EXHIBIT 10.38
EMPLOYMENT AGREEMENT
AGREEMENT, made as of this 9th day of March, 2001, by and between KEY
COMPONENTS, INC., a New York corporation (the "Company"), having its executive
offices and principal place of business in Tarrytown, New York, and XXXXXX
XXXXXXXX the undersigned individual ("Executive").
In consideration of the mutual covenants and agreements hereinafter set
forth, the Company and Executive agree as follows:
1. Employment. The Company hereby agrees to employ Executive in the
position of Senior Vice President - Operations, subject to the terms and
conditions hereinafter set forth and Executive hereby accepts such employment.
Executive shall have those responsibilities, duties, and authorities consistent
with his status as an executive of the Company. Executive shall report to the
President of the Company, and shall serve in such other executive capacities
with the Company or its affiliates, without additional compensation, as may be
assigned by the President from time to time. During the Employment Term (as
defined herein), Executive shall faithfully, honestly, and diligently serve the
Company, shall use his best efforts to promote the interests of the Company, and
shall devote all of his business time, attention, skill, and efforts to the
performance of his duties hereunder.
2. Employment Term. Executive's employment with the Company shall be
for a term commencing on March 19, 2001 and ending on March 19, 2006 (the
"Employment Term"), unless sooner terminated pursuant to the provisions hereof.
Without regard to anything else in this Agreement, the provisions of Sections 5,
6, and 7 shall survive and remain in effect notwithstanding the termination of
the Employment Term or a breach or repudiation or alleged breach or repudiation
by either party to this Agreement of any one or more of its terms.
3. Compensation and Benefits.
(a) Base Salary. The base salary ("Base Salary") of Executive
for employment hereunder shall be $212,500 per calendar year in accordance with
the Company's normal payroll practices. In addition, in the sole discretion of
the Company, Executive shall be eligible for a merit increase in the Base Salary
after one year of employment hereunder. In addition, the Base Salary shall be
pro rated in respect of any partial year during the Employment Term.
(b) Incentive Compensation. During the Employment Term,
Executive shall be eligible to receive a fiscal year-end discretionary
performance bonus. If granted, such bonus shall be paid within thirty (30) days
after the annual audited financial statements of the Company are delivered to
the Company by the Company's accountants. One-half of such bonus shall be based
on Executive's achievement of yearly individual performance goals and one-half
shall be based on the Company's achievement of yearly Company performance goals
in each case to be jointly established by the Company and Executive. For the
first year only and provided Executive is employed by the Company upon payment,
Executive shall be entitled to a minimum guaranteed bonus of $44,250.
(c) Vacation. Executive will be entitled to receive up to a
total of 20 days of paid vacation per calender year, which shall accrue monthly
on a ratable basis; provided, however, that Executive shall not be entitled to
carry forward unused vacation days from year to year or to be compensated for
any unused vacation days upon termination of this Agreement.
(d) Benefits. During the Employment Term, the Company shall
allow Executive to participate in, to the extent Executive is eligible, the
benefit plans and programs, including medical plans, generally provided to
employees of the same level and responsibility as Executive. Nothing in this
Agreement shall preclude the Company from terminating or amending from time to
time any employee benefit plan or program. If necessary, the Company will
reimburse Executive for the cost of maintaining his prior medical coverage until
he becomes eligible under the Company's current plan.
(e) Travel and Business Expenses. Upon submission of itemized
expense statements in the manner specified by the Company, Executive shall be
entitled to reimbursement for reasonable travel and other reasonable business
expenses duly incurred by Executive in the performance of Executive's duties
under this Agreement in accordance with the policies and procedures established
by the Company from time to time for employees of the same level and
responsibility as Executive.
(f) No Other Compensation or Benefits; Payment. The
compensation and benefits specified in this Section 3 shall be in lieu of any
and all other compensation and benefits. Payment of all compensation and
benefits to Executive hereunder shall be made in accordance with the relevant
Company policies in effect from time to time, including normal payroll
practices, and shall be subject to all applicable employment and withholding
taxes.
