EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
the ______ day of ___________, 1996, by and between FLANDERS CORPORATION, a
North Carolina corporation ("Flanders"), PRECISIONAIRE, INC., a Florida
corporation ("Precision") (Flanders and Precision are sometimes hereinafter
collectively referred to as the "Company"), and XXXXXXX XXXXXXXXX (hereinafter
referred to as the "Executive").
W I T N E S S E T H:
WHEREAS, Flanders Corporation has contemporaneously herewith acquired one
hundred percent (100%) of the issued and outstanding stock of Precision and
Precision is now a wholly owned subsidiary of Flanders;
WHEREAS, the Executive is currently employed as the President and Chief
Executive Officer of Precision; and
WHEREAS, the continued employment of the Executive is a condition of the
purchase of Precision by Flanders, and Flanders and Precision desire to have
the benefit of the Executive's efforts and services;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto mutually
covenant and agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following terms shall have the
meanings set forth below:
(a) "Accrued Benefits" shall mean the amount payable not later than
ten (10) days following an applicable Termination Date and which shall be
equal to the sum of the following amounts:
(i) All salary earned or accrued through the Termination Date;
(ii) Reimbursement for any and all monies advanced in connection
with the Executive's employment for reasonable and necessary expenses
incurred by the Executive through the Termination Date;
(iii) Any and all other cash benefits previously earned through
the Termination Date and deferred at the election of the Executive or
pursuant to any deferred compensation plans then in effect;
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(iv) The full amount of any stated bonus payable to the
Executive in accordance with Section 6(c) herein with respect to the
year in which termination occurs; and
(v) All other payments and benefits to which the Executive may
be entitled under the terms of any benefit plan of the Company.
(b) "Act" shall mean the Securities Exchange Act of 1934;
(c) "Affiliate" shall have the same meaning as given to that term in
Rule 12b-2 of Regulation 12B promulgated under the Act;
(d) "Board" shall mean the Board of Directors of the Precision;
(e) "Cause" shall mean any of the following:
(i) The engaging by the Executive in fraudulent conduct, as
evidenced by a determination in a binding and final judgment, order
or decree of a court or administrative agency of competent
jurisdiction, in effect after exhaustion or lapse of all rights of
appeal, in an action, suit or proceeding, whether civil, criminal,
administrative or investigative, which the Board determines, in its
sole discretion, has a significant adverse impact on the Company in
the conduct of the Company's business;
(ii) Conviction of a felony, as evidenced by a binding and final
judgment, order or decree of a court of competent jurisdiction, in
effect after exhaustion or lapse of all rights of appeal, which the
Board determines, in its sole discretion, has a significant adverse
impact on the Company in the conduct of the Company's business;
(iii) Neglect or refusal by the Executive to perform the
Executive's duties or responsibilities (unless significantly changed
without the Executive's consent); or
(iv) A significant violation by the Executive of Precision's
established policies and procedures;
Notwithstanding the foregoing, Cause shall not exist under Sections
1(e)(iii) and (iv) herein unless the Company furnishes written notice to
the Executive of the specific offending conduct and the Executive fails to
correct such offending conduct within the thirty (30) day period
commencing on the receipt of such notice.
