EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EXECUTIVE EMPLOYMENT AGREEMENT is entered into and effective as of October 28,
2009 (“Effective Date”), by and between LAPOLLA INDUSTRIES, INC., a Delaware
Corporation (“Company”) and XXXX X. XXXXX (“Executive”).
W I T N E
S S E T H:
WHEREAS,
Company desires to employ Executive in an executive capacity;
WHEREAS,
Executive desires to accept such employment with Company; and
NOW
THEREFORE, the parties hereto, in consideration of the premises and mutual
promises contained herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, agree as
follows:
1.
EMPLOYMENT
TERM. Company hereby agrees to employ the Executive, and the
Executive hereby accepts such employment for a period beginning on the Effective
Date and ending December 31, 2011, unless sooner terminated in accordance with
Section 6 hereof (“Employment Period”).
2.
POSITION;
DUTIES. During the Employment Period, Executive shall hold the
title and position of Chief Financial Officer and Corporate Treasurer of the
Company and shall have the duties and responsibilities usually vested in such
capacities, as determined from time to time by the Chief Executive Officer,
Board of Directors and By-laws.
3.
MANNER OF
PERFORMANCE. Executive shall serve the Company with his best
efforts and all his skill and ability in the performance of his duties
hereunder. Executive shall carry out his duties in a competent and
professional manner, to the reasonable satisfaction of the Chief Executive
Officer and Board of Directors, and shall work with other Executives of the
Company and generally promote the best interests of the Company and its
stockholders.
4.
COMPENSATION AND RELATED
MATTERS. Executive’s compensation for his services shall be as
follows:
4.1 Base
Compensation. During the Employment Period, Executive shall
receive an annual base salary ("Annual Base Salary") of $160,000, payable in
accordance with the Company’s normal payroll practices. Executive’s Annual Base
Salary will be reviewed by the Chief Executive Officer on January 1,
2011.
4.2 Bonus. Executive
shall earn a $5,000 bonus for each profitable quarter during the 2010 calendar
year. Company and Executive will mutually determine bonus
consideration for the 2011 calendar year thirty (30) days prior to the end of
the 2010 calendar year. The determination of whether or not the
Company was profitable for a particular quarter during the 2010 calendar year
will be made by the Compensation Committee based on the Company’s financial
results as approved by the Audit Committee. If the Company was not
profitable for a particular quarter, the Bonus for that particular quarter is
not earned and forfeited. For the purposes of this Agreement,
“Profitability” is defined as Net Income (inclusive of any bonus earned
hereunder) before Dividends on Preferred Stock.
4.3 Awards. During
the Employment Period, Executive may be entitled to earn awards under equity or
other plans or programs that the Company may from time to time, in its
discretion, determine to put into effect (“Awards”). The administrator of these
plans or programs shall determine the terms, conditions, performance criteria
and restrictions of the Awards.
4.4 Compensation and Benefit
Programs. During the term of Executive’s employment hereunder, Executive
shall be entitled to participate in the following plans as they may exist from
time to time during the term hereof, to wit, any and all medical, dental,
hospitalization, accidental death and dismemberment, disability, travel and life
insurance plans, and any and all other plans as offered by the Company from time
to time to its Executives, including savings, pension, profit-sharing, stock
options, and deferred compensation plans, subject to the general eligibility and
participation provisions set forth in such plans.
4.5 Vacation Time and Other
Benefits. Executive shall be entitled to three (3) weeks of
vacation without loss of compensation each year during the Employment
Period. Vacation will be taken at such times as Executive and the
Chief Executive Officer shall mutually determine and provided that no vacation
time shall interfere with the duties required to be rendered by Executive
hereunder. Notwithstanding the foregoing, as an officer of Company, Executive is
expected to utilize his vacation time judiciously and so as not to jeopardize
the business of the Company. Unused vacation may not be carried forth to the
next calendar year without prior written consent by the Chief Executive Officer,
except that no written consent is required for carrying over a maximum of seven
(7) days to any subsequent year.