(g) Stock Options. Concurrently herewith Executive shall enter
into an Option Agreement with the Company, in the form of Exhibit A attached
hereto (the "Option Agreement") pursuant to which the Company shall grant to
Executive options (the "Options") to purchase 5,000 shares of the Company's $.01
par value common stock at a specified exercise price, subject to adjustments as
provided therein. Except as otherwise provided in this Agreement, the Options
shall only vest and become exercisable as provided in the Option Agreement. Upon
exercise of the Option Agreement, the Executive shall enter into a Shareholder's
Agreement setting forth the rights and obligations of Executive and the Company,
a copy of which is attached as Exhibit B, as amended up to the date of execution
thereof (the "Shareholder Agreement").
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(h) Relocation Expenses. The Company will reimburse Executive
for reasonable out-of-pocket moving expenses (such expenses to exclude mortgage
and mortgage related expenses) up to a maximum of $50,000 (the "Moving
Expenses"); provided Executive obtains advance approval for any expenditures in
excess of $1,000. In addition, the Company will reimburse Executive for up to
$15,000 in losses from the sale of his current house (the "House Loss
Reimbursement"). The Company may require reasonable evidence of all Moving
Expenses and House Loss Reimbursement. In addition, in the event the aggregate
of Moving Expenses and House Loss Reimbursement is less than $50,000, Executive
shall be paid 50% of the difference between the actual amounts spent and
$50,000. In the event Executive voluntarily terminates his employment with the
Company within 12 months of the commencement of his employment, Executive agrees
to promptly reimburse the Company for any payments made to him under this
Section 3(h).
(i) Cessation of Employment. In the event Executive shall
cease to be employed by the Company for any reason, then Executive's
compensation and benefits shall cease on the date of such event, except as
otherwise provided herein or in any applicable employee benefit plan or program.
4. Termination. Executive's employment with the Company and the
Employment Term shall terminate prior to March 19, 2006 upon occurrence of the
first of the following events:
(a) On the date of Executive's death, retirement, or voluntary
termination;
(b) Upon written notice by the Company to Executive of a
termination for Disability. For purposes of this Agreement, "Disability" shall
mean Executive's failure to perform the material duties of his position by
reason of mental or physical illness or incapacity for either (i) ninety (90)
days within any six-month period, or (ii) sixty (60) consecutive days, and
within thirty (30) days after written notice of termination is given shall not
have returned to the performance of Executive's duties hereunder on a full-time
basis; or
(c) Upon written notice by the Company to Executive of a
termination with or without Cause on the date indicated in such notice. For
purposes of this Agreement, "Cause" shall mean: (i) Executive's conviction of,
or indictment for or pleading nolo contendere to, a felony or a crime involving
moral turpitude; (ii) Executive's willful misconduct or gross negligence with
regard to the Company or its affiliates or their business, assets or employees
(including but not limited to Executive's fraud, embezzlement, or other act of
dishonesty with regard to the Company (excluding good faith expense account
disputes)); (iii) Executive's refusal promptly to follow any lawful direction of
the Board or more senior officer or Executive's failure to attempt to perform
his duties hereunder; (iv) Executive's breach of any fiduciary duty owed to the
Company or its affiliates or breach of the provisions of Sections 6 and 7
hereof; (v) use of alcohol or other chemical substance in a manner adversely
affecting Executive's ability to perform his duties hereunder; or (vi) any other
breach by Executive of this Agreement that remains uncured for ten (10) days
after written notice thereof is given to Executive.
5. Consequences of Termination of Employment. (a) Upon the termination
of Executive's employment and the Employment Term, the Company shall pay and
provide Executive (or, if applicable, his surviving spouse or, if none, his
estate) the following amounts and benefits: (i) any unpaid Base Salary; (ii)
reimbursement for any expenses incurred in connection with the business of the
Company prior to his date of termination to which he would be otherwise
entitled; and (iii) any benefits, fringes, or payments, if any, due under any
benefit, fringe benefit, or incentive plan or arrangement in accordance with the
terms of said plan or arrangement due for the period prior to such termination
(the payments referred to in Section 5(a)(i),(ii) and (iii) hereof are
collectively referred to herein as the "Accrued Benefits").
