Exhibit 10
AGREEMENT
This Agreement is made and entered into as of September 19,
1997, by and between THE RANDERS GROUP INCORPORATED, a Delaware
corporation ("RGI"), THERMO TERRATECH INC., a Delaware
corporation ("TTT"), and XXXXXX X. XXXXXX, XXXXXXX X. XXXXXXXXX,
XXXXXX X. XxXXXXXX, XXXXX X. XXXXXXX and XXXXX X. XXXXXXXXX (each
such person, individually, an "Employee" and all such persons
collectively, the "Employees").
WITNESSETH:
WHEREAS, the Employees are the executive officers and
directors of RGI;
WHEREAS, TTT is, along with its affiliates, the holder of
62.2% of the voting capital stock of RGI;
WHEREAS, the Employees, RGI and TTT jointly desire to enter
into an agreement regarding severance compensation if any
Employee's employment with RGI is terminated in certain
circumstances;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants, agreements and provisions herein contained, the
parties hereto, intending to be legally bound, agree as follows:
1. Severance Payment. In the event that an Employee's
employment with RGI is terminated within one year from the date
of this Agreement without Cause, as defined in the first sentence
of Section 3., below; or, if an Employee shall terminate his
employment with RGI within one year of the date of this Agreement
with Cause, as defined in the second sentence of Section 3.,
below (either of such terminations being referred to herein as a
"First Year Termination"), in addition to any accrued wages and
benefits which may be payable to Employee through the date of
such termination, Employee will be entitled to severance in an
amount equal to the Employee's then current annual base salary in
effect immediately prior to such termination, exclusive of bonus
and any other incentive compensation, less taxes and standard
deductions (the "Severance Payment"). Except as required by law
or by the express terms of any applicable benefit plan, all
employee benefits provided to Employee and his family shall
terminate as of the date of termination of his employment.
2. Payment of Severance Payment. Any Severance Payment
due to an Employee shall be paid to Employee in a twelve equal
monthly installments with the first installment becoming due on
the first day of the month immediately following the date of his
termination, and continuing on the first day of each month
thereafter until paid in full.
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3. Cause Defined. For purposes of this Agreement, "Cause"
for termination of the Employee's employment by RGI shall be
deemed to exist upon (i) a good faith finding by RGI of the
failure of the Employee to perform his assigned duties for RGI, a
material violation of any policy established by RGI (or its
affiliates) and made known to the Employee, gross
insubordination, dishonesty, gross negligence or gross
misconduct, or (ii) the conviction of the Employee of, or the
entry of a pleading of guilty or nolo contendere by the Employee
to, any crime involving moral turpitude or any felony. "Cause"
for termination of the Employee's employment by the Employee
shall be deemed to exist upon (i) RGI's assignment to the
Employee of duties fundamentally incompatible with the duties of
the Employee as of the date of this Agreement (although
Employee's actual title or officer and/or director status may be
changed or eliminated and that alone will not be considered
"Cause"); or (ii) a reduction in Employee's current base salary
prior to September 1, 1998.
4. Reciprocal Rights. In the event of a First Year
Termination of any Employee, any other Employee shall have the
right to voluntarily terminate his employment with RGI within the
30 days following the date of the initial First Year Termination;
and, such termination of employment shall, for purposes of this
Agreement and all other agreements between such other Employee,
RGI and TTT, be considered to have been a First Year Termination
of such Employee's employment by RGI without Cause and shall
entitle such other employee to a Severance Payment as provided in
Section 1. above.
5. Guarantee of Payment. TTT, by executing this
Agreement, absolutely, irrevocably and unconditionally guarantees
to Employees the full and prompt payment of all Severance
Payments which may become due and payable under this Agreement.
6. Certain Indemnification Matters.
6.1 TTT and RGI agree that they will not, prior to May
31, 1998, amend Section 10 of RGI's Certificate of Incorporation
or Article VI of RGI's By-Laws, each as amended to date
(collectively, the "Indemnification Provisions"), in any way that
would adversely affect the rights of the Employee to receive
indemnification thereunder. TTT further guarantees to the
Employee the due and punctual payment of any and all amounts
payable by RGI pursuant to the Indemnification Provisions when
and as the same shall become due and payable in accordance with
the terms hereof.
6.2 TTT agrees to indemnify and hold harmless the
Employee from and against any and all claims, damages, losses,
liabilities, costs and expenses (including, without limitation,
settlement costs and any reasonable legal expenses for
investigating or defending any actions or threatened actions)
2PAGE
incurred by Employee arising solely out of the transactions
contemplated by a certain Stock Purchase Agreement of an even
date herewith between RGI and TTT.
6.3 Notwithstanding anything to the contrary in this
Section 6, the parties agree that the Employee shall not be
entitled o indemnification, whether under the Indemnification
Provisions or under Section 6.2, above, with respect to any
matter for which the Employee may be liable to TTT pursuant to
Section 6.1 of a certain Stock Purchase and Sale Agreement dated
as of May 12, 0000, xxxxxxx XXX, XXX and certain of the
Employees.
7. Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement
among the parties and supersedes any prior understandings,
agreements, or representations by or among the parties, written
or oral, with respect to the subject matter hereof.
8. Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties named herein
and their respective successors and permitted assigns. No party
may assign either this Agreement or any of its rights, interests,
or obligations hereunder without the prior written approval of
the other parties.
9. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same
instrument.
10. Headings. The article and section headings contained
in this Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
11. Notices. All notices, requests, demands, consents and
other communications which are required or permitted hereunder
shall be in writing, and shall be deemed given when actually
received or if earlier, two days after deposit with the U.S.
postal authorities, certified or registered mail, return receipt
requested, postage prepaid or two days after deposit with an
internationally recognized air courier or express mail, charges
prepaid, addressed to the address set forth immediately after
their signature on this Agreement, or to such other address as
any party hereto may designate in writing to the other parties,
specifying a change of address for the purpose of this Agreement.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the law
of conflicts) of the State of Delaware. In the event litigation
is maintained by a party to this Agreement against any other
party to enforce this Agreement or to seek any remedy for breach,
PAGE
then the party prevailing in such litigation shall be entitled to
recover from the non-prevailing party reasonable attorneys' fees
and costs of suit.
13. Amendments and Waivers. No amendment of any provision
of this Agreement shall be valid unless the same shall be in
writing and signed by all of the parties. No waiver by any party
of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or affect in any way
any rights arising by virtue of any prior or subsequent such
occurrence.
14. Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of
a court of competent jurisdiction declares that any term or
provision hereof is invalid or unenforceable, the parties agree
that the court making the determination of invalidity or
unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific
words or phrases, or to replace any invalid or unenforceable term
or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term or provision, and this
Agreement shall be enforceable as so modified after the
expiration of the time within which the judgment may be appealed.
15. Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto
to express their mutual intent, and no rule of strict
construction shall be applied against any party.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the date first above written.
THERMO TERRATECH INC. THE RANDERS GROUP INCORPORATED
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx Xxxx X. Xxxxxxx
President and CEO Chief Executive Officer
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxxx
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/s/ Xxxxxx X. XxXxxxxx /s/ Xxxxx X. Xxxxxxx
Xxxxxx X. XxXxxxxx Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