4.6 Expense
Reimbursement. Company shall provide the Executive reasonable
reimbursement of out-of-pocket expenses incurred by him in connection with his
duties hereunder. The Company shall reimburse the Executive for all
such expenses upon presentation by the Executive, from time-to-time, of
appropriately itemized and approved (consistent with Company’s policy) accounts
of such expenditures.
4.7 Withholding
Taxes. Company shall have the right to deduct or withhold from
all payments due to Executive hereunder any and all sums required for any and
all federal, social security, state and local taxes, assessments or charges now
applicable or that may be enacted and become applicable in the
future.
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4.8 Adjustments. If
the outstanding shares of common stock of the Company are increased, decreased
or exchanged for a different number or kind of shares or other securities, or if
additional shares or new or different shares or other securities are distributed
in respect of such shares of common stock (or any stock or securities received
with respect to such common stock), through merger, consolidation, sale or
exchange of all or substantially all of the properties of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split, spin-off or other distribution with respect to such shares
of common stock (or any stock or securities received with respect to such common
stock), then the number of shares of common stock shall be equitably and
appropriately adjusted. Adjustments under this Section 4.9 will be
made by the applicable authority, whose determination as to what adjustments
will be made and the extent thereof will be final, binding and conclusive. No
fractional interests will be issued from any such adjustments. Notice
of any adjustment shall be given by Company to Executive and shall be final and
binding on Executive.
5.
NON-COMPETITION;
NON-DISCLOSURE; AND RELATED MATTERS.
5.1 Non-Competition. During
the Employment Period and for a period of twenty four (24) months after the
termination of Executive’s employment with Company for any reason (collectively
the “Restriction Period”), the Executive shall not, either directly or
indirectly, for himself or any third party, anywhere within or outside the
United States (a) engage in or have any interest in any activity that directly
or indirectly competes with the business of the Company or of any of its
affiliates (which for purposes hereof shall include all subsidiaries or parent
companies of the Company, now or in the future during the Employment Period), as
conducted at any time during the Employment Period, including without
limitation, accepting employment from or providing consulting services to any
such competitor, owning any interest in or being a partner, shareholder or owner
of any such competitor, (b) solicit, induce, recruit, or cause another person in
the employ of the Company or its affiliates or who is a consultant or
independent contractor for the Company or its affiliates to terminate his
employment, engagement or other relationship with the Company or its affiliates,
or (c) solicit or accept business from any individual or entity which shall have
obtained the goods or services of, or purchased goods or services from, the
Company or its affiliates during the two (2) year period immediately prior to
the end of the Employment Period or which otherwise competes with or engages in
a business which is competitive with or similar to the business of the Company
or any of its affiliates, (d) call on, solicit or accept any business from any
of the actual or targeted prospective customers of the Company or its affiliates
(the identity of and information concerning which constitute trade secrets and
Confidential Information of the Company) on behalf of any person or entity in
connection with any business competitive with the business of the Company, nor
shall the Executive make known the names and addresses of such customers or any
information relating in any manner to the Company’s trade or business
relationships with such customers, other than in connection with the performance
of Executive’s duties under this Agreement.
