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EXHIBIT 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT made and entered into this 14th day of March,
1996, by and between SHOP VAC CORPORATION, a corporation organized and existing
under the laws of the State of New Jersey having its principal place of business
at 0000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx (hereinafter referred to as
"Corporation") and XXXXXXX XXXXXX, an individual residing at 00 Xxxxxxxx Xxxxx,
Xxxxxx (hereinafter referred to as "Executive").
WITNESSETH:
WHEREAS, Executive is now serving as Vice Chairman and President of the
European Group of the Corporation; and
WHEREAS, in order to induce the Executive to continue in employment
with the Corporation, the Corporation and the Executive desire to enter into an
Agreement setting the terms of Executive's continued employment by Corporation
and providing for certain payments to be made by Corporation to Executive under
certain specific conditions.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, and intending to be legally bound, the parties hereto do hereby agree as
follows:
1. Status of Employment. During the Term of his employment hereunder,
Executive will continue to perform the duties and responsibilities of Vice
Chairman and President of the European Group of the Corporation. Executive
agrees that except when prevented by illness, he will at all times faithfully,
industriously, and to the best of his ability, experience and talents, perform
all of the duties that may be required of and from him by Corporation in the
aforesaid capacity or capacities, pursuant to the express and implicit terms
hereof, and that he will devote all of his working hours and his best efforts to
the performance of his duties hereunder, and that he will not, during his
employment by Corporation, become engaged in any other business activity unless
approved by the Board of Directors of the Corporation. Executive agrees that
during the Term he will maintain a work schedule necessary to carry out the
duties and responsibilities of his position.
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2. Term of Employment.
(a) Corporation agrees to employ Executive upon the terms
and conditions of this Employment Agreement, and Executive agrees to so serve,
for a three year term commencing March 1, 1996. The term of this Agreement will
automatically renew each March 1 for an additional three year period unless,
prior to the preceding December 1 within the then current term, either party
shall give written notice of nonrenewal to the other party, in which event this
Agreement shall terminate at the end of the three year period then in effect.
For example, the initial Term of this Agreement is March 1, 1996 through
February 28, 1999. On March 1, 1997, the term of this Agreement extends to
February 29, 2000, unless one of the parties provides written notice of its/his
intent not to renew the Agreement prior to December 1, 1996. The three year
period which is at any point in time then in effect is sometimes hereinafter
referred to as the "Term".
(b) If notice of nonrenewal is given pursuant to (a) of this
Section 2, Executive's employment right hereunder shall automatically terminate
at the close of business on the last day of the then current Term. From and
after the date of this Agreement and prior to the expiration of Executive's
employment hereunder in accordance with the preceding sentence, termination of
Executive's employment may only occur in accordance with paragraphs (c) or (d)
of this Section 2 or in accordance with Section 7 hereof.
(c) Executive shall have the right, at any time, for any
reason during the Term hereof and whether with or without cause, to terminate
his employment hereunder by giving at least thirty (30) days prior written
notice to the Corporation of the effective date of the termination, and as of
such effective date Executive's employment with the Corporation shall cease.
Unless such termination by the Executive is pursuant to Section 7(a) or 7(b)
hereof, in the event of a termination by the Executive pursuant to this Section
2(c), no severance payments or other compensation or fringe benefits are payable
during any period subsequent to the effective date of the termination, except
for base salary and unused vacation days earned by Executive to the date of
termination. If during the Term Executive's employment hereunder is terminated
in accordance with Section 7(a) or Section 7(b) hereof, Executive shall be
entitled to the compensation specified in Section 7 in lieu of the compensation
set forth in this Section 2(c).
(d) Corporation may terminate Executive at any time for good
cause, as determined in good faith by the Board of Directors of the Corporation.
For purposes of this Agreement, good
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cause shall include, but not be limited to, commission of malfeasance in office
constituting dishonesty, conviction of a crime involving moral turpitude or
breach of fiduciary duty owed the Corporation. For purposes of this Agreement,
good cause shall also include the willful failure of the Executive to perform in
accordance with the reasonable directives of the Board of Directors of the
Corporation after at least two (2) written warnings and within ninety (90) days
following the second warning the Executive does not improve his performance to a
level which is satisfactory to the Corporation. In the event of termination
pursuant to this Section 2(d), Executive shall not be entitled to any pay or
benefits from the Corporation, except as required by law.