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(b) If Executive's employment is terminated by the Company
without Cause (and other than for Disability), in addition to the Accrued
Benefits, the Company shall, subject to Executive's execution of a general
release of all claims and rights that Executive may have against the Company and
its related entities and their respective officers, directors, and employees,
including but not limited to all claims and rights relating to Executive's
employment and/or termination, in a form acceptable to the Company, continue to
pay Executive (or, if applicable, his surviving spouse or, if none, his estate)
his then current Base Salary for a period of twelve (12) months (the
"Severance"), provided that the Severance payments shall be offset by any
amounts earned by Executive through other employment, consulting position, or
unemployment benefits. The Severance is expressly understood and agreed not to
be salary or payroll compensation to an employee, but rather, severance to a
former employee. Executive shall have no obligation to mitigate with regard to
the Severance; but Executive shall notify the Company in writing of any
unemployment benefits or employment or consulting activities he is engaged in,
keep the Company informed of whether it is on a full or part-time basis, and
provide the Company with such other details as it shall reasonably request.
Notwithstanding anything herein to the contrary, the Severance payments shall
immediately terminate if Executive breaches any of the provisions of Sections 6
or 7 of this Agreement.
6. Exclusive Employment; Noncompetition.
(a) No Conflict: No Other Employment. During the period of
Executive's employment with the Company, Executive shall not: (i) engage in any
activity which conflicts or interferes with or derogates from the performance of
Executive's duties hereunder, nor shall Executive engage in any other business
activity, whether or not such business activity is pursued for gain or profit,
except as approved in advance in writing by the Company; or (ii) accept any
other full-time or substantially full-time employment, whether as an executive
or consultant or in any other capacity, and whether or not compensated therefor.
(b) No Competition. Without limiting the generality of the
provisions of Sections 6 or 7, during the period of Executive's employment with
the Company, any Severance Period (as defined below), and for a period of two
years thereafter (the "Restricted Period"), Executive shall not, directly or
indirectly, own, manage, operate, join, control, participate in, invest in, or
otherwise be connected or associated with, in any manner, including as an
officer, director, employee, partner, stockholder, joint venturer, lender,
consultant, advisor, agent, proprietor, trustee or investor, any Competing
Business located in the United States or in any other location where the Company
operates or sells its products or services; provided, however, that, if
Executive's employment hereunder is terminated by the Company under Section
5(b), then the provisions of this Section 6(b) shall remain in effect only so
long as the Company continues to pay to Executive amounts as severance pursuant
to Section 5(b).
(i) As used in this Agreement, the term "Competing
Business" shall mean any business or venture which engages in any business area
or sells or provides products or services that compete or overlap with any
business area in which the Company engages or contemplates engaging in, or the
products or services as sold or provided, or as contemplated to be sold or
provided, by the Company.
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(ii) For purposes of this Section 6, the term
"invest" shall not preclude an investment in not more than one percent (1%) of
the outstanding capital stock of a corporation whose capital stock is listed on
a national securities exchange or included in the NASDAQ Stock Market, so long
as Executive does not have the power to control or direct the management of, or
is not otherwise associated with, such corporation.
(c) No Solicitation of Employment. Executive shall not at any
time solicit or encourage any employee of the Company to leave the employ, or
cease his or her relationship with, the Company for any reason, nor employ such
an employee in a Competing Business or any other business.
(d) Company Customers. Executive shall not at any time,
directly or indirectly, contact, solicit or do business with any "customers" (as
defined below) of the Company for the purpose of selling or providing any
product or service then sold or provided by the Company to such customers or
proposed to be sold or provided to such customers during Executive's employment
by the Company or at the time of termination of Executive's employment
hereunder.
For the purposes of the provisions of this Section 6,
"customer" shall include any entity that purchased any product or service from
the Company during the Employment Term. The term "customer" also includes any
former customer or potential customer of the Company which the Company has
solicited during the Employment Term, for the purpose of selling or providing
any product or service then sold or provided, or then contemplated to be sold or
provided, by the Company.
(e) Modification of Covenants. The restrictions against
competition set forth in this Section 6 are considered by the parties to be
reasonable for the purposes of protecting the business of the Company. However,
if any such restriction is found by any court of competent jurisdiction to be
unenforceable because it exceeds for too long a period of time or over too great
a range of activities or in too broad a geographic area, it shall be interpreted
to extend only over the maximum period of time, range of activities, or
geographic area as to which it may be enforceable.
