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EXHIBIT 10.62
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into as of
February 1, 2000 by and between Xxxxxx X. Xxxxxx, an individual ("Executive"),
and Decora Industries, Inc., a Delaware corporation (the "Company").
WHEREAS, the Company wishes to employ Executive and Executive wishes to
accept such employment on the terms and conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. TERM OF EMPLOYMENT. The Company hereby employs Executive and
Executive accepts such employment for a term of three (3) years commencing
February 1, 2000, subject to the provisions of Section 5 below.
2. DUTIES. Executive shall be employed as the President and Chief
Operating Officer of the Company, with the duties and powers customarily
associated with such position, and shall perform such other duties pertaining to
the Company's business as the Board of Directors of the Company (the "Board")
may from time to time direct. Executive hereby consents to serve as an officer
and/or director of the Company or any subsidiary or affiliate without any
additional salary or compensation. The base of operations of Executive shall be
either the North Ridgeville, Ohio or Fort Xxxxxx, New York executive offices of
the Company, as Executive may elect. Executive shall also render services at
such other place or places within or without the United States as the Company
may designate from time to time, but not, without Executive's consent, for more
than 90 days during any consecutive 12 month period. When and if Executive is
required to render such services away from home, the Company agrees to either
furnish such transportation and living expenses as may be reasonably required
for Executive during and on account of the rendition of such services, or pay
Executive a fixed weekly sum as reimbursement for such expenses incurred by
Executive. In the latter regard, Executive agrees to keep records of such
expenses and furnish the Company reasonably detailed reports of actual expenses
incurred by Executive as aforesaid.
3. NECESSARY SERVICES.
(a) Performance of Duties. Executive agrees that he will at all
times faithfully, industriously and to the best of his ability, experience and
talents, perform to the reasonable satisfaction of the Company all of the duties
that may be assigned to him hereunder and shall devote such time to the
performance of these duties as may be necessary therefor.
(b) Full-Time Service. During the term of the Agreement,
Executive shall be available on a full-time basis to perform the duties assigned
him in accordance with paragraph 2 hereof.
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(c) Exclusive Services. Executive agrees that during the period
of his employment, Executive shall provide services exclusively pursuant to this
Agreement, and Executive will not, without the prior written consent of the
Company (which consent may be granted or withheld in the sole and absolute
discretion of the Company), directly or indirectly:
i) plan or organize any business activity competitive with
the business or planned business of the Company or its affiliates, or combine,
participate, or conspire with other employees of the Company or its affiliates
or other persons or entities for the purpose of organizing any such competitive
business activity; or
ii) divert or take away, or attempt to divert or take
away, any of the customers or potential customers of the Company or its
affiliates, either for himself or for any other person, firm, partnership,
corporation or other business entity.
4. COMPENSATION. Subject to such deductions as the Company may from time
to time be required to make pursuant to law, governmental regulation or order,
the Company agrees to pay to Executive during the term hereof the following
compensation, and Executive agrees to accept such compensation as payment in
full for all services rendered by him to or for the benefit of the Company.
Except as otherwise specified in this Agreement, salary and performance
compensation payments, once determined, shall be made to Executive at such times
and in such increments as are in accordance with the prevailing policies of the
Company.
(a) Salary. The Company shall pay to Executive an initial base
salary in an amount equal to a yearly rate of $285,000, which base salary shall
be subject to periodic adjustment upwards but not downwards in accordance with
the discretion of the Compensation Committee of the Board of Directors of the
Company; provided, however, that at such time as the Board, in its discretion,
assigns to Executive full responsibility for the Company's operations in Germany
(but in no event later than December 31, 2000), then the base salary shall be
adjusted upwards to $360,000. Executive's base salary shall be paid in equal
monthly installments (commencing with the first month of the term of this
Agreement) subject to proportionate adjustment in the event of an adjustment
upwards in Executive's salary.
(b) Commencement Bonus. Concurrently with the execution of this
Agreement, and as further consideration for the agreement of Executive to enter
into this Agreement, the Company shall grant to Executive a bonus in the amount
of $125,000, to be paid to Executive as soon as possible following the execution
of this Agreement at such times and in such increments as shall, in the good
faith judgment of the Board of Directors of the Company, not result in an undue
burden upon the working capital resources of the Company.
