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Exhibit 10.11
EMPLOYMENT AGREEMENT
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This Agreement is made as of the ___ day of _______________, 1995
between Pamarco, Incorporated, a Maryland corporation ("Pamarco" or the
"Company"), and Xxxxxxx X. Xxxx (the "Employee").
RECITALS
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The Employee has been an executive employee of the Company and of
Pamarco Europe Ltd., the Company's subsidiary ("Pamarco Europe") prior to the
date hereof. The Company desires to continue such employment of the Employee,
and the Employee desires to continue working for the Company and Pamarco Europe,
upon the terms and conditions hereinafter set forth. For the purposes of this
Agreement, unless the context indicates otherwise, the term "Company" shall be
deemed to include any incorporated or unincorporated subsidiaries or affiliates
of the Company, including Pamarco Europe Ltd. and any majority-owned
subsidiaries thereof, and such subsidiaries and affiliates are referred to
herein as "Affiliated Companies."
WITNESSETH:
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT.
The Company hereby continues the employment of the Employee as an
executive-level employee, and the Employee hereby accepts such continued
employment, for the Employment Term specified in Section 3 (the "Employment
Term"). During the Employment Term, the Employee shall perform for Pamarco and
any Affiliated Companies such duties as are assigned by any senior officer or
the Board of Directors of the Company.
2. PERFORMANCE.
The Employee shall devote his entire business efforts to the
performance of his duties hereunder; provided, however, that the Employee may
engage in personal investment activities so long as they do not interfere with
the performance of his duties hereunder.
3. TERM.
Unless otherwise terminated in accordance with Sections 6 or 7, the
Employment Term shall be for an initial term of one year from the date of this
Agreement and shall automatically continue thereafter for successive one-year
renewal terms unless one party provides the other with at least 90 days' prior
written notice that the then current term shall not be extended.
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4. COMPENSATION FOR EMPLOYMENT.
(a) The basic annual rate of compensation of the Employee for his
employment services to the Company hereunder shall be the Employee's annual
salary on the date hereof (the "Salary"), which the Company shall pay to the
Employee in equal installments in accordance with the Company's payroll payment
schedule in effect from time to time. The Salary may be adjusted upward as the
Board of Directors of the Company (the "Board") may approve, in its sole
discretion, from time to time, but the Salary shall not be decreased.
(b) Commencing January 1, 1996, the Employee shall be entitled to a
bonus or such other incentive compensation as may be provided under any plan or
program established from time to time by the Board, in its sole discretion.
Through December 31, 1995, the Employee shall be entitled to an annual bonus
payable in accordance with the terms of the Company's Executive Committee
Incentive Program with respect to Pamarco Europe - 1993, with the following
modification: for the period January 1 through December 31, 1995, the Board, in
its sole discretion, shall establish a budget for pre-tax income of Pamarco
Europe in accordance with generally accepted accounting principles consistently
applied and the Employee's bonus will vary as a percentage of Salary in relation
to the percentage achievement of that budget as follows:
Percentage of Percentage of Salary
Budget Attained Earned as Bonus
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<90% 0%
90% 10%
100% 20%
110% 30%
125% 35%
For percentage of budget achievement between the benchmarks, the percentage of
Salary shall be linearly interpolated, provided that no bonus shall be paid for
achievement less than 90% of budget and the maximum bonus shall be 35% of Salary
in any event.
(c) During the Employment Term, the Company shall provide, the Employee
with fringe benefits that are substantially equivalent to the fringe benefits
specified on Exhibit "A" (the "Fringe Benefits").
(d) This Agreement provides the total compensation that shall be due to
the Employee from Pamarco and any Affiliated Companies with respect to any
services provided by the Employee thereto.
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5. TERMINATION WITHOUT COMPENSATION.
(a) TOTAL DISABILITY. If the Employee becomes totally disabled (as
defined below), the Employment Term may be terminated by the Company, and the
Company shall have no further liability or obligation to the Employee hereunder
except as follows: the Employee shall receive (i) any unpaid Salary and Fringe
Benefits that have accrued through the date of termination; (ii) continued
Salary for three months following the date he is considered totally disabled and
a proportionate share of any bonus otherwise payable in accordance with the
provisions of Section 4 for the calendar year in which he is considered to be
totally disabled, determined in the same manner as in Section 6 and (iii)
whatever benefits that he may be entitled to receive under any then existing
disability benefit plans of the Company, including any such plans included in
the Fringe Benefits. For the purposes hereof, the Employee shall be deemed to be
"totally disabled" if the Employee is considered totally disabled under the
Company's group disability plan in effect at that time, if any, or in the
absence of any such plan, under applicable Social Security regulations. In the
event of any dispute as to the disability of the Employee under this Section
6(b), the Employee shall submit to a physical examination by a licensed
physician mutually satisfactory to the Company and the Employee, the cost of
such examination to be paid by the Company, and the determination of such
physician shall be determinative.