7. Confidential Information.
(a) Existence of Confidential Information. The Company owns
and has developed and compiled, and will develop and compile, certain
proprietary technology, know-how and confidential information which have great
value to its business (referred to in this Agreement, collectively, as
"Confidential Information"). Confidential Information includes not only
information disclosed by the Company to Executive, but also information
developed or learned by Executive during the course or as a result of employment
with the Company, which information shall be the property of the Company.
Confidential Information includes all information that has or could have
commercial value or other utility in the business in which the Company is
engaged or contemplates engaging, and all information of which the unauthorized
disclosure could be detrimental to the interests of the Company, whether or not
such information is specifically labeled as Confidential Information by the
Company. By way of example and without limitation, Confidential Information
includes any and all information developed, obtained, licensed by or to, or
owned by the Company concerning trade secrets, techniques, know-how (including
research data, designs, plans, procedures, merchandising, marketing,
distribution, and warehousing know-how, processes, and research records),
software, computer programs, and any other intellectual property created, used
or sold (through a license or otherwise) by the Company, product know-how and
processes, innovations, discoveries, improvements, research, development, test
results, reports, specifications, data, formats, marketing data and plans,
business plans, strategies, forecasts, unpublished financial information,
orders, agreements, and other forms of documents, price and cost information,
merchandising opportunities, expansion plans, budgets, projections, customer,
supplier, licensee, licensor and subcontractor identities, characteristics,
agreements and operating procedures, and salary, staffing, and employment
information.
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(b) Protection of Confidential Information. Executive
acknowledges and agrees that in the performance of duties hereunder Executive
will develop and acquire, and the Company will disclose to and entrust Executive
with, Confidential Information which is the exclusive property of the Company
and which Executive may possess or use only in the performance of duties for the
Company. Executive also acknowledges that Executive is aware that the
unauthorized disclosure of Confidential Information, among other things, may be
prejudicial to the Company's interests, an invasion of privacy, and an improper
disclosure of trade secrets. Executive shall not, directly or indirectly, use,
make available, sell, disclose, or otherwise communicate to any corporation,
partnership, individual, or other third party, other than in the course of
Executive's assigned duties and for the benefit of the Company, any Confidential
Information, either during the Employment Term or thereafter. In the event
Executive desires to publish the results of Executive's work for or experiences
with the Company through literature, interviews, or speeches, Executive will
submit requests for such interviews or such literature or speeches to the
Company's Board at least fourteen (14) days before any anticipated dissemination
of such information for a determination of whether such disclosure is in the
best interests of the Company, including whether such disclosure may impair
trade secret status or constitute an invasion of privacy. Executive agrees not
to publish, disclose or otherwise disseminate such information without the prior
written approval of the Company's Board.
(c) Delivery of Records, Etc. In the event Executive's
employment with the Company ceases for any reason, Executive will not remove
from the Company's premises without its prior written consent any records,
notes, notebooks, files, drawings, documents, equipment, materials, and writings
received from, created for or belonging to the Company, including those which
relate to or contain Confidential Information, or any copies thereof. Upon
request or when employment with the Company terminates, Executive will
immediately deliver to the Company any of the same still in his custody or
control.
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8. Assignment and Transfer
(a) Company. This Agreement shall inure to the benefit of and
be enforceable by, and may be assigned by the Company to: (i) any purchaser of
all or substantially all of the Company's business or assets; (ii) any successor
to the Company; and/or (iii) any assignee of the Company (whether direct or
indirect, by purchase, merger, consolidation, or otherwise). The Company will
require any such purchaser, successor, or assignee expressly to assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such purchase, succession, or
assignment had taken place.
(b) Executive. Executive's rights and obligations under this
Agreement shall not be transferable by Executive by assignment or otherwise, and
any purported assignment, transfer, or delegation thereof shall be void;
provided, however, that if Executive shall die, all amounts then payable to
Executive hereunder shall be paid in accordance with the terms of this Agreement
to Executive's devisee, legatee, or other designee or, if there be no such
designee, to Executive's estate.