(f) "Disability" shall mean a physical or mental condition whereby
the Executive is unable to perform on a full-time basis the customary
duties of the Executive under this Agreement;
(g) "Good Reason" shall mean:
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(i) The required relocation of the Executive, without the
Executive's consent, to an employment location which is more than
seventy-five (75) miles from the Executive's employment location on
the day preceding the date of this Agreement;
(ii) The removal of the Executive from or any failure to reelect
the Executive to any of the positions held by the Executive as of the
date of this Agreement or any other positions to which the Executive
shall thereafter be elected or assigned except in the event that such
removal or failure to reelect relates to the termination by the
Company of the Executive's employment for Cause or by reason of
death, Disability or voluntary retirement;
(iii) A significant adverse change, without the Executive's
written consent, in the nature or scope of the Executive's authority,
powers, functions, duties or responsibilities, or a material
reduction in the level of support services, staff, secretarial and
other assistance, office space and accoutrements available to a level
below that which was provided to the Executive on the day preceding
the date of this Agreement and that which is necessary to perform any
additional duties assigned to the Executive following the date of
this Agreement, which change or reduction is not generally effective
for all executives employed by the Company (or its successor) in the
Executive's class or category; or
(iv) Breach or violation of any material provision of this
Agreement by the Company;
(h) "Notice of Termination" shall mean the notice described in
Section 14 herein;
(i) "Termination Date" shall mean, except as otherwise provided in
Section 14 herein,
(i) The Executive's date of death;
(ii) Thirty (30) days after the delivery of the Notice of
Termination terminating the Executive's employment on account of
Disability pursuant to Section 9 herein, unless the Executive returns
on a full-time basis to the performance of his duties prior to the
expiration of such period;
(iii) Thirty (30) days after the delivery of the Notice of
Termination if the Executive's employment is terminated by the
Executive voluntarily; and
(iv) Thirty (30) days after the delivery of the Notice of
Termination if the Executive's employment is terminated by the
Company for any reason other than death or Disability;
(j) "Termination Payment" shall mean the payment described in
Section 13 herein.
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2. EMPLOYMENT.
The Company hereby agrees to employ the Executive and the Executive hereby
agrees to serve the Company, on the terms and conditions set forth herein.
3. TERM.
The Company's employment of the Executive under the provisions of this
Agreement shall commence on the date hereof and end on June 30, 2001, unless
further extended or sooner terminated as hereinafter provided. On June 30,
2001, and on the last day of June each year thereafter, the term of the
Executive's employment shall, unless sooner terminated as hereinafter provided,
be automatically extended for an additional one year period from the date
thereof unless, at least six (6) months before such June 30, the Company shall
have delivered to the Executive or the Executive shall have delivered to the
Company written notice that the term of the Executive's employment hereunder
will not be extended beyond its existing duration.
4. POSITIONS AND DUTIES.
The Executive shall serve as President and Chief Executive Officer of
Precision and in such additional capacities as set forth in Section 7 herein.
In connection with the foregoing positions, the Executive shall have such
duties, responsibilities and authority as may from time to time be assigned to
the Executive by the Board. The Executive shall devote substantially all the
Executive's working time and efforts to the business and affairs of the
Company.
5. PLACE OF PERFORMANCE.
In connection with the Executive's employment by the Company, the Executive
shall be based at the principal executive offices of Precision in St.
Petersburg, Florida except for required travel on Company business.
6. COMPENSATION AND RELATED MATTERS.
(a) Salary. Commencing on the date hereof, the Company shall pay to
the Executive an annualized base salary at a rate of $250,000 in equal
installments as nearly as practicable on the fifteenth and last days of
each month, in arrears. Such annualized base salary may be increased from
time to time in accordance with normal business practices of the Company.
The annualized base salary of the Executive shall not be decreased below
its then existing amount during the term of this Agreement;
(b) Signing Bonus. Upon execution of this Agreement, the Company
shall pay Executive a signing bonus of $_______ (this bonus is calculated
based on the difference between $250,000 and $175,000 multiplied by the
number of months that have expired since July 1, 1996 and divided by
twelve);
(c) Bonuses. The Executive shall receive annual bonuses as may be
declared from time to time by the Board in its discretion; In addition, the
Executive shall be paid the
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amount to which he is entitled pursuant to the provisions of Section 10(e) of
the Stock Purchase Agreement dated __________, between Flanders and the
stockholders of Precision.
