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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 3rd day of August, 2000, by
and between INTERNATIONAL TOTAL SERVICES, INC., an Ohio corporation (the
"Corporation"), and XXXX X. XXXXXXXX, an Ohio resident ("Xxxxxxxx").
RECITALS
WHEREAS, the Corporation desires to employ Xxxxxxxx and Xxxxxxxx
desires to enter into the employ of the Corporation, all on the terms and
subject to the conditions set forth in this Agreement; and
WHEREAS, Xxxxxxxx has requested, and the Corporation has agreed, that
Xxxxxxxx be indemnified for all liabilities arising out of or relating to his
services to the Corporation whether as a consultant, employee or officer of the
Corporation or otherwise;
WHEREAS, the Corporation has begun a process involving consideration of various
strategic options which, if pursued and implemented, could result in a
significant change in, or the elimination of, Employee's employment relationship
with the Corporation; and
WHEREAS, the Corporation recognizes that the strategic direction and
the achievement of the Corporation's strategic objectives will likely place
additional demands and burdens on Xxxxxxxx and require special dedication and
efforts by Xxxxxxxx, while at the same time, presenting Xxxxxxxx with the
distraction and insecurity associated with the potential loss of employment.
WHEREAS, the Corporation has determined that providing Xxxxxxxx with a
retention incentive and severance protection is appropriate under the
circumstances so as to reinforce Xxxxxxxx'x dedication and focus in furtherance
of the Corporation's strategic objectives;
NOW, THEREFORE, in consideration of the recitals and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Corporation and Xxxxxxxx hereby agree as follows:
1. Employment, Contract Period. During the period specified in this
Section 1, the Corporation shall employ Xxxxxxxx, and Xxxxxxxx shall serve the
Corporation, on the terms and subject to the conditions set forth herein. The
term of Xxxxxxxx'x employment hereunder shall commence as of the date hereof
(the "Effective Date"), and, subject to prior termination as provided in Section
8 hereof, shall continue indefinitely on a month-to-month basis. The term of
Xxxxxxxx'x employment hereunder shall be automatically renewed on the first of
each following month for an additional term of one month, unless the Corporation
shall have given at least ninety (90) days advance notice of its intention not
to renew the term of Xxxxxxxx'x employment hereunder. The
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EXHIBIT 10.19
term of Xxxxxxxx'x employment hereunder is sometimes hereinafter referred to as
the "Contract Period".
2. Position; Duties; Responsibilities.
(a) At all times during the Contract Period, Xxxxxxxx shall
have the titles of "President" and "Chief Executive Officer" and shall
have and perform duties and responsibilities as may be assigned by the
Board of Directors of the Corporation, which duties and
responsibilities will be those customarily performed by a chief
executive officer of a publicly-held company of comparable size in the
same or related industries.
(b) Xxxxxxxx shall devote such professional time, energy and
talent to the business of and to the furtherance of the purposes and
objectives of the Corporation as he deems appropriate to carry out his
duties hereunder.
(c) Xxxxxxxx shall report directly to the Board of Directors
of the Corporation.
3. Compensation. The Corporation shall pay to Xxxxxxxx a base salary at
the rate specified in Paragraph (a), below, and a bonus, if any, as provided in
Paragraph (b), below.
(a) The rate of Xxxxxxxx'x base salary shall be $300,000 per
year, payable in accordance with the Corporation's usual pay practices
(and in any event no less frequently than monthly), as the same may be
increased (but not decreased) from time to time (based upon the
performance of the Corporation and Xxxxxxxx) as determined by the Board
of Directors of the Corporation in its sole discretion.
(b) For each calendar year or portion thereof that Xxxxxxxx is
employed under this Agreement, the Corporation may pay to Xxxxxxxx a
bonus, which will be based upon the performance of the Corporation and
Xxxxxxxx, at such times and in such amounts as the Board of Directors
of the Corporation, in its sole discretion, may determine.
