) the date of Employee's death (whether owed currently, or on
a deferred basis (in which case it shall be paid on a deferred basis), all in
accordance with the terms of Section 5), and (C) a Pro Rata Bonus Amount; and
(ii) maintain during the period of nine (9) months commencing on the date of
Employee's death, for the benefit of the Employee's family, such of the benefits
that would have been provided under Section 5 hereof as apply to Employee's
family, including without limitation, group health insurance coverage of
substantially the same kind and in no lesser amounts than in effect for the
benefit of the members of the Employee's family on the date of the Employee's
death.
(e) In the event that: (A) the Employer shall at anytime terminate the
employment of the Employee without Cause, or (B) the Employee shall, terminate
his employment for Reason, then, and in each such case, the Employer shall pay
and provide to the Employee at the time otherwise due under Section 5 hereof:
(i) all Salary and benefits due to the Employee under said Section 5 that had
accrued through the time of such termination and all Salary that would have
accrued to the Employee at the annual contractual rate under said Section 5 if
the Employee had continued to be employed by the Employer under the terms of
this Agreement through the day nine (9) months after the date of such
termination of employment (the "Severance Termination Date") (in each case
whether owed currently, or on a deferred basis (in which case it shall be paid
on a deferred basis), all in accordance with the terms of Section 5); (ii) all
Bonus due to the Employee under said Section 5 that had accrued through the
fiscal yearend of the Employer most recently preceding (or coinciding with) the
date of such termination (whether owed currently, or on a deferred basis (in
which case it shall be paid on a deferred basis), all in accordance with the
terms of Section 5); (iii) all benefits due to the Employee under said Section 5
that had accrued through the time of such termination and all benefits that
would have accrued to the Employee under said Section 5 if he had continued to
be employed by the Employer under the terms of this Agreement through the
Severance Termination Date; and (iv) a Pro Rata Bonus Amount.
(f) All rights of Employee to compensation and benefits under the
terms of this Section 4 are absolute with no requirement to mitigate damages.
Notwithstanding the foregoing, if the Employee is in fact gainfully employed
during any period (a "Severance Period") in respect of which compensation and/or
benefits is/are due him under the terms of this Agreement after the termination
of his employment under the terms of this Agreement, then any cash amounts
actually received by Employee as salary or bonus on account of such subsequent
employment in respect of the Severance Period shall operate dollar for dollar as
a credit against the amounts due from Employer to Employee in respect of the
Severance Period; provided, that the provisions of this sentence shall not
apply, and no such offset or credit shall operate (whether dollar-for-dollar or
otherwise), if the termination of employment occurs after the completion of a
transaction in which substantially all the outstanding voting stock or
substantially all the assets of the Employer is or are acquired by any person or
group of persons or Employer is party to a merger or consolidation of which
Employer is not in economic substance the predominant surviving entity.
Section 5. Compensation and Benefits. The Employee shall be
entitled to all benefits and compensation defined in this paragraph effective
September 8, 1997.
