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EXHIBIT 10(vv)
EMPLOYMENT AGREEMENT
AGREEMENT dated as of the 21st day of August, 1995 by and
between ISOMEDIX INC., a Delaware corporation (the "Company"), and XXXXX XXXXX
(the "Employee").
W I T N E S S E T H :
WHEREAS, the Company wishes to retain the services of the
Employee, and the Employee wishes to serve in the employ of the Company, upon
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, the parties hereto hereby agree as follows:
1. Employment, Term, Automatic Extension.
1.1 The Company agrees to employ the Employee, and the Employee
agrees to serve in the employ of the Company, for the term set forth in Section
1.2, in the position and with the responsibilities, duties and authority set
forth in Section 2 and on the other terms and conditions set forth in this
Agreement.
1.2 The term of the Employee's employment under this Agreement
shall commence on the date hereof and shall terminate on the first anniversary
of the date hereof, unless extended or sooner terminated in accordance with this
Agreement.
1.3 As of the expiration date of the then-current term of this
Agreement (each, an "Automatic Renewal Date"), unless either party shall have
given a notice of non-extension not less than two (2) months prior to such
Automatic Renewal Date, the term of this Agreement shall be extended
automatically for a period of one year to the anniversary of the expiration date
of the then-current term of this Agreement.
2. Position, Duties. The Employee shall serve in the positions
of President and Chief Executive Officer of the Company. The Employee shall
perform, faithfully and diligently, such duties, and shall have such responsi-
bilities, appropriate to said positions, as shall be assigned to him from time
to time by the Chairman of the Company or his designee and the Board of
Directors of the Company. The Employee shall report to the Chairman of the
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Company or his designee and to the Board of Directors of the Company. The
Employee shall devote his complete and undivided attention to the performance of
his duties and responsibilities hereunder during the normal working hours of
executive employees of the Company. The Employee hereby represents that he is
not bound by any confidentiality agreements or restrictive covenants which
restrict or may restrict his ability to perform his duties hereunder, and agrees
that he will not enter into any such agreements or covenants during the term of
his employment hereunder.
3. Salary, Bonus.
3.1 During the term of this Agreement, in consideration of the
performance by the Employee of the services set forth in Section 2 and his
observance of the other covenants set forth herein, the Company shall pay the
Employee, and the Employee shall accept, a base salary at the rate of $200,000
per annum, payable in accordance with the standard payroll practices of the
Company. The Employee shall be entitled to such increases in base salary during
the term hereof as shall be determined by the Board of Directors of the Company
in its sole discretion.
3.2 The Employee shall have a bonus opportunity with respect to
each fiscal year of the Company ending during the term of this Agreement, up to
a maximum amount of sixty-eight percent (68%) of his base salary for such fiscal
year, in accordance with the terms of the Company's bonus program for senior
executives.
4. Expense Reimbursement, Car Allowance. During the term of this
Agreement, the Company shall reimburse the Employee for all reasonable and
necessary out-of-pocket expenses incurred by him in connection with the
performance of his duties hereunder, upon the presentation of proper accounts
therefor in accordance with the Company's policies. The Company shall provide
the Employee with a car allowance of $867 per month during the first thirty-six
months of the Employee's employment and $450 per month during the Employee's
employment thereafter.
5. Benefits, Stock Options.
5.1 Benefits. During the term of this Agreement, the Employee
will be eligible to participate in all employee benefit plans and programs,
including 401(K), pension, stock purchase, dental and medical plans, offered by
the Company from time to time to its employees of comparable seniority, subject
to the provisions of such plans and programs as in effect from time to time.
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Commencing after one year of employment, the Employee will be entitled to two
(2) weeks' paid vacation and six (6) paid sick days per year.
5.2 Stock Options. The Company shall grant to the Employee
options to purchase 100,000 shares of common stock, $.01 par value, of the
Company under the Company's 1992 Supplemental Stock Option Plan (the "Plan") at
an exercise price equal to the market value of the common stock on the date of
grant. Such options shall become exercisable as to 20,000 shares on the first
anniversary of the date of grant and as to an additional 20,000 shares on each
of the next four anniversaries of the date of grant, and shall become
exercisable in full upon certain change of control events as specified in the
Plan. Such options shall be subject in all respects to the terms of the stock
option certificate evidencing the grant and to the terms of the Plan.
6. Termination of Employment.
6.1 Death. In the event of the death of the Employee during the
term of this Agreement, the Company shall pay to the estate or other legal
representative of the Employee the base salary provided for in Section 3 (at the
rate then in effect) accrued to the date of the Employee's death and not
theretofore paid to the Employee. Rights and benefits of the estate or other
legal representative of the Employee under the benefit plans and programs of the
Company shall be determined in accordance with the provisions of such plans and
programs. Neither the estate or other legal representative of the Employee nor
the Company shall have any further rights or obligations under this Agreement.