4. Reimbursement for Expenses. The Corporation shall reimburse Xxxxxxxx
for all reasonable, ordinary and necessary expenses incurred by him in the
performance of his duties hereunder, provided that Xxxxxxxx accounts to the
Corporation therefor in a manner sufficient to substantiate deductions with
respect to those expenses by the Corporation for federal income tax purposes.
5. Vacations. During the Contract Period, Xxxxxxxx shall be entitled to
up to four (4) weeks (twenty (20) days) of vacation each year to be taken at
such time or times xx Xxxxxxxx may determine in such a manner as to avoid undue
disruption to the business of the Corporation.
6. Benefits. During the Contract Period, Xxxxxxxx and his family shall
be entitled to participate in such pension, retirement, medical reimbursement,
insurance and similar plans, if any, enjoyed by executive officers of the
Corporation generally. Xxxxxxxx shall also be entitled to participate in any
option or other Xxxxxxxx benefit compensation plan that is enjoyed by executive
officers of the Corporation generally. Xxxxxxxx'x participation in and benefits
under any such plan shall be on the terms and subject to the conditions
specified in the governing document of that plan.
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EXHIBIT 10.19
7. Effect of Disability While in Employ of the Corporation. If while
Xxxxxxxx is employed by the Corporation, he becomes disabled, by reason of
physical or mental impairment, to such an extent that he is unable to
substantially perform his duties under this Agreement:
(a) the Corporation may relieve Xxxxxxxx of his duties under
this Agreement for as long xx Xxxxxxxx is so disabled.
(b) the Corporation shall pay to Xxxxxxxx, net of the offset
referred to in the last sentence of this Paragraph (b), all base salary
to which he would have been entitled under this Agreement had he
continued to be actively employed by the Corporation to the earliest of
(i) the first date on which he is no longer so disabled, (ii) the date
on which he has been so disabled for an aggregate of 120 business days
(whether or not consecutive) during any period of twelve consecutive
calendar months, (iii) the date of his death, or (iv) the 90th day of
his disability. Any payment referred to in this Paragraph (b) shall be
made at the same time as that payment would have been made if Xxxxxxxx
were not disabled. Payments under this Paragraph (b) for any period
shall be offset, dollar for dollar, by any disability benefits (other
than benefits payable pursuant to any disability income policy all of
the premiums for which were paid by Xxxxxxxx) for that period that are
received by Xxxxxxxx.
(c) Except as provided in this Section 7, the Corporation
shall have no further obligations to Xxxxxxxx for base salary for any
period during which Xxxxxxxx is so disabled to such an extent that he
is unable to substantially perform his duties under this Agreement.
8. Termination.
(a) AT EXPIRATION OF A TERM. If the Corporation gives Xxxxxxxx
90 days' advance notice of its intention not to renew the term of
Xxxxxxxx'x employment hereunder (as permitted by Section 1), Xxxxxxxx'x
employment hereunder shall terminate at the close of business on the
last day of the month next preceding the first day of the month as to
which such 90 days' advance notice was given.
(b) DEATH OR DISABILITY. Xxxxxxxx'x employment hereunder will
terminate immediately upon Xxxxxxxx'x death. The Corporation may
terminate Xxxxxxxx'x employment hereunder immediately upon giving
notice of termination if Xxxxxxxx is disabled, by reason of physical or
mental impairment, to such an extent that he has been unable to
substantially perform his duties under this Agreement for an aggregate
of 120 business days (whether or not consecutive) during any period of
twelve consecutive calendar months.
(c) FOR CAUSE. The Board of Directors of the Corporation, by
action of three-quarters of all of its duly elected members, may
terminate Xxxxxxxx'x employment under this Agreement if it determines
in good faith that Xxxxxxxx has, by action or failure to act, given the
Corporation Cause for that termination and delivers written notice of
that
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EXHIBIT 10.19
termination, describing the facts constituting Cause, to Xxxxxxxx. For
purposes hereof, the term "Cause" shall mean Xxxxxxxx'x fraud or
commission of a felony which results in material injury to the business
or reputation of the Corporation, or Xxxxxxxx'x willful breach of this
Agreement, which breach has not been cured within thirty (30) days
after the Corporation gives notice thereof to Xxxxxxxx.