(d) Other Benefits. Precision shall maintain in full force and
effect, and the Executive shall be entitled to participate in Precision's
Group Medical Insurance Plan. Precision shall also maintain in full force
and effect, and subject to Precision being profitable, the Executive shall
be entitled to participate in (during each such year Precision is
profitable), Precision's Profit Sharing Plan and SMART 401(k) Plan. If
any such plans or benefits are discontinued by Precision, Precision will
provide the Executive with at least equivalent benefits or will increase
the Executive's compensation under paragraph 6(a) hereof to compensate for
such reduction in an amount equivalent to the benefits reduced or
eliminated. Precision shall not make any changes in such plans or
arrangements which would adversely affect the Executive's rights or
benefits thereunder, unless (i) such change occurs pursuant to a program
applicable to all executives of Precision, (ii) does not result in a
proportionately greater reduction in the rights of or benefits to the
Executive as compared with any other executive of Precision, and (iii) the
Executive's salary is increased as provided in the second sentence of this
paragraph. The Executive shall be entitled to participate in or receive
benefits under any employee benefit plan or arrangement made available by
Precision in the future to its executives and key management employees,
subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements. Nothing paid to
the Executive under any plan or arrangement presently in effect or made
available in the future shall be deemed to be in lieu of the salary
payable to the Executive pursuant to paragraph 6(a). Any payments or
benefits payable to the Executive hereunder in respect of any calendar
year during which the Executive is employed by Precision for less than the
entire year shall, unless otherwise provided in the applicable plan or
arrangement, be prorated in accordance with the number of days in such
calendar year during which he is so employed.
(e) Expenses. During the term of the Executive's employment
hereunder, the Executive shall be entitled to receive prompt reimbursement
for all reasonable expenses incurred by the Executive in performing
services hereunder, including all travel and living expenses while away
from home on business at the request of and in the service of the Company,
provided that such expenses are incurred and accounted for in accordance
with the policies and procedures presently established by the Company;
(f) Vacations. The Executive shall be entitled to six (6) weeks of
vacation each calendar year, and to compensation in respect of earned but
unused vacation days, determined in accordance with the Company's vacation
plan or policy. The Executive shall also be entitled to all paid holidays
provided by the Company to its executives;
(g) Automobile. The Company shall promptly reimburse the Executive
for all reasonable expenses incurred by the Executive in connection with
the insurance, maintenance, and operating costs (including gasoline and
oil changes) of the Executive's ______________ automobile;
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(h) Services Furnished. The Company shall furnish the Executive
with office space, and such other facilities and services as shall be
suitable to the Executive's position and adequate for the performance of
the Executive's duties.
7. OFFICES.
(a) The Executive agrees to serve without additional compensation,
if elected or appointed thereto, as a member of the Board of Directors of
the Company or any subsidiary of the Company; provided, however, that the
Executive is indemnified for serving in any and all such capacities on a
basis no less favorable than is currently provided in the Company's
bylaws, or otherwise.
(b) Upon execution of this Agreement, the Company agrees to appoint
the Executive to the Board of Directors of Flanders and to the Board of
Directors of Precision, and to propose Executive's reelection as a
director at the expiration of his initial term as a director of each of
the Boards of Directors of Flanders and Precision. Additionally, Flanders
agrees to vote shares of stock it holds in Precision in favor of the
election of the Executive as a director of Precision.
8. TERMINATION AS A RESULT OF DEATH.
If the Executive shall die during the term of this Agreement, the
Executive's employment shall terminate on the Executive's date of death and the
Executive's surviving spouse, or the Executive's estate if the Executive dies
without a surviving spouse, shall be entitled to the Executive's Accrued
Benefits as of the Termination Date and any applicable Termination Payment
described in Section 13(a).
9. TERMINATION FOR DISABILITY.
If, as a result of the Executive's Disability, the Executive shall have
been unable to perform the Executive's duties hereunder on a full-time basis
for four (4) consecutive months and within sixty (60) days after the Company
provides the Executive with a Termination Notice, the Executive shall not have
returned to the performance of the Executive's duties on a full-time basis, the
Company may terminate the Executive's employment, subject to Section 14 herein.
During the term of the Executive's Disability prior to termination, the
Executive shall continue to receive all salary and benefits payable under
Section 6 herein, including participation in all employee benefit plans,
programs and arrangements in which the Executive was entitled to participate
immediately prior to the Disability; provided, however, that the Executive's
continued participation is permitted under the terms and provisions of such
plans, programs and arrangements. In the event that the Executive's
participation in any such plan, program or arrangement is barred as the result
of such Disability, the Executive shall be entitled to receive an amount equal
to the contributions, payments, credits or allocations which would have been
paid by the Company to the Executive, to the Executive's account or on the
Executive's behalf under such plans, programs and arrangements. In the event
the Executive's employment is terminated on account of the Executive's
Disability in accordance with this Section 9, the Executive shall receive the
Executive's Accrued Benefits as of the Termination Date and shall remain
eligible for all benefits provided by any long-term disability programs of the
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Company in effect at the time of such termination. The Executive shall also be
entitled to the Termination Benefit described in Section 13(a).
