Exhibit 10.14
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT made as of this 16th day of July, 1998, by and
among TOTAL CONTAINMENT, INC. (the "Company"), a Pennsylvania corporation having
its principal office at 000 Xxxxxxxx Xxxxxx, X-000 Xxxxx Xxxxx, Xxxx,
Xxxxxxxxxxxx 00000, and Xxxxx X. Xxxx (the "Executive"), an individual residing
at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000.
BACKGROUND
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The Company currently employs the Executive and wishes to formalize such
employment by a written agreement. In connection with the foregoing, the Company
has agreed to employ the Executive, and the Executive has agreed to accept
employment by the Company, on the terms and conditions set forth in this
Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the promises and of the mutual
covenants set forth herein, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Employment. The Company hereby employs the Executive, as Vice President
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Finance and the Executive hereby accepts such employment, on the terms and
conditions set forth in this Agreement.
2. Duties of Employee.
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(a) The Executive shall perform and discharge well and faithfully such
duties as an executive officer of the Company as may be assigned to the
Executive from time to time by the President of the Company. The Executive shall
devote his full time attention, and energies to the business of the Company and
shall not, during the Employment Period (as defined in Section 3 of this
Agreement), be employed or involved in any other business activity, whether or
not such activity is pursued for gain, profit, or other pecuniary advantage,
without the consent of the Company, which consent shall not be unreasonably
withheld.
(b) This Section 2 shall not be construed as preventing the
Executive from investing the Executive's personal assets in businesses (1) which
do not compete with the Company or any affiliate of the Company (2) where the
form or manner of such investments will not require services on the part of the
Executive in the operation of the affairs of the business in which such
investments are made, and (3) in which the Executive's participation is solely
that of a private investor. Notwithstanding the foregoing, the purchase by the
Executive of any class of publicly traded securities of any entity which
competes with the Company or any affiliate or subsidiary of the Company, which
securities constitute less than 5% of the aggregate securities of such class of
such entity, shall not be a violation of clause (1) hereof.
3. Term of Agreement; Termination. This Agreement shall continue for a
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term commencing on the date hereof and terminating on that date which is three
(3) years after the date hereof (the "Employment Period"), provided that on the
first and each subsequent anniversary date hereof, and unless any party has
given the other party written notice at least one hundred twenty (120) days
prior to such anniversary date that such party does not agree to renew this
Agreement, the term of this Agreement and the Employment Period shall be deemed
renewed for a term ending three (3) years subsequent to such anniversary date,
unless sooner terminated in accordance with this Section 3. Notwithstanding the
foregoing, this Agreement and the Executive's employment hereunder shall
terminate:
(a) at any time by the Company, without cause, upon sixty (60) days'
written notice to the Executive;
(b) at any time, for Cause, by the Company upon thirty (30) days' written
notice to the Executive;
(1) "Cause" shall mean any of the following:
(A) the Executive's conviction of or plea of guilty or nolo
contendere to a felony, a crime of falsehood, or a crime involving
moral turpitude, or the actual incarceration of the Executive for a
period of thirty (30) days or more;
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(B) the Executive's commission or omission of an act or course
of conduct constituting gross negligence, willful or intentional
misconduct, embezzlement, fraud or malfeasance as to the Company and/or
the Executive's employment hereunder;
(C) The Executive's material failure to follow the good faith
instructions of the Board or Chief Executive or Operating Officer, with
respect to the Company or its operations, following notice of such good
faith instructions;
(D) the Executive's breach of this Agreement; after providing
the Executive a written notice and a 10-day notice within which to cure
such breach.
(E) the Executive's intentional failure to comply in any
material respect with the Company's written policies and procedures of
which he has actual notice (For purposes of this clause, any failure of
the Executive to comply with a particular policy or procedure following
written notice to the Executive of a failure to comply with such policy
or procedure, and any failure of the Executive to comply with a policy
or procedure which has been designated by written notice to the
Executive to be of sufficient materiality to the operation supervised by
the Executive that such failure, if unintentional, constituted a
reckless disregard for such policy or procedure, shall be deemed to be
an intentional failure.); or
(F) The Executive's failure, whether intentional or
unintentional, on two (2) or more occasions during any
twelve (12) month period (after the first of which the
Executive was notified in writing of such failure) to
comply in all material respects with all of the Company's
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written policies and procedures of which he has actual
notice.