5.2 Non-Disclosure. The
Executive shall not at any time during the term hereof or thereafter divulge,
communicate, or use in any way, any Confidential Information (as hereinafter
defined) pertaining to the business of the Company and any of its subsidiaries
or affiliates. Any Confidential Information or data now or hereafter acquired by
the Executive with respect to the business of the Company (which shall include,
but not be limited to information concerning the Company’s financial condition,
prospects, technology, customers, suppliers, sources of leads and methods of
doing business) shall be deemed a valuable, special and unique asset of the
Company that is received by the Executive in confidence and as a fiduciary, and
Executive shall remain a fiduciary to the Company with respect to all of such
information. For purposes of this Agreement, the term “Confidential Information”
includes, but is not limited to, information disclosed to the Executive or known
by the Executive as a consequence of or through his employment by the Company
(including information conceived, originated, discovered or developed by the
Executive) prior to or after the date hereof, and not generally known, about the
Company or its business. Notwithstanding the foregoing, nothing herein shall be
deemed to restrict the Executive from disclosing Confidential Information to the
extent required by law provided that prior to disclosing any such information
required by law, Executive shall give prior written notice thereof to Company
and provide Company with the opportunity to contest the
disclosure. The Executive shall not disclose, without limitation as
to time, Confidential Information to any person, firm, Company, association or
other entity for any purpose or reason whatsoever, except (i) to authorized
representatives of the Company, (ii) during the Employment Period, such
information may be disclosed by the Executive as is specifically required by
Company in the course of performing his duties for the Company, and (iii) to
counsel and other advisers of Company subject to Company’s prior approval and
provided that such advisers agree to the confidentiality provisions of this
Section 5.2.
5.3 Ownership of
Developments. All copyrights, patents, trade secrets, or other
intellectual property rights of a similar nature associated with any ideas,
concepts, techniques, inventions, processes or works of authorship developed or
created by Executive during the course of performing work for the Company or its
customers (collectively, the “Work Product”) shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
Executive for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered
work made by the Executive for hire for the Company, the Executive agrees to
assign, and automatically assign at the time of creation of the Work Product,
without any requirement of further consideration, any right, title, or interest
the Executive may have in such Work Product. Upon the request of the
Company, the Executive shall take such further actions, including execution and
delivery of instruments of conveyance, as may be appropriate to give full and
proper effect to such assignment. All of the foregoing shall also be
deemed Confidential Information for the purposes of Section 5.2,
above.
5.4 Books and Records.
All books, records, and accounts relating in any manner to the Company (i.e.,
financial information, customer, supplier, vendor identity, etc.), whether
prepared by the Executive or otherwise coming into the Executive’s possession,
shall be the exclusive property of the Company and shall be returned immediately
to the Company on termination of the Executive’s employment hereunder or
otherwise on the Company’s request at any time.
5.5 Definition of
Company. Solely for purposes of this Agreement, the term
“Company” also shall include any existing or future subsidiaries of the Company
that are operating during the time periods described herein and any other
entities that directly or indirectly, through one or more intermediaries,
control, are controlled by or are under common control with the Company during
the periods described herein.
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5.6 Acknowledgment by
Executive. The Executive acknowledges and confirms that (i)
the restrictive covenants contained in this Section 5 are reasonably necessary
to protect the legitimate business interests of the Company, and (ii) the
restrictions contained in this Section 5 (including without limitation the
geographic area and length of the term of the provisions of this Section 5) are
not overbroad, overlong, or unfair and are not the result of overreaching,
duress or coercion of any kind. The Executive acknowledges and confirms that his
special knowledge of the business of the Company is or will be such as would
cause the Company serious injury or loss if he were to use such ability and
knowledge to the benefit of a competitor or were to compete with the Company in
violation of the terms of this Section 5. The Executive further acknowledges
that the restrictions contained in this Section 5 are intended to be, and shall
be, for the benefit of and shall be enforceable by, the Company’s successors and
assigns and shall be enforced to the fullest extent of the law applicable at the
time that Company deems it necessary or advisable to enforce the restrictive
covenants and other provisions of this Section 5.
5.7 Injunctive Relief;
Damages. Because of the difficulty of measuring economic
losses to the Company as a result of a breach of the foregoing covenants in this
Section 5, and because of the immediate and irreparable damage that could be
caused to the Company for which it would have no other adequate remedy, the
Executive agrees that the foregoing covenants may be enforced by the Company in
the event of breach by the Executive, by injunctions and restraining
orders. Nothing herein shall be construed as prohibiting the Company
from pursuing any other available remedy for such breach or threatened breach,
including the recovery of damages.
