Exhibit 10.59
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
First Amendment to Employment Agreement as of February 15,
1999 by and between YORK RESEARCH CORPORATION, a Delaware corporation (the
"Employer") and XXXXXX X. XXXXXXXXX (the "Executive").
R E C I T A L S
The Employer and the Executive entered into an Employment
Agreement on December 9, 1998 (the "Agreement").
The Employer and the Executive desire to amend the Agreement
as hereinafter set forth.
NOW, THEREFORE, the Employer and the Executive hereby agree as
follows:
Subparagraph 4.03 of the Agreement is hereby deleted and there
is substituted therefor a new subparagraph 4.03 to read as follows:
4.03 SUPPLEMENTAL BENEFIT. Upon the Executive's
involuntary removal from employment by the Employer by reason of termination,
Disability or death, the Employer shall pay the Executive (or his estate or
personal representative) an annual amount equal to 100% of the Executive's
salary in effect on the date of such removal for an additional period of one
year and 50% thereof for an additional nine years, but in no event after age 80.
Except as amended by this First Amendment, the Agreement shall
continue in full force and effect.
YORK RESEARCH CORPORATION
By: /s/ XXXXXXX XXXXXXXXXXXX
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Executive Vice President
/s/ XXXXXX X. XXXXXXXXX
---------------------------------
XXXXXX X. XXXXXXXXX
EMPLOYMENT AGREEMENT
Employment Agreement dated as of , 1998 by and between YORK
RESEARCH Corporation, a Delaware corporation (the "Employer") and XXXXXX X.
XXXXXXXXX (the "Executive").
R E C I T A L S
The Executive is currently employed by the Employer.
The Employer and the Executive desire to provide for the
continued employment of the Executive upon the terms and conditions set forth
herein.
NOW, THEREFORE, effective from and after the date first
written above, the Employer and the Executive hereby agree as follows:
1. EMPLOYMENT. The Employer hereby employs the Executive, and
the Executive accepts such employment and agrees to perform services for the
Employer, for the period and upon the terms and conditions set forth in this
Agreement.
2. TERM. Unless terminated at any earlier date pursuant to the
terms of this Agreement, the terms of the Executive's employment by the Employer
shall be for a period of six (6) years from and after the date hereof, or until
the Executive shall reach his 75th birthday.
3. POSITION AND DUTIES; REMOVAL.
3.01 SERVICE WITH EMPLOYER. At the date of this
Agreement, the Executive holds the positions of Chairman of the Board of
Directors, President and Chief Executive Officer of the Employer. The Executive
agrees to perform such employment duties as the Board of Directors of the
Employer shall from time to time assign to him consistent with his offices as
Chairman of the Board of Directors, President and Chief Executive Officer.
3.02 PERFORMANCE OF DUTIES. The Executive agrees to
serve the Employer faithfully and to the best of his ability and to devote such
of his time, attention and efforts to the business and affairs of the Employer
during the term of this Agreement as shall be necessary to perform his assigned
duties. Employer acknowledges that Executive performs services for a number of
affiliated and non-affiliated business entities, and agrees that the performance
of such services does not interfere with Executive's performance of his duties
hereunder.
3.03 PLACE OF EMPLOYMENT. Unless otherwise mutually
agreed to by the Executive and the Employer, the principal place of employment
of the Executive shall be in the City of New York or within a 50 mile radius
therefrom. It is understood that the performance of the Executive's duties will
require moderate travel outside of that area.
3.04 REMOVAL. Except as provided in paragraph 5.01
hereof, in the event that the Board of Directors of the Employer shall remove or
Constructively Remove (as hereinafter defined) the Executive as Chairman of the
Board of Directors, President and Chief Executive Officer of the Employer and
shall not appoint the Executive to an office and duties which, in the sole
judgment of the Executive, are comparable or superior to the offices of Chairman
of the Board of Directors, President and Chief Executive Officer, then the
Executive may by notice to the Employer elect to terminate his employment under
this Agreement. Any failure by the Executive to make such election at any time
as to Employer shall not impair the Executive's ability to make such election at
any time in the future. Upon receipt of notice of the Executive's election to
terminate this Agreement pursuant to this section 3.04, the Employer shall (i)
pay to the Executive any amounts earned or accrued but unpaid, computed on a pro
rata basis where appropriate, pursuant to sections 4.02, 4.03 and 4.04, and (ii)
commence making monthly payments to the Executive in, an amount equal to
one-twelfth (1/12) of the greater of (x) the Executive's annual base salary in
effect under section 4.01 as of the date of this Agreement, or (y) the
Executive's annual base salary then in effect under section 4.01. The Employer
shall continue to make such monthly payments until the first to occur of (i) the
expiration of the term set forth in section 2 or (ii) the Executive shall be
unwilling to provide consulting services to the Employer upon request, up to a
maximum of 100 hours per quarter, at places and times reasonably convenient to
both the Employer and the Executive and at no charge by the Executive other than
for reasonable out-of-pocket expenses. For purposes of this paragraph,
"Constructively Remove" shall mean the occurrence of any of the following
events:
(i) the assignment to the Executive of duties
inconsistent with the Executive's positions, duties,
responsibility and status as Chairman of the Board of
Directors, President and Chief Executive Office of the
Employer;
(ii) the failure by the Employer to continue in
effect any benefit or compensation plan, stock acquisition
plan, incentive or bonus plan or insurance plan in which the
Executive is participating at the time (or plans providing the
Executive with substantially equivalent benefits) or the
taking of any action by the Employer which would adversely
affect the Executive's participating in, or materially reduce
the Executive's benefits under, any of such plans;
(iii) the failure by the Employer to obtain, as
specified in section 7, an assumption by any successor to the
Employer of the Employer's obligations under this Agreement;
or
(iv) the assignment to the Executive of duties
inconsistent with the place of employment specified in section
3.03.