(c) at any time, immediately upon giving the Executive notice of a
determination by the Company that the Executive has been incapacitated by
accident, sickness, or otherwise so as to render the Executive mentally or
physically incapable of performing the services required of the Executive under
this Agreement for an aggregate of one hundred eighty (180) days or one hundred
twenty (120) consecutive days during any period of twelve (12) consecutive
months, upon the expiration of either such periods or at any time thereafter;
(d) immediately upon the Executive's death; or
(e) at any time by the Executive, upon sixty (60) days' written notice
to the Company;
4. Employment Period Compensation.
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(a) Base Salary. For the services rendered by the Executive
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under this Agreement, the Company shall pay the Executive a base salary during
the Employment Period at the rate of (U.S.) $110,000 per year, payable
semi-monthly. The Company shall, at least annually, review the Executive's base
salary for possible increases, although nothing contained herein shall be
construed as obligating the Company to increase the Executive's base salary at
any time. Notwithstanding the foregoing, in the event that at any time the
Company institutes across-the-board salary reductions for substantially all
senior executives (excluding those whose salaries are fixed by contract and are
not subject to reduction without the consent of the affected executive), the
Executive's base salary shall be so reduced. Any and all such increases or
decreases in base salary shall be deemed to constitute amendments to this
Section 4(a) to reflect the increased or decreased amounts effective as of the
dates established by the Board for such increases or decreases in the
resolutions authorizing such increases or decreases.
(b) Other Benefits. The Executive shall participate in any qualified or
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non-qualified retirement plan, insur-
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ance, medical and other similar welfare plans as may from time to time be
adopted by the Company as and to the extent determined by the Board and in
accordance with the terms of any such plan. Other miscellaneous fringe benefits
e.g., vacation and expense reimbursement, shall be established by Company policy
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as in effect from time to time. Executive initial entitlement will be three (3)
weeks of vacation per year.
(c) Bonuses. The Executive shall be entitled to receive such bonuses as
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may be directed by the Board and which shall be received at the end of each
calendar year of the Company, although nothing contained herein shall be
construed as obligating the Board to pay any bonuses.
(d) Car Allowance. Executive shall be entitled to a car allowance of
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Five Hundred Dollars ($500.00) per month.
5. Stock Options. During the term of this Agreement, the Executive shall be
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eligible to participate in the Company's Stock Compensation Plan established
January 14, 1994, pursuant to the terms thereof and shall in this connection be
entitled to receive such awards under such Plan, if any, as the Stock
Compensation Committee of the Board may from time to time determine, in its sole
and absolute discretion, to be appropriate. The Executive will be granted 30,000
shares of option at the next Board Meeting at the closing price that day.
6. Amounts Due Upon Termination. In the event that this Agreement and the
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Executive's employment by the Company hereunder is terminated for any reason
prior to the expiration of the Employment Period, the Executive shall retain all
benefits to which he is entitled under any severance policies of the Company
then in effect. In addition:
(a) Upon termination of this Agreement under Paragraphs 3(b), 3(d) or
3(e), the Executive shall be entitled to any unpaid base salary accrued through
the date of termination, but shall be entitled to no bonus or other payments or
benefits as described above.
(b) Upon termination pursuant to Paragraphs 3(a) or 3(c), the Executive
shall be entitled to (i) continued payments
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of base salary for six (6) months or until the Executive's death, whichever
occurs first (less any disability payments received by the Executive, from plans
sponsored by the Company, in case of termination for disability).
(c) The Executive hereby agrees that his sole remedy for any breach by
the Company of this Agreement shall be to terminate this Agreement under Section
3(e) hereof and receive payment of amounts then due under Section 6 hereof.
7. Covenant Not to Compete.
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(a) The Executive hereby acknowledges and recognizes the highly
competitive nature of the Company's business and accordingly agrees that, during
the Employment Period, and for a period of (i) three (3) years, following
termination of this Agreement under Paragraphs 3(b), 3(c), or 3(e), or (ii) one
(1) year following termination of this Agreement under Paragraph 3(a) the
Executive shall not:
(i) be engaged, directly or indirectly, either for his own account
or as agent, consultant, employee, partner, officer, director, proprietor,
investor, or otherwise by any person, firm, corporation, or enterprise engaged,
within the service station pipe and tank and accessories industry, in any
activity in which the Company is engaged during the Employment Period; or
(ii) render financial or other assistance to any person, firm,
corporation, or enterprise engaged, within the service station pipe and tank and
accessories industry, in any activity in which the Company is engaged during the
Employment Period.