5.8 Severability; Reformation;
Independent Covenants. The covenants in this Section 5 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. Moreover, in the event any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth are unreasonable, then it is the intention of the parties that such
restrictions be enforced to the fullest extent which the court deems reasonable,
and the Agreement shall thereby be reformed. Each covenant and agreement of
Executive in this Section 5 shall be construed as an agreement independent of
any other provision in this Agreement, and the existence of any claim or cause
of action by the Executive against the Company (including the affiliates
thereof), whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of such covenants or
agreements. It is specifically agreed that the periods of restriction
during which the agreements and covenants of the Executive made in this Section
5 shall be effective, shall be computed by extending such periods by the amount
of time during which the Executive is in violation of any provision of Section
5. The covenants contained in this Section 5 shall not be affected by any breach
of any other provision hereof by any party hereto.
5.9 Survival. The
obligations of the parties under Section 5 shall survive the termination of this
Agreement.
6.
TERMINATION OF THE
AGREEMENT.
6.1 Termination for
Cause. The Company may terminate Executive’s employment under
this Agreement for “Cause,” at any time, for any of the following reasons: (i)
Executive’s commission of any act of fraud, embezzlement or dishonesty, (ii)
Executive’s unauthorized use or disclosure of any confidential information or
trade secrets of the Company, (iii) any intentional misconduct or violation of
the Company’s Code of Business Ethics and Conduct by Executive which has a
materially adverse effect upon the Company’s business or reputation, (iv)
Executive’s continued failure to perform the major duties, functions and
responsibilities of Executive’s position after written notice from the Company
identifying the deficiencies in Executive’s performance and a reasonable cure
period of not less than ten (10) days or (v) a material breach of Executive’s
fiduciary duties as an officer of the Company.
6.2 Effect of Termination for
Cause. In the event of termination of Executive for cause as
set forth in Section 6.1, or a voluntary termination by Executive, Executive
shall have no right to any bonuses, salaries, benefits or entitlements other
than those accrued or required by law or specifically provided under the terms
of the applicable agreement, instrument or plan document. Payment of
any further bonuses or other salaries claimed by Executive will be in the sole
and absolute discretion of the Chief Executive Officer of the Company and
Executive will have no entitlement thereto.
6.3 Disability and
Death. If during the Employment Period Executive should die or
suffer any physical or mental illness that renders him incapable of fulfilling
his obligations under this Agreement, and such incapacity existed for a period
of at least ninety (90) calendar days within a consecutive one hundred and
eighty (180) day period, the Company may, upon five (5) calendar days written
notice to Executive, terminate this Agreement. The determination of the Company
that Executive is incapable of fulfilling his obligations under this Agreement
shall be final and binding in the absence of fraud or manifest
error. In the event of termination under this Section 6.3, Executive,
or his estate, shall be entitled to an amount equal to two (2) months’ Salary
and any other accrued compensation, plus such additional benefits, if any, as
may be approved by the Company’s Board of Directors. Executive, or
his estate, shall, upon termination under the terms of this Section 6.3, be
further entitled to additional compensation, to be calculated on a pro rata
basis according to the number of accrued vacation days, if any, not taken by
Executive during the year defined for the purposes of vacation, in which
Executive was terminated.
6.4 Voluntary Termination by
Executive at the End of the Employment Term. Subject to
Section 6.4 of this Section 6, in the event of voluntary termination by
Executive at the end of the Employment Period, Executive shall be entitled only
to those amounts that have accrued to the date of termination or are expressly
payable under the terms of the Company’s applicable benefit plans or are
required by applicable law.