(c) Performance Compensation. The Executive shall be entitled to
performance compensation, commencing with the Company's 2001 fiscal year,
through participation in the Decora Industries, Inc. Executive Incentive Plan.
For purposes of such Plan, Executive's "Incentive Opportunity" (as described in
Section 3 of such Plan) shall be 100% of Executive's base salary for the
relevant fiscal year.
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(d) Supplemental Compensation. Executive shall be entitled to
supplemental compensation in accordance with the provisions of a Supplemental
Executive Compensation Agreement in the form of Exhibit "A" hereto and which
shall be executed by Executive and the Company concurrently with the execution
of this Agreement.
(e) Stock Options. Concurrently with the execution of this
Agreement, the Company shall grant to Executive the right and option to purchase
200,000 shares of the Company's common stock pursuant to the Decora Industries,
Inc. 1999 Stock Option Plan, which options shall vest immediately and shall be
exercisable at the price of $5.00 per share.
(f) Relocation Allowance. Concurrently with the execution of this
Agreement, the Company shall pay to Executive a relocation allowance of $50,000.
Such payment shall be made without deduction or withholding for taxes, and
Executive agrees that it shall be the responsibility of Executive to provide
appropriate supporting documentation to the applicable taxing authorities
regarding the use of such funds, and to pay any taxes which may in the future be
deemed due and payable by Executive with respect to such relocation allowance.
(g) Fringe Benefits. In addition to the compensation set forth
above, Executive shall be entitled to the following benefits:
i) Annual accrued vacation in accordance with the
prevailing policies of the Company, but not less than three (3) weeks per year;
ii) Sick leave and personal leave with pay in accordance
with the prevailing policies of the Company;
iii) Health and medical benefit insurance for Executive as
granted by the Company to employees performing similar services, but in no event
coverage less extensive than that afforded to Executive by the Company
immediately prior to the date of this Agreement;
iv) Whole life insurance policy on life of Executive with
a death benefit of $500,000, with the benefits of such insurance payable to the
beneficiary or beneficiaries whom Executive shall designate;
v) At all times during the term hereof, the Company, at
its expense, shall furnish to Executive a fully equipped automobile of make and
model to be agreed upon by Executive and the Company, for Executive's use in the
performance of his duties hereunder. The Company shall pay the cost of
maintenance, operation, upkeep and repair of said automobile including license
fees and insurance premiums;
vi) The benefits provided by any retirement or pension
plan maintained by the Company for the general benefit of its employees, subject
to the reservation by the Company contained in any such plan of the right to
amend any such plan from time to time without prejudice to any vested benefits;
and
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vii) Any other benefits not specifically set forth herein
as may be granted by the Company, in its sole and absolute discretion.
5. TERMINATION.
(a) Initial Term and Automatic Extensions. Except as provided in
subsection (b) below, this Agreement shall terminate three (3) years from the
date of this Agreement (the "Initial Term"); provided, however, that in the
event that neither Executive nor the Company (acting through its Board of
Directors) has given the other party written notice at least 180 days prior to
the expiration of the Initial Term of such party's desire not to extend this
Agreement then, upon the expiration of the Initial Term (and provided that this
Agreement has not otherwise been terminated pursuant to the provisions of
subsection (b) below) this Agreement shall automatically be extended for a
period of one (1) year. This Agreement shall continue thereafter to be
automatically extended for successive one (1) year periods unless and until (i)
Executive or the Company gives the other party written notice at least 180 days
prior to the expiration of any one (1) year extension period of such party's
desire not to further extend this Agreement, or (ii) this Agreement is otherwise
terminated pursuant to the provisions of subsection (b) below.