(b) For purposes of this Section 7: (i) the phrases "Company's business"
or "activity in which the Company is engaged during the Employment Period" shall
be deemed to include, but not be limited to, the design, manufacture, marketing,
distribution, engineering, sale and servicing of systems and all components
thereof for the conveyance and containment of petroleum or alcohol based motor
vehicle or other fuels (including, without limitation, gasoline, gasohol and
oil) from underground storage
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tanks to above ground product dispensers or machinery and equipment which uses
such fuels, (ii) the term "restricted territory" shall mean: (A) the United
States, including its territories and possessions, (B) Canada, and (C) any other
foreign country in which the products of the Company or of any of its
subsidiaries are sold during the Employment Period.
(c) Executive, in connection with this Section 7, represents and
acknowledges that he is fully familiar with all the existing products and
services of the Company, products under development and the general business of
the Company.
8. No Disclosure of Confidential Information. The Executive acknowledges
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that the Company's trade secrets as they may exist from time to time and
confidential information concerning the Company's business, products, technical
information, sales activities, procedures, promotion, pricing techniques,
customer lists, and credit and financial data concerning customers are valuable,
special, and unique assets of the Company, access to and knowledge of which are
essential to the performance of the Executive's duties under this Agreement. In
light of the highly competitive nature of the industry in which the business of
the Company is conducted, the Executive further agrees that all knowledge and
information described in the preceding sentence not in the public domain and
heretofore or in the future known by the Executive as a result of employment by
the Company shall be considered confidential information. In recognition of this
fact, the Executive agrees that the Executive will not, during or after the
Employment Period, disclose any of such confidential information to any person
or other entity for any reason or purpose whatsoever, except as necessary in the
performance of the Executive's duties as an employee of or consultant to the
Company and then only upon execution by the recipient of a written
confidentiality agreement in such form and content as requested by the Company
from time to time, nor shall the Executive make use of any such confidential
information for the Executive's own purposes or for the benefit of any person or
other entity (except the Company and its affiliates or subsidiaries, if any)
under any circumstances during or after the Employment Period. For purposes of
this Section 8, trade secrets and confidential information of the Company shall
be deemed to include all trade secrets and
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confidential information of the Company and its affiliates or subsidiaries.
9. Non-solicitation of Employees. In the event that Executive's
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employment is terminated prior to the expiration of the Employment Period for
any reason, the Executive hereby agrees that he shall not solicit or hire any
employees of the Company, or its affiliates or subsidiaries for a period of
three (3) years after such termination.
10. Company Right to Inventions. The Executive shall promptly disclose,
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grant and assign to the Company for its sole use and benefit any and all
inventions, improvements, technical information, patent applications and
suggestions, relating in any way to products of the Company or any affiliate of
the Company or capable of beneficial use by customers to whom products of the
Company or any affiliate of the Company are sold (collectively the "Concepts"),
which the Executive has in the past, during his employment with the Company,
conceived, developed or acquired or which the Employee may conceive, develop or
acquire during the Employment Period (whether or not during usual working
hours), and reissues thereof that may at any time be granted for or upon any
such invention, improvement or technical information. Therefore, the Executive
shall promptly at all times during and after the Employment Period:
(a) execute and deliver such applications, assignments, descriptions
and other instruments as may be necessary or proper, in the sole opinion of the
Company to vest in the Company title to such Concepts and to enable it to obtain
and maintain the entire right and title thereto throughout the world; and
(b) render to the Company at Company's expense all such assistance as
it may require in the prosecution of applications for said Concepts or reissues
thereof, in the prosecution or defense of interference or infringement which may
be declared involving any such Concepts, and in any litigation in which the
Company or its affiliates or subsidiaries may be involved relating to any such
Concepts.
11. Remedies.
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(a) The Executive acknowledges and agrees that the Company's remedy at law
for a breach or threatened breach of the provisions of Section 7, 8, 9 or 10 of
this Agreement would be inadequate and, in recognition of this fact, in the
event of a breach or threatened breach by the Executive of any of the provisions
of Section 7, 8, 9 or 10 of this Agreement, it is agreed that, in addition to
any remedy at law, the Company shall be entitled to request equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction, or any other equitable remedy which may then be available,
and the Executive agrees not to oppose such request on the grounds that
equitable relief is not appropriate. Nothing herein contained shall be construed
to preclude any other remedies available to Company for such breach or
threatened breach. If the Company is obliged to resort to the Courts for the
enforcement of any of the covenants or agreements contained in Sections 7, 8, 9
or 10 of this Agreement, or if such covenants or agreements are otherwise the
subject of litigation between the parties, then the terms of such covenants and
agreements shall be extended for a period of time equal to the period of such
breach, which extension shall commence on the latter of (1) the date on which
the original (unextended) term of such covenants and agreements is scheduled to
terminate or (2) the date of the final court order (without further right of
appeal) enforcing such covenant or agreement.