6.5 Termination by Company
during the Employment Term. In the event of termination by the
Company other than at the end of the Employment Term, other than for Cause under
Section 6.1, Executive shall be entitled to (i) an amount equal to two (2)
months Annual Base Salary paid in equal monthly installments. Said
amount shall be reduced by the amount of earned income to which Executive shall
be entitled for services performed during the severance pay period for any
person or entity other than the Company; (ii) the product of (I) any Awards
described in Section 4.3 which Executive can show that he reasonably would have
received had Executive remained in such Executive capacity with the Company
through the end of the period covered by the Award (“Award Period”), or two (2)
months after the Date of Termination, whichever period is greater, multiplied by
(II) a fraction, the numerator of which is the number of days during the Award
Period up to the Date of Termination occurs through the Date of Termination and
the denominator of which is the total number of days in the Award Period, but
only to the extent not previously vested, exercised and/or paid; provided that
any payments pursuant to this Section 6.5(ii) shall be made within 30 days
following the end of the Award Period; (iii) for two (2) months
following the Date of Termination, Company shall continue to provide medical and
dental benefits only to Executive on the same basis as such benefits are
provided during such period to the senior executive officers of Company;
provided, however, that if Company’s welfare plans do not permit such coverage,
Company will provide Executive the medical benefits (with the same after tax
effect) outside of such plans, (iv) an amount equal to the Transaction Bonus (as
defined in Section 4.4 above) which Executive can show that he reasonably would
have received had Executive remained in such Executive capacity with the Company
two (2) months after the Date of Termination, and (v) to the extent not
theretofore paid or provided, Company shall timely pay or provide to Executive
any other amounts or benefits which Executive is entitled to receive through the
Date of Termination under any plan, program, policy or practice or contract or
agreement, including accrued vacation to the extent unpaid (hereinafter referred
to as the "Other Benefits").
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6.6 Termination Following Change
in Control. If the Company or any successor terminates this
Agreement at any time during the Employment Period following a Change in Control
of the Company: (i) Executive shall be entitled to an amount equal to two (2)
months Annual Base Salary; and (ii) any outstanding Awards (including
substituted shares of the acquiring or surviving Company in the case of a merger
or acquisition) held by Executive or other benefits under any Company plan or
program, which have not vested in accordance with their terms will become fully
vested and exercisable at the time of such termination.
6.7 Release of
Claims. Upon good and valuable consideration, the receipt of
which the Executive and the Company each hereby acknowledge, upon termination of
the Executive’s employment for any reason set forth in Section 6, with the
exception of the reasons for termination provided under Section 6.2 and Section
6.4, the Company and the Executive agree to execute a release of claims,
substantially in the form attached hereto as Exhibit A, with
respect to claims that arise on or prior to the date of the execution of the
release. The Executive’s execution of such release shall be a
condition precedent to the payment of any of the compensation and benefits
referred to in this Section 6.
7.
DEFINITIONS. As
used in this Agreement, the following terms shall have the following
meanings:
7.1 "Change
in Control" means an Ownership Change Event or series of related Ownership
Change Events (collectively, a "Transaction") in which the
stockholders of the Company immediately before the Transaction do not retain
immediately after the Transaction, direct or indirect beneficial ownership of
more than fifty percent (50%) of the total combined voting power of the
outstanding voting securities of the Company or, in the case of an Ownership
Change Event, the entity to which the assets of the Company were
transferred. An "Ownership Change Event"
shall be deemed to have occurred if any of the following occurs with respect to
the Company: (i) the direct or indirect sale or exchange by the
stockholders of the Company of all or substantially all of the voting stock of
the Company; (ii) a merger or consolidation in which the Company is a
party; (iii) the sale, exchange, or transfer of all or substantially all of
the assets of the Company (other than a sale, exchange or transfer to one or
more subsidiaries of the Company); or (iv) a liquidation or dissolution of
the Company. The sole exception to Change in Control and Ownership Change Event
as described above shall be any Change in Control or Ownership Change Event that
may result from the death or incapacity of Xxxxxxx X. Xxxxx wherein his interest
is transferred to his heirs only. In such event for the purposes
hereof, no Change in Control or Ownership Change Event shall be deemed to have
occurred.
