EXHIBIT 10.32
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made and entered into as
of November 1, 1997, by and among Packaged Ice, Inc., a Texas corporation (the
"Company"), and Xxxxx Xxxxxxxxx (the "Employee").
PRELIMINARY STATEMENTS
The Company desires to employ Employee as chief financial officer; and
The Employee desires to be so employed by the Company upon the terms and
conditions hereinbelow set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual premises herein set forth,
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto mutually agree as follows:
1. EMPLOYMENT. The Company shall employ Employee on an exclusive and at
will basis, and Employee hereby agrees to such employment in the capacity of
chief financial officer on an "at will" basis.
2. DUTIES AND RESPONSIBILITIES OF EMPLOYEE. Employee shall serve as chief
financial officer and shall properly perform such duties as may be assigned to
him from time to time by the Chief Executive Officer or President of the
Company. Employee shall devote all of his business time to the performance of
his/her duties hereunder unless otherwise authorized by the Chief Executive
Officer, the President or either of their respective representatives.
Notwithstanding the foregoing, Employee shall not be obligated to relocate from
the Houston, Texas area.
3. COMPENSATION OF EMPLOYEE.
3.1 BASE SALARY. Commencing upon the date hereof, the Company shall
pay to Employee a base salary of $105,000 per annum. Such compensation shall be
paid to Employee with the same frequency as other similarly situated employees
of the Company are compensated
3.2 EXPENSES. In addition to those expenses that may be expressly
set forth herein, the Company shall, in accordance with the established policies
and procedures of the Company, pay or reimburse Employee for all ordinary and
necessary out-of-pocket expenses actually incurred by Employee in connection
with performing his duties hereunder which are reasonable and documented.
3.3 BENEFITS. Employee shall be entitled to the same benefits that
other similarly situated employees of the Company are entitled to receive to the
extent such plans are established by the Company and to the extent that Employee
is eligible to participate in such plans.
3.4 STOCK OPTIONS. The Company shall grant to Employee stock options
for 20,000 shares of common stock under its stock option plan in accordance with
a stock option agreement dated as of the date hereof.
3.5 AUTOMOBILE ALLOWANCE. Employee shall receive an automobile
allowance for a mid-sized domestic automobile such as a Ford Taurus or Chevrolet
Lumina or similar automobile
4. TERMINATION.
4.1 TERMINATION. Both parties shall have the right to terminate this
Employment Agreement with no less than fifteen days written notice to the other
party.
4.2 SEVERANCE PAY. Except for the termination of Employee "For
Cause," in the event that the Company elects to terminate Employee during the
term hereof, the Company will pay to Employee a sum equal to one year's salary;
provided, that in the event that the Company or substantially all of the assets
of the Company is sold to Suiza Foods Corporation or Reddy Ice Corporation, and
Employee is terminated or resigns within sixty days thereafter, the Company will
pay Employee a sum equal to two years salary, and in the event that the Company
or substantially all of its assets is sold to any other third party and Employee
is terminated or resigns within sixty days thereafter, the Company will pay
Employee a sum equal to one year's salary.
4.3 "FOR CAUSE". As used herein, the term "For Cause" shall mean (i)
Employee's theft, fraud or other defalcation, (ii) Employee's conviction of a
felony, or any crime of moral turpitude, (iii) Employee's violation of any
covenant herein contained, or (iv) Employee's failure to comply with all
reasonable policies, standards and regulations of the Company, as determined by
the officers of the Company. If the Company elects to terminate Employee For
Cause, then this Employment Agreement shall terminate and there shall be no
severance pay owed by the Company to Employee.
5. DISCLOSURE OF CONFIDENTIAL INFORMATION, COVENANT NOT TO COMPETE.
Employee acknowledges that certain information whether written or oral,
concerning the Company, including but not limited to general business
operations, or any other ideas and similar items relating to the business of the
Company (referred to herein as "Confidential Information") whether prepared or
generated by Employee or the Company pursuant to this Agreement or otherwise
coming into the possession or knowledge of Employee shall remain the exclusive,
confidential property of the Company except to the extent expressly authorized
in writing by the Company for dissemination. Employee further
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acknowledges and agrees that all such Confidential Information constitutes trade
secrets of the Company.
During the term of this Agreement and the Restricted Period (hereinafter
defined), Employee shall not disclose any of such Confidential Information to
any third party without the prior written consent of the Company and shall take
all reasonable steps and actions necessary to maintain the confidentiality of
such Confidential Information. Employee shall not use any of such Confidential
Information in any manner whatsoever during the Restricted Period, without the
Company's express prior written consent. In consideration of the obligations
undertaken by the Company herein, Employee will not, at any time, during or
after his employment hereunder, reveal, divulge or make known to any person, any
Confidential Information acquired by Employee during the course of his
employment.