(b) It is expressly understood and agreed that although the Executive and
the Company consider the restrictions contained in Sections 7, 8, 9 and 10 of
this Agreement reasonable for the purposes of preserving for the Company, and
its affiliates or subsidiaries, their good will and other proprietary rights, if
a final judicial determination is made by a court having jurisdiction that the
time, territory or any other restriction contained in Sections 7, 8, 9 and 10 of
this Agreement is an unreasonable or otherwise unenforceable restriction against
the Executive, the provisions of Sections 7, 8, 9 and 10 of this Agreement shall
not be rendered void but shall be deemed amended to apply as to such maximum
time and territory and to such other extent as such court may judicially
determine or indicate to be reasonable.
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12. Notices. Any notice required or permitted under this Agreement shall be
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sufficient if it is in writing and shall be deemed given (i) at the time of
personal delivery to the addressee, or (ii) at the time sent in the U.S. mail,
postage prepaid, certified mail, with return receipt requested, addressed as
follows:
If to the Executive:
Xxxxx X. Xxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to the Company:
Total Containment, Inc.
422 Business Center
X-000 Xxxxx Xxxxx
X.X. Xxx 000
Xxxx, XX 00000
13. No Waiver. Failure of any party to this Agreement at any time or
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times hereafter to require strict performance by any other party of any of the
provisions, terms, or conditions contained in this Agreement shall not waive,
affect, or diminish any right of any party at any time or times thereafter to
demand strict performance therewith, and with respect to any other provisions,
terms, or conditions contained in this Agreement. Any waiver of such provision,
term, or condition shall not waive or affect any other failure to perform a
provision, term or condition of this Agreement, whether prior or subsequent
thereto, and whether of the same or a different type. None of the provisions,
terms, or conditions of this Agreement shall be deemed to have been waived by
any act or knowledge of a party hereto except by an instrument in writing signed
by that party and directed to the other party specifying such waiver.
14. Arbitration. To the extent permitted by applicable law, any
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controversy or dispute arising out of, or relating to this Agreement or any
alleged breach hereof shall be settled by arbitration in the Borough of West
Xxxxxxx, Xxxxxxx County, Pennsylvania, in accordance with the Rules of the
American
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Arbitration Association then in existence, it being understood and agreed that
the arbitration panel shall consist of three (3) individuals acceptable to the
parties hereto. In the event that the parties cannot agree on three arbitrators
within twenty (20) days following receipt by one party of a demand for
arbitration from the other party, then Executive and the Company each shall
designate one arbitrator and the two arbitrators so selected shall select the
third arbitrator. The arbitration panel so selected shall convene a hearing no
later than sixty (60) days following the selection of the panel. The arbitration
award shall be final and binding upon the parties, and judgment may be entered
thereon in the Pennsylvania Court of Common Pleas or in any other court of
competent jurisdiction. Each party shall be responsible for his or its expenses
and attorneys' fees incurred in connection with any arbitration; provided that
the arbitrators shall have the authority to award expenses and legal fees to the
prevailing party at their discretion. The arbitrators' fees shall be split
equally by the parties.
15. Severability. The invalidity or unenforceability of any provision of
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this Agreement shall in no event affect the validity or enforceability of any
other provision.
16. Binding Effect and Benefit. The provisions of this Agreement shall be
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binding upon, and shall inure to the benefit of, the Company and its successors
and assigns, and Executive and his heirs, and legal representatives.
17. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof, and supersedes
all prior agreements, contracts or understandings with respect thereto. This
Agreement may be amended only by an instrument in writing executed by all
parties hereto.
18. No Assignment. This Agreement shall not be assignable by either party
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hereof, except by the Company to any affiliate, subsidiary or successor.
19. Captions. The captions of the several Sections and Paragraphs of this
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Agreement are inserted for convenience of
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reference only. They constitute no part of this Agreement and are not to be
considered in the construction hereof.
20. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which will be deemed one and the same instrument which may
be sufficiently evidenced by any one counterpart.
21. Applicable Law. Except to the extent preempted by federal law, the
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provisions of this Agreement are to be construed, administered and enforced in
accordance with the domestic, internal law of the Commonwealth of Pennsylvania,
without regard to its conflicts of laws principles.
22. Return of Materials. In the event of termination of employment, for any
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reason, all information, files and materials of the Company which are in the
possession of the Executive shall be returned to the Company.
23. Gender. The words "he", "his" or "him" when used herein with reference
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to the Executive shall refer to the Executive irrespective of the gender of the
Executive.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TOTAL CONTAINMENT, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
Attest:
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[Corp. Seal]
EXECUTIVE:
/s/ Xxxxx X. Xxxx
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WITNESS
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