10. TERMINATION FOR CAUSE.
If the Executive's employment is terminated by the Company for Cause,
subject to the procedures set forth in Section 14 herein, the Executive shall
be entitled to receive the Executive's Accrued Benefits as of the Termination
Date. The Executive shall not be entitled to receipt of any Termination
Payment.
11. OTHER TERMINATION BY COMPANY.
If the Executive's employment with the Company is terminated by the Company
other than by reason of death, Disability or Cause, subject to the procedures
set forth in Section 14 herein, the Executive (or in the event of the
Executive's death following the Termination Date, the Executive's surviving
spouse or the Executive's estate if the Executive dies without a surviving
spouse) shall receive the applicable Termination Payment. The Executive shall
not, in connection with any consideration receivable in accordance with this
Section 11, be required to mitigate the amount of such consideration by
securing other employment or otherwise and such consideration shall not be
reduced by reason of the Executive securing other employment or for any other
reason.
12. VOLUNTARY TERMINATION BY EXECUTIVE.
From and after June 30, 1999, provided that the Executive furnishes thirty
(30) days prior written notice to the Company, the Executive shall have the
right to voluntarily terminate this Agreement at any time. If the Executive's
voluntary termination is without Good Reason, the Executive shall receive the
Executive's Accrued Benefits as of the Termination Date and shall not be
entitled to any Termination Payment. If the Executive's voluntary termination
is for Good Reason, the Executive (or in the event of the Executive's death
following the Termination Date, the Executive's surviving spouse or the
Executive's estate if the Executive dies without a surviving spouse) shall
receive the applicable Termination Payment. The Executive shall not, in
connection with any consideration receivable in accordance with this Section
12, be required to mitigate the amount of such consideration by securing other
employment or otherwise and such consideration shall not be reduced by reason
of the Executive securing other employment or for any other reason.
13. TERMINATION PAYMENT.
(a) If the Executive's employment is terminated as a result of death
or Disability, the lump sum Termination Payment payable to the Executive
shall be equal to the Executive's then current annual base salary;
(b) If, during the first twelve (12) months, the Executive's
employment is terminated by the Executive for Good Reason or by the
Company for any reason other than death, Disability or Cause, the
Termination Payment payable to the Executive by the Company or an
Affiliate of the Company shall be one hundred fifty percent (150%) of the
current annual base salary. Thereafter, the Termination Payment payable
to the Executive by
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the Company or an Affiliate of the Company will be two
hundred percent (200%) of the amount includable in gross income of the
Executive during the preceding one (1) year period ending on the
Executive's Termination date;
(c) The Termination Payment shall be payable in a lump sum not later
than ten (10) days following the Executive's Termination Date. Such lump
sum payment shall not be reduced by any present value or similar factor.
Further, the Executive shall not be required to mitigate the amount of
such payment by securing other employment or otherwise and such payment
shall not be reduced by reason of the Executive securing other employment
or for any other reason.