(a) The Employee shall be paid salary at an annual rate of $220,000 (the
"Salary"), such payments to be made (subject to the provisions of Section 5(c)
of this Agreement) as customarily disbursed by the Employer. Such Salary shall
be reviewed by the Board of Directors, for possible increase (and in no event
for decrease during the term of this Agreement), annually as of September 1 of
each year during the term of this Agreement commencing with September 1, 1998,
but Employer shall have no obligation to increase the Salary. If any such
review results in an increase in the Salary, then the Salary as so increased
shall then be the Salary for purposes of this Agreement. The Employer shall
promptly reimburse the Employee for all ordinary and necessary expenses incurred
by the Employee on behalf of the Employer, upon the presentation of customary
vouchers and reimbursement slips. The Employee shall be entitled to participate
in all fringe benefits made available under Employer's "exempt" benefits package
from time to time to senior executive personnel of the Employer; provided, that
the fringe benefits available to the Employee under this Agreement shall in any
event include the following: (i) Employer shall maintain at the expense of the
Employer, and for the benefit of beneficiaries named by Employee, in addition to
any group life insurance policy on the life of Employee provided under such
exempt benefits package, a term life insurance policy) throughout the term this
Agreement in the amount of $500,000. ii) Employer shall maintain at the expense
of the Employer, in addition to any group disability policy provided under such
exempt benefits package, a long-term disability policy, for the benefit of
Employee throughout the term of this Agreement, with benefits (without offset)
equal to 75% of the Salary (without cap) from time to time; (iii) Employer shall
provide to Employee the use of an automobile of Employee's choice, to be (or to
have been) new when first provided to Employee and to be at any time not more
than four years or 75,000 miles old, to be acquired by purchase or lease at
Employer's option, and to have a purchase price at the time of such acquisition
not greater than $45,000 (such dollar amount to be adjusted for any percentage
change in the Consumer Price Index -- All Urban Consumers (U.S.) (or other
equivalent index of the Bureau of Labor Statistics (or other federal government
agency serving similar function) then available) between the Effective Date and
the date of such acquisition of such automobile by the Employer); and (iv)
Employee shall be entitled to paid vacation accrued at a rate of 20 business
days' vacation per twelve-month period that he is employed under the terms of
this Agreement.
(b) In addition to receiving the Salary, during the term of this
Agreement, Employee shall be entitled to participate in any and all cash bonus
plans, and other variable compensation arrangements, established for the
corporate officers of Employer and approved by the Board of Directors from time
to time (any and all such plans and arrangements being hereinafter referred to
as "Bonus Plans"). The amount of any bonus earned by the Employee pursuant to
any and all Bonus Plans in respect of any fiscal year of the Employer shall
hereinafter be referred to as a "Bonus". Except that for FY98, the Employee's
base salary for all bonus plan calculations shall be $220,000.00 per annum.
(c) Employee will be granted stock options in the amount of 72,000 shares
at an option price equal to the closing price of company stock on September 8,
1997.
(d) In the event that the Employer terminates the employment of the
Employee without Cause or the Employee terminates such employment with Reason
(including death or disability), the Employer will provide to the Employee and
the Employee's dependents, Group or Family Health and Dental insurance coverage
of substantially the same kind, and in no lesser amounts, than in effect on the
Effective Date of this agreement until the Employee's sixty-second (62nd)
birthday during any periods between the termination date and the Employee's
sixty-second (62nd) birthday during which the Employee is not employed by
another employer who offers equivalent or better Group Health and Dental
insurance. In the event of the Employee's death prior to the Employee's sixty-
second (62nd) birthday, such benefits will be provided to his surviving spouse
and/or dependents until the date on which the Employee would have otherwise
attained the age of sixty-two (62). The Employee shall make copayments to cover
the cost of such insurance coverage during such periods equivalent to the
percentage of the total cost of such insurance coverage paid by the Employee as
of the Effective Date of this agreement.
(e) The Employee will be provided on the "Transition Date" with an
interest free loan in the amount of $50,000.00 which shall be forgiven over a 5
year period in equal amounts as ordinary income and deducted from any bonus due
to the Employee during each of the ensuing 5 years. If the Employee's
employment is terminated by the Employer for any reason other than Cause or by
the Employee for reason including death or disability, then the remaining unpaid
balance will be forgiven by the Employer. In the event that the Employee's
employment is terminated by the Employer for Cause or by the Employee without
reason (excluding death or disability), the Employee shall repay the unforgiven
portion of said loan plus interest at a rate of 2% above the then current prime
interest rate as defined in paragraph 5 (f) of this agreement.