6.2 Disability. If the Employee shall become incapacitated by
reason of sickness, accident or other physical or mental disability and shall be
unable to perform his duties hereunder for a period of six (6) consecutive
months or for an aggregate period of nine (9) months in any twelve (12)
consecutive months, the employment of the Employee hereunder may be terminated
by the Company or the Employee, upon thirty (30) days notice to the other party.
In the event of such termination, the Company shall pay to the Employee the base
salary provided for in Section 3 (at the rate then in effect) accrued to the
date of termination and not theretofore paid to the Employee. Rights and
benefits of the Employee under the benefit plans and programs of the Company
shall be determined in accordance with the terms and provisions of such plans
and programs. Neither the Employee nor the
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Company shall have any further rights or obligations under this Agreement,
except as provided in Sections 7, 8, 9 and 10.
6.3 Due Cause. The employment of the Employee hereunder may be
terminated by the Company at any time for Due Cause (as hereinafter defined). In
the event of such termination, the Company shall pay to the Employee the base
salary provided for in Section 3 (at the rate then in effect) accrued to the
date of such termination and not theretofore paid to the Employee. Rights and
benefits of the Employee under the benefit plans and programs of the Company
shall be determined in accordance with the provisions of such plans and
programs. For purposes hereof, "Due Cause" shall include (i) the Employee's
failure to discharge his duties and responsibilities under this Agreement, as
determined by a majority of the Board of Directors of the Company, whose good
faith determination with respect thereto shall be conclusive and binding upon
the Employee, or (ii) the Employee's commission of (x) a felony or (y) any crime
or offense involving moral turpitude. After the satisfaction of any claim of the
Company against the Employee incidental to such Due Cause, neither the Employee
nor the Company shall have any further rights or obligations under this
Agreement, except as provided in Sections 7, 8, 9 and 10.
6.4 Other Termination by the Company. The Company may terminate
the Employee's employment at any time for whatever reason it deems appropriate;
provided, however, that in the event that such termination is not pursuant to
Sections 6.1, 6.2 or 6.3, the Company shall continue to pay to the Employee, for
a period of twelve (12) months commencing on the date of termination, the base
salary provided for in Section 3.1 (at the rate then in effect). The giving of a
notice of non-extension by the Company under Section 1.3 of this Agreement shall
constitute a termination by the Company pursuant to this Section, effective as
of the date of expiration of the then-current term of this Agreement. The
Employee shall be under no obligation to seek subsequent employment and upon
obtaining subsequent employment shall be under no obligation to offset any
amounts earned from such subsequent employment (whether as an employee, a
consultant or otherwise) against such lump sum payments. Rights and benefits of
the Employee under the other benefit plans and programs of the Company shall be
determined in accordance with the provisions of such plans and programs. Neither
the Employee nor the Company shall have any further rights or obligations under
this Agreement, except as provided in Sections 7, 8, 9 and 10.
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7. Confidential Information.
7.1 The Employee shall, during the Employee's employment with
the Company and thereafter, treat all confidential material confidentially and,
except in accordance with the terms of this Agreement, shall not, without the
prior written consent of a majority of the Board of Directors of the Company,
disclose such material, directly or indirectly, to any party not at the time of
such disclosure an employee or agent of the Company, or remove from the
Company's premises any notes or records relating thereto, copies or facsimiles
thereof (whether made by electronic, electrical, magnetic, optical, laser,
acoustic or other means), or any other property of the Company. The Employee
agrees that all confidential material, together with all notes and records of
the Employee relating thereto, and all copies or facsimiles thereof in the
possession of the Employee (whether made by the foregoing or other means) are
the exclusive property of the Company. The Employee shall not in any manner use
any confidential material, or any other property of the Company, in any manner
not specifically directed by the Company or in any way which is detrimental to
the Company, as determined by a majority of the Board of Directors of the
Company in its sole discretion.
7.2 For the purposes hereof, the term "confidential material"
shall mean all information in any way concerning the activities, business or
affairs of the Company or the Company's customers and clients, including,
without limitation, information concerning trade secrets and the preparation of
raw material for, manufacture of, and/or finishing processes utilized in the
production of, the products or projects of the Company and/or any improvements
therein, together with all sales and financial information concerning the
Company and any and all information concerning projects in research and
development or marketing plans for any such products or projects, and all
information concerning the practices, customers and clients of the Company, and
all information in any way concerning the activities, business or affairs of any
of such customers or clients, as such, which is furnished to the Employee by the
Company or any of its agents, customers or clients, as such, or otherwise
acquired by the Employee in the course of the Employee's employment with the
Company; provided, however, that the term "confidential material" shall not
include information which (i) becomes generally available to the public other
than as a result of a disclosure by the Employee, (ii) was available to the
Employee on a non-confidential basis prior to his
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employment with the Company or (iii) becomes available to the Employee on a
non-confidential basis from a source other than the Company or any of its
agents, customers or clients, as such, provided that such source is not bound by
a confidentiality agreement with the Company or any of such agents, customers or
clients.