3. Compensation.
(a) Base Salary. As reasonable compensation for all services
rendered by Executive to the Corporation as a full-time employee during the Term
of his employment hereunder, Executive shall be entitled to receive from the
Corporation, subject to withholding and other applicable employment taxes and
payroll deductions, an annual base salary equal to Eight Hundred Thousand
Dollars ($800,000); and provided, that, during the Term, Executive's base salary
for any calendar year shall be subject to increase by the Corporation, with the
approval of the Board of Directors of the Corporation, based on merit review,
taking into account Executive's performance, responsibilities and any increase
in the cost of living.
(b) Incentive Compensation. It is the intention of the
parties that, in addition to the base salary as described above, Executive shall
have the opportunity to earn additional compensation on an incentive basis.
During the Term of his employment hereunder, Executive shall be eligible to
participate in incentive compensation plans and performance bonuses on the same
basis as other executives, with achievable incentive compensation and bonus
awards subject to the discretion of the Board of Directors of the Corporation.
4. Benefits. During the Term of Executive's employment hereunder, the
Corporation will provide for Executive the following benefits:
(a) Executive shall be entitled to participate in
Corporation's employee benefit and fringe benefit plans available to other
executives, subject, however, to the terms and conditions of those plans and
further subject to any limitations and/or
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qualification conditions imposed on Corporation's employee benefit plans by the
Internal Revenue Code of 1986, as amended.
(b) Executive shall be entitled to twenty-five (25) days of
vacation during each calendar year period, with the specific dates of vacation
days to be mutually agreed upon in advance with the Chief Executive Officer of
the Corporation. Vacation days unused at the end of a calendar may be carried
over and used in a succeeding calendar year. To the extent any vacation days are
unused at the termination of this Agreement, Executive shall be compensated
therefore at the daily rate of his then base salary.
5. Expense Reimbursement. During the Term of his employment hereunder,
Executive shall be entitled to be reimbursed by the Corporation for such
expenses incurred by Executive in furtherance of the Corporation's business,
including reasonable travel and entertainment expenses, as well as other similar
business expenses, subject to reasonable and appropriate guidelines to be
established from time to time by the Board of Directors of the Corporation for
executives of the Corporation. However, for any expense to be reimbursable,
Executive shall be required to maintain such records and account to the
corporation in such manner as may be required under the provisions of the
Internal Revenue Code and any regulations adopted thereunder.
6. Automobile. Corporation shall provide Executive with an automobile
for Executive to use in his position with the Corporation. Corporation shall pay
all reasonable costs of operation of the automobile which relate to Executive's
use of the automobile in furtherance of his position with the Corporation. The
type and model of automobile to be provided to Executive shall be a type and
model acceptable to Executive and the Corporation. Upon termination of
Executive's employment hereunder, other than by the Corporation for cause, the
Corporation shall cause title to the automobile then being used by Executive to
be transferred to the Executive free and clear of any liens or encumbrances.