During the term of this Agreement and the Restricted Period, Employee
shall not within 500 miles of any ice manufacturing facility owned or operated
by the Company or any of its subsidiaries be employed by (as an officer,
director, employee, consultant or independent contractor) engage in, or have any
interest in any person, firm, corporation or business (whether as a shareholder,
creditor, partner, consultant, holder of any beneficial interest or otherwise
other than as a beneficial holder of not more than 5 percent of the outstanding
voting stock of a company having at least 500 holders of voting stock) that
engages in the business of manufacturing, producing, storing, selling or
distributing ice.
The provisions of this SECTION 5 shall survive the expiration or
termination of Employee's employment hereunder and until the end of the
Restricted Period. The term "Restricted Period," as used in this Section shall
mean the period commencing on the date hereof and ending two years after the
date Employee's employment is terminated. The provisions of this Section shall
survive the expiration or termination of Employee's employment hereunder and
until the end of the Restricted Period as provided herein. The Employee
acknowledges and agrees that the restrictions imposed herein are reasonable as
to scope, duration and area, are necessary for the protection of the Company's
and its affiliates' business, and that but for the Employee's agreement to the
restrictions herein imposed the Company would not have entered into this
Agreement.
6. MISCELLANEOUS.
6.1. ASSIGNMENT. Neither Employee nor the Company may assign or
delegate any of their rights or duties under this Agreement without the express
written consent of the other except that in the event that the Company elects to
sell all or substantially all of its ice manufacturing assets that it acquired,
in part, from Employee to any third party, then the Company shall have the right
to terminate this Agreement with no further obligation being owed hereunder by
either party to the other.
6.2 INJUNCTIVE RELIEF. Employee acknowledges that the services to be
rendered under the provisions of this Agreement are of a special, unique and
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extraordinary character and that it would be difficult or impossible to replace
such services. Accordingly, Employee agrees that any breach or threatened breach
by him/her of SECTIONS 5 of this Agreement may cause irreparable harm to the
Company for which monetary damages may not be adequate and accordingly, any such
breach or threatened breach of SECTIONS 5 of this Agreement shall entitle
Company, in addition to all other legal remedies available to it at law or in
equity, to seek a temporary or permanent injunction to enjoin such breach or
threatened breach. Such injunction shall be available without the posting of any
bond or other security, and the Employee hereby consents to the issuance of such
injunction.
6.3 BINDING EFFECT. This Agreement shall inure to the benefit of, be
binding upon and enforceable against, the parties hereto and their permitted,
respective successor, heirs, beneficiaries and permitted assigns.
6.4 HEADINGS. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.5 NOTICES. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to have been duly given when personally delivered, sent by registered or
certified mail, return receipt requested, postage prepaid, by facsimile with
facsimile generated confirmation of receipt, or by private overnight mail
service (e.g. Federal Express) to the party at the address set forth as follows:
If to the Company, to: Packaged Ice, Inc.
0000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxx, Chief Executive Officer
With a copy to: Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 XxxxxxxXxxx Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxxxxxx, P.C.
If to Employee, to: Xxxxx Xxxxxxxxx
0000 Xxxxxxx
Xxxxxxx, Xxxxx 000000
or to such other address as either party or the Company may hereafter give
notice of in accordance with the provisions hereof. Notices shall be deemed
given on the sooner of the date actually received or the third business day
after sending.
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6.6 WAIVER. The waiver by either party of a breach of any provision
of this Agreement shall not operate or be construed as a continuing waiver of
any subsequent breach by either party. No waiver by either party of any
provision or condition to be performed shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or any prior or subsequent
time. No waiver by either party of any provisions or condition to be performed
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same time or any prior or subsequent time.
6.7 GOVERNING LAW. Regardless of the place of execution or
performance, this Agreement shall be governed by and construed in accordance
with the laws of the State of Texas without giving effect to such State's
conflicts of laws provisions.
6.8 ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a single arbitrator to be located in San Antonio, Bexar County,
Texas, and judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof, and shall not be appealable.
6.9 SEVERABILITY. If, for any reason, any provision of this
Agreement is held invalid, such invalidity shall not affect any other provision
of this Agreement not held so invalid, and each such other provision shall to
the full extent consistent with law continue in full force and effect. If any
provision of this Agreement shall be held invalid in part, such invalidity shall
in no way affect the rest of such provision not held so invalid, and the rest of
such provision, together with all other provisions of this Agreement, shall to
the full extent consistent with law continue in full force and effect.
6.10 COUNTERPARTS. This Agreement may be executed simultaneously in
one or more original or facsimile counterparts, each of which shall be deemed an
original, but all of which together shall constitute one of the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
EMPLOYEE:
_____________________________________
Xxxxx Xxxxxxxxx
PACKAGED ICE, INC.
By:__________________________________
X.X. Xxxxx III, President
