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EXHIBIT 10(h)(1)
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made this 1st day of October, 1995, by and between XXXXXX
X. XXXXXX ("Executive") and Titmus Optical, Inc., a corporation organized under
the law of Delaware (the "Company").
W I T N E S S E T H :
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WHEREAS, Executive is now President of the Company;
WHEREAS, the Company wishes to secure the services of Executive as its
President and Chief Executive Officer for the period provided in this Agreement;
and
WHEREAS, Executive is willing to enter into this Agreement for such
period and on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the Company and Executive hereby agree as follows:
1. EMPLOYMENT. During the period of employment set forth in Section 2 of
this Agreement, the Company shall employ Executive, and Executive shall serve as
President of the Company. Executive agrees, subject to his election from time to
time as such, to serve as a director of the Company. Executive agrees to
faithfully perform the duties assigned to him to the best of his ability and,
except for vacations and periods of temporary illness, to devote his full time
and attention to the Company's business. Ancillary employment such as writing,
teaching or lecturing as well as the acceptance of honorific titles may be
undertaken by the Executive only with the approval of the Chairman of the Board
of Directors of the Company. Executive also agrees that he will not engage in
any other business activities without the prior approval of the Chairman of the
Board of Directors. Executive may only serve on a reasonable number (maximum
four) of boards of directors and as an officer, director, trustee or committee
member, or in any similar position, of a reasonable number of trade associations
and religious, charitable, educational, civic or other non-business
organizations.
2. PERIOD OF EMPLOYMENT. The Executive's employment under this Agreement
shall initially cover the period October 1, 1995 to December 31, 1997. On
January 1, 1998, and at the end of each two year period thereafter, the period
of employment shall be automatically extended, without further action by either
party, for a two year period beginning on January 1st unless six months prior to
any such January 1st either party shall have served written notice on the other
of its intention that the period of employment shall expire on December 31, 1997
or December 31st of the second year of any two-year period.
If the Company notifies Executive that it shall not extend the period of
employment, the Company may, at its option, decide that the Executive shall take
a leave-of-absence for part or the total of the six months remaining time of his
employment, continuing to receive all compensation as if actively working.
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3. TERMINATION. The period of employment shall be terminated upon the
first to occur of the following:
(i) The expiration of the period of employment pursuant to Section
2 of this Agreement.
(ii) The Executive's death.
(iii) The Executive becoming permanently disabled. Permanent
disability shall mean physical or mental incapacity of a
nature which prevents Executive from performing his duties
under this Agreement for a period of more than six months in
any twelve month period.
(iv) The Executive's employment being terminated by the Company for
cause. Termination for cause shall mean termination by action
of the Board of Directors of the Company because of the
willful failure of Executive to perform his duties and
obligations under this Agreement or fails to execute in a
reasonable and responsible manner the policies of the Company
or gross negligence in the performance of his duties under
this Agreement or the commission by Executive of a felony.
(v) The Executive or the Company has served written notice 6
months in advance to the other party of its intention to
terminate Executive's employment on any December 31st of any
year following the one in which Executive has completed his
61st birthday.
(vi) The Executive notifies the Company that he is terminating his
employment.
4. Compensation and Benefits.
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(a) During the Employment Period, the Executive shall receive regular
compensation (the "Base Salary") at the initial rate per annum of One Hundred
Eighty Thousand Dollars ($180,000) per annum for the period October 1, 1995
through December 31, 1996. The Base Salary shall be payable in arrears less the
usual payroll deductions at the same times and in the same manner as salaries
paid to other employees. The Base Salary prevailing at any time shall be
reviewed annually on January 1 of each year beginning in 1997.
(b) In addition to the Base Salary, the Executive shall be entitled to
receive annual incentive compensation payments ("Incentive Compensation"). The
bonus for the period October 1, 1995 through December 31, 1995 shall be fixed at
Twenty Thousand Dollars ($20,000). The bonus for the period January 1, 1996
through December 31, 1996 shall be determined pursuant to a plan to be
communicated to Executive by December 31, 1995 which shall provide a bonus
opportunity determined on the basis of continuous improvement in the
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profitability of the Company and ranging from fifteen percent (15%) to fifty
percent (50%) of Base Salary. The parameters for the bonus calculation shall
always be valid for the term of this Agreement.
Incentive Compensation shall be paid by the Company for the prior fiscal
year within ten (10) days after a decision is made by the Board as to the amount
of such Incentive Compensation, but in any event no later than the earlier of
the annual meeting of the Board or March 31.
