EXHIBIT 10.81
EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made and entered into
between Polyphase Corporation, a Nevada Corporation and Overhill Farms, Inc.,
jointly and severally, (the "Companies") and Xxxxx Xxxxx (the "Employee"), a
resident of Hicksville, New York as of the first day of November, 1999.
ARTICLE I
Section 1.1: Employment. The Companies hereby employ the Employee as
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President and Chief Operating Officer, and Employee hereby
accepts employment in such capacity, upon and subject to the
terms and conditions of this Agreement.
ARTICLE II
Section 2.1: Term. Subject to the provisions for termination hereinafter
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provided, the initial term of this Agreement shall begin on
the 1st day of November, 1999, and shall end five (5) years
thereafter. This Agreement shall continue from year to year
thereafter unless terminated by either party hereto as
herein provided.
Section 2.2: Compensation. For all services rendered by the Employee
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under this Agreement, the Company shall pay the Employee an
initial salary of $230,000 per year during the term of this
Agreement, payable in monthly installments on or before the
last day of each month during the full term hereof, or in
such other convenient periodic payments as the Company and
the Employee may mutually agree. Compensation shall be
reviewed on an annual basis and shall be subject to a
minimum increase in a percentage not less than that of the
annual increase in the cost of living. The Employee will be
entitled to participate in any Stock Option or Bonus Plans
offered by the Companies. In the event that Overhill Farms,
Inc. meets or exceeds the Board of Directors approved budget
for fiscal 2000, Employee will be entitled to a minimum
annual cash bonus of $40,000 for that fiscal year.
Section 2.3: Other Benefits. During the Employment Term the Company
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shall provide Employee with the same insurance and other
benefits that the Company makes available to other employees
in accordance with the Company's policies as they exist from
time to time. Additionally, the Company shall make
available, at its cost, a life insurance policy in the
amount of $1 million (the Policy") for the sole and
exclusive benefit of the Employee. The Employee shall at all
times during the term of this Agreement and afterwards be
entitled to name
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the beneficiary under the Policy, and the Companies shall,
upon demand from the Employee at any and all times, execute
and deliver any forms, notices or other documentation
requested by the Employee in connection with the Policy.
Upon request of the Employee, the Companies agrees to
transfer ownership of the Policy the Employee.
Section 2.4: Vacation and Sick Pay. The Employee shall be entitled to an
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annual vacation of fifteen (20) business days with full pay.
Such vacation shall be taken at a time selected by the
Employee. In addition, the Employee shall be entitled to ten
(10) business days per year as sick leave or personal
business days with full pay. Vacation time, sick leave and
personal business days may be accumulated and used anytime
during the term of this agreement. Companies acknowledge
that Employee has thirty (30) days accumulated unused
vacation time that will be carried forward with this
agreement.
Section 2.5: Holidays. The Employee shall be entitled to a holiday with
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full pay on New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Christmas Day, and such other
days as the Companies shall from time to time determine.
Section 2.6: Business Expenses. The Employee is authorized to incur
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reasonable and necessary business expenses in the
performance of the Employee's duties under this Agreement,
including expenditures for travel and entertainment. The
Companies will reimburse the Employee from time to time for
all such business expenses. Companies acknowledge that
Employee maintains his principal residence in the state of
New York, and Companies agree to pay all travel and related
expenses to and from New York as in past practice.
Section 2.7: Automobile. The Companies shall pay, in advance, for a
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leased (at a maximum lease rate of $800 per month) or a
company-owned automobile (with choice of leased or owned
vehicle at Companies' option) that is equivalent with his
position; in either case, the automobile shall be one of the
Employee's selection. The Companies also agree to pay all
automobile operating expenses, including (without
limitation) maintenance and repair, gas, oil, car washes,
insurance and deductible amounts arising from any claim
against such insurance. Every two years the automobile shall
be replaced. In the event that Employee personally
guarantees a company leased vehicle obligation, Companies
agree to fully indemnify employee for all lease and related
costs.
Section 2.8: Relocation. If the Companies and Employee mutually agree to
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relocate the Employee, the Companies will pay the reasonable
expenses incurred by Employee in relocation. Relocation
expenses to be paid by the Companies
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shall include, temporary living costs for up to six (6)
months; all fees and expenses associated with the purchase
of a residence, such as, real estate agency commissions or
fees, appraisal fees, credit reports, survey fees,
inspection fees, recording fees for mortgage or deed, title
insurance or guarantee premiums, and tax title search and
attorney fees. Further, the Companies will pay all costs and
expenses to transport the household goods and other
possessions of the Employee including, but not limited to,
packing (including disconnection of appliances), unpacking
(including connection of appliances), storage for up to six
(6) months and the transportation of the Employee's
automobile.
