EXHIBIT 10.02
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made between Xxxxx X. Xxxx, an individual residing at 0000
Xxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000 (hereinafter "Executive") and Xxxxxxx
Hydraulics, Inc. (hereinafter the "Company", a New York corporation, with its
principal place of business located at 00000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx,
Xxxx 00000-0000 and Xxxxxxx International plc (hereinafter "DIL") with
registered offices at 000 Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxx X00 OQH.
1. Recitals
(a) The Executive has heretofore served in the position of President and
CEO of DIL and the Company.
(b) The Board of Directors of DIL want to assure the Company and DIL of
the continued services of the Executive with a new employment
contract.
(c) The parties agree that this Employment Agreement shall supersede all
prior understandings between the parties, whether oral or written.
(d) In consideration of the mutual promises of the Company and the
Executive contained in this Employment Agreement, the Company and the
Executive enter into this Employment Agreement with the terms and
conditions set forth herein.
2. Employment
The Company agrees to employ and the Executive agrees to serve as President and
CEO of Xxxxxxx International plc and Xxxxxxx Hydraulics Inc., at its Marysville,
Ohio headquarters.
3. Term
The term of this Employment Agreement shall begin 1 June 1998 and end 30 May
2000.
4. Compensation
The Company shall pay the Executive total "Compensation" consisting of a "Base
Salary" of two hundred and twenty-five thousand dollars per year ($225,000) for
each of the two years of the contract period, payable by Xxxxxxx Hydraulics Inc.
in equal semi-monthly installments, less withholdings required by law and
"Directors Fees" of twelve thousand English pounds ((pound)12,000) payable by
DIL.
5. Bonus Program
The Executive shall be entitled to an annual incentive bonus from the Company
based on meeting the annual budget, with respect to profits, management of
assets, and return on capital employed, as well as meeting strategic objectives
which will be mutually agreed upon in writing between the Executive and the
Board of Directors on an annual basis. This incentive bonus will be up to a
maximum of sixty percent (60%) of the Executive's Compensation or an appropriate
lesser amount if all objectives have not been met as specified in the written
annual objectives agreed between the Executive and the Board of Directors. The
timing of the payment of any bonus will be at the discretion of the Board of
Directors, but in no event will any incentive bonus, if earned, be paid later
than five (5) days after the auditors have finalized the Company's annual
financial statements.
6. Employment Benefits
The Executive shall be entitled to participate to the full extent of his
Compensation in all Company benefit plans in which the executive presently
participates subject to the Company's right to eliminate any such benefit plan
or change any of the terms and conditions of such benefit plans. If any benefit
plan is replaced by a different plan, the Executive shall have the right to
participate in the new benefit plan on a basis comparable to the Executive's
present participation in existing plans. Notwithstanding the Company's standard
vacation benefit plan, the Executive will be entitled to four (4) weeks annual
vacation.
7. Share Option
In addition to the share options granted to the Executive in August 1997, either
exercised or un-exercised, the Executive shall receive an additional seventy
thousand (70,000) share options in DIL to be granted in July 1998, in accordance
with the Share Option Plan.
8. Company Car
The executive shall be entitled to the use of a Company car, the same or similar
to the one currently provided, with a mobile telephone for use in the car at the
Company's expense. The Company will pay all running, maintenance, and insurance
costs of the car. The Executive will be responsible for the taxation of the
benefit of personal use. The Executive shall have the right to purchase the car
at the end of the lease for the buy-out cost less any excess mileage charge
under the lease which will be paid by the Company.
9. Death or Disability
Should Executive become unable to perform his duties hereunder by reason of his
death during the term of this Agreement, the
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Executive's family or estate shall receive the equivalent of three (3) months'
salary after the Executive's death. Should the Executive become unable to
perform his duties under this Agreement by reason of disability during the term
of this Agreement, the Executive shall continue to receive salary for three (3)
months after the disability is considered to be a permanent and total
disability. A disability shall be considered to be permanent and total if the
Executive is unable to perform his employment responsibilities for one hundred
and twenty (120) consecutive days during the term of this Agreement.