9. Miscellaneous
(a) Other Obligations. Executive represents and warrants that
he is not a party to any other employment agreement and that neither Executive's
employment with the Company nor Executive's performance of Executive's
obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other agreements to which Executive is or has been a party
or with any other obligations, legal or otherwise, which Executive may have.
(b) Nondisclosure: Other Employers. Executive will not
disclose to the Company, or use, or induce the Company to use, any proprietary
information, trade secrets, or confidential business information of others.
Executive represents and warrants that Executive has returned all property,
proprietary information, trade secrets, and confidential business information
belonging to all prior employers.
(c) Cooperation. Following termination of employment with the
Company, Executive shall cooperate with the Company, as requested by the
Company, to affect a transition of Executive's responsibilities and to ensure
that the Company is aware of all matters being handled by Executive.
(d) Protection of Reputation. During the Employment Term and
thereafter Executive agrees that he will take no action which is intended, or
could reasonably be expected, to harm the Company or its reputation or which
could reasonably be expected to lead to unwanted or unfavorable publicity to the
Company.
(e) Governing Law. This Agreement, including the validity,
interpretation, construction and performance of this Agreement, shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in such state without regard
to such state's conflicts of law principles. All actions and proceedings
relating directly or indirectly to this Agreement shall be litigated in any
state court or federal court located in New York, New York. The parties hereto
expressly consent to the jurisdiction of any such court and to venue therein and
consent to the services of process in any such action or proceeding by certified
or registered mailing of the summons and complaint therein directed to Executive
at the address as provided in Section 9(m) hereof and to the Company's
designated agent for service of process (which initially shall be which agent
may be changed by the Company upon thirty (30) days' prior written notice to
Executive). Each party hereby waives trial by jury in connection with the trial
of any action or dispute in connection with this Agreement or any matter
involving Executive's employment or termination thereof.
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(f) Entire Agreement. This Agreement contains the entire
agreement and understanding between the parties hereto in respect of the subject
matter hereof and supersedes, cancels and annuls any prior or contemporaneous
written or oral agreements, understandings, commitments, and practices between
them respecting the subject matter hereof, including all prior employment
agreements, if any, between the Company and Executive, which agreement(s) hereby
are terminated and shall be of no further force or effect.
(g) Amendment. This Agreement may be amended only by a writing
which makes express reference to this Agreement as the subject of such amendment
and which is signed by Executive and, on behalf of the Company, by its duly
authorized officer.
(h) Severability. If any term, provision, covenant or
condition of this Agreement or part thereof, or the application thereof to any
person, place or circumstance, shall be held to be invalid, unenforceable or
void, the remainder of this Agreement and such term, provision, covenant, or
condition shall remain in full force and effect, and any such invalid,
unenforceable or void term, provision, covenant or condition shall be deemed,
without further action on the part of the parties hereto, modified, amended and
limited to the extent necessary to render the same and the remainder of this
Agreement valid, enforceable and lawful. In this regard, Executive acknowledges
that the provisions of Sections 6 and 7 are reasonable and necessary for the
protection of the Company.
(i) Construction. The headings and captions of this Agreement
are provided for convenience only and are intended to have no effect in
construing or interpreting this Agreement. The language in all parts of this
Agreement shall be in all cases construed according to its fair meaning and not
strictly for or against the Company or Executive. The use herein of the word
"including," when following any general provision, sentence, clause, statement,
term or matter, shall be deemed to mean "including but not limited to." As used
herein, "Company" shall mean the Company and its subsidiaries and any purchaser
of, successor to or assignee (whether direct or indirect, by purchase, merger,
consolidation or otherwise) of all or substantially all of the Company's
business or assets which is obligated to perform this Agreement by operation of
law, agreement pursuant to Section 8 hereof, or otherwise. As used herein, the
words "day" or "days" shall mean a calendar day or days. Should any provision of
this Agreement require interpretation or construction, Executive and the Company
agree that the presumption providing that a document or agreement is to be
interpreted or construed more strictly against the party who or which prepared
such document or agreement shall not apply, it being agreed that both Executive
and the Company have availed themselves of the opportunity to participate in the
preparation of all provisions of this Agreement
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(j) Knowing and Voluntary. Executive acknowledges that he has
carefully read this Agreement in its entirety, understands its terms, was
advised to consult and has had an opportunity to consult with independent legal
counsel about this Agreement, and is signing it knowingly and voluntarily.