(d) Without Cause. The Board of Directors of the Corporation
may terminate Xxxxxxxx'x employment hereunder at any time without Cause
upon notice to Xxxxxxxx.
(e) By Xxxxxxxx for Good Reason. Xxxxxxxx may terminate his
employment hereunder for "Good Reason" at any time. Xxxxxxxx shall be
deemed to have "Good Reason" to terminate his employment under this
Agreement if, at any time during the Contract Period, (i) the
Corporation, without his consent, materially increases Xxxxxxxx'x
duties and responsibilities in a manner that materially impairs his
ability to perform his existing duties or assigns to Xxxxxxxx any
additional responsibilities or duties that are both material and below
the level of his existing duties and responsibilities; (ii) Xxxxxxxx'x
place of employment or the principal executive offices of the
Corporation are moved to a location more than fifty (50) miles from
Public Square in the City of Cleveland, Ohio; (iii) there occurs a
material breach by the Corporation of any of its obligations under this
Agreement (other than those specified in this Section 8(e)); or (iv)
there occurs a "Change in Control" (as hereinafter defined) of the
Corporation.
The term "Change in Control" means the first to occur of the
following events (i) any person or group of commonly controlled
persons, other than the voting trust established and maintained
pursuant to the Voting Trust Agreement (the "Voting Trust") made and
entered into as of November 1, 1999 by and among the Corporation,
Xxxxxx X. Xxxxxxx, H. Xxxxxxx Xxxxxxxx, Xxxx X. X'Xxxxx and J. Xxxxxxx
Xxxxx (the "Voting Trust Trustees"), acquire ownership or control,
directly or indirectly, of more than twenty percent (20%) of the voting
control or value of the equity interests in the Corporation; (ii) the
shareholders of the Corporation approve an agreement to merge or
consolidate with another corporation or other entity resulting (whether
separately or in connection with a series of transactions) in a change
in ownership of twenty percent (20%) or more of the voting control or
value of the equity interests in the Corporation, or an agreement to
sell or otherwise dispose of all or substantially all of the
Corporation's assets (including, without limitation, a plan of
liquidation or dissolution), or otherwise approve of a fundamental
alteration in the nature of the Corporation's business; (iii) at any
time during any period of twenty-four (24) consecutive months,
individuals who were directors at the beginning of the 24-month period
no longer constitute a majority of the members of the Board of
Directors of the Corporation, unless the election, or the nomination
for election by the Corporation's shareholders, of each director who
was not a director at the beginning of the period is approved by at
least a majority of the directors who (x) are in office at the time of
the election or nomination and (y) were directors at the beginning of
the period (the "Continuing Directors"); (iv) the election of any
director to the Board of Directors of the Corporation who was not
nominated by the Continuing Directors; (v) termination of the Voting
Trust or change in the co-position
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EXHIBIT 10.19
of the Voting Trust Trustees; or (vi) a change in ownership or control
sufficient to trigger the requirements Section 280G of the Internal
Revenue Code of 1986 (the "Code") as amended or the Treasury
Regulations or Proposed Treasury Regulations thereunder.
Xxxxxxxx may exercise his right to terminate under the first
sentence of this Section 8(e), other than clause (iv) thereof, only if
Xxxxxxxx gives the Corporation written notice thereof within thirty
(30) days after he first knew of the existence of the events
constituting "Good Reason" and, with respect to the events specified in
clauses (i) and (iii) of the definition of "Good Reason" above, the
Corporation fails to eliminate or cure the events constituting "Good
Reason" within ten (10) days after receiving that notice.
(f) BY XXXXXXXX WITHOUT GOOD REASON. Xxxxxxxx may terminate
his employment hereunder at any time upon notice from Xxxxxxxx to the
Board of Directors of the Corporation.