10. Change of Control
For purposes of this Agreement, a change of control of DIL shall be deemed to
have occurred if and when (a) any person or group of persons acting in concert
shall have acquired ownership of or the right to vote or direct the voting of
shares of capital stock of the Company representing fifty percent (50%) of the
total voting power of the Company, or (b) the Company shall have merged into,
consolidated or formed a joint venture of any type, with any corporation or
organization, or merged another corporation or organization into the Company, on
the basis whereby less than fifty percent (50%) of the total voting power of the
surviving corporation is represented by the shares held by the former
shareholders of the Company prior to such merger or consolidation, or (c) the
Company shall have sold substantially all of its assets to another corporation
or organization or person. In the event of such change in control of DIL, the
Executive shall be entitled to receive a bonus from the Company of
(pound)250,000, payable immediately when the change of control becomes
effective. In addition, the Executive shall be guaranteed a period of two (2)
months after the change of control becomes effective in order to evaluate his
continued relationship with the surviving entity after the change in control. If
the Executive elects to resign during this guaranteed evaluation period of two
(2) months, the Executive shall be entitled to be paid his Compensation through
the end of the Agreement or for a period of twelve (12) months after his notice
of resignation, whichever is later. If the Executive does not elect to resign
during this guaranteed evaluation period of two (2) months, the Executive's
terms and conditions of employment will again be subject to this Agreement.
In the event that the Executive is terminated, other than for cause, within six
months of a change of control, the Executive shall also be entitled to receive
an incentive bonus of 60% of Compensation.
11. Resignation
Should the Executive voluntarily resign, the Executive will give the Board of
Directors 3 (three) months notice in writing. The Executive's salary and
employment benefits will be paid up to the effective date of such resignation.
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12. Termination
This Agreement may be terminated by the Company without cause at any time by
giving written notice to the Executive of the Executive's termination. In the
event the Executive is terminated under this provision, the Executive shall be
entitled to receive the Executive's Compensation, use of Company car and phone,
profit sharing contribution to Company 401K Plan, and all other employment
benefits until the later of 30 May 2000 or twelve (12) months after the date of
the written notice of termination, whichever is later. This period of continued
salary and benefits shall count as vested service for any of the service-vested
employment benefits and for the Executive in connection with any share options
subject to the provision contained in the Share Option Plan.
In the event the Executive is terminated under this provision, the Executive
shall also be entitled to receive an incentive bonus of 60% of Compensation for
the proportion of the year in which the Executive served the Company, subject to
the Company achieving the performance as specified in Section 5.
13. Discharge
The Company retains the right to discharge the Executive during the term of this
Agreement for cause. For purposes of this discharge provision in this Agreement,
cause shall be limited to mean (a) the Executive's willful refusal or
unreasonable failure to perform the Executive's duties as President of the
Company, after failure of the Executive to remedy such willful refusal or
unreasonable failure within thirty (30) days of receiving specific written
notice of such refusal or failure from the Board of Directors; (b) the
Executive's gross negligence in the Executive's performance of duties as
President of the Company, after failure of the Executive to remedy such gross
negligence within thirty (30) days of receiving specific written notice of such
negligence from the Board of Directors; or (c) the Executive's conviction of a
felony in any court of law, whether or not such conviction is appealable. If the
Board of Directors concludes it has grounds to discharge the Executive in
accordance with this provision of the Agreement, the Chairman of the Board shall
provide written notice to the Executive of the grounds that are asserted for the
discharge under this section of the Agreement. The Executive shall not be
entitled to any additional salary or employment benefits after the date of any
such notice of discharge unless the Executive appeals the notice of his
discharge in accordance with the provisions in Section 14 of this Agreement and
the Board of Directors decides to withdraw the notice of discharge.
14. Appeal of Discharge
The Executive shall have the right to appeal any notice of discharge issued in
accordance with Section 13 of this Agreement.
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If the Executive decides to appeal his notice of discharge, the Executive shall
within thirty (30) calendar days from the receipt of this notice of grounds
asserted for discharge under his Agreement submit in writing to the Chairman of
the Board the Executive's appeal and any opposing information and documentation
in rebuttal to the grounds asserted for the discharge. If the Executive submits
an appeal and opposing information or documentation to the Chairman of the
Board, the Board shall evaluate such information or documentation. If after such
review, the Board concludes it confirms its decision to discharge the Executive
in accordance with the grounds identified in its initial notice, the Chairman of
the Board shall deliver a second written notice to the Executive explaining the
Board's decision to discharge the Executive and the final grounds for said
discharge within thirty (30) days after the Chairman of the Board received the
appeal from the Executive. If the Board decides not to discharge the Executive
after evaluation of the opposing information or documentation submitted by the
Executive, the Chairman of the Board shall deliver notice to the Executive
withdrawing the initial notice of discharge under this Agreement within thirty
(30) days after the Chairman of the Board received the appeal from the
Executive. The Executive shall not be entitled to any additional salary or
employment benefits during any appeal under this section unless the Board of
Directors decides to withdraw the notice of discharge of the Executive in
accordance with the provisions of this section of the Agreement.