7.2 "Disability"
means Executive’s absence from his duties with Company on a full-time basis for
at least 90 days during any consecutive one hundred and eighty (180) day period
as a result of incapacity due to mental or physical illness as determined by a
physician selected by Company and acceptable to Executive. If Company determines
in good faith that Executive’s Disability has occurred during the Employment
Period, it may give Executive written notice in accordance with Section 6.3 of
this Agreement of its intention to terminate Executive’s employment. In such
event, Executive’s employment shall terminate effective on the thirtieth (30th)
day after Executive’s receipt of such notice (the "Disability Effective Date"),
unless, within the thirty (30) days after such receipt, Executive shall have
been cleared by the physician to return to work and has returned to full-time
performance of his duties.
8.
ASSIGNMENT. Executive
shall not have the right to assign or delegate his rights or obligations
hereunder, or any portion thereof, to any other person.
9.
GOVERNING LAW. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware without regard to its conflict of laws principles to the
extent that such principles would require the application of laws other than the
laws of the State of Delaware. Venue for any action brought hereunder shall be
exclusively in Xxxxxx County, Texas and the parties hereto waive any claim that
such forum is inconvenient.
10. PREVAILING
PARTY. In the event that Executive or Company elects to incur
legal expenses to enforce or interpret any provision of this Agreement, the
prevailing party, as determined by a mediator, arbitrator or court of competent
jurisdiction, as applicable, shall be entitled to receive such reasonable legal
expenses including, without limitation, attorney’s fees, costs and necessary
disbursements, in addition to any other relief to which such party shall be
entitled.
11. INDEMNIFICATION. The
Company shall indemnify the Executive against all lawsuits, losses, claims,
expenses or other liabilities of any nature by reason of the fact that he (a) is
or was an officer, director, employee or agent of the Company or any of its
subsidiaries or affiliates, or (b) while he is or was a director, officer,
employee or agent of the Company or any of its subsidiaries or affiliates, or
(c) is or was servicing at the request of the Company as a director, officer,
partner, venture, proprietor, trustee, employee, agent or similar functionary of
another corporation, partnership, joint venture, trust, employee benefit plan or
other entity.
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12. NON-BINDING
MEDIATION. In the event of a dispute under this Agreement,
each party agrees to submit to non-binding mediation prior to the commencement
of any legal or administrative proceeding against each other for any alleged
violation of the Agreement. If the parties are unable to agree upon
an individual to serve as mediator, they shall each select an attorney or other
individual recognized as an approved mediator, and those two individuals
selected shall jointly agree upon the selection of a third individual who shall
alone serve as mediator. If such parties are also unable to agree upon an
individual to serve as mediator, the requirement of each party to submit to
non-binding mediation under this Agreement shall be waived and the provisions
contained under Section 13 shall apply.
13. ARBITRATION. In
the event that the parties are unable to resolve any dispute hereunder in
accordance with the non-binding mediation terms of Section 12, each party agrees
to submit itself to binding statutory arbitration. Such dispute shall be
submitted to arbitration in the city of Houston, County of Xxxxxx, State of
Texas, before a panel of three neutral arbitrators in accordance with the
Commercial Rules of the American Arbitration Association then in effect, and the
arbitration determination resulting from any such submission shall be final and
binding upon the parties hereto. Judgment upon any arbitration award may be
entered in any court of competent jurisdiction.
14. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and, upon its effectiveness, shall
supersede all prior agreements, understandings and arrangements, both oral and
written, between the Executive and the Company with respect to such subject
matter. This Agreement may not be modified in any way unless by
written instrument signed by both the Company and the Executive. No provision of
this Agreement may be modified or waived unless such modification or waiver is
agreed to in writing and signed by Executive and by a duly authorized officer of
the Company. 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. Failure by Executive or the Company to insist upon strict
compliance with any provision of this Agreement or to assert any right Executive
or the Company may have hereunder shall not be deemed to be a waiver of such
provision or right or any other provision or right of this
Agreement.