(b) Other Termination Events. This Agreement shall terminate:
i) At the option of the Company, upon the death or
permanent disability of Executive, "permanent disability" being defined as the
inability of Executive to perform his duties as required hereunder as a result
of physical or mental illness for a continuous period in excess of ninety (90)
days.
ii) At the election of the Company, immediately upon the
material breach by Executive of any term or condition of this Agreement or upon
the dismissal of Executive by the Company for cause. For purposes of this
Agreement, the Company shall have "cause" to terminate Executive's employment if
he (1) engages in one or more acts constituting a felony; (2) engages in one or
more acts involving fraud or serious moral turpitude; (3) misappropriates
Company assets or (4) materially breaches the Trade Secrets and Confidentiality
Agreement by and between the Executive and the Company dated concurrently
herewith.
iii) Upon 90 days written notice by the Company to
Executive, for any other reason whatsoever, whether arbitrary or not.
(c) Return of Company's Property. If this Agreement is terminated
for any of the foregoing reasons, the Company may, at its option, require
Executive to vacate his offices prior to the effective date of a termination and
to cease all activities on the Company's behalf. Executive agrees that on the
termination of his employment in any manner, he will immediately deliver to the
Company all notebooks, brochures, documents, memoranda, reports, price lists,
files, invoices, purchase orders, books, correspondence, customer lists, or
other written or graphical records, and the like, relating to the business or
work of the Company, which are or have been in his possession or under his
control and which have not been returned to the
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Company, except those owned by Executive prior to and as of the date of his
actual commencement of employment with the Company. Executive hereby expressly
acknowledges that all such materials referenced above are the property of the
Company.
(d) Public Identification. If this Agreement is terminated
pursuant to any provision of this Section 5, Executive shall immediately and
forever thereafter cease to hold himself out to any person, firm, partnership,
corporation or other entity as an employee, agent, independent contractor or
representative of the Company or of any entity owned by, or affiliated with, the
Company.
(e) Payment of Accrued Compensation.
i) If this Agreement is terminated pursuant to this
Section 5(a)(i) or 5(a)(ii), any accrued but unpaid compensation due under
Section 4 hereof as of the effective date of termination shall be prorated, if
necessary, through the effective date of termination and the amount so
determined to be due and payable hereunder shall be paid within thirty (30) days
after said date of termination to Executive or his estate, as applicable. The
Company shall have no further obligation under this Agreement to make any
payments to, or bestow any benefits upon, Executive after the effective date of
termination (i.e. immediately upon notice of termination following the
occurrence of any events described in Sections 5(a)(i) and 5(a)(ii)).
ii) If this Agreement is terminated pursuant to Section
5(a)(iii), the Company shall continue to pay Executive compensation pursuant to
Section 4 for the greater of (i) the remainder of the Initial Term, or (ii) an
additional 24 month period. The Company may, at its option, discharge such
obligation through a cash severance payment of the total obligation due.
iii) In the event that a termination of this Agreement
pursuant to Section 5(a)(iii) constitutes a "Trigger Event" pursuant to
Executive's Supplemental Executive Compensation Agreement and, as a result,
Executive becomes entitled to the payments described in Section 2 of the
Supplemental Executive Compensation Agreement, then Executive shall have the
right to receive, upon termination, the greater of the payments described in
Subsection (ii) above or in the Supplemental Executive Compensation Agreement,
but not both. Executive acknowledges and agrees that under no circumstances will
he be entitled to receive payments pursuant to both Subsection (ii) above and
Section 2 of the Supplemental Executive Compensation Agreement.
6. EXPENSES. The Company shall reimburse Executive for all out-of-pocket
expenses incurred by Executive in the performance of his duties hereunder,
including, but not limited to, telephone, travel, secretarial, office and
entertainment expenses, subject to such written guidelines and/or requirements
for verification as the Company may, in its sole and absolute discretion,
establish. Such expenses shall be accounted for by Executive and reimbursed by
the Company on a monthly basis. The Company shall provide Executive with such
office and
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secretarial facilities at the Company's principal place of business as Executive
may reasonably request.
7. LITIGATION AND ATTORNEYS FEES. In the event of any litigation between
the parties hereto in connection with this Agreement or to enforce any provision
or right hereunder, the unsuccessful party to such litigation shall pay to the
successful party therein all costs and expenses, including but not limited to
reasonable attorneys' fees incurred therein by such successful party, which
costs, expenses and attorneys' fees shall be included as a part of any judgment
rendered in such action in addition to any other relief to which the successful
party may be entitled.
