EXHIBIT 10.12
EASTCO INDUSTRIAL SAFETY CORP.
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT made as of this 1st day of February, 1997 by and
between EASTCO INDUSTRIAL SAFETY CORP., a New York corporation, having an
office at 000 Xxxx 00xx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000 (hereinafter
referred to as "Employer" and sometimes the "Company") and XXXXXXX XXXXX, an
individual residing at 000 Xxxxxxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxx 00000
(hereinafter referred to as "Employee");
W I T N E S SE T H:
WHEREAS, the Employee is to be employed in the capacity of Vice-President
of Manufacturing Operations, and as an executive officer of the
Company, and the parties wish that such employment be continued during the
term of this Agreement; and
WHEREAS, the Employer and Employee desire to set forth the terms and
conditions of such employment;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth it is agreed as follows:
1. Employment of Vice-President of Manufacturing Operations. Employer
hereby employs Employee as Vice-President of Manufacturing Operations of
Employer, in which position Employee shall be deemed an "executive officer"
of the Company.
2. Term.
a. The term of this Agreement shall commence on February 1, 1997
and shall be for a period of three years which shall initially terminate on
January 31, 2000. Each 12 month period from February 1 through January 31
during the term hereof shall be referred to as an "Annual Period." During
the term hereof, Employee shall devote all of his business time and efforts
to the Employer.
b. Subject to Section 9 below, unless Employer or Employee shall
determine to the contrary and shall so notify the other on or before January
31, 1999, this Agreement shall automatically continue for the Annual Period
of February 1, 2000 to January 31, 2001 and shall automatically continue for
subsequent Annual Periods thereafter unless, at least twelve months before
the end of a subsequent Annual Period, notice is given by one party to the
other of such party's desire to terminate this Agreement at such time. For
example, if this Agreement has not been otherwise properly and earlier
terminated, and no notice of termination is given on or before January 31,
2000, then this Agreement shall continue for the Annual Period February 1,
2001 to January 31, 2002.
c. If the Employer gives notice not to renew for an Annual Period
as heretofore provided, then the Employee may elect to resign immediately
from employment and shall be entitled to be paid, monthly in advance, his
compensation under Sections 4(a) and (b) of this Agreement until this
Agreement terminates, but no other monies under this Agreement. For example,
if the Employer decides not to continue this Agreement for the Annual Period
beginning February 1, 2000, then on giving notice prior to February 1, 1999,
the Employee shall be entitled to resign immediately from employment and
shall be entitled to receive his compensation in full under Sections 4(a) and
(b) on or before the first day of each month until January 31, 2000.
3. Duties. The Employee shall perform in a faithful and diligent
manner, during all normal business hours, those functions generally performed
by persons of such title and position specified herein, and all related
duties on behalf of the Employer and its subsidiaries and shall be available
to confer and consult with and advise the officers and directors of Employer
at such times that may be required by Employer.
4. Compensation.
a. During the Annual Period ending January 31, 1998 the
Employee's annual salary shall be at the rate of $96,500 per annum and
thereafter as determined by the Board of Directors of the Employer, but at no
less than the foregoing amount. Employee's annual salary shall be increased
to no less than $106,150 (110% of the previous amount) at February 1, 1999
and, subject to this Agreement being continued, thereafter as determined by
the Board of Directors, but at no time less than the foregoing increased
amount. Employee shall be paid at such times in accordance with the current
corporate practice of the Employer.
b. Employer shall include Employee, his spouse and minor
children, if any, in its health insurance program available to Employer's
executive officers, without any cost to the Employee.
c. Employee shall receive $500 per month as an automobile
allowance, plus reimbursement for reasonable operating, maintenance,
insurance and repair expenses.
d. Employee shall be entitled to participate in such benefit
plans as the Employer generally makes available to all executive officers of
the Company.
e. Employer shall maintain a term life insurance policy on
Employee for the benefit of a beneficiary named by Employee in an amount not
less than $200,000 for so long as the Employee is actively rendering services
for the Employer.
f. In the event that Employee is mentally or physically
incapacitated during the term of this Agreement, so that he is unable to
render services on a full-time basis, and such incapacity occurs during any
period of twenty-four (24) consecutive months, then he shall be entitled to
receive at least full compensation as provided under this Agreement for the
first six months of such disability, and thereafter, one-half compensation
for the next six months, less any payments that he has received from social
security or disability insurance, or similar insurance payable to him from
any source other than insurance that he has purchased on his own behalf and
after such twelve (12) months of disability, he shall receive no compensation
while disabled. Payment shall be made as provided herein, irrespective of
the Employer's termination of this Agreement under Section 9(a)(D).
g. Upon the demise of the Employee, all compensation to the
Employee (other than as provided under Section 4(e)), which is not yet
payable by the Employer shall terminate. In the event that Sections 2(c),
9(b), and 9(c) of this Agreement become applicable prior to the demise of the
Employee, then the Employer shall continue to be required to make the
payments thereunder.
