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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of October,
30, 1995, to amend and restate in entirety the Employment Agreement dated as of
the 3rd day of December, 1992 by and between XXXXX & XXXXXXX UNITED, INC. with
offices at 00 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000 (the "Company") and
Xxxxx X. Xxxxx who resides at 000 Xxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000
("Employee").
W I T N E S S E T H:
WHEREAS, the Employee has been and is presently in the employ of the
Company and is presently serving as Corporate Vice President - Finance and
Secretary of the Company; and
WHEREAS, Employee possesses an intimate knowledge of the business and
affairs of the Company and its policies, procedures, methods and personnel; and
WHEREAS, the Company wishes to secure the continued services and
employment of the Employee and the Employee wishes to continue in the employment
of the Company, upon the terms and conditions hereinafter set forth;
WHEREAS, the Company and the Employee entered into an Employment
Agreement dated as of the 3rd day of December, 1992;
NOW, THEREFORE, in consideration of the foregoing premises and of the
promises exchanged herein, the parties agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Employee as
Corporate Vice President - Finance and Secretary and Employee agrees to accept
that employment.
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Employee shall have such duties as may be assigned to him from time to time by
the appropriate senior executive officer of officers of the Company, provided
that such duties are generally consistent with his position as Corporate
Vice President - Finance and Secretary.
2. COMPENSATION. The Company will pay Employee the salary and bonus
and provide the benefits set forth in Exhibit A to this Agreement.
3. TERM. This Agreement shall have a continuous term until terminated
as provided in Paragraph 4.
4. TERMINATION.
(a) This Agreement will terminate upon Employee's death or
retirement.
(b) The Company may terminate this Agreement upon at least thirty
(30) days' prior written notice in the event of Employee's disability.
"Disability" will exist if Employee, in the good faith determination of the
Board of Directors of the Company ("Board") has been unable to substantially
perform his obligations under this Agreement for a period of four (4)
consecutive months or for six (6) months in any twelve (12) month period on
account of physical or mental incapacity.
(c) The Company may terminate this Agreement for cause. For
purposes of this Agreement, "cause" will be deemed to exist upon: (1) the
continued failure by Employee to substantially perform his duties under this
Agreement after notice of, and a reasonable opportunity to cure, such failure,
other than any such failure resulting from Employee's disability; (2) the
engaging by Employee in a course of misconduct which, in the good faith
determination of the Board, is materially harmful to the Company after notice
of, and
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a reasonable opportunity to cure, such misconduct; or (3) an act of moral
turpitude, dishonesty or fraud by or felony conviction of Employee which, in the
good faith determination of the Board, would render his continued employment by
the Company damaging or detrimental to the Company.
(d) The Company may terminate this Agreement without cause by
notifying Employee in writing of its election to terminate at least thirty (30)
days before the effective date of termination. Employee may, on written notice
to the Company, accelerate the effective date of termination to any other date
of his choosing up to the date of notice of acceleration.
(e) Employee may terminate this Agreement for good reason. The
term "good reason" shall mean (1) the Company's failure to continue to assign
duties to the Employee generally consistent with those he has performed for the
Company or its predecessors in the past, (2) any substantial diminution in job
rights or title, (3) any diminution in salary or fringe benefits, (4) the
failure of any successor to the Company to furnish the assurances provided for
in Section 7(c), or (5) any attempted involuntary relocation of Employee to an
area outside Metropolitan Buffalo, New York. Employee may notify the Company
of the existence of good reason and the Company shall have thirty (30) days
thereafter to remedy the situation.
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(f) The Company will pay Employee on the effective date of
termination all unpaid compensation accrued at the rate set forth on Exhibit A
through the effective date of termination.
(g) This Agreement may be terminated by mutual agreement between
the parties.
(h) Employee may terminate this Agreement without good reason
at any time with sixty (60) days' written notice to the Company, and
the Company may accelerate the effective date of termination to any other date
up to the date of notice of acceleration.