15. NOTICES. All notices
required or permitted to be given hereunder shall be in writing and shall be
personally delivered by courier, sent by registered or certified mail, return
receipt requested addressed as set forth herein. Notices personally delivered,
sent by facsimile or sent by overnight courier shall be deemed given on the date
of delivery and notices mailed in accordance with the foregoing shall be deemed
given upon the earlier of receipt by the addressee, as evidenced by the return
receipt thereof, or three (3) days after deposit in the U.S. mail. Notice shall
be sent (i) if to Company, addressed to the Chief Executive Officer, c/x Xxxxxxx
Industries, Inc., 00000 Xxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000,
and (ii) if to Executive, to his address as reflected on the payroll records of
the Company, or to such other address as either party hereto may from time to
time give notice of to the other.
16. BENEFITS; BINDING
EFFECT. This Agreement shall be for the benefit of and binding upon the
parties hereto and their respective heirs, personal representatives, legal
representatives, successors and, where applicable, assigns, including, without
limitation, any successor to the Company, whether by merger, consolidation, sale
of stock, sale of assets or otherwise.
17. SEVERABILITY. The
invalidity of any one or more of the words, phrases, sentences, clauses or
sections contained in this Agreement shall not affect the enforceability of the
remaining portions of this Agreement or any part thereof. If any
invalidity is caused by length of time or size of area, or both, the otherwise
invalid provision will be considered to be reduced to a period or area which
would cure such invalidity.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
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LAPOLLA
INDUSTRIES, INC.
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EXECUTIVE
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By:
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/s/ Xxxxxxx X. Xxxxxx,
CEO
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By:
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/s/ Xxxx X.
Xxxxx
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Name:
Xxxxxxx X. Xxxxxx
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Name:
Xxxx X. Xxxxx
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Title:
Chief Executive Officer
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Witness:
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/s/ Xxxxxxx X.
Xxxxx
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Witness:
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/s/ Xxxxxxx X.
Xxxxx
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5
EXHIBIT
A
MUTUAL
RELEASE
(a) Xxxx
X. Xxxxx (the “Releasor”), for and in consideration of benefits provided
pursuant to the Executive Employment Agreement (the “Agreement”), dated as of
October 28, 2009, by and between the Releasor and Lapolla Industries, Inc. (the
“Company”), does for himself and his heirs, executors, administrators,
successors and assigns, hereby now and forever, voluntarily, knowingly and
willingly release and discharge the Company and its parents, subsidiaries and
affiliates (collectively, the “Company Group”), together with their respective
present and former partners, officers, directors, employees and agents, and each
of their predecessors, heirs, executors, administrators, successors and assigns
(but as to any partner, officer, director, employee or agent, only in connection
with, or in relationship to, his or its capacity as a partner, officer,
director, employee or agent of the Company and its subsidiaries or affiliates
and not in connection with, or in relationship to, his or its personal capacity
unrelated to the Company or its subsidiaries or affiliates) (collectively, the
“Company Releasees”) from any and all charges, complaints, claims, promises,
agreements, controversies, causes of action and demands of any nature
whatsoever, known or unknown, suspected or unsuspected, which against the
Company Releasees, jointly or severally, Releasor or Releasor’s heirs,
executors, administrators, successors or assigns ever had or now have by reason
of any matter, cause or thing whatsoever arising from the beginning of time to
the time Releasor executes this release arising out of or relating in any way to
Releasor’s employment relationship with the Company, including but not limited
to, any rights or claims arising under any statute or regulation, including the
Age Discrimination in Employment Act of 1967, Title VII
of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the
Americans with Disabilities Act of 1990, or the Family and Medical Leave Act of
1993, each as amended, or any other federal, state or local law, regulation,
ordinance or common law, or under any policy, agreement, understanding or
promise, written or oral, formal or informal, between any Company Releasee and
Releasor. Releasor shall not seek or be entitled to any recovery, in
any action or proceeding that may be commenced on Releasor’s behalf in any way
arising out of or relating to the matters released under this Release.