The exercise by the Corporation of its rights of termination under this
Section 8 shall be the Corporation's sole remedy in the event of the occurrence
of the event as a result of which such right to terminate arises. Upon any
termination of this Agreement, Xxxxxxxx shall be deemed to have resigned from
all offices and directorships held by Xxxxxxxx in the Corporation.
In the event of a termination claimed by the Corporation to be for
"Cause" pursuant to Section 8(c) or by Xxxxxxxx to be for "Good Reason" pursuant
to Section 8(e), Xxxxxxxx or the Corporation shall have the right to have the
justification for said termination determined by arbitration in Cleveland, Ohio.
In order to exercise such right, Xxxxxxxx or the Corporation shall serve on the
other party hereto, within thirty (30) days after termination, a written request
for arbitration. The Corporation immediately shall request the appointment of an
arbitrator by the American Arbitration Association and thereafter the question
of "Cause" or "Good Reason," as the case may be, shall be determined under the
rules of the American Arbitration Association, and the decision of the
arbitrator shall be final and binding on both parties. The parties shall use all
reasonable efforts to facilitate and expedite the arbitration and shall act to
Cause the arbitration to be completed as promptly as possible. During the
pendency of the arbitration, Xxxxxxxx shall continue to receive all compensation
and benefits to which he is entitled hereunder, and if at any time during the
pendency of such arbitration the Corporation fails to pay and provide all
compensation and benefits to Xxxxxxxx in a timely manner, the Corporation shall
be deemed to have automatically waived whatever rights it then may have had to
terminate Xxxxxxxx'x employment for Cause. Expenses of the arbitration shall be
borne by the parties in the proportion determined by the arbitrator based upon
the reasonableness of the positions of the parties.
9. Payments Upon Termination. Upon any termination of Xxxxxxxx'x
employment, the Corporation shall pay to Xxxxxxxx all accrued, unpaid base
salary and other benefits accrued through the date of termination. In addition,
upon any termination pursuant to Sections 8(a), 8(d) or 8(e), the Corporation
shall: (a) pay to Xxxxxxxx in a lump sum cash payment within ten (10) business
days following such termination an amount equal to two and three-quarters (2
3/4) times Xxxxxxxx'x annual base salary described in Section 3(a) of this
Agreement; and (b) provide
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Xxxxxxxx with continued health care coverage for a period of two (2) years
following Xxxxxxxx'x termination of employment with the Corporation, subject to
terms and conditions (including the rate, if any, charged to Xxxxxxxx) as are
otherwise applicable to active Corporation officers.
In addition to the foregoing compensation and benefits, in the event
that Xxxxxxxx'x employment with the Corporation terminates, or is terminated for
any reason upon or after a Change in Control: (a) Xxxxxxxx will be required to
make himself available for executive consulting to the Corporation for up to ten
(10) hours per week (at such times and places as are mutually agreed upon and
reasonably acceptable to Xxxxxxxx; it being agreed and understood that
Xxxxxxxx'x consulting obligations shall be to assist in the orderly transition
of management in a cooperative and professional manner) during the four (4)
month period following such termination; provided, however, that the Corporation
shall (i) reimburse Xxxxxxxx for all expenses reasonably incurred in connection
with such consulting duties; and (ii) within five (5) business days after
Xxxxxxxx'x termination, pay to Xxxxxxxx'x legal representative a lump sum
payment of Xxxxxxxx'x four (4) month consulting fee equal to Seventy-five
Thousand Dollars, to be held in escrow with one-fourth of such amount released
to Xxxxxxxx at the end of each of the four months in the consulting period,
except that the unpaid portion of such payment obligation shall be suspended
upon receipt by Xxxxxxxx'x legal representative of an affidavit indisputably
establishing that Xxxxxxxx has materially breached his consulting obligations
under this clause (a) Corporation shall, at its cost, provide Xxxxxxxx with: (i)
the services of a qualified outplacement professional (as selected by Xxxxxxxx,
subject to the Corporation's approval which will not be unreasonably withheld)
to assist Xxxxxxxx in seeking and obtaining new employment; and (ii) the
services of an executive secretary and office space (comparable to that
currently being provided to Xxxxxxxx) for a period of four (4) months after such
termination. In addition, the Corporation shall provide Xxxxxxxx with the
opportunity to purchase his office furniture and/or computer equipment at a
price not exceeding the liquidation value of such items.