(k) Nonwaiver. No failure or delay by either party in
exercising any right, option, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof, or the exercise of any other right, option,
power or privilege. Neither any course of dealing nor any failure, delay, or
neglect of either party hereto in any instance to exercise any right, option,
power, or privilege hereunder or under law shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or further
exercise thereof, or the exercise of any other right, option, power, or
privilege. All waivers by either party hereto must be contained in a written
instrument signed by the party to be charged and, in the case of the Company, by
its duly authorized officer.
(l) Remedies for Breach. The parties hereto agree that
Executive is obligated under this Agreement to render personal services during
the Employment Term of a special, unique, unusual, extraordinary, and
intellectual character, thereby giving this Agreement peculiar value, and, in
the event of a breach or threatened breach of any covenant of Executive herein,
the injury or imminent injury to the value and the goodwill of the Company's
business could not be reasonably or adequately compensated in damages in an
action at law. Accordingly, Executive expressly acknowledges that the Company
shall be entitled to specific performance, injunctive relief or any other
equitable remedy against Executive, without the posting of a bond, in the event
of any breach or threatened breach of any provision of this Agreement by
Executive (including but not limited to Sections 6 and 7 hereof). Without
limiting the generality of the foregoing, if Executive breaches Sections 6 or 7
hereof, such breach will entitle the Company to enjoin Executive from disclosing
any Confidential Information to any Competing Business, to enjoin such Competing
Business from receiving Executive or using any such Confidential Information
and/or to enjoin Executive from rendering personal services to or in connection
with such Competing Business. The rights and remedies of the parties hereto are
cumulative and shall not be exclusive, and each such party shall be entitled to
pursue all legal and equitable rights and remedies and to secure performance of
the obligations and duties of the other under this Agreement, and the
enforcement of one or more of such rights and remedies by a party shall in no
way preclude such party from pursuing, at the same time or subsequently, any and
all other rights and remedies available to it.
(m) Notices. Any notice, request, consent, or approval
required or permitted to be given under this Agreement or pursuant to law shall
be sufficient if in writing, and if and when sent by certified or registered
mail, return receipt requested, to Executive's residence (as reflected in the
Company's records or as otherwise designated by Executive on thirty (30) days'
prior written notice to the Company) or to Executive at the Company's principal
executive office (with copies to the General Counsel), as the case may be. All
such notices, requests, consents, and approvals shall be effective upon being
deposited in the United States mail. However, the time period in which a
response thereto must be given shall commence to run from the date of receipt on
the return receipt of the notice, request, consent, or approval by the addressee
thereof. Rejection or other refusal to accept, or the inability to deliver
because of changed address of which no notice was given as provided herein,
shall be deemed to be receipt of the notice, request, consent, or approval sent.
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(n) Assistance in Proceedings, Etc. Executive shall, without
additional compensation, during and after expiration of the Employment Term,
upon reasonable notice, furnish such information and proper assistance to the
Company as may reasonably be required by the Company in connection with any
legal or quasi-legal proceeding, including any external or internal
investigation, involving the Company or any of its affiliates or in which any of
them is, or may become, a party.
(o) Survival. Cessation or termination of Executive's
employment with the Company shall not result in termination of this Agreement.
The respective obligations of Executive and rights and benefits afforded to the
Company as provided in this Agreement shall survive cessation or termination of
Executive's employment hereunder. This Agreement shall not terminate upon, and
shall remain in full force and effect following, expiration of the Employment
Term and all rights and obligations of the parties hereto as and to the extent
provided herein shall survive such expiration.
(p) Indemnification. The Company shall enter into an
Indemnification Agreement with Executive in such form as the Company's
executives have previously entered into, which is in the form attached hereto as
Exhibit C.
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IN WITNESS WHEREOF, the parties have duly executed this
Agreement, all as of the date and year first written above.
/s/ Xxxxxx X. Xxxxxxxx
XXXXXX X. XXXXXXXX
KEY COMPONENTS, INC.
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: President
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