Notwithstanding the foregoing, nothing herein shall release any Company Releasee
from any claim or damages based on (i) the Releasor’s rights under the
Agreement, (ii) any right or claim that arises after the date the Releasor
executes this release, (iii) the Releasor’s eligibility for indemnification in
accordance with applicable laws or the certificate of incorporation or by-laws
of the Company (or any affiliate or subsidiary) or any applicable insurance
policy, with respect to any liability the Releasor incurs or incurred as an
officer or employee of the Company or any affiliate or subsidiary (including as
a trustee or officer of any employee benefit plan) or (iv) any right the
Releasor may have to obtain contribution as permitted by law in the event of
entry of judgment against the Releasor as a result of any act or failure to act
for which the Releasor and the Company or any affiliate or subsidiary are held
jointly liable.
(b) The
Releasor has been advised to consult with an attorney of the Releasor’s choice
prior to signing this release, has done so and enters into this release freely
and voluntarily.
(c) The
Releasor has had in excess of twenty-one (21) calendar days to consider the
terms of this release. Once the Releasor has signed this release, the
Releasor has seven (7) additional days to revoke the Releasor’s consent and may
do so by writing to the Company. The eighth day after the Releasor
shall have executed this release shall be referred to herein as the Revocation
Date.
(d) The
Company, for and in consideration of the Releasor’s covenants under the
Agreement, on behalf of itself and the other members of the Company Group and
any other Company Releasee, their respective successors and assigns, and any and
all other persons claiming through any member of the Company Group or such other
Company Releasee, and each of them, does hereby now and forever, voluntarily,
knowingly and willingly release and discharge, the Releasor and dependents,
administrators, agents, executors, successors, assigns, and heirs, from any and
all charges, complaints, claims, promises, agreements, controversies, causes of
action and demands of any nature whatsoever, known or unknown, suspected or
unsuspected, which against the Releasor, jointly or severally, the Company and
each other member of the Company Group or any other Company Releasee, their
respective successors and assigns, and any and all other persons claiming
through any member of the Company Group or such other Company Releasee ever had,
now have or hereafter can, shall or may have by reason of any matter, cause or
thing whatsoever arising from the beginning of time to the time the Company
executes this release arising out of or relating to the Releasor’s employment
relationship with the Company, including, but not limited to, any claim, demand,
obligation, liability or cause of action arising under any federal, state or
local employment law or ordinance, tort, contract or breach of public policy
theory or alleged violation of any other legal
obligation. Notwithstanding the foregoing, nothing herein shall
release the Releasor and his dependents, administrators, agents, executors,
successors, assigns, and heirs, (i) in respect of the Company’s rights under the
Agreement, including, without limitation, with respect to the Company’s rights
under Section 5.3 of the Agreement to enforce the Releasor’s obligations under
Section 5 of the Agreement, or (ii) from any claims or damages based on any
right or claim that arises after the date the Company executes this release.
This release shall not apply to any claim relating to fraud, willful misconduct
or breach of fiduciary duty by the Releasor arising from any fact first learned
by the Company, excluding the Releasor’s knowledge, subsequent to the Company’s
execution of this release.
(e) The
Company’s release shall become effective on the Revocation Date, assuming that
the Releasor shall have executed this release and returned it to the Company and
has not revoked the Releasor’s consent to this release prior to the Revocation
Date.
(f)
In the event that any one or more of the provisions of this release shall
be held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remainder of this release shall not in any way be affected
or impaired thereby.
The law
of the State of Delaware shall govern this release without reference to its
choice of law rules.
|
LAPOLLA
INDUSTRIES, INC.
|
|||
|
By:
|
/s/ Xxxxxxx X. Xxxxxx,
CEO
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxx
|
||
|
Title:
|
Chief
Executive Officer
|
||
|
XXXX
X. XXXXX
|
|||
|
By:
|
/s/ Xxxx X.
Xxxxx
|
||
|
Name:
|
Xxxx
X. Xxxxx
|
||
6