(b) DEATH. If the Employee dies, this Employment Agreement shall
terminate, and thereafter the Company shall not have any further liability or
obligation to the Employee, his executors, administrators, heirs, assigns or any
other person claiming under or through him except that the Employee's estate
shall receive any unpaid Salary and Fringe Benefits that have accrued through
the date of termination.
(c) CAUSE. The Company may terminate the Employment Term for "cause" by
giving the Employee 30 days' notice of the termination date, and thereafter the
Company shall not have any further liability or obligation to the Employee,
except that the Employee shall receive any unpaid Salary and Fringe Benefits
that have accrued through the date of termination, net of any liabilities that
the Employee may have to the Company. For purposes of this Agreement, "cause"
shall mean the failure of the Employee to observe or perform (other than by
reason of illness, injury or incapacity) any of the material terms or provisions
of this Agreement, dishonesty, willful misconduct, material neglect of the
Company's business, conviction of a felony or other crime involving moral
turpitude, misappropriation of funds or habitual insobriety.
6. TERMINATION WITH COMPENSATION.
(a) NON-RENEWAL OF TERM. The Employment Term may be terminated by
either party hereto as of the end of the initial term or any renewal term then
in effect by giving written notice of the intention to terminate the Employment
Term at least 90 days prior to the proposed termination date. Under such
circumstances, the Company shall provide the Employee with the Termination
Compensation specified in Section 6(c).
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(b) WITHOUT CAUSE. The Company shall have the right to terminate the
Employment Term without cause at any time by giving the Employee 30 days' notice
of the termination date. Under such circumstances, the Company shall provide the
Employee with the Termination Compensation specified in Section 6(c).
(c) TERMINATION COMPENSATION. The "Termination Compensation" shall
consist of the following: (i) payment of the Employee's Salary under Section
4(a), at the level in effect at the date of termination, for 12 months after the
termination date, (ii) provision of the Fringe Benefits specified on Exhibit "B"
for 12 months unless a different term is specified on Exhibit "B"; provided,
however, that such Fringe Benefits shall not continue in effect for any period
during which the Company is precluded from continuing the Employee's
participation in the plan or program under which any such Fringe Benefit is
provided by reason of the terms of such plan or program or of any applicable law
or regulation, including the Federal tax law regarding discrimination and (iii)
for the calendar year in which the termination occurs, payment of a
proportionate bonus under Section 4(b) calculated by assuming that the Employee
remained employed for the full year and multiplying the bonus that otherwise
would have been due by a fraction the numerator of which is the number of full
months the Employee was actually employed by the Company during such calendar
year and the denominator of which is 12. Such bonus payment shall be made at the
same time as the Company pays bonuses to other executives for that year. The
Employee shall not be entitled to any Termination Compensation under this
Section 6 unless the Employee executes and delivers to the Company after a
notice of termination a release in a form satisfactory to the Company in its
sole discretion by which the Employee releases the Company from any obligations
and liabilities of any type whatsoever, except for the Company's obligation to
provide the Salary, Fringe Benefits and bonus specified in this Section 6. The
parties hereto acknowledge that the Salary, Fringe Benefits and bonus to be
provided under this Section 6 are to be provided in consideration for the above-
specified release.
(d) EXCLUSIVITY. Upon any termination by the Company under Section 6(a)
or Section 6(b), the Company shall not have any obligation to the Employee, his
executors, administrators, heirs, assigns or any other person claiming under or
through him other than to provide the Termination Compensation under the terms
and conditions of Section 6(c). Upon any termination by the Employee under
Section 6(a), the Company shall not have any further liability or obligation to
the Employee, his executors, administrators, heirs, assigns or any other person
claiming under or through him except to provide to the Employee any unpaid
Salary and Fringe Benefits that shall have accrued through the date of
termination.
7. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS.
All inventions, innovations, designs, ideas and product developments
(collectively, the "Developments"), developed or conceived by the Employee,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term or during any other period that he provided
services to the Company as an employee, independent contractor or
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otherwise, and that relate to the actual or planned business activities of the
Company and all of the Employee's right, title and interest therein, shall be
the exclusive property of the Company. The Employee hereby assigns, transfers
and conveys to the Company all of his right, title and interest in and to any
and all such Developments. The Employee shall disclose fully, as soon as
practicable and in writing, all Developments to the Board. At any time and from
time to time, upon the request of the Company, the Employee shall execute and
deliver to the Company any and all instruments, documents and papers, give
evidence and do any and all other acts that, in the opinion of counsel for the
Company, are or may be necessary or desirable to document such transfer or to
enable the Company to file and prosecute applications for and to acquire,
maintain and enforce any and all patents, trademark registrations or copyrights
under United States or foreign law with respect to any such Developments or to
obtain any extension, validation, re-issue, continuance or renewal of any such
patent, trademark or copyright. The Company will be responsible for the
preparation of any such instruments, documents and papers and for the
prosecution of any such proceedings and will reimburse the Employee for all
reasonable expenses incurred by him in compliance with the provisions of this
Section.