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4. COMPENSATION.
4.01 BASE SALARY. As base compensation for all
services to be rendered by the Executive under this Agreement during the term of
this Agreement, the Employer shall pay to the Executive an annual salary of not
less than $425,000, in installments not less frequently than monthly in
accordance with the Employer's normal payroll procedures and policies. The Board
of Directors of the Employer shall consider increases in the base salary from
time to time.
4.02 INCENTIVE COMPENSATION. In addition to the base
salary described in section 4.01, the Executive shall be paid incentive
compensation in accordance with the following, based upon the pre-tax earnings
of the Employer, beginning with the Employer's fiscal year ending February 28,
1997:
Percentage
Pre-tax Earnings Incentive Payment
---------------- -----------------
$4 Million to $6 Million 1%
$6 Million to $10 Million 1.5%
$10 Million to $15 Million 2%
Excess of $15 Million 3%
Incentive Compensation shall be paid to the Executive promptly after
certification by the Employer's independent auditors of Employer's pre-tax
earnings annually.
4.03 SUPPLEMENTAL RETIREMENT BENEFIT. Upon the
Executive's retirement from employment by the Employer, whether voluntary or
involuntary (including by reason of removal, termination or Disability), the
Employer shall pay the Executive (or his estate or personal representative) an
annual amount equal to 100% of the Executive's salary in effect on the date of
such retirement for an additional period of one year and 50% thereof for an
additional nine years, but in no event after age 80.
4.04 OTHER EMPLOYER PLANS. In addition to the base
salary described in section 4.01, the Incentive Compensation described in
section 4.02, and the Supplemental Retirement Benefit described in section 4.03,
the Executive shall be entitled to participate in such bonus, incentive
compensation, stock option and other employee compensation plans as may be
established by the Employer's Board of Directors from time to time for
executive-level employees.
4.05 PARTICIPATION IN BENEFIT PLANS. During the term
of this Agreement, the Executive shall be entitled to receive such medical,
hospitalization, life insurance and other fringe benefits as are provided from
time to time to the Employer's other
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executive-level employees, to the extent that the Executive's age, position or
other factors qualify him for such fringe benefits.
4.06 EXPENSES. The Employer will pay or reimburse the
Executive for all reasonable and necessary out-of-pocket expenses incurred by
him subject to the presentment of appropriate vouchers in accordance with the
Employer's normal policies for expense verification.
5. TERMINATION.
5.01 GROUNDS FOR TERMINATION. This Agreement shall
terminate prior to the expiration of the term set forth in section 2 and all
obligations of the company shall cease in the event that at any time during such
term the Board of Directors of the Company shall determine that the Executive
has engaged in Wrongful Acts (as hereinafter defined). Notwithstanding any
termination of this Agreement, the Executive, in consideration of his employment
hereunder to the date of such termination, shall remain bound by the provisions
of this Agreement which specifically relate to periods, activities or
obligations upon or subsequent to the termination of the Executive's employment.
For purposes of this paragraph, "Wrongful Acts" means an act or acts
constituting a felony under applicable law (whether or not in connection with
the Executive's duties under this Agreement).
5.02 DEATH OR DISABILITY. In the event of the death
or disability (as defined in section 5.03) of the Executive prior to the
expiration of the term set forth in section 2, the Employer shall pay to the
Executive, or his surviving spouse (i) any amounts earned or accrued but unpaid,
computed on a pro-rata basis where appropriate, pursuant to sections 4.02, 4.03,
4.04 and 4.05 and (ii) monthly payments at the rate in effect under section 4.01
at the date of death or determination of disability until the expiration of one
year from the date of death or determination of disability, and (iii) monthly
payments at fifty (50%) percent of the rate in effect under section 4.01 for an
additional five (5) years.
