Exhibit 10.2
EMPLOYMENT AGREEMENT
AGREEMENT made this 21 day of August, 2000, between USA Detergents,
Inc., a Delaware corporation with its principal office at 0000 Xxxxxx Xxxxxx,
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxxxxx XxXxxx (the
"Executive"), residing at 000 Xxxxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000.
WHEREAS, the parties desire to enter into this Agreement in order to
assure the Company of the services of the Executive and to set forth the duties
and compensation of the Executive, all upon the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises, representations and covenants contained herein, the parties hereto
agree as follows:
1. Duties. The Company shall employ the Executive, and the Executive
shall serve, as President and Chief Operating Officer of the Company during the
Employment Term (as hereinafter defined). During the Employment Term, the
Executive shall perform such duties and functions as the Company's Board of
Directors (the "Board of Directors") or Chief Executive Officer shall from time
to time determine and the Executive shall comply in the performance of his
duties with the policies, and be subject to the direction, of the Board of
Directors and the Chief Executive Officer of the Company.
Except as may be expressly otherwise consented to in writing by the
Board of Directors or the Chief Executive Officer of the Company, the Executive
covenants and agrees to and shall devote his full working time, attention and
efforts toward the performance of his duties and responsibilities hereunder. The
Executive shall not, directly or indirectly, without the prior consent of the
Board of Directors, which shall not be unreasonably withheld, as owner, partner,
joint venturer, stockholder, employee, consultant, corporate officer or
director, engage or become financially interested in, or be concerned with any
other duties or pursuits which interfere with the performance of his duties
hereunder, or which even if non-interfering, may be inimical or contrary to the
best interests of the Company. This provision does not prohibit the Executive
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from owning, directly or indirectly, up to five percent (5%) of the outstanding
capital stock of any publicly traded company.
In addition to the above duties and functions, after one year of
Executive's employment with the Company, the Board of Directors shall consider
nominating Executive to serve as a member of the Board of Directors. Nothing
herein shall be deemed to assure Executive of his being elected, designated, or
nominated to serve as a director of the Company.
2. Term; Severance.
(a) The term of this Agreement and the term of employment (the
"Employment Term") of the Executive shall commence on August 21, 2000 (the
"Start Date") and continue for three years therefrom (the "Termination Date")
unless sooner terminated in accordance with the terms hereof; provided, however,
that the Termination Date (and, consequently, the Employment Term) shall be
extended automatically for successive one year periods unless either party
hereto gives the other such party written notice, not less than six (6) months
prior to the Termination Date (or, if applicable, any extension of the
Termination Date) of its or his intention not to renew or continue this
Agreement.
(b) In the event the Company terminates this Agreement for any
reason other than cause (as defined in Section 5 hereof), the permanent
disability (as defined in Section 6 hereof) of the Executive, or the death of
the Executive, the parties hereto agree that, provided Executive executes a
general release of all claims against the Company and abides by all restrictive
covenants contained in this Agreement (including Exhibits hereto), including,
without limitation, the provisions relating to non-competition,
non-solicitation, invention rights and confidentiality, Executive shall be
entitled to continue to receive as severance pay (i) the then effective base
salary of the Executive to be payable in installments in accordance with the
Company's normal salary payment policies and (ii) so long as Executive is not
eligible to receive reasonably comparable health insurance coverage from any
other employer or entity, health insurance benefits, including medical and
dental insurance and prescription drugs, under the same terms and conditions
(which presently includes the payment by Executive of premiums therefor, at a
Company subsidized rate) and to the same extent as such participation and
coverage is made available to other employees of the Company as each such plan
may exist from time to
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time (all, to the extent the Company's benefit plans so permit) in both
instances for a period of (x) nine months from any such date of termination, to
the extent such termination occurs at any time prior to the first anniversary of
the Start Date and (y) twelve months from any such date of termination, to the
extent such termination occurs at any time on or subsequent to the first
anniversary of the Start Date and prior to the third anniversary of the Start
Date (the "Severance Period"). The Executive hereby authorizes the Company to
deduct the premium and other payments required of Executive for such coverage
from the severance payments being made to Executive as provided herein.