15. Covenants and Confidential Information
(a) The Executive agrees that during the term of this Agreement and during
any period of time for which the Executive is receiving Compensation
under paragraphs 10, 11, or 12 of this Agreement, (and with respect to
paragraphs (ii) and (iii) below for a period of two years after the
period of this Agreement), that the Executive will not, directly or
indirectly, through any Company owned or controlled by the Executive,
do or suffer any of the following:
(i) Own, manage, control or participate in the ownership, management
or control of, or be employed or engaged by or otherwise
affiliated or associated as a consultant, independent contractor
or otherwise with, any other corporation, partnership,
proprietorship, firm, association or other business entity, or
otherwise engaged in any business, which is engaged in any manner
in, or otherwise competes with, the business of the Company, the
Company's direct parent corporation, DIL, or any of the Company's
subsidiaries (as conducted on the date the Executive ceased to be
employed by the Company in any capacity); provided, however, that
the ownership of not more than one percent (1%) of the stock of
any publicly
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traded corporation shall not be deemed a violation of this
covenant.
(ii) Employ, assist in employing or otherwise associate in business
with any present, former or future employee, officer or agent of
the Company, DIL or any of the Company's subsidiaries; or
(iii) Induce any person who is an employee, officer or agent of the
Company, DIL or any of the Company's subsidiaries to terminate
said relationship.
(b) The Company's business requires the Executive to be exposed to the
following types of proprietary information and property (collectively,
"Trade Secrets"):
(i) Confidential information relating to business affairs, including
customers lists, manufacturing processes, formulas, pricing and
marketing data, personnel data, and other information of like
nature (collectively "Confidential Information"); and
(ii) Intellectual properties, including products, processes, designs,
or apparatuses or related materials, whether or not now or
hereafter made, capable of being made or marked to indicate that
it has been made the subject of any copyright, patent or
trademark, registered, certified, published or otherwise, and the
ideas, methods and techniques relating thereto are capable of
being gleaned through an examination thereof (collectively
"Intellectual Properties"); and
(iii) Any and all other information and/or property (A) which the
Company shall at any time identify to you as Confidential
Information or Intellectual Property or (B) the unauthorized use,
transfer or disclosure of which arguably could in any manner
prejudice the best interests or competitive advantage of the
Company.
All Trade Secrets at any time generated, conceived,
developed or in any manner contributed to or resulting from
work done by the Executive in connection with the Company's
business, or at the Company's direction, shall be and remain
the Company's exclusive property, hereby assigning to the
Company all the Executive's right, title and interest in and
to the same. The Executive shall not in any manner, so long
as the Company views any Trade Secrets as proprietary,
suffer the use of any third
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party of any Trade Secrets, or disclose, transfer or
otherwise make available any Trade Secrets owned or hereby
assigned to the Company to any person or entity not employed
by the Company or authorized in writing by the Company to
receive or be privy to the same except as same shall be
required in connection with Executive carrying out the
Executive's duties hereunder. The Executive shall, upon
termination of this Agreement, immediately return to the
Company all physical manifestations of any and all Trade
Secrets owned or hereby assigned to the Company. This
covenant, with respect to Trade Secrets, shall continue
indefinitely including after the Executive shall cease to be
employed by the Company.
(c) The Executive agrees that during the term of this Agreement, the
Executive will not, directly or indirectly through any company owned
or controlled by the Executive, interfere with or disrupt any business
relationships, contractual or otherwise, between the Company and any
of its suppliers or, contact or solicit business from customers doing
business with the Company or DIL or who did business with the Company
or DIL during the term of this Agreement. The Executive further agrees
that during the term of this Agreement the Executive shall not enter
into any arrangement with any person, firm or entity, which competes
with the business of the Company of DIL which could benefit from the
use of the Company's Trade Secrets.