ARTICLE III
Section 3.1: Duties. The Employee shall carry out those duties normally
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assigned to the President and Chief Operating Officer and
Director of a similar corporation.
Section 3.2: Disclosure of Information. The Employee recognizes and
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acknowledges that his position with the Companies is one of
the highest trust and confidence by reason of his access to
confidential and proprietary business information of the
Companies. Accordingly, the Employee agrees to sign a non-
competition and confidentiality agreement in a form
satisfactory to the Companies.
ARTICLE IV
Section 4.1: Resignation of the Employee. In the event of the
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termination of this Agreement prior to the completion of the
term of employment specified above by the voluntary
resignation of the Employee, the Employee shall be entitled
to:
(a) His base salary earned prior to the date of termination as provided
for in Section 2.2 of this Agreement computed pro rata up to and
including the date of termination or resignation;
(b) All accrued but unused vacation, sick leave, and personal business
days paid at a per diem rate equivalent to the Employee's then current
salary rate;
(c) Reimbursement for reasonable and necessary business expenses incurred
before resignation;
(d) All rights granted under Section 2.3 hereof with respect to the
Policy; and
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(e) All amounts to which the Employee is entitled under the Companies's
Profit Sharing Plan.
Section 4.2: Termination by Reason of Death or Disability.
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(a) Upon the death of the Employee, the Employment Term shall
automatically terminate on the last day of the month in which the
death of Employee occurs.
(b) If Employee is determined to be Disabled (as hereinafter defined)
then the Companies may, upon thirty (30) days written notice to
Employee, terminate Employee's employment hereunder, but in addition
to the benefits described in Section 4.2 (c) below, Employee shall
continue to receive full salary for six months or until he is
eligible to receive any benefits to which he may be entitled under
the terms of the long-term disability coverage provided by the
Companies. For the purposes of this Agreement, the "Disability" of
Employee shall mean any incapacity or inability to perform Employee's
normal or assigned duties to the Companies, in either case due to
injury or illness (physical or mental), for a period of at least
forty-five (45) consecutive days out of any calendar year.
(c) Upon termination of employment pursuant to Section 4.2 (a) or (b) of
the Employee or his estate shall be entitled to receive:
(i) The base salary provided by Section 2.2 that the Employee was then
receiving through the date of termination as provided above;
(ii) All bonuses earned through the date of termination, paid in
accordance with the terms of the bonus plan pursuant to which the
bonus was earned;
(iii) Accrued but unused vacation and sick leave pay;
(iv) Reimbursement for reasonable and necessary business expenses
previously incurred;
(v) All rights granted under Section 2.3 hereof with respect to the
Policy; and
(vi) All amounts to which the Employee is entitled under any Profit
Sharing Plan of the Companies.
Section 4.3: Termination by the Companies for Cause. Subject to any
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opportunity to cure on the part of Employee, the Companies may for Cause (as
hereinafter defined) terminate Employee's employment hereunder upon written
notice specifying the particulars of the Cause. "Cause" shall mean:
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(a) Any intentional material breach by the Employee of any of the terms
and conditions of this Agreement;
(b) A breach of the Employee's fiduciary duties to the Companies;
(c) Misappropriation of any material amount of the Companies's assets; or
(d) Employee's habitual negligence or nonfeasance in the performance of
his duties hereunder; and
With respect to any of the events specified in (a), (b), (c) and (d) above,
the Companies will provide Employee with written notice thereof and a ten (10)
day opportunity to cure such matter to the satisfaction of the Companies.
In the event of the termination of this Agreement for any of the reasons
set forth in this Section 4.3 the Employee shall be entitled to receive:
(a) His base salary earned prior to the date of termination as provided in
Section 2.2 of this Agreement computed pro rata up to and including
the date of termination;
(b) All rights granted under Section 2.3 hereof with respect to the
policy; and
(c) All amounts to which the Employee is entitled under the Companies's
Profit Sharing Plan; and
(d) Any bonuses earned through the date of termination, paid in accordance
with the terms of the bonus plan pursuant to which any bonus may have
been earned. The Employee's share of any annual cash bonus pool shall
be computed pro rata based on the actual number of days during the
year the Employee was employed by the Companies; provided, however,
nothing herein shall be construed to require the Companies to
calculate or pay any bonus prior to the regularly scheduled time for
making such calculation or payment; and
(e) Any accrued but unused vacation and sick leave pay.