14. TERMINATION NOTICE AND PROCEDURE.
Any termination by the Company or the Executive of the Executive's
employment during the Employment Period shall be communicated by written Notice
of Termination to the Executive, if such Notice of Termination is delivered by
the Company, and to the Company, if such Notice of Termination is delivered by
the Executive, all in accordance with the following procedures:
(a) The Notice of Termination shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances alleged to provide a basis
for termination;
(b) Any Notice of Termination by the Company shall be approved by a
resolution duly adopted by a majority of the directors of the Company then
in office;
(c) If the Executive shall in good faith furnish a Notice of
Termination for Good Reason and the Company notifies the Executive that a
dispute exists concerning the termination, within the fifteen (15) day
period following the Company's receipt of such notice, the Executive shall
continue the Executive's employment during such dispute. If it is
thereafter determined that (i) Good Reason did exist, the Executive's
Termination Date shall be the earlier of (A) the date on which the dispute
is finally determined, either by mutual written agreement of the parties
or pursuant to Section 19 herein, (B) the date of the Executive's death or
(C) one day prior to the second (2nd) anniversary of a Change of Control,
and the Executive's Termination Payment, if applicable, shall reflect
events occurring after the Executive delivered the Executive's Notice of
Termination; or (ii) Good Reason did not exist, the employment of the
Executive shall continue after such determination as if the Executive had
not delivered the Notice of Termination asserting Good Reason;
(d) If the Executive gives notice to terminate his employment for
Good Reason and a dispute arises as to the validity of such dispute, and
the Executive does not continue his employment during such dispute, and it
is finally determined that the reason for termination set forth in such
Notice of Termination did not exist, if such notice was delivered by the
Executive, the Executive shall be deemed to have voluntarily terminated
the Executive's employment other than for Good Reason.
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15. NONDISCLOSURE OF PROPRIETARY INFORMATION.
Recognizing that the Company is presently engaged, and may hereafter
continue to be engaged, in the research and development of processes, the
manufacturing of products or performance of services, which involve
experimental and inventive work and that the success of its business depends
upon the protection of the processes, products and services by patent,
copyright or by secrecy and that the Executive has had, or during the course of
his engagement may have, access to Proprietary Information, as hereinafter
defined, of the Company or other information and data of a secret or
proprietary nature of the Company which the Company wishes to keep confidential
and the Executive has furnished, or during the course of his engagement may
furnish, such information to the Company, the Executive agrees that:
(a) "Proprietary Information" shall mean any and all methods,
inventions, improvements or discoveries, whether or not patentable or
copyrightable, and any other information of a similar nature related to
the business of the Company disclosed to the Executive or otherwise made
known to him as a consequence of or through his engagement by the Company
(including information originated by the Executive) in any technological
area previously developed by the Company or developed, engaged in, or
researched, by the Company during the term of the Executive's engagement,
including, but not limited to, trade secrets, processes, products,
formulae, apparatus, techniques, know-how, marketing plans, data,
improvements, strategies, forecasts, customer lists, and technical
requirements of customers, unless such information is in the public domain
to such an extent as to be readily available to competitors.
(b) The Executive acknowledges that the Company has exclusive
property rights to all Proprietary Information and the Executive hereby
assigns all rights he might otherwise possess in any Proprietary
Information to the Company. Except as required in the performance of his
duties to the Company, the Executive will not at any time during or after
the term of his engagement, which term shall include any time in which the
Executive may be retained by the Company as a consultant, directly or
indirectly use, communicate, disclose or disseminate any Proprietary
Information or any other information of a secret, proprietary,
confidential or generally undisclosed nature relating to the Company, its
products, customers, processes and services, including information
relating to testing, research, development, manufacturing, marketing and
selling.
(c) All documents, records, notebooks, notes, memoranda and similar
repositories of, or containing, Proprietary Information or any other
information of a secret, proprietary, confidential or generally
undisclosed nature relating to the Company or its operations and
activities made or compiled by the Executive at any time or made available
to him prior to or during the term of his engagement by the Company,
including any and all copies thereof, shall be the property of the
Company, shall be held by him in trust solely for the benefit of the
Company, and shall be delivered to the Company by him on the termination
of his engagement or at any other time on the request of the Company.
(d) The Executive will not assert any rights under any inventions,
copyrights, discoveries, concepts or ideas, or improvements thereof, or
know-how related thereto,
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as having been made or acquired by him prior to
his being engaged by the Company or during the term of his engagement if
based on or otherwise related to Proprietary Information.
16. ASSIGNMENT OF INVENTIONS.
(a) For purposes of this Paragraph 16, the term "Inventions" shall
mean discoveries, concepts, and ideas, whether patentable or copyrightable
or not, including but not limited to improvements, know-how, data,
processes, methods, formulae, and techniques, as well as improvements
thereof or know-how related thereto, concerning any past, present or
prospective activities of the Company which the Executive makes, discovers
or conceives (whether or not during the hours of his engagement or with
the use of the Company's facilities, materials or personnel), either
solely or jointly with others during his engagement by the Company or any
Affiliate and, if based on or related to Proprietary Information, at any
time after termination of such engagement. All Inventions shall be the
sole property of the Company, and Executive agrees to perform the
provisions of this paragraph 16 with respect thereto without the payment
by the Company of any royalty or any consideration therefor other than the
regular compensation paid to the Executive in the capacity of an employee
or consultant.