7.3 Promptly upon the request of the Company, the Employee shall
deliver to the Company all confidential material in the possession of the
Employee without retaining a copy thereof, unless, in the opinion of counsel for
the Company, either returning such confidential material or failing to retain a
copy thereof would violate any applicable Federal, state, local or foreign law,
in which event such confidential material shall be returned without retaining
any copies thereof as soon as practicable after such counsel advises that the
same may be lawfully done.
7.4 In the event that the Employee is required, by oral
questions, interrogatories, requests for information or documents, subpoena,
civil investigative demand or similar process, to disclose any confidential
material, the Employee shall provide the Company with prompt notice thereof so
that the Company may seek an appropriate protective order and/or waive
compliance by the Employee with the provisions hereof; provided, however, that
if in the absence of a protective order or the receipt of such a waiver, the
Employee is, in the opinion of counsel for the Company, compelled to disclose
confidential material not otherwise disclosable hereunder to any legislative,
judicial or regulatory body, agency or authority, or else be exposed to
liability for contempt, fine or penalty or to other censure, such confidential
material may be so disclosed.
8. Intellectual Property. Any and all inventions made, developed
or created by the Employee (whether at the request or suggestion of the Company
or otherwise, whether alone or in conjunction with others, and whether during
regular hours of work or otherwise) (a) during the period of this Agreement, or
(b) within a period of one (1) year after the date of termination of employment
hereunder, which may be directly or indirectly useful in, or relate to, the
business of or tests being carried out by the Company, shall be promptly and
fully disclosed by the Employee to the Board of Directors of the Company and
shall be the Company's exclusive property as against the Employee, and the
Employee shall promptly deliver to an appropriate representative of the Company
as designated by the Board of Directors all papers, drawings, models, data
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and other material relating to any invention made, developed or created by him
as aforesaid. The Employee shall, at the request of the Company and without any
payment therefor, execute any documents necessary or advisable in the opinion of
the Company's counsel to direct issuance of patents or copyrights to the Company
with respect to such inventions as are to be the Company's exclusive property as
against the Employee or to vest in the Company title to such inventions as
against the Employee. The expense of securing any such patent or copyright shall
be borne by the Company.
9. Interference with the Company. The Employee acknowledges that
the services to be rendered by him to the Company are of a special and unique
character. The Employee agrees that, in consideration of his employment
hereunder, the Employee will not (a) during the period of his employment with
the Company and thereafter for a period of eighteen (18) months commencing on
the date of termination of his employment with the Company (i) solicit or entice
or endeavor to solicit or entice away from the Company any person who was an
officer, employee or consultant of the Company, either on his own account or for
any person, firm, corporation or other organization, whether or not such person
would commit any breach of his contract of employment by reason of leaving the
service of the Company, or (ii) solicit or entice or endeavor to solicit or
entice away from the Company any present or prospective customer of the Company.
Neither the Company nor the Employee will at any time, take any action or make
any statement the effect of which would be, directly or indirectly, to impair
the good will of the other or the business reputation or good name of the other,
or be otherwise detrimental to the interests of the other. For purposes hereof,
"prospective customer" shall refer to a customer with whom the Company has had
significant contact regarding the provision of products or services to such
customer during the three (3) month period preceding the termination of the
Employee's employment hereunder.
10. Equitable Relief. In the event of a breach or threatened
breach by the Employee of any of the provisions of Sections 7, 8 or 9 of this
Agreement, the Employee hereby consents and agrees that the Company shall be
entitled to an injunction or similar equitable relief from any court of
competent jurisdiction restraining the Employee from committing or continuing
any such breach or threatened breach or granting specific performance of any act
required to be performed by the Employee under any of such provisions, without
the necessity of showing any actual damage or that money damages would not
afford an
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adequate remedy and without the necessity of posting any bond or other security.
Nothing herein shall be construed as prohibiting the Company from pursuing any
other remedies at law or in equity which it may have.
11. Successors and Assigns.
11.1 Assignment by the Company. The Company shall require any
successors (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place. As used in this Section, the "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law and this Agreement shall be
binding upon, and inure to the benefit of, the Company, as so defined.
