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Exhibit 10.13
EMPLOYMENT AGREEMENT
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This Agreement is made as of the 10th day of January, 1997 between
DIAMOND HOLDING CORPORATION, a Georgia corporation (the "Company"), and XXX
XXXXX (the "Employee").
RECITALS
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The Employee has been an executive employee of the Company prior to the
date hereof. The Company desires to continue the employment of the Employee, and
the Employee desires to continue working for the Company, upon the terms and
conditions hereinafter set forth.
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 the
President and Chief Executive Officer of the Company, 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 such reasonable and legal duties as are commensurate and consistent with
the position of President and Chief Executive Officer of the Company or such
duties assigned by the Board of Directors of the Company (the "Board") that are
consistent with the foregoing provision. In addition, upon the request of the
Board at any time during the second year or any renewal year of the Employment
Term, the Employee shall train someone to replace him as the Chief Executive
Officer of the Company.
2. PERFORMANCE.
The Employee shall devote his full-time 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. The Employee may also engage in such
other business activities that may be approved by the Board from time to time.
3. TERM.
Unless otherwise terminated in accordance with Sections 5 or 6, the
Employment Term shall consist of an initial term beginning on the date hereof
and ending on December 31, 1998 and automatic successive one-year renewal terms
thereafter.
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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 $150,000 (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 may approve, in its sole discretion,
from time to time, but the Salary shall not be decreased.
(b) Commencing as of January 1, 1997, 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.
For the period January 1 through December 31, 1997, the Board, in its reasonable
discretion, shall establish a budget for pre-tax income 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 the budget and the maximum bonus shall be 35% of
Salary in any event. The bonus and other compensation under this Agreement shall
be separate from and in addition to the Contingent Purchase Price (as defined in
Section 2.2 of the Stock Purchase Agreement between Pamarco Technologies, Inc.
and the Employee of even date herewith), and the calculation of the bonus shall
not affect such Contingent Purchase Price.
(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").
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 under this
Agreement except as follows: the Employee shall
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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 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
5(a), 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 under this Agreement 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 plus a proportionate share of any bonus
otherwise payable in accordance with the provisions of Section 4 for the
calendar year in which the Employee dies.
(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 under
this Agreement, except that the Employee shall receive any unpaid Salary and
Fringe Benefits that have accrued through the date of termination, net of any
due and payable liabilities that the Employee may have to the Company. For
purposes of this Agreement, "cause" shall mean the intentional breach of (other
than by reason of illness, injury or incapacity) any of the material terms or
provisions of this Agreement, dishonesty that causes loss or harm to the
Company, willful misconduct as to any material Company business issue, material
neglect of the Company's business, conviction of a felony or other crime
involving moral turpitude, misappropriation of funds or habitual insobriety. If
the Company believes that the Employee's action or inaction constitutes "cause"
under this Section, the Company shall give the Employee notice thereof, and the
Employee shall have 30 days within which to cure the problem unless such "cause"
involves dishonesty that causes loss or harm to the Company, misappropriation of
funds or conviction of a crime.
6. NON-RENEWAL OF TERM AND TERMINATION BY EMPLOYEE.
The Employment Term may be terminated (i) 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 or (ii) unilaterally by the Employee at anytime
and for any reason whatsoever. Under either such circumstance, the Company shall
not have any further obligation under this Agreement to the Employee, his
executors,
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administrators, heirs, assigns or any other person claiming under or through him
other than to provide to the Employee any unpaid Salary and Fringe Benefits that
shall have accrued to him through the date of termination, plus any bonus
payable in accordance with the provisions of Section 4 for the calendar year in
which the termination occurs; provided, however, that if Employee terminates the
Employment Term, he shall not be entitled to any bonus payable in accordance
with the provisions of Section 4.
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 otherwise, and
that directly 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-issuance, 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
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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.
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. 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 the State of Georgia.
(b) COMPANY. For purposes of Sections 7, 8 and 9, the term "Company"
shall be deemed to include any incorporated or unincorporated subsidiaries or
affiliates of the Company.
(c) 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.
(d) NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be sufficient if personally delivered or sent by
certified mail (return receipt requested), facsimile message or Federal Express
or other overnight delivery service. Any notices shall be deemed given upon the
earlier of the date when received at, or the third day after the date when sent
by registered or certified mail or the day after the date when sent by Federal
Express to, the address or fax number set forth below, unless the address or fax
number is changed by notice to the other party hereto:
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TO EMPLOYEE:
Xxx Xxxxx
0000 Xxxxxxxx Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
TO THE COMPANY:
Diamond Holding Corporation
c/o Bradford Ventures, Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxx
(e) 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.
(f) 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.
(g) WAIVER. No waiver of any breach of this Agreement shall be
construed to be a waiver as to succeeding breaches.
(h) 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
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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.
DIAMOND HOLDING CORPORATION
By:__________________________
_____________________________
XXX XXXXX
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EXHIBIT A
FRINGE BENEFITS
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(a) Medical, group life, and travel accident insurance coverage, all at
levels comparable to those provided to Xxxxx on the date hereof, if any.
(b) Participation in any 401(k) savings plans maintained by the Company
from time to time, all at levels comparable to those provided to Xxxxx on the
date hereof, if any.
(c) Reimbursement, in accordance with the policies of Pamarco
Technologies Inc., upon proper accounting, of reasonable expenses and
disbursements incurred by Xxxxx in the course of his duties.
(d) Paid holidays in accordance with the Company's policies.
(e) Paid vacation of four weeks per year.
(f) Participation in any bonus, profit-sharing or other additional
compensation plans that the Company makes generally available to senior
management employees of the Company from time to time.
(g) Exclusive use of an automobile that is substantially similar in
type to the Infinity used by the Employee on the date hereof.
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