(b) The Executive shall maintain written notebooks in which he shall
set forth, on a current basis, information as to all Inventions,
describing in detail the procedures employed and the results achieved as
well as information as to any studies or research projects undertaken on
the Company's behalf. The written notebooks shall at all times be the
property of the Company and shall be surrendered to the Company upon
termination of his engagement or, upon request of the Company, at any time
prior thereto.
(c) The Executive shall apply, at the Company's request and expense,
for United States and foreign letters patent or copyrights either in the
Executive's name or otherwise as the Company shall desire.
(d) The Executive hereby assigns to the Company all of his rights to
such Inventions, and to applications for United States and/or foreign
letters patent or copyrights and to United States and/or foreign letters
patent or copyrights granted upon such Inventions.
(e) The Executive shall acknowledge and deliver promptly to the
Company, without charge to the Company, but at its expense, such written
instruments (including applications and assignments) and do such other
acts, such as giving testimony in support of the Executive's inventorship,
as may be necessary in the opinion of the Company to obtain, maintain,
extend, reissue and enforce United States and/or foreign letters patent
and copyrights relating to the Inventions and to vest the entire right and
title thereto in the Company or its nominee. The Executive acknowledges
and agrees that any copyright developed or conceived of by the Executive
during the term of Executive's employment which is related to the business
of the Company shall be a "work for hire" under the copyright law of the
United States and other applicable jurisdictions.
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(f) The Executive represents that his performance of all the terms
of this Agreement and as an employee of or consultant to the Company does
not and will not breach any trust prior to his employment by the Company.
The Executive agrees not to enter into any agreement either written or
oral in conflict herewith and represents and agrees that he has not
brought and will not bring with him to the Company or use in the
performance of his responsibilities at the Company any materials or
documents of a former employer which are not generally available to the
public, unless he has obtained written authorization from the former
employer for their possession and use, a copy of which has been provided
to the Company.
(g) No provisions of this Paragraph shall be deemed to limit the
restrictions applicable to the Executive under Paragraph 15.
17. SHOP RIGHTS.
The Company shall also have the royalty-free right to use in its business,
and to make, use and sell products, processes and/or services derived from any
inventions, discoveries, concepts and ideas, whether or not patentable,
including but not limited to processes, methods, formulas and techniques, as
well as improvements thereof or know-how related thereto, which are not within
the scope of Inventions as defined in Paragraph 16 but which are conceived or
made by the Executive during the period he is engaged by the Company or with
the use or assistance of the Company's facilities, materials or personnel.
18. NON-COMPETE.
The Executive hereby agrees that during the term of this Agreement and for
the period of two years from the termination hereof, that the Executive will
not:
(a) Within any jurisdiction or marketing area in the United States
in which the Company or any subsidiary thereof is doing business, own,
manage, operate or control any business of the type and character engaged
in and competitive with the Company or any subsidiary thereof. For
purposes of this paragraph, ownership of securities of not in excess of
five percent (5%) of any class of securities of a public company shall not
be considered to be competition with the Company or any subsidiary
thereof; or
(b) Within any jurisdiction or marketing area in the United States
in which the Company or any subsidiary thereof is doing business, act as,
or become employed as, an officer, director, employee, consultant or agent
of any business of the type and character engaged in and competitive with
the Company or any of its subsidiaries; or
(c) Solicit any similar business to that of the Company's for, or
sell any products that are in competition with the Company's products to,
any company in the United States, which is, as of the date hereof, a
customer or client of the Company or any of its subsidiaries, or was such
a customer or client thereof within two years prior to the date of this
Agreement; or
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(d) Solicit the employment of, or hire, any full time employee
employed by the Company or its subsidiaries as of the date of termination
of this Agreement.