8. INDEMNIFICATION. The Company agrees to indemnify Executive, to the
fullest extent permissible under the Company's charter documents and/or
applicable law, against any expenses or charges incurred by Executive as a
result of any legal proceedings to which Executive is or is threatened to be
made a party in his capacity as an agent of the Company.
9. LEGAL REPRESENTATION. The Executive confirms that he has not been
represented by Xxxxxx & Xxxxxxx in connection with the negotiation and execution
of this Agreement and that he has been advised to seek the advice of independent
counsel.
10. GENERAL PROVISIONS.
(a) The failure of the Company at any time to enforce performance
by Executive of any provisions of this Agreement shall in no way affect the
Company's rights thereafter to enforce the same, nor shall the waiver by the
Company of any breach of any provision hereof be held to be a waiver of any
other breach of the same or any other provision.
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and the successors and assigns of the Company; provided,
however, it is understood and agreed that the services to be rendered and the
duties to be performed by Executive hereunder are of a special, unique and
personal nature and that it would be difficult or impossible to replace such
services; by reason thereof, Executive may not assign either the benefits or the
obligations of this Agreement; and provided, further, that any assignment by the
Company shall not release the Company from its obligations hereunder without the
consent of Executive.
(c) Executive shall be considered an employee of the Company
within the meaning of all federal, state and local laws and regulations
governing unemployment insurance, workers' compensation, industrial accident,
labor and taxes.
(d) This Agreement is the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior oral
and written agreements and negotiations between the parties.
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(e) The headings of the several paragraphs in this Agreement are
inserted solely for the convenience of the parties and are not a part of and are
not intended to govern, limit or aid in the construction of any term or
provision hereof.
(f) This Agreement may not be modified except by a written
instrument signed by all parties hereto.
(g) All clauses and covenants contained in this Agreement are
severable, and in the event any of them shall be held to be invalid by any
court, such clauses or covenants shall be limited as permitted under applicable
law, or, if the same are not susceptible to such limitation, this Agreement
shall be interpreted as if such invalid clauses or covenants were not contained
herein. Without limitation of the foregoing, if, in any judicial proceedings, a
court shall refuse to enforce the geographic and/or time restrictions imposed in
any covenant herein to their fullest extent, then the geographic and/or time
restrictions set forth herein shall be reduced to the extent necessary to permit
enforcement of the foregoing covenant to the fullest extent possible.
(h) This Agreement is made with reference to the laws of the
State of New York and shall be governed by and construed in accordance
therewith. Any litigation concerning or to enforce the provisions of this
Agreement shall be brought in any court of applicable jurisdiction within the
State of New York.
(i) All notices or demands of any kind which either party hereto
may be required or may desire to serve upon the other party under the terms of
this Agreement, shall be in writing and shall be served upon such other party by
personal service upon such other party or by leaving a copy of said notice or
demand, addressed to such other party at the address hereafter set forth,
whereupon such service shall be deemed complete, or by mailing a copy thereof by
registered or express mail, postage prepaid with return receipt requested,
addressed as follows:
If to the Company: Decora Industries, Inc.
0 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
With a copy to: Xxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
If to Executive: Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxxx Xx., #0000
Xxxxxxx, XX 00000
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In case of service by mail, service shall be deemed completed at the
expiration of the third day after the date of mailing. The addresses to which
notices and demands shall be delivered or sent may be changed from time to time
by written notice served as hereinabove provided by either party upon the other
party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EXECUTIVE:
/s/ XXXXXX X. XXXXXX
-----------------------------------------
XXXXXX X. XXXXXX
THE COMPANY:
DECORA INDUSTRIES, INC.
By:
--------------------------------------
Its:
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If to Executive: Xx. Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xx., #0000
Xxxxxxx, XX 00000
In case of service by mail, service shall be deemed completed at the
expiration of the third day after the date of mailing. The addresses to which
notices and demands shall be delivered or sent may be changed from time to time
by written notice served as hereinabove provided by either party upon the other
party hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first hereinabove written.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
DECORA INDUSTRIES, INC.
By: /s/ [Signature Illegible]
---------------------------------
Its: CEO & CH
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