(i) Employee may terminate this Agreement if there has occurred a
change in "control" of the Company (as defined in Section 5(c)) occuring after
October 1, 1995 by giving written notice to the Company within two (2) years
after the date of such change in control. This Agreement may be terminated by
Employee pursuant to this Section 4(i) even if a notice has previously been
given by the Company pursuant to Section 4(b), 4(c) or 4(d).
5. SEVERANCE PAYMENTS
(a) The Company will make the severance payments specified in
Section 5(b) or (c) below if this Agreement is terminated pursuant to Section
4(d) or (e). The Company will make the severance payments specified in
Section 5(f) if this Agreement is terminated pursuant to Section 4(i). The
Company will not be obligated for severance payments in any other event.
(b) As severance payments under this Section 5(b), the Company
will pay Employee on the first day of the month following the effective date of
termination of this Areement, and on the first day of each of the next
succeeding twenty-three (23) months, an amount equal to 1/12th of the sum of the
highest total of salary payments made by the Company to Employee in any calendar
year and bonus earned by Employee (whether or not deferred) with respect to
services rendered to the Company during such calendar year. Each monthly payment
will be reduced by an amount equal to any retirement or supplemental retirement
payment that is paid by the Company or from a Company-sponsored plan during the
month and by an amount
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equal to any disability payments Employee or his spouse receive during the month
from the Company or from a Company-sponsored plan; provided, however, that this
reduction shall not apply to any retirement, supplemental retirement or
disability payments derived from Employee's contributions, or interest thereon,
to any Company-sponsored plan. If Employee dies without a spouse or minor
children surviving, or if Employee's surviving spouse and minor children die or
all of Employee's surviving minor children reach age 18 before all severance
payments have been made, the Company's obligations to make any further severance
payments under this Section 5(b) will cease.
(c) If this Agreement is terminated pursuant to Section 4(d) or
(e) after a change in control of the Company has occurred, or if a change in
control of the Company occurs while the Company is making severance payments to
the Employee pursuant to Section 5(b), Employee may elect to receive the
severance payments specified in Section 5(b) (or the remaining balance thereof)
in a lump sum. The reductions that would otherwise be applicable to severance
payments under the second sentence in paragraph 5(b) shall not apply. This lump
sum shall be paid within 30 days after the effective date of termination or, if
a change in control occurs after termination, within 30 days after such change
in control. For the purposes of this Agreement, "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of the Company, whether through the ownership of voting
securities, by contract, or otherwise, except that "control" shall not include
power which derives solely from status as a corporate officer or employee.
Without limiting the generality of the foregoing, a change in control shall be
deemed to have occurred (i) if any person (within the meaning of Section 2(2) of
the Securities Act of 1933 or
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Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) becomes the
beneficial owner, directly or indirectly, of securities of the Company
representing twenty-five percent (25%) or more of the combined voting power of
the then outstanding securities of the Company, (ii) if at any time less than a
majority of the Board of Directors of the Company are persons who were directors
of the Company twenty-four (24) months before such time or (iii) more than fifty
percent (50%) of the assets of the Company are sold other than in the usual
course of business.
(d) Notwithstanding anything else provided in this Agreement to
the contrary, the Company will not be obligated to make any monthly severance
payments specified in Section 5(b) after that month in which Employee attains
age sixty-five (65) or would have attained age sixty-give (65) if he dies before
such date.
(e) Notwithstanding anything else in this Agreement to the
contrary, if payments to be made pursuant to this Agreement, together with
other amounts due the Employee, constitute an "excess parachute payment"
within the meaning of Section 280G(b) of the Internal Revenue Code of 1986,
as amended, such payments shall be reduced to the extent necessary so that
they do not constitute an "excess parachute payment".
(f) If this Agreement is terminated pursuant to Section 4(i),
Employee shall be paid in a lump sum an amount equal to 2.99 times the sum
of the highest total of salary payments made by the Company to the Employee in
any calendar year and bonus earned by Employee (whether or not deferred) with
respect to services rendered to the Company during such calendar year. The
lump sum shall be paid within five (5) days after the effective date of
termination.
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6. CONFIDENTIALITY AND COVENANT NOT TO COMPETE
(a) Except as required in the course of his employment, Employee
shall not use or disclose to any other person any of the Company's proprietary
or confidential information.