11.2 Assignment by the Employee. The Employee may not assign
this Agreement or any part thereof without the prior written consent of a
majority of the Board of Directors of the Company; provided, however, that
nothing herein shall preclude one or more beneficiaries of the Employee from
receiving any amount that may be payable following the occurrence of his legal
incompetency or his death and shall not preclude the legal representative of his
estate from receiving such amount or from assigning any right hereunder to the
person or persons entitled thereto under his will or, in the case of intestacy,
to the person or persons entitled thereto under the laws of intestacy applicable
to his estate. The term "beneficiaries", as used in this Agreement, shall mean a
beneficiary or beneficiaries so designated to receive any such amount or, if no
beneficiary has been so designated, the legal representative of the Employee (in
the event of his incompetency) or the Employee's estate.
12. Governing Law. This Agreement shall be deemed a contract
made under, and for all purposes shall be construed in accordance with, the laws
of the State of New Jersey applicable to contracts to be performed entirely
within such State. In the event that a court of any jurisdiction shall hold any
of the provisions of this Agreement to be wholly or partially unenforceable for
any reason, such determination shall not bar or in any way affect the Company's
right to relief as provided for herein in the courts of any other jurisdiction.
Such provisions,
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as they relate to each jurisdiction, are, for this purpose, severable into
diverse and independent covenants. Service of process on the parties hereto at
the addresses set forth herein shall be deemed adequate service of such process.
13. Entire Agreement. This Agreement contains all the
understandings and representations between the parties hereto pertaining to the
subject matter hereof and supersedes all undertakings and agreements, whether
oral or in writing, if any there be, previously entered into by them with
respect thereto.
14. Amendment, Modification, Waiver. No provision of this
Agreement may be amended or modified unless such amendment or modification is
agreed to in writing and signed by the Employee and by a duly authorized
representative of the Company other than the Employee. Except as otherwise
specifically provided in this Agreement, no waiver by either party hereto of any
breach by the other party hereto of any condition or provision of this Agreement
to be performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at the same or any prior or subsequent time,
nor shall the failure of or delay by either party hereto in exercising any
right, power or privilege hereunder operate as a waiver thereof to preclude any
other or further exercise thereof or the exercise of any other such right, power
or privilege.
15. Arbitration. Any controversy or claim arising out of or
relating to this Agreement, or any breach thereof, shall, except as provided in
Section 10, be settled by arbitration in accordance with the rules of the
American Arbitration Association then in effect and judgment upon such award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitration shall be held in the area where the Company then has
its principal place of business. The arbitration award shall include attorneys'
fees and costs to the prevailing party.
16. Notices. Any notice to be given hereunder shall be in
writing and delivered personally or sent by certified mail, postage prepaid,
return receipt requested, addressed to the party concerned at the address
indicated below or at such other address as such party may subsequently
designate by like notice:
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If to the Company:
Isomedix Inc.
00 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Mr. Xxxx Xxxxxxxxx
If to the Employee:
Dr. Xxxxx Xxxxx
00 Xxxx Xxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
17. Severability. Should any provision of this Agreement be held
by a court or arbitration panel of competent jurisdiction to be enforceable only
if modified, such holding shall not affect the validity of the remainder of this
Agreement, the balance of which shall continue to be binding upon the parties
hereto with any such modification to become a part hereof and treated as though
originally set forth in this Agreement. The parties further agree that any such
court or arbitration panel is expressly authorized to modify any such
unenforceable provision of this Agreement in lieu of severing such unenforceable
provision from this Agreement in its entirety, whether by rewriting the
offending provision, deleting any or all of the offending provision, adding
additional language to this Agreement, or by making such other modifications as
it deems warranted to carry out the intent and agreement of the parties as
embodied herein to the maximum extent permitted by law. The parties expressly
agree that this Agreement as so modified by the court or arbitration panel shall
be binding upon and enforceable against each of them. In any event, should one
or more of the provisions of this Agreement be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions hereof, and if such provision or
provisions are not modified as provided above, this Agreement shall be construed
as if such invalid, illegal or unenforceable provisions had never been set forth
herein.
18. Withholding. Anything to the contrary notwithstanding, all
payments required to be made by the Company hereunder to the Employee or his
beneficiaries, including his estate, shall be subject to withholding of such
amounts relating to taxes as the Company may reasonably determine it should
withhold pursuant to any applicable law or regulation. In lieu of withholding
such amounts, in whole or in part, the Company, may, in its sole discretion,
accept other provision for payment of taxes as
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permitted by law, provided it is satisfied in its sole discretion that all
requirements of law affecting its responsibilities to withhold such taxes have
been satisfied.
19. Survivorship. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations.
20. Titles. Titles of the sections of this Agreement are
intended solely for convenience and no provision of this Agreement is to be
construed by reference to the title of any section.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
ISOMEDIX INC.
By /s/ Xxxx Xxxxxxxxx
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/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