Additionally, after the Severance Period, Executive shall be eligible for health
insurance benefits under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, or "COBRA", to the extent that such eligibility extends beyond
the Severance Period; it being understood and agreed that the health insurance
benefits provided to Executive hereunder during the Severance Period shall be
credited towards the required coverage period mandated by COBRA. Any coverage
under COBRA subsequent to the Severance Period shall be paid solely by Executive
at the full rate therefore (i.e. without the Company subsidizing a portion
thereof). In the event the Company notifies Executive of the Company's intention
not to renew or continue this Agreement beyond the initial three (3) year term
hereof, in accordance with Section 2(a) hereto, and the employment of Executive
is not subsequently terminated (x) by the Company for cause, or the death or
disability of Executive or (y) by Executive for any reason, the parties hereto
agree that, provided Executive executes a general release of all claims against
the Company and abides by all restrictive covenants contained in this Agreement
(including Exhibits hereto), including, without limitation, the provisions
relating to non-competition, non-solicitation, invention rights and
confidentiality, Executive shall be entitled to continue to receive as severance
pay (i) the then effective base salary of the Executive to be payable in
installments in accordance with the Company's normal salary payment policies and
(ii) so long as Executive is not eligible to receive reasonably comparable
health insurance coverage from any other employer or entity, the health
insurance benefits being provided to Executive at the time of such termination
(to the extent the Company's benefit plans so permit), in both instances for a
period of 12 months from the earlier of (x) the third anniversary of the Start
Date and (y) the date the Company so notifies Executive of its intention not to
renew or continue this Agreement.
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(c) In the event (x) the Company terminates this Agreement or
(y) the Executive terminates this Agreement as a result of a material change in
the Executive's position with the Company or a significant modification to the
Executive's working conditions or terms of employment with the Company, in
either case within twelve (12) months of a Change in Control of the Company (as
defined in subsection 2(e) below), the Company shall continue to pay Executive,
in lieu of any amounts or benefits referred to in subsection 2(b) above, his
then effective annual base salary for a period of 12 months following such
termination, together with the automatic acceleration of the vesting schedule of
any options granted to Executive.
(d) Any amounts so paid to the Executive pursuant to the
provisions of Section 2(b) and, if applicable, Section 2(c) hereof, shall be in
lieu of any and all other payments due and owing to the Executive under the
terms of this Agreement. In the event that the Company terminates this Agreement
for cause (as defined in Section 5 hereof), the permanent disability of the
Executive ( as defined in Section 6 hereof) or the death of the Executive, or
the Executive terminates this Agreement for any reason other than for the reason
(and during the time period) set forth in Section 2(c) hereof, the Executive
shall not be entitled to receive any further payment hereunder other than for
accrued but unpaid compensation.
(e) A "Change in Control of the Company" shall be deemed to
occur if (i) there shall be consummated (x) any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation or
pursuant to which shares of the Company's Common Stock would be converted into
cash, securities or other property, other than a merger of the Company in which
the holders of the Common Stock immediately prior to the merger have not less
than 50% of the ownership of common stock of the surviving corporation
immediately after the merger, or (y) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company, or (ii) the stockholders of the
Company shall approve any plan or proposal for liquidation or dissolution of the
Company, or (iii) any person (as such term is used in Section 13(d) and 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) who, at
the time of the execution of this Agreement, does not own 5% or more of the
Company's outstanding Common Stock, shall become the beneficial owner (within
the meaning of Rule 13d-3 under the Exchange Act) of 40% or more of the
outstanding Common Stock other than
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pursuant to a plan or arrangement entered into by such person and the Company,
or (iv) during any period of two consecutive years commencing on the date
hereof, individuals who at the beginning of such period constitute the entire
Board of Directors shall cease for any reason to constitute a majority thereof
unless the election, or the nomination for election by the Company's
stockholders, of each new director was approved by a vote of at least two-thirds
of the directors then still in office who were directors at the beginning of the
period.
3. Compensation.
(a) Salary. In each of the three years of the Employment Term,
the Executive shall receive a base salary at the rate of $275,000 per annum as
well as such bonuses as may be authorized from time to time by the Board of
Directors. To the extent deemed appropriate by the Board of Directors, in its
sole and absolute discretion, the base salary will be reviewed and, if deemed
appropriate, increased on an annual basis. The Executive's salary shall be
payable in installments in accordance with the Company's normal salary payment
policies, and shall be subject to such payroll deductions as are required by law
or applicable employee benefit programs.