(f) Notwithstanding anything else contained in this Section 5, Employee
may, before the first day of any fiscal year of the Employer, by written notice
to the Employer irrevocably cause all, or any such portion(s) as such notice may
designate, of the Salary and/or Bonus in respect of such ensuing fiscal year to
be due and payable at any such date or dates (subsequent to the date or dates
when such Salary or Bonus would otherwise, be payable hereunder (each a "Normal
Due Date")) as such notice may designate (each a "Deferred Due Date"). From and
after each Normal Due Date and until the corresponding Deferred Due Date, the
relevant deferred amount of Salary and/or Bonus shall accrue interest at an
annual rate two and one-half percentage points (2.5%) less than the rate
publicly announced from time to time by Manufacturers and Traders Trust Company
as its prime rate (compounded quarterly). The relevant deferred amount and all
interest so accrued thereon shall be an unsecured general obligation of
Employer, due and payable on the Deferred Due Date.
Section 6. Level A Agreement. The Level A Employee Agreement dated as
March 10, 1995, between Employer and Employee (the "Level A Agreement")
shall survive the execution of this Agreement and shall remain in full force
and effect in accordance with its terms.
Section 7. Miscellaneous.
(a) All notices given under any provisions of this Agreement shall be in
writing and mailed by registered or certified mail, return receipt requested,
or delivered by hand, to the Employer to its Secretary at its principal place
of business, and to the Employee at the address set forth in the first page
of this Agreement, or such other address, in each case, as the addressee shall
have last furnished to the communicating party, and shall be effective when
received or, if sooner, five days after such mailing.
(b) Except as otherwise expressly provided herein, this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto, their heirs,
legal representatives, successors and assigns (whether by purchase, merger or
otherwise). Neither party may assign any of its rights or obligations hereunder
without the prior written consent of the other party hereto, except that
Employer may assign its rights hereunder to a successor corporation to Employer.
(c) This Agreement may be executed in any number of counterparts, each of
which shall be an original and all of which, taken together, shall constitute
but one and the same instrument, and in making proof of this Agreement it shall
be necessary to produce only one such counterpart without the necessity of
accounting for any other counterparts.
(d) This Agreement constitutes the entire agreement among the parties with
respect to the subject matter hereof.
(e) No consent to or waiver of any breach or default in the performance of
any obligation hereunder shall be deemed or construed to be a consent to or
waiver of any other breach or default in performance of any of the same or any
other obligations hereunder. Failure on the part of any party to complain of
any act or failure to act of any other party or to declare any party in default,
irrespective of how long such failure continues, shall not constitute a waiver
of rights hereunder, and no waiver hereunder shall be effective unless it is in
writing, executed by the party waiving a breach or default hereunder.
(f) This Agreement may not be amended or modified except by an instrument
in writing executed by each of the parties hereto.
(g) If any provision of this Agreement or the Level A Agreement shall, in
whole or in part, prove to be invalid for any reason in any circumstances, such
invalidity shall affect only the portion of such provision which shall be
invalid and only in such circumstances, and no other portion or provision of
this Agreement or the Level A Agreement shall be invalidated, impaired or
affected thereby, nor shall be such provision or portion in any other
circumstances.
(h) The headings of sections of this Agreement are for convenience of
reference only and are not intended to affect its meaning or construction.
(i) The validity, enforceability and interpretation of any and all of the
provisions of this Agreement shall be determined in accordance with and governed
by the laws of the State of New Hampshire, excluding the choice of law rules
thereof.
(j) Each of the parties represents that he or it has not used any
employment counselor or other person who would be entitled to any compensation
which has not been paid for arranging or obtaining the employment hereby
governed.
(k) Any dispute under or relating to this Agreement shall be resolved
promptly by arbitration in New Hampshire by an arbitrator selected by, and under
the rules of, the American Arbitration Association; such arbitrator shall have
the power to award monetary damages, punitive damages, injunctive relief, costs
and attorneys, fees, and other appropriate relief; and judgment upon the award
of such arbitrator may be entered in any court having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as an
instrument under seal as of the date first written above.
CHEMFAB CORPORATION
By: /s/ Xxxxxxxx Xxxxxx Date: August 12, 1997
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Title: Chairman Elect - Board of Directors
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/s/ Xxxx X. Xxxxxxxx, Xx. Date: August 6, 1997
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