10. Section 280G Limitation. If the aggregate present value of all
payments made or payable to Xxxxxxxx, whether pursuant to this Agreement or
otherwise, required to be taken into account under Section 280G(b)(2)(A)(i) and
(ii) of the Code equals or exceeds three times Xxxxxxxx'x "base amount", as
defined in Section 280G of the Code, then the amount payable under Section 9
shall be reduced, but not below zero, so that the aggregate present value of all
such payments computed in accordance with Section 280G of the Code made or
payable to Xxxxxxxx, whether pursuant to this Agreement or otherwise, is equal
to (A) three times Xxxxxxxx'x "base amount" as defined in Section 280G of the
Code minus (B) one dollar.
11. Indemnification.
(a) INDEMNIFICATION IN NON-DERIVATIVE ACTIONS. The Corporation
shall indemnify Xxxxxxxx against any and all losses, claims, damages,
liabilities, costs and expenses other than attorneys' fees (including
any and all losses, claims, damages, liabilities, costs and expenses
arising out of events occurring prior to the Effective Date) with
respect to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative,
other than an action by or in the right of the Corporation, by
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reason of the fact that he is or was a consultant to or agent or
officer of the Corporation, or is or was serving at the request of the
Corporation as a consultant to or a director, trustee, officer,
Xxxxxxxx or agent of another corporation, domestic or foreign,
nonprofit or for profit, partnership, limited liability company, joint
venture, trust or other enterprise, including judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and with respect to any criminal
action or proceeding, had no reasonable Cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that Xxxxxxxx did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and with respect to any criminal action
or proceeding, that he had reasonable Cause to believe that his conduct
was unlawful.
(b) INDEMNIFICATION IN DERIVATIVE ACTIONS. The Corporation
shall indemnify Xxxxxxxx against any and all losses, claims, damages,
liabilities, costs and expenses other than attorneys' fees (including
any and all losses, claims, damages, liabilities, costs and expenses
arising out of events occurring prior to the Effective Date) with
respect to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a consultant to or agent or
officer of the Corporation, or is or was serving at the request of the
Corporation as a consultant to or a director, trustee, officer,
Xxxxxxxx or agent of another corporation, domestic or foreign,
nonprofit or for profit, partnership, limited liability company, joint
venture, trust or other enterprise, actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit
if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Corporation, except that
no indemnification shall be made in respect of any claim, issue or
matter as to which Xxxxxxxx shall have been adjudged to be liable for
gross negligence or gross misconduct in the performance of his duty to
the Corporation unless, and only to the extent that the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability, but in view of all the
circumstances of the case, Xxxxxxxx is fairly and reasonably entitled
to indemnity for such expenses as such court shall deem proper.
(c) COUNSEL. Xxxxxxxx shall, at his own expense, have the
right to retain counsel of his own choosing to represent him in
connection with any matters as to which the provisions of this Section
11 apply.
(d) ADVANCE PAYMENT OF EXPENSES. Expenses, excluding
attorneys' fees, incurred in defending any action, suit or proceeding
referred to in this Section 11, shall be paid by the Corporation in
advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of Xxxxxxxx to repay
such amount, unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation as provided
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EXHIBIT 10.19
herein. Such fees and expenses shall be paid from time to time as
incurred upon request by Xxxxxxxx.
(e) NONEXCLUSIVITY. The parties agree that nothing in this
Agreement shall be construed to limit or negate any rights of Xxxxxxxx
under the Corporation's Articles of Incorporation or Code of
Regulations, as the same may be amended from time to time, or any other
agreement, vote of shareholders or directors, or provision of
applicable law, whether statutory or common law, or otherwise, which
provides Xxxxxxxx with broader protection than that provided herein.