Section 4.4: Termination on Grounds Other Than Cause, Disability or
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Should the Employee's employment hereunder be terminated by the Companies on
grounds other than for Cause, disability, resignation or death, the Employee
shall be entitled to receive, as the Employee's sole remedy and as liquidated
damages:
(a) The base salary that the Employee was then receiving for the remainder
of the term of employment set forth in Section 2.2 above, paid in a
lump sum and
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(b) Any bonuses earned through the date of termination, paid in accordance
with the terms of the bonus plan pursuant to which any bonus may have
been earned. The Employee's share of any annual cash bonus pool shall
be computed pro rata based on the actual number of days during the
year the Employee was employed by the Companies; provided, however,
nothing herein shall be construed to require the Companies to
calculate or pay any bonus prior to the regularly scheduled time for
making such calculation or payment.
(c) Accrued but unused vacation and sick leave pay;
(d) Have all indebtedness owed by him to the Companies forgiven;
(e) Use of the car provided pursuant to the provisions of Section 2.7
hereof for one year following the date of termination;
(f) Reimbursement for reasonable and necessary business expenses
previously incurred;
(g) All rights granted under Section 2.3 hereof with respect to the
Policy;
(h) All amounts to which the Employee is entitled under any Profit Sharing
Plan of the Companies;
(i) Monthly payments for one year equal to the monthly premium required by
the Employee to maintain his health insurance benefits pursuant to the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") under
the Companies's group health insurance plan.
ARTICLE V
Section 5.1: Covenant Not to Compete. During the period of this
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Agreement and expiring one (1) year after the end of
Employee's employment by the Companies, Employee shall not,
without the approval of the Board of Directors, directly or
indirectly compete with Companies in the manufacture, sale
or distribution of frozen foods or in any other businesses
in which the Companies may then be active.
ARTICLE VI
Section 6.1: Notices. Any notice required or permitted to be given under
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this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service if served
personally on the party to whom notice is to be given, or on
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the third (3) day after mailing if mailed to the party to
whom notice is to be given properly addressed, certified
mail, return receipt requested, postage prepaid, addressed
as follows:
Section 6.1.1: In the case of the Employee, to his residence as shown on
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the Companies's records; and
Section 6.1.2: In the case of the Companies, to the principal offices.
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Section 6.2: Waiver of Breach. The waiver by the Companies or the
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Employee of a breach of any provision of this Agreement by
the other party hereto shall not operate or be construed as
a waiver of any subsequent breach of the same or any other
provision hereof by the same party.
Section 6.3: Assignment. Neither the Companies nor the Employee may
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assign rights or obligations under this Agreement.
Section 6.4: Benefit. This Agreement shall be binding upon and inure to
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the benefit of the legal representatives, successors and
assigns of the Companies and the Employee.
Section 6.5: Amendments. No charge, alteration or amendment to this
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Agreement shall be valid or binding upon the parties hereto
unless made in writing and signed by both parties hereto.
Section 6.6: Construction. This Agreement constitutes the entire
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understanding between the parties and the parties hereby
declare that there are no oral or other agreements or
understandings between them. This Agreement supersedes all
previous agreements between the parties.
Section 6.7: Multiple Counterparts. This Agreement is being execute in
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multiple identical counterparts, each of which shall be
deemed an original, and all of which taken together shall
constitute but one and the same instrument; but in making
proof of this Agreement, it shall not be necessary to
produce or account for more than one counterpart executed by
the party sought to be charged with performance hereunder.
Section 6.8: Jurisdiction. The parties agree that the courts of the
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State of New York, and any courts whose jurisdiction is
derivative on the jurisdiction of the courts of the State of
New York, shall have personal jurisdiction over all parties
to this Agreement.
Section 6.9: Attorneys' Fees. If any civil action, whether at law or in
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equity, is necessary
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to enforce or interpret any of the
terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, court costs and
other reasonable expense of litigation, in additional to any
other relief to which such party may be entitled.
Section 6.11: Headings and Pronouns. The subject headings of the sections
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of this Agreement are included for purposes of convenience
only, and shall not affect the construction or
interpretation of any of its provisions. All pronouns and
any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the
identity of the entities or persons referred to may require.
IN WITNESS HEREOF, this Agreement has been executed by the Employee and the duly
authorized officer of the Companies on the day and year first above written
effective on the date hereinabove set forth.
Employee: _____________________ Companies:
Polyphase Corporation.
By: _________________________________
Xxxxxxx X. Xxxxxxx
Senior Vice President
Overhill Farms, Inc.
By: _________________________________
Xxxxxxx X. Xxxxxxx
Vice President
Acknowledged and Approved by the Compensation Committee of Polyphase
Corporation:
_____________________________ _______________________________
Xxxxxxx X. Xxxx Xxxxxx X. Xxxxxxxx
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