(b) Sign-On Bonus. The Company shall pay Executive a
sign-on bonus of $10,000 less applicable payroll and
other tax withholdings, payable within 30 days of the
Start Date.
(c) Bonus. Executive shall participate in the Company's
Management Incentive Plan (the "MI Plan") at a target
bonus level of 50% of Executive's base salary,
prorated for Executive's completed months of service
in 2000. Bonus payments are contingent on the
financial performance of the Company and Executive's
individual performance against certain performance
objectives to be mutually agreed upon by Executive
and the Company, as well as the discretion of the
Company's Board of Directors. It is understood and
agreed that the Company, in its sole discretion, may
amend or terminate the MI Plan or replace the MI Plan
with an alternative bonus or other incentive program,
and that the only bonuses to which the Executive
shall be entitled are those bonuses
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which may be authorized by the Board of Directors
under subparagraph (a) of this Section 3.
(d) Expenses. In addition to the base salary provided for in
Section 3(a) hereof, the Company shall reimburse the Executive, upon
presentation by the Executive of suitable documented expense accounts, for any
reasonable travel or other out-of-pocket business expenses incurred by the
Executive in rendering the services hereunder on behalf of the Company and which
are incurred pursuant to the Company's expense reimbursement policies; provided,
however, it is understood and agreed that, in part as a result of the
Executive's being provided with an automobile allowance hereunder (Section
3(g)), the Executive shall not be entitled to any reimbursement for his
commuting expenses or other related automotive expenses (e.g., gasoline, tolls,
repairs, insurance, depreciating value, etc.). The Executive shall comply with
restrictions and shall keep records in compliance with the Company's policy and
procedures related to travel and entertainment expenses, and as may be otherwise
required for tax or accounting purposes.
(e) Stock Option Plan. The Executive shall be entitled to
participate in the Company's 1995 Stock Option Plan, as amended (the "Plan").
Under the Plan, the Executive shall be awarded an option grant (the "Option") to
purchase 150,000 shares of Common Stock (the "Option Shares") available for
issuance under the Plan, at an exercise price (the "Exercise Price") equal to
the per share price of the Common Stock on the Nasdaq National Market on the
date of the grant by the Board of Directors (or, if later, the first date that
the Executive is employed by the Company). Except as specifically provided
otherwise herein, the Option will become exercisable in accordance with the
following schedule based upon the period of the Executive's continuous
employment with the Company following the date hereof:
Period of Continuous Incremental Fraction of Cumulative Fraction of
Employment/Service Option Exercisable Option Exercisable
-------------------- ------------------------- ------------------------
Less than 1 year 0 0
1 year 25% 25%
2 years 25% 50%
3 or more years 50% 100%
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; provided, however, that upon a Change in Control of the Company resulting in
termination as provided in Section 2(c) herein, during the Employment Term, the
Option shall automatically accelerate to full vesting.
(f) Vacations. The Executive shall be entitled to up to three
weeks of paid vacation in each calendar year, which vacation time shall accrue
at a rate of 1.25 days per month of employment. The Executive shall also be
entitled to the same standard paid holidays given by the Company to senior
executives generally, all as determined from time to time by the Board of
Directors or an appropriate committee thereof, in its sole discretion, and to
one paid day as a "floating holiday" in the year 2000, in accordance with
Company's policies and procedures as determined by the Board of Directors or
appropriate committee thereof in its sole discretion. Vacation time shall not
cumulate from year to year.
(g) Automobile. During the Employment Term, the Executive
shall be entitled to an automobile allowance of $600 per month.
(h) Health and Disability Insurance. Executive shall become
eligible to participate in the Company's health benefits program on the first
day of the month following thirty days of employment and shall be entitled to
the same health and disability insurance given by the Company to senior
executives generally, all as determined from time to time by the Board of
Directors or an appropriate committee thereof in its sole discretion. In
addition, Executive shall be entitled to participate in the Company's
non-qualified Medical Expense Reimbursement Plan, to the extent he participates
in the Company's regular health insurance program and is otherwise eligible to
participate pursuant to the provisions of such plan as may be established from
time to time by the Company in its sole discretion.