(f) SURVIVAL. The provisions of this Section 11, Section 12
and Section 13 shall survive the termination of this Agreement.
12. Liability Insurance. The Corporation will maintain officer's acts
and omissions liability insurance for Xxxxxxxx in amounts comparable to that
maintained for other executive officers employed by the Corporation. Such
liability insurance shall, at a minimum, cover all matters giving rise to an
indemnification obligation by the Corporation and such coverage shall remain in
effect until the expiration of the statute of limitations applicable to any
claim that could give rise to such indemnification obligation. In the event that
Xxxxxxxx is subject to a liability in excess of the coverage limits of such
insurance, the Corporation will be responsible for any such uninsured
liabilities to the extent provided herein.
13. Mutual Release. In the event Xxxxxxxx'x employment with the
Corporation terminates pursuant to Section 8(a), 8(d) or 8(e), the Corporation
and Xxxxxxxx shall promptly enter into a mutual release in the form attached
hereto as Exhibit "A". Failure by Xxxxxxxx to promptly execute such release
shall result in forfeiture of all compensation and benefits otherwise due
Xxxxxxxx under Section 9. Failure by the Corporation to promptly execute such
release shall result in the Corporation owing Xxxxxxxx, in addition to all other
amounts owing Xxxxxxxx under this Agreement, liquidated damages for such failure
in the amount of Five Hundred Thousand Dollars ($500,000.00).
14. Assignment and Binding Effect. The obligations of the parties
hereto may not be assigned or transferred, except upon the merger, consolidation
or sale of the Corporation, or the sale of all or substantially all the assets
of the Corporation, with or to another person or entity. This Agreement shall be
binding upon and inure to the benefit of Xxxxxxxx and the Corporation; provided,
however, that this Agreement shall also inure to the benefit of Xxxxxxxx'x
heirs, personal representatives, executors and administrators. This Agreement
shall be binding upon the Corporation's successors and assigns.
15. Notices. All notices under this Agreement shall be in writing and
shall be deemed effective when delivered in person, or three days after deposit
thereof in the official U.S. mail, postage prepaid, for delivery as registered
or certified mail, or its delivery by a courier service, such as, for example,
FedEx or UPS, addressed:
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EXHIBIT 10.19
if to Xxxxxxxx, to
Xxxx X. Xxxxxxxx
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxx 00000
and if to the Corporation, to
International Total Services, Inc.
0000 Xxxxx Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attention, Chairman, Board of Directors
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
In lieu of personal notice or notice by deposit in the official U.S. mail, or
delivery by courier service, a party may give notice by confirmed telegram,
telex or facsimile. Either party may change the address to which notice to that
party may be mailed by notifying the other party of the change in the manner
contemplated in this Section.
16. Severability. Any provision of this Agreement that is prohibited or
unenforceable shall be ineffective to the extent, but only to the extent, of
such prohibition or unenforceability without invalidating the remaining portions
hereof and such remaining portions of this Agreement shall continue to be in
full force and effect.
17. Governing Law. The provisions of this Agreement shall be governed
by and construed in accordance with the laws of the State of Ohio applicable to
contracts made in and to be performed within the State of Ohio.
18. Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto and, except as provided herein,
supersedes all prior understandings, whether written or oral, with respect to
the employment of Xxxxxxxx by the Corporation. This Agreement is the successor
to the Agreement adopted by the Compensation Committee of the Corporation's
Board of Directors on January 13, 2000 and is effective as of August 3, 2000.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
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EXHIBIT 10.19
INTERNATIONAL TOTAL SERVICES, INC.
By: /s/ H. Xxxxxxx Xxxxxxxx
Title: Co-Chairman of the Board of Directors
/s/ Xxxx X. Xxxxxxxx
---------------------------------
XXXX X. XXXXXXXX