7. Certain Terminations.
(a) If prior to the expiration of the Term and prior to the occurrence
of a Change in Control, as defined hereafter, the Executive's employment is
terminated (i) by the Corporation without cause or (ii) by Executive for good
reason if, (x) the nature and scope of Executive's duties or responsibilities
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with the Corporation are materially reduced from that which he enjoyed
immediately prior thereto, (y) the Corporation's notice of nonrenewal of this
Agreement, or (z) the Corporation should materially breach this Agreement in any
way and fail to correct such breach within 30 days of receipt of a written
notice from Executive specifying the breach and stating that he intends to
terminate his employment hereunder pursuant to this Section 7(a) unless such
breach is cured within 30 days, then Executive shall have no further liability
hereunder and shall receive as liquidated damages, at the election of the
Executive, either:
(i) continuation, for a period of three (3) years
following such termination, (A) of Executive's Cash
Compensation, paid in accordance with the Corporation's
normal payroll schedule, and (B) of life, disability, and
accident and health insurance coverages, reasonably
comparable to all available group life, disability and
accident and health insurance coverages in effect for
Executive on the date of termination, offset by any
coverages from any subsequent employment, provided, however,
that Executive shall continue to be responsible for the cost
of available insurance coverages following the termination
hereunder to the same extent that he was responsible for the
cost of the insurance coverages prior to such termination;
and provided, further, that Executive shall have no duty to
mitigate his damages hereunder or to seek other employment;
or
(ii) (A) a single payment equal to the total Cash
Compensation payable pursuant to (i)(A), above, discounted
to present value calculated at the Applicable Interest Rate
(as defined in paragraph (d) of this Section 7), and (B)
continuation, for a period of three (3) years following such
termination, of life, disability, and accident and health
insurance coverages, reasonably comparable to all available
group life, disability and accident and health insurance
coverages in effect for Executive on the date of
termination, offset by any coverage from any subsequent
employment, provided, however, that Executive shall continue
to be responsible for the cost of available insurance
coverages following such termination to the same extent that
he was responsible for the cost of the insurance coverages
prior to such termination; and provided, further, that
Executive shall have no duty to mitigate his damages
hereunder or to seek other employment.
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(b) Any of the following events occurring during the Term and after the
date of any Change in Control (as defined in paragraph (d) below) which occurs
during the Term (as defined in Section 2(a) hereof) shall constitute a
"Termination Pursuant to a Change in Control":
(i) Executive's employment is terminated by the Corporation or
an acquiror without cause, or
(ii) One of the following events occurs and Executive
thereafter terminates his employment:
(A) the nature and scope of Executive's duties
or responsibilities with the Corporation or acquiror are
materially reduced from that which he enjoyed immediately
prior to the Change in Control (other than as a result of a
termination for cause); or
(B) Executive's then current base salary is
reduced or material benefits provided in this Agreement
(excluding the reduction or curtailment of benefits which
affect all similarly situated employees), are eliminated; or
(C) Executive is assigned, without his consent,
to a principal place of employment which is more than two
hundred (200) miles from 00 Xxxxxxxx Xxxxx, Xxxxxx, X.X.
(c) Upon any Termination Pursuant to a Change in Control (as
defined in paragraph (b) above), Executive shall have no further liability
hereunder, and shall be entitled, at the election of the Executive, to either of
the following:
(i) continuation for a period of three (3) years from
the date of the Termination Pursuant to a Change in Control (A) of
Executive's Cash Compensation, paid in accordance with the
Corporation's normal payroll schedule; and (B) of life, disability,
and accident and health insurance coverages, reasonably comparable to
all available group life, disability and accident and health insurance
coverages in effect for Executive on the date of termination, offset
by any coverage from any subsequent employment; provided, however,
that Executive shall continue to be responsible for the cost of
available insurance coverages following his termination
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to the same extent that he was responsible for the cost of the
insurance coverages prior to the Termination Pursuant to a Change in
Control; and provided, further, that Executive shall have no duty to
mitigate his damages hereunder or to seek other employment; or
(ii) (A) a single payment equal to the total Cash Compensation
payable over the required period of salary continuation specified in
(i) (A) above, discounted to present value calculated at the
Applicable Interest Rate, and (B) continuation, for the same period as
would be required pursuant to (i) (B) above, of life, disability, and
accident and health insurance coverages, reasonably comparable to all
available group life, disability and accident and health insurance
coverages in effect for Executive on the date of termination, offset
by any coverages from any subsequent employment, provided, however,
that Executive shall continue to be responsible for the cost of
available insurance coverages following his termination to the same
extent that he was responsible for the cost of the insurance coverages
prior to the Termination Pursuant to a Change in Control; and
provided, further, that Executive shall have no duty to mitigate his
damages hereunder or to seek other employment.
(d) Definitions. As used in this Section:
(i) "Cash Compensation" shall mean Executive's annual base
salary in effect at the time of a termination, plus any bonus or
incentive compensation earned by Executive for the calendar year
immediately preceding the date of the termination.