5. Vacation. Employee shall be entitled to receive four (4) weeks paid
vacation time during each Annual Period of employment upon dates reasonably
agreed upon by Employer and Employee.
6. Restrictive Covenants. The Employee agrees that he will not
directly or indirectly, on behalf of himself or others:
a. While in the employ of the Employer, solicit, sell or offer to
sell to anyone else any product or service similar to that sold or offered by
the Employer, except on behalf of the Employer, or provide services similar
to that being provided by him to the Employer under this Agreement, to anyone
else that makes products or supplies services similar to that sold or offered
by the Employer;
b. In the foregoing event that Employee is receiving compensation
pursuant to Section 2(c) of this Agreement, and for such period that
compensation is payable thereunder, Employee shall not (i) solicit, sell, or
offer to sell to anyone any product or service similar to that sold or
offered by the Employer; or (ii) provide services similar to that provided by
him to the Employer under this Agreement, to anyone that makes or sells
products or services similar to that sold or offered by the Employer. In
such event, Employee shall forfeit all rights to payments provided for in
Section 2(c) of this Agreement by returning all monies previously paid to him
under Section 2(c) and he shall not be entitled to the payment of any
remaining monies still payable under Section 2(c); or
c. In the event that Employee is not receiving compensation
pursuant to Section 2(c) of this Agreement, then for a period of twelve (12)
months after the termination of his services with the Employer, irrespective
of time, manner or reason for termination (unless Employee is terminated
without cause pursuant to this Agreement), sell or offer to sell products or
services similar to that sold or offered by the Employer to any customers of
the Employer on any list that Employee has that belongs to or was provided by
the Employer or that Employee solicited on behalf of the Employer.
7. Non-Disclosure of Trade Secrets. The Employee recognizes and
acknowledges that he will be given and has had access to the confidential
methods, techniques, trade secrets, procedures, materials and confidential
information of the Employer. The Employee will not, directly or indirectly on
behalf of himself or others, during or at any time after the termination of
his providing services hereunder, irrespective of time, manner or cause of
termination, disclose, publish, disseminate or utilize same or any portion of
same.
8. Remedies in the Event of Employee's Breach. In the event of a
breach or threatened breach by the Employee of the provisions of this
Agreement, the Employer, notwithstanding any provision of this Agreement to
the contrary, shall be entitled to an injunction restraining the Employee
from violating any of the provisions of Paragraphs "6" or "7" of this
Agreement. Nothing herein shall be construed to prohibit the Employer from
pursuing any other legal or equitable remedies available to it for such
breach, including the recovery of damages from the Employee.
9. Termination.
a. Termination by the Employer.
Employer may terminate this Agreement upon notice for Cause without the
obligation to make further payments to the Employee other than as provided in
Section 4(f) of this Agreement. For purposes of this Agreement, "Cause"
shall mean (A) the conviction of Employee for the commission of a felony;
(B) the habitual abuse of alcohol or controlled substances, excluding
prescription drugs prescribed for the Employee; (C) the violation of any
obligations of the Employee under this Agreement or the failure of the
Employee to perform his duties under this Agreement as required; and (D) the
physical or mental disability of the Employee for more than six (6) months in
any twenty-four (24) consecutive month period. Notwithstanding anything to
the contrary in this Section 9, Employer may not terminate Employee's
employment under this Agreement for Cause unless Employee shall have first
received forty-five (45) days' notice from the Employer advising Employee of
the specific acts or omissions alleged to constitute Cause, and such acts or
omissions continue after Employee shall have had a reasonable opportunity
during such period to correct the acts or omissions so complained of, unless
the Employee determines that the Employer has been harmed in such manner that
the harm to the Employer cannot be immediately corrected without resorting to
a legal remedy.
b. Termination by Employee
i. Employee shall have the right to terminate his employment
under this Agreement upon forty-five (45) days' notice to the Company upon
the occurrence of any of the following events:
(A) Employee is not retained as Vice-President of
Manufacturing Operations or other comparable position;
(B) Employer acts to materially reduce Employee's duties
and responsibilities hereunder;
(C) Employer acts to change the geographic location of
the performance of Employee's duties from beyond 50 road miles of where the
Employee presently performs his duties in Decatur, Alabama;
(D) A failure by Employer to obtain the assumption of
this Agreement by any successor; or
(E) A material breach of this Agreement by Employer,
which is not cured within forty-five (45) days of written notice by Employee
of such breach.