(d) The Executive expressly agrees and understands that the remedy at law
for any breach by the Executive of this section of this Agreement will
be inadequate in that the damages flowing from such breach are not
readily susceptible to being measure in monetary terms. Accordingly,
it is acknowledged that upon adequate proof of the Executive's
violation of any legally enforceable provision of this section of this
Agreement, the Company shall be entitled to immediate injunctive
relief and may obtain a temporary order restraining any threatened or
further breach. Nothing in this section of this Agreement shall be
deemed to limit the Company's remedies at law in the event the
Executive breaches any of the provisions of this Section of this
Agreement.
(e) In the event the Executive violates any legally enforceable provision
of this section of this Agreement as to which there is a specific time
period during which the Executive is prohibited from taking certain
actions or from engaging in certain activities, as set
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forth in such provision, then in such event, such violation shall toll
the running of such time period from the date of such violation shall
cease.
(f) The Executive has carefully considered the nature and extent of the
restrictions upon the Executive and the rights and remedies conferred
upon the Company under this section of this Agreement and hereby
acknowledges and agrees that the same are reasonable in time and
territory, are designed to eliminate competition which otherwise would
be unfair to the Company, do not stifle the inherent scale and
experience of the Executive, would not operate as a bar to the
Executive's sole means of support are fully required to protect the
legitimate interests of the Company and do not confer a benefit upon
the Company disproportionate to the detriment to the Executive.
(g) The covenants set forth in this section of this Agreement shall be
construed as agreement independent of any other provisions of this
Agreement; and the existence of any claim or cause of action of the
Executive against the Company, whether predicted on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the
Company of these covenants.
(h) For purposes of the Agreement, the business of the Company shall mean
the manufacture and/or sale of hydraulic pumps and valves.
16. Severability
If any provision of this Agreement or its application to any circumstances shall
be determined by any court of competent jurisdiction to be unenforceable to any
extent, the remainder of this Employment Agreement or the application of such
provision to other circumstance shall not thereby be affected; and each
provision of the Employment Agreement shall be valid and enforced to the fullest
extent permitted by law.
17. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
the state of Ohio.
18. Successors and Assigns
The rights and obligations of the Company under this Agreement shall inure to
the benefit of, and shall be binding upon, the Company and its successors and
assigns, and the rights and obligations of the Executive under this section of
this Agreement shall be binding upon the Executive, and the Executive's heirs,
personal representatives and estate.
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19. Arbitration
Any controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be settled by arbitration in accordance with the rules of
the American Arbitration Association for labor and employment disputes, and
judgment upon the award rendered by the arbitrator shall be deemed to possess
the power to issue mandatory orders and restraining orders in connection with
such arbitration; provided, however, that nothing in this section of this
Agreement shall be construed so as to deny the Company the right and power to
seek and obtain injunctive relief in a court of equity for any breach or
threatened breach by the Executive of the Executive's covenants contained in
subparagraphs (a), (b) and (c) of Section 13 of this Agreement.
20. Notices
Any notice to be given under this Agreement must be in writing and will be
deemed duly given (a) when personally delivered and receipted for, (b) two (2)
postal delivery days after having been deposited in the United States mail,
certified or registered, return receipt requested, postage prepaid, or (c) one
(1) business day after having been dispatched by a nationally recognized
overnight courier service addressed to the parties at the following addresses,
or at such other address as is given in writing by either party to the other as
follows:
To Employee: Xx. Xxxxx X. Xxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
To the Company Xxxxxxx Hydraulics Inc.
or the Board of Directors: 00000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxx
Chairman of the Board of
Directors
21. Waiver
To failure of either party to enforce any provision or provisions of this
Agreement shall not in any way be construed as a waiver of any such provision or
provisions as to any future violations thereof, nor prevent that party
thereafter from enforcing each and every other provision of this Agreement. The
rights granted the Company and the Executive herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
22. Counterparts
This Agreement may be executed in any number of counterparts, and such
counterparts shall be deemed to be an original instrument,
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but all such counterparts together shall constitute but one Agreement.
IN WITNESS WHEREOF, Xxxxxxx Hydraulics Inc., and Xxxxxxx International plc has
caused this Employment Agreement to be executed and delivered by its duly
authorized officer, and Xxxxx X. Xxxx has executed and delivered this Agreement
all on the date and year first written above.
WITNESS: XXXXXXX HYDRAULICS INC.
/s/ Anders Brag /s/ X. X. Xxxxx
Date: August 10, 1998 Its: Chairman
Date: August 10, 1998
WITNESS: XXXXX X. XXXX
/s/ Xxxxx Xxxxxx /s/Xxxxx Xxxx
Date: July 27, 1998 Its: President
Date: July 27, 1998
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