(ii) "Applicable Interest Rate" shall mean the weekly average
yield on United States Treasury securities adjusted to a constant
maturity of three (3) years, as made available by the Federal Reserve
Board, effective on the date of any termination.
(iii) "Change in Control" shall mean the occurrence of, or
execution of agreements providing for, a merger, consolidation,
acquisition, reorganization, sale of all or substantially all of the
assets or other similar event, or a "Significant Stock Acquisition",
of the Corporation; provided, however, that any merger, consolidation,
acquisition or reorganization, or execution of an agreement providing
for any of the
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foregoing transactions, involving Corporation as a constituent
corporation in the transaction if, upon the effectiveness of such
transaction, Corporation is a surviving corporation and there has not
been, or, in the case of the execution of an agreement therefore,
there is not contemplated in such agreement, a change in a majority of
Corporation's Board of Directors shall not constitute a "Change in
Control" for purposes of this Section 7. For purposes of this
Agreement, a "Significant Stock Acquisition" of the Corporation shall
have occurred if, at any time during the Term, more than 35% of the
votes attributed to the Corporation's outstanding equity securities
shall be acquired by any corporation, person or group other than
Corporation or another wholly-owned subsidiary of Corporation. "Group"
shall mean persons who act in concert as described in Section 13(d)
(2) of the Securities Exchange Act of 1934, as amended.
(e) Benefits Exclusive. The Executive acknowledges that, in the
event of termination of Executive's employment during the Term of his employment
hereunder pursuant to paragraph (a) or (b) of this Section 7, the payments and
benefits to be made or provided to Executive pursuant to this Section 7 are to
be in full satisfaction of the Corporation's obligations to Executive under this
Employment Agreement and, in such an event, Executive shall not be entitled to
any other payments or benefits, whether pursuant to this Agreement or otherwise,
except as otherwise required by applicable law.
8. Waiver. Failure by either party to insist upon strict compliance
with any of the terms, covenants or conditions hereof shall not be deemed a
waiver of such terms, covenant or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any time or from time to time
be deemed a waiver or relinquishment of such right or power at any other time or
times.
9. Notices. All notices required or permitted by this Employment
Agreement shall be in writing and shall be deemed to have been given upon
delivery in person or upon deposit in certified or registered United States
mail, return receipt requested, postage prepaid, to the following address of the
party to whom notice is being given or to such other address of which notice
shall have been given pursuant to this paragraph:
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To Executive: Xxxxxxx Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxx XX0 0XX
XX
To Corporation: Shop Vac Corporation
0000 Xxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
10. Binding Effect. All of the terms, provisions and conditions of this
Employment Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties hereto and their respective successors and assigns.
11. Governing Law and Severability. This Employment Agreement shall be
construed, interpreted and applied according to the laws of the Commonwealth of
Pennsylvania. All covenants and provisions contained herein, and any part
thereof, are severable, and in the event that any such covenant or provision, or
any part thereof, shall be held to be invalid by a court of competent
jurisdiction, this Employment Agreement shall be interpreted as if such invalid
covenant or provision, or part thereof, was not contained herein.
12. Entire Agreement. This Employment Agreement contains the entire
agreement of the parties hereto with respect to the employment of Executive by
the Corporation and will supersede all prior agreements. This Employment
Agreement may not be modified or amended, in whole or in part, except by an
instrument in writing signed by all of the parties hereto.
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IN WITNESS WHEREOF, the following parties have caused their signatures
and seals to be hereunto affixed to this Employment Agreement as of the day
first above written.
ATTEST: SHOP VAC CORPORATION
/s/ Xxxx Xxxx /s/ Xxxxxxxx Xxxxxx
------------------------------- By:-------------------------------
Secretary President and Chief Executive
Officer
(SEAL)
WITNESS: EXECUTIVE:
/s/ Xxxxx X. Grill /s/ Xxxxxxx Xxxxxx
------------------------------- ----------------------------(SEAL)
Xxxxxxx Xxxxxx
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