ii. If Employee shall terminate this Agreement under Section
9(b)(i), Employer's obligations under Section 4 shall be absolute and
unconditional and not subject to any offset or counterclaim and Employee
shall continue, until the end of this Agreement, to be entitled to receive:
(a) his compensation under Sections 4(a) and (b) on or before the first of
each month until the termination of this Agreement; and (b) vesting of all
options and warrants that he holds, under any plan or otherwise prior to the
date of termination, that may be legally vested at that time, without any
payment required to be made by Employee.
c. Termination by Employee Upon a Change in the Company's Board
of Directors.
Employee shall have the right to terminate his employment under this
Agreement by notice to the Employer within six months of the withdrawal from
the Company's Board of Directors of a majority of the present members of the
Board of Directors, as constituted on the date of this Agreement, other than
by reason of a voluntary resignation or the demise of such directors. If
Employee terminates this Agreement pursuant to this provision, in lieu of all
other monies payable to him under this Agreement and not yet payable as of
the date of his notice of termination, he shall be entitled to a one-time
bonus equal to one dollar less than three times the present value of the base
amount of the Employee's salary, as determined in accordance with Section
280G of the Internal Revenue Code, as amended, payable absolutely,
unconditionally and immediately and not subject to any offset or
counterclaim.
10. Arbitration. Subject to paragraph 8 of this Agreement where an
application for an injunction is sought, which may be coupled with any other
remedy, any controversies between Employer and Employee involving the
construction or application of any of the terms, provisions or conditions of
this Agreement shall on the written request of either party served on the
other by submitted to arbitration. Such arbitration shall comply with and be
governed by the rules of the American Arbitration Association in Nassau
County, New York. An arbitration demand must be made within one (1) year of
the date on which the party demanding arbitration first had notice of the
existence of the claim to be arbitrated, or the right to arbitration along
with such claim shall be considered to have been waived. One arbitrator
shall be selected according to the procedures of the American Arbitration
Association. The cost of arbitration shall be born by the losing party or in
such proportions as the arbitrator shall decide. The arbitrator shall have
no authority to add to, subtract from or otherwise modify the provisions of
this Agreement, or to award punitive damages to either party.
11. Attorneys' Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
12. Entire Agreement; Survival.
a. This Agreement contains the entire agreement between the
parties with respect to the transactions contemplated herein and supersedes,
as of the effective date hereof any prior agreement or understanding between
Employer and Employee with respect to Employee's employment by Employer. The
unenforceability of any provision of this Agreement shall not effect the
enforceability of any other provision. This Agreement may not be amended
except by an agreement in writing signed by the Employee and the Employer, or
any waiver, change, discharge or modification as sought.
b. The provisions of Sections 6, 7, 8, 10, 11, 14, 16, and 17
shall survive the termination of this Agreement.
13. Assignment. This Agreement may not be assigned by the Employee,
and shall be binding upon any purported successors and assigns of Employer.
14. Notices. Any notice required or given under this Agreement shall
be sufficient if in writing and sent by registered mail or certified mail to
the addresses hereinabove set forth or to such other addresses as any of the
parties hereto may designate in writing, transmitted by registered or
certified mail to the other.
15. Successors. This Agreement shall be binding upon the heirs,
successors and assigns of the Employee. This Agreement shall inure to the
benefit of and be binding upon the Employer, its successors and assigns,
including, without limitation, any corporation which may acquire all or
substantially all of the assets and business of the Employer or with or into
which the Employer may be consolidated or merged.
16. Governing Law. This Agreement and all the amendments hereof, and
waivers and consents with respect thereto shall be governed by the internal
laws of the state of New York, without regard to the conflicts laws
principles thereof.
17. Severability of Agreement. Should any part of this Agreement for
any reason be declared invalid by a court of competent jurisdiction, such
decision shall not affect the validity of any remaining portion, which
remaining provisions shall remain in full force and effect as if this
Agreement had been executed with the invalid portion thereof eliminated, and
it is hereby declared the intention of the parties that they would have
executed the remaining portions of this Agreement without including any such
part, parts or portions which may, for any reason, be hereafter declared
invalid.
IN WITNESS WHEREOF, the undersigned have executed this agreement as
of the day and year first above written.
EASTCO INDUSTRIAL SAFETY CORP.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
Its: President
/s/ XXXXXXX XXXXX
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XXXXXXX XXXXX