8. CONFIDENTIAL INFORMATION.
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of the Company, including
writings, equipment, processes, drawings, reports, manuals, invention records,
financial information, business plans, customer lists, the identity of or other
facts relating to prospective customers, inventory lists, arrangements with
suppliers and customers, computer programs, or other material embodying trade
secrets, customer or product information or technical or business information of
the Company. All such information, other than any information that is in the
public domain through no act or omission of the Employee or which he is
authorized to disclose, is referred to collectively as the "Company
Information." During and after the Employment Term, the Employee shall not (i)
use or exploit in any manner the Company Information for himself or any person,
partnership, association, corporation or other entity other than the Company,
(ii) remove any Company Information, or any reproduction thereof, from the
possession or control of the Company or (iii) treat Company Information
otherwise than in a confidential manner.
(b) All Company Information developed, created or maintained by the
Employee, alone or with others while employed by the Company or during any other
period that he provided services to the Company as an employee, independent
contractor or otherwise, and all Company Information maintained by the Employee
thereafter, shall remain at all times the exclusive property of the Company. The
Employee shall return to the Company all Company Information, and reproductions
thereof, whether prepared by him or others, that are in his possession
immediately upon request and in any event upon the completion of his employment
by the Company.
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9. REMEDIES.
The Employee expressly acknowledges that the remedy at law for any
breach of Sections 7 and 8 will be inadequate and that upon any such breach or
threatened breach, the Company shall be entitled as a matter of right to
injunctive relief in any court of competent jurisdiction, in equity or
otherwise, and to enforce the specific performance of the Employee's obligations
under these provisions without the necessity of proving the actual damage to the
Company or the inadequacy of a legal remedy. Subject to the remainder of this
Section 10, the rights conferred upon the Company by the preceding sentence
shall not be exclusive of, but shall be in addition to, any other rights or
remedies which the Company may have at law, in equity or otherwise.
10. GENERAL.
(a) GOVERNING LAW. The terms of this Agreement shall be governed by the
laws of England.
(b) BINDING EFFECT. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
(c) NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed by registered or certified mail, postage prepaid,
return receipt requested, or when sent by Federal Express or other overnight
delivery service, addressed as follows:
TO EMPLOYEE:
Xxxxxxx X. Xxxx
0 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx
Xxxxxxxx, Xxxxxxx
Post Code XX0 0XX
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TO THE COMPANY:
Pamarco, Incorporated
c/o Bradford Ventures, Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
(d) ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties
hereto.
(e) DURATION. Notwithstanding the termination of the Employment Term
and of the Employee's employment by the Company, this Agreement shall continue
to bind the parties for so long as any obligations remain under the terms of
this Agreement.
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(f) WAIVER. No waiver of any breach of this Agreement shall be
construed to be a waiver as to succeeding breaches.
(g) SEVERABILITY. If any provision of this Agreement or application
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Agreement as of the day and year first written
above.
PAMARCO, INCORPORATED
By:
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XXXXXXX X. XXXX
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EXHIBIT A
FRINGE BENEFITS
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(a) Medical, dental, term life, disability and travel accident
insurance coverage, all at levels comparable to those provided to Ford on the
date hereof.
(b) Participation in any pension plans maintained by the Company from
time to time, all at levels comparable to those provided to Ford on the date
hereof.
(c) Provision to Ford of a late model automobile comparable to that
provided to Ford on the date hereof, including all related fuel, maintenance,
repair, insurance and other costs.
(d) Reimbursement, in accordance with the Company's policies, upon
proper accounting, of reasonable expenses and disbursements incurred by Ford in
the course of his duties.
(e) Paid holidays in accordance with the Company's policies.
(f) Paid vacation of five weeks per year.
(g) Annual membership in Mere Golf and County Club.
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EXHIBIT B
FRINGE BENEFITS
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(a) Medical, dental, term life, disability and travel accident
insurance coverage, all at levels comparable to those provided to Ford on the
date hereof.
(b) To the extent permitted for a non-employee under the terms of such
plans, participation in any pension and 401(k) savings plans maintained by the
Company from time to time, all at levels comparable to those provided to Ford on
the date hereof.
(c) Provision to Ford for a period of three months of a late model
automobile comparable to that provided to Ford on the date hereof, including all
related fuel, maintenance, repair, insurance and other costs.