(i) 401(k) Plan. After six months of employment, Executive
shall be eligible to participate in the Company's 401(k) Plan. In addition, in
the event that the Company implements a non-qualified savings plan, Executive
shall be offered the opportunity to participate in such plan, in accordance with
the terms of such plan as may be established from time to time by the Company in
its sole discretion.
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(j) Sick Time. Sick time will be provided to Executive, on an
as needed basis, in accordance with the Company's then applicable policy as
established from time to time by the Company in its sole discretion.
4. Place of Performance. In connection with his employment by the
Company, and except for travel required for Company business, the Executive
shall be based at the principal executive offices of the Company, presently
located in the North Brunswick, New Jersey area or, from time to time, at the
discretion of the Company, at other locations utilized by the Company which are
located within 50 miles of the Company's present executive offices.
5. Termination by the Company. The Company may terminate this Agreement
at any time, upon notice by the Company to the Executive, for cause or for any
other reason which would not constitute cause. Termination by the Company for
"cause" shall mean termination because of: (a) Executive's refusal to perform,
or continual neglect of, his duties or obligations hereunder (other than
breaches of the covenants set forth in Sections 1, 7 and 8 hereof which events
are governed by clause (f) below); (b) Executive's conviction (which, through
lapse of time or otherwise, is not subject to appeal) of any crime or offense
involving money or other property of the Company or any of its subsidiaries or
which constitutes a felony in the jurisdiction involved, (c) Executive's
performance of any act or his failure to act, for which if Executive were
prosecuted and convicted, would constitute a crime or offense involving money or
property of the Company or any of its subsidiaries, or which would constitute a
felony in the jurisdiction involved, (d) any attempt by Executive to improperly
secure any personal profit in connection with the business of the Company or any
of its subsidiaries, (e) chronic alcoholism or drug addiction, to the extent
permitted by applicable law, (f) any breach by Executive of any of the terms of
Section 1 or 7 of this Agreement or any terms of the Confidentiality,
Non-Solicitation, Invention Rights or Non-Compete Agreement or (g) any gross
violation of the Company's Standards of Conduct, as then in effect (and as may
be amended from time to time by the Company).
6. Death; Disability. If the Executive shall die or become "permanently
disabled" during the term of this Agreement, this Agreement and all benefits
hereunder shall terminate, except that such termination shall not affect any
vested rights which the Executive may have at
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the time of his death pursuant to any insurance or other death benefit plans or
arrangements of the Company, which rights shall continue to be governed by the
provisions of such plans and agreements. For the purposes of this Agreement, the
Executive shall be deemed to be "permanently disabled" if, during the term
hereof, because of ill health, physical or mental disability, or for other
causes beyond the Executive's control, the Executive shall have been unable or
unwilling, or shall have failed to perform his duties hereunder for ninety (90)
consecutive days or for a total period of one hundred twenty (120) days in any
twelve month period during the term of this Agreement, whether consecutive or
not. Notwithstanding anything to the contrary contained herein, during any
period that the Executive fails to perform his duties hereunder as a result of
his disability (but prior to the termination of this Agreement as a result of
such disability), (i) the Executive shall continue to receive his full salary at
the rate then in effect and all benefits provided herein, provided that payments
made to the Executive pursuant to this Section 6 shall be reduced by the sum of
the amounts, if any, payable to the Executive at or prior to the time of any
such payment under any disability benefit plan or program of, or provided by,
the Company and (ii) the Company shall have the right to hire any other
individual or individuals to perform such duties and functions as the Company
shall desire, including those duties heretofore performed by the Executive.
7. Protection of Confidential Information.
(a) The Executive acknowledges that his employment by the
Company will, throughout the term of this Agreement, bring him in contact with
many confidential affairs of the Company not readily available to the public,
and plans for future developments. In recognition of the foregoing, the
Executive covenants and agrees that he will not, directly or indirectly, use or
intentionally disclose or permit to be known to anyone outside of the Company
any confidential matters of the Company, except with the Company's prior written
consent or as required by court order, law or subpoena, or other legal
compulsion to disclose.