19. REMEDIES AND JURISDICTION.
(a) The Executive hereby acknowledges and agrees that a breach of
the agreements contained in this Agreement will cause irreparable harm and
damage to the Company, that the remedy at law for the breach or threatened
breach of the agreements set forth in this Agreement will be inadequate,
and that, in addition to all other remedies available to the Company for
such breach or threatened breach (including, without limitation, the right
to recover damages), the Company shall be entitled to injunctive relief
for any breach or threatened breach of the agreements contained in this
Agreement;
(b) All claims, disputes and other matters in question between the
parties arising under this Agreement, shall, unless otherwise provided
herein, be decided by arbitration in Tampa, Florida, in accordance with
the Model Employment Arbitration Procedures of the American Arbitration
Association (including such procedures governing selection of the specific
arbitrator or arbitrators), unless the parties mutually agree otherwise.
The Company shall pay the costs of any such arbitration. The award by the
arbitrator or arbitrators shall be final, and judgment may be entered upon
it in accordance with applicable law in any state or Federal court having
jurisdiction thereof.
20. ATTORNEYS' FEES.
In the event that either party hereunder institutes any legal proceedings
in connection with its rights or obligations under this Agreement, the
prevailing party in such proceeding shall be entitled to recover from the other
party, all costs incurred in connection with such proceeding, including
reasonable attorneys' fees, together with interest thereon from the date of
demand at the rate of twelve percent (12%) per annum.
21. SUCCESSORS.
This Agreement and all rights of the Executive shall inure to the benefit
of and be enforceable by the Executive's personal or legal representatives,
estates, executors, administrators, heirs and beneficiaries. In the event of
the Executive's death, all amounts payable to the Executive under this
Agreement shall be paid to the Executive's surviving spouse, or the Executive's
estate if the Executive dies without a surviving spouse. This Agreement shall
inure to the benefit of, be binding upon and be enforceable by, any successor,
surviving or resulting corporation or other entity to which all or
substantially all of the business and assets of the Company shall be
transferred whether by merger, consolidation, transfer or sale.
22. ENFORCEMENT.
The provisions of this Agreement shall be regarded as divisible, and if any
of said provisions or any part hereof are declared invalid or unenforceable by
a court of competent jurisdiction, the
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validity and enforceability of the remainder of such provisions or parts hereof
and the applicability thereof shall not be affected thereby.
23. AMENDMENT OR TERMINATION.
This Agreement may not be amended or terminated during its term, except by
written instrument executed by the Company and the Executive.
24. SURVIVABILITY.
The provisions of paragraphs 15, 16, 17 and 18 shall survive termination of
this Agreement.
25. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement between the Executive and
the Company with respect to the subject matter hereof, and supersedes all prior
oral or written agreements, negotiations, commitments and understandings with
respect thereto.
26. VENUE; GOVERNING LAW.
This Agreement and the Executive's and Company's respective rights and
obligations hereunder shall be governed by and construed in accordance with the
laws of the State of Florida without giving effect to the provisions,
principles, or policies thereof relating to choice or conflict laws.
27. NOTICE.
Notices given pursuant to this Agreement shall be in writing and shall be
deemed given when received, and if mailed, shall be mailed by United States
registered or certified mail, return receipt requested, addressee only, postage
prepaid, if to the Company, to:
Flanders Corporation
000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
If to Executive, to:
Xxxxxxx Xxxxxxxxx
Precisionaire, Inc.
0000 00xx Xxx. Xxxxx
P. O. Xxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000
Fax No. (000) 000-0000
13
or to such other address as the Company shall have given to the Executive or,
if to the Executive, to such address as the Executive shall have given to the
Company.
28. NO WAIVER.
No waiver by either party at any time of any breach by the other party of,
or compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same time or any prior or subsequent time.
29. HEADINGS.
The headings herein contained are for reference only and shall not affect
the meaning or interpretation of any provision of this Agreement.
30. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and the Executive has executed this Agreement, on
the date and year first above written.
FLANDERS CORPORATION
By:___________________________________
Its:___________________________________
PRECISIONAIRE, INC.
By:___________________________________
Its:___________________________________
EXECUTIVE
______________________________________
Xxxxxxx Xxxxxxxxx
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