Proprietary or confidential information means information used by the
Company and not generally known or used by persons or organizations in the
business in which the Company is engaged, including without limitation,
information about the Company's products, processes, services, research,
suppliers and customers.
(b) During the term of this Agreement and thereafter for the
periods specified as follows, Employee shall not, directly or indirectly, as
principal, agent, employer, employee, shareholder (except ownership of less
than one percent (1%) of the number of shares outstanding of any securities
which are listed for trading on any securities exchange), partner, director or
otherwise, engage or be interested in any business engaged in the manufacture
or sale of paint, coatings or other products that are or are intended to be
marketed in competition with paint, coatings or other products manufactured and
sold by the Company or its subsidiaries:
(i) One Year - in the event that Employee quits, resigns his
position or elects not to renew this Agreement pursuant to Section 4(h).
(ii) Six Months - in the event the Company elects to terminate
this Agreement for cause pursuant to Section 4(c).
(iii) For so long as Employee receives severance payments - in
the event that this Agreement is terminated pursuant to Section 4(d).
(iv) None - in the event this Agreement expires or is
terminated under any circumstances other than those recited in Section 6(b)(i),
(ii) and (iii).
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(c) Employee agrees that the Company will be entitled to
injunctive relief in the event of Employee's breach of Section 6(a) or 6(b) of
this Agreement.
(d) If any provision of this Agreement is for any reason held to
be excessively broad as to any activity or subject, it will be construed, by
limiting and reducing it, to be enforceable to the maximum extent compatible
with applicable law.
7. MISCELLANEOUS
(a) This Agreement supersedes and extinguishes all prior
employment agreements and is the entire agreement between the parties, and any
addition, change or modification of this Agreement will be void unless in
writing and duly executed by each party hereto. Without limiting the
generality of the foregoing, this Agreement amends and restates in entirety,
and therefore supersedes, the Employment Agreement by and between Employee and
the Company dated December 3, 1992, provided, however, that this Agreement
shall not extinguish any rights accrued thereunder.
(b) Except as provided in Section 6(c), any and all disputes or
controversies concerning this Agreement will be resolved by arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association in Buffalo, New York. The arbitrator will be authorized to decree
and award any and all relief of a legal or equitable nature including, but not
limited to, relief in the nature of a temporary restraining order, a temporary
or permanent injunction, and money damages, with or without accounting
and costs.
(c) Any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company must, within 10 days after Employee's request, furnish
its written assurance that it is bound to perform this Agreement in the same
manner and to the same extent that the Company would have been required to
perform it if no such succession had taken place.
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(d) The obligations specified in Sections 5 and 6 and 7(b) will
survive termination or expiration of this Agreement.
(e) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (regardless of the laws that
might otherwise govern under applicable New York principles of conflicts of
law).
(f) All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered in person or
sent by certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Employer, to:
Xxxxx & Xxxxxxx United, Inc.
00 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chairman of the Board
If to the Employee, to:
Xxxxx X. Xxxxx
000 Xxxxxxx Xxxxx
Xxxxxx, Xxx Xxxx 00000
or to such other address as the party to whom notice is to be given may, from
time to time, designate in writing delivered in a like manner; provided that
notices of changes of address shall be effective only upon receipt thereof.
Notice given by mail as set forth above shall be deemed delivered at the time
and on the date the same is postmarked.
(g) The headings contained herein are solely for the purpose of
reference, are not part of this Agreement and shall not in any way affect the
meaning or interpretation of this Agreement.
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(h) This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
XXXXX & XXXXXXX, INC.
/s/ XXXXXX X. XXXXXXXXX
BY:__________________________
/s/ XXXXX X. XXXXX
_____________________________
EMPLOYEE
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EXHIBIT A
Salary $170,000
Bonus
Bonuses for Senior Executive Officers are calculated as a
percentage of salary. The same bonus percentage for a year which is applied to
other Senior Executive Officers shall be applied to the Employee.
Benefits Benefits comparable to those provided to other Senior Executive
Officers of the Company from time to time shall be provided to the Employee.
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