(b) All information and documents relating to the Company
shall be the exclusive property of the Company and the Executive shall use his
best efforts to prevent any publication or disclosure thereof. Upon termination
of the Executive's employment with the Company, all documents, records, reports,
writings, computer programs and diskettes, and other
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similar documents containing confidential information, including copies thereof,
then in the Executive's possession or control shall be returned and left with
the Company.
(c) The Executive will execute the form of "USA Detergents,
Inc. Confidentiality, Non-Solicitation, Invention Rights and Non-Compete
Agreement" in the form of Exhibit A hereto, all the terms and provisions of
which are incorporated herein as if fully set forth herein.
8. Successors; Binding Agreement. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of, and shall be enforceable by,
the Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee, legatee
or other designee or, if there be no such designee, to the Executive's estate.
9. Notice. For the purposes of this Agreement, notices, demands and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered against receipt therefor or
three days after being mailed by United States certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive: Xxxxxxx Xx Xxxx
801 Dartmoor
Xxxxxxxxx, XX 00000
If to the Company: 0000 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Executive Officer
With a copy to: Xxxxxxx X. Xxxxxxxx, Esq.
Fulbright & Xxxxxxxx L.L.P.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notice of change of address shall be
effective only upon receipt.
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10. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive and such officers of the Company as may
be specifically designated by its Board of Directors. No waiver by either party
hereto at any time of any breach by the other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time.
11. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
12. Entire Agreement. This Agreement (together with the exhibit
attached hereto) sets forth the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and supersedes
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto or any predecessor of any party hereto.
13. Non-Assignability. This Agreement is entered into in consideration
of the personal qualities of the Executive and may not be, nor may any right or
interest hereunder be, assigned by him without the prior written consent of
Company. It is expressly understood and agreed that this Agreement, and the
rights accruing and obligations owed to the Company hereunder, and the
obligations to be performed by the Company hereunder, may be assigned by the
Company to any of its successors or assigns.
14. Equitable Relief. The Executive recognizes that the services to be
rendered by him hereunder are of a special, unique, extraordinary and
intellectual character involving skill of the highest order and giving them
peculiar value, the loss of which cannot be adequately compensated for in
damages. In the event of a breach of this Agreement by the Executive, the
Company shall be entitled to injunctive relief or any other legal or equitable
remedies. The remedies provided in this Agreement shall be deemed cumulative and
the exercise of one shall not preclude the exercise of any other remedy at law
or in equity for the same event or any other event.
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15. Choice of Law. This Agreement is to be governed by and interpreted
under the laws of the State of New Jersey without regard to its conflict of laws
principles.
16. Representations And Agreements of the Executive. (a) The Executive
represents and warrants that he is free to enter into this Agreement and to
perform the duties required hereunder, and that there are no employment
contracts or understandings, restrictive covenants or other restrictions,
whether written or oral, preventing the performance of his duties hereunder.
(b) The Executive agrees to submit to a medical examination
and to cooperate and supply such other information and documents as may be
required by any insurance company in connection with the Executive's inclusion
in any insurance or fringe benefit plan or program as the Company shall
determine from time to time to obtain, or in connection with, in the Company's
sole discretion, the Company's obtaining life insurance for its benefit on the
life of the Executive.
17. Survival. The termination of the Executive's employment hereunder
shall not affect the enforceability of Sections 2, 7, 8, 14, 15 and 16 hereof.
18. 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 shall constitute one and the same instrument.
19. Headings. The Section headings appearing in this Agreement are for
the purposes of easy reference and shall not be considered a part of this
Agreement or in any way modify, demand or affect its provisions.
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20. Construction. Each party acknowledges that its legal counsel
participated in the preparation of this Agreement and, therefore, stipulates
that the rule of construction that ambiguities are to be resolved against the
drafting party shall not be applied in the interpretation of this Agreement to
favor any party against the other.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first-above written.
USA DETERGENTS, INC.
By: /s/ Uri Evan
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Name: Uri Evan
Title: Chief Executive Officer
EXECUTIVE
By: /s/ Xxxxxxx Xx Xxxx
---------------------------------------
Xxxxxxx XxXxxx
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