5.03 "DISABILITY" DEFINED. The Board of Directors of
the Company may determine that the Executive has become "disabled" for purposes
of this Agreement in the event that the Executive shall fail, because of illness
or incapacity, to render services of the character contemplated by this
Agreement for 90 days or more during any period of 180 consecutive days. Any
such determination by the Board of Directors shall be made in good faith after
at least 30 days prior written notice to the Executive. During such 30-day
period, the Executive shall be permitted to make a presentation to the Board of
Directors for its consideration.
6. CHANGE OF CONTROL. In case of a Change of Control of
Employer (hereinafter defined), the Executive, at his sole option, shall have
the right on written notice to Employer, to cease to perform any service
hereunder, but shall nonetheless receive all compensation and other benefits
required to be paid or provided by Employer for the balance of the term hereof
measured from the date of such notice. Payment of such amount shall be made in a
lump sum within 15 days from the date of such notice. A Change of Control shall
be deemed to have occurred if (i) a tender offer shall be made and consummated
for the
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ownership of 25% or more of the outstanding voting securities of the Employer,
(ii) the Employer shall be merged or consolidated with another corporation and
as a result of such merger or consolidation less than 75% of the outstanding
voting securities of the surviving or resulting corporation shall be owned in
the aggregate by the former shareholders of the Employer, other than affiliates
(within the meaning of the Securities Exchange Act of 1934) of any party to such
merger or consolidation, as the same shall have existed immediately prior to
such merger or consolidation, (iii) the Employer shall sell substantially all of
its assets to another corporation which is not a wholly owned subsidiary, or
(iv) a person, within the meaning of section 3(a)(9) or of section 13(d)(3) (as
in effect on the date hereof) of the Securities Exchange Act of 1934, shall
acquire 25% or more of the outstanding voting securities of the Employer
(whether directly, indirectly, beneficially or of record). For purposes hereof,
ownership of voting securities shall take into account and shall include
ownership as determined by applying the provisions of Rule 13d-3(d)(1)(i) (as in
effect on the date hereof) pursuant to the Securities Exchange Act of 1934.
7. SUCCESSORS. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the parties hereto and their respective
successors and permitted assigns. No party to this Agreement may assign any of
its obligations hereunder without the prior written consent of the other. The
Employer may not assign any of its rights hereunder without the prior written
consent of the Executive. The Employer will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Employer would be required to perform it if no such succession had taken place.
As used in this Agreement, "Employer" shall mean the Employer and any successor
to its business and/or assets, whether or not such successor executes and
delivers the agreement provided for in this section.
8. ARBITRATION OF DISPUTES. Any disagreement, dispute,
controversy or claim arising out of or relating to this Agreement or the
interpretation hereof or the breach, termination or invalidity hereof shall be
settled exclusively and finally by arbitration conducted in New York City in
accordance with the rules of the American Arbitration Association then
obtaining.
9. MODIFICATION; WAIVER. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in a writing signed by the Executive and the Employer.
10. NOTICE. All notices, requests, demands and all other
communications required or permitted by this Agreement (including, without
limitation, any notice of termination of employment and any notice of an
intention to arbitrate) shall be in writing and shall be deemed to have been
duly given when delivered personally or received by certified or registered
mail, return receipt requested, postage prepaid, at the address of the other
party, as follows:
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If to the Employer:
York Research Corporation
000 Xxxx Xxxxxx, 0000 Xxxx
Xxx Xxxx, XX 00000
Attention: Board of Directors
If to the Executive:
Xx. Xxxxxx X. Xxxxxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Any party hereto may change its address for purposes of this section by giving
notice to the other parties hereto.
11. SEVERABILITY. If any term or provision of this Agreement
or the application hereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder or this Agreement or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable shall not be affected thereby, and each term
and provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
12. GOVERNING LAW. This Agreement has been executed and
delivered in the State of New York and shall in all respects be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
including all matters of construction, validity and performance.
13. ENTIRE AGREEMENT. This Agreement supersedes any and all
other oral or written agreements or policies made relating to the subject matter
hereof, and constitutes the entire agreement of the parties relating to the
subject matter hereof; provided that this Agreement shall not supersede or limit
in any way the Executive's rights under any insurance or other benefit plans,
programs or arrangements in accordance with their terms.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Employment Agreement as of the date first written above.
YORK RESEARCH CORPORATION
By: /s/ Xxxxxxx Xxxxxxxxxxxx
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Executive Vice President
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
XXXXXX X. XXXXXXXXX