(d) The Executive shall be entitled to participate in any stock option
plan which the Bacou USA, Inc. may adopt.
(e) The Executive shall be entitled to participate in all savings,
thrift, retirement or pension, short term and long term disability, health and
accident, Blue Cross/Blue Shield, Major Medical or other hospitalization,
holiday, vacation, and other fringe benefit programs generally available to
senior executives of the Company in accordance with and subject to the terms and
conditions of such programs.
(f) In addition, the Executive shall be entitled to receive the following
benefits:
(i) The Executive will receive a taxable car allowance of Ten
Thousand Dollars ($10,000) per annum. Oil changes and gasoline expenses shall be
paid by the Company. All other costs relating to the operation and maintenance
of the automobile will be borne by the Executive. The Executive will pay all
taxes on the fringe benefit component of these payments.
(ii) The Executive will receive eighteen (18) days of vacation
per annum. Vacation days will be taken at a time convenient for both the
Executive and the Company. To the extent the Executive does not take all
vacation days the remaining days will be carried forward for an unlimited period
or be paid to the Executive at the level of his Base Salary valid for the fiscal
year in which vacation days are not taken.
(iii) When traveling on Company business, the Executive will
be provided coach-class airfare on domestic trips; business class airfare will
be provided on international trips.
(iv) The Executive is authorized to incur reasonable expenses
in connection with and for the promotion of the business of the Company,
including expenses for meals and lodging, entertainment, and similar items as
required from time to time by the Executive's duties. The Company shall
reimburse the Executive for all such expenses upon the presentation of an
account therefor, together with appropriate supporting documentation.
5. LIMITATIONS ON AUTHORITY. Pursuant to the Bylaws of the Company, the
Executive and the Chairman of the Board of Directors or his designee shall
constitute the Executive Committee of the Board. Except as otherwise provided
herein, approval by the Chairman of the Board of Directors or his designee must
be obtained prior to the Executive taking any of the following actions on behalf
of the Company or any of its affiliates:
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(a) Acquisition or disposition of real property or any
rights deriving therefrom, or changing title in any
such real property.
(b) Making unplanned capital expenditures or any commitment
therefore;
(c) Borrowing or guaranteeing any borrowings from or on
behalf of any party, or altering the terms of any loan
agreements for such borrowings except for any such
loans or borrowings as shall be agreed upon by the
Board;
(d) Hiring or terminating executive personnel with annual
salary in excess of $50,000;
(e) Granting retirement benefits or other non-earned income
to any individual which is not available to all
employees;
(f) Modification of the pension plan or other benefit plan,
e.g., health insurance;
(g) Acquiring the assets or shares of another company or
partnership;
(h) Acquiring or disposing of the assets or shares of the
Company or any of its affiliates;
(i) Entering into or terminating agreements of any kind or
nature with a monthly financial obligation in excess of
U.S.$5,000 for more than six (6) months;
(j) Making basic changes in the administration,
organization, production, and distribution of the
Company or any of its affiliates, as well as closing or
curtailing the functions of the Company or any of its
affiliates;
(k) Filing any lawsuit;
(l) Making cash or non-cash corporate contributions above
the annually budgeted amount;
(m) When there is a large volume of sales, the making of
decisions requiring both extraordinary risks and
extraordinary expenditures;
(n) Entering into any transaction on behalf of the Company
or its affiliates which is not in the usual course of
its business;
(o) Adoption or modification of the annual budget.
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Notwithstanding the foregoing, approval is not required for any action
provided for in the applicable annual budget or annual plan of the Company and
its affiliates. In addition, should the Chairman of the Company and his
designed be unavailable, if an emergency arises which requires the Executive to
take immediate action in which approval as set forth in this Section would
otherwise be required, the Executive is no longer bound by the limitations
described above and is authorized to make a decision in the best interests of
the Company. The Executive will immediately inform the Chairman of the Board of
the Company of any such decisions made by him.
6. NON-DISCLOSURE OF INFORMATION. It is understood that the business of
the Company and its affiliates is of a confidential nature. During the period of
the Executive's employment with the Company, the Executive may have received
and/or may secure confidential information concerning the Company or any of the
Company's affiliates or subsidiaries which, if known to competitors thereof,
would damage the Company or its said affiliates or subsidiaries. The Executive
agrees that during and after the term of this Agreement he will not (except as
authorized by the Company or in the proper performance of his duties or except
as ordered by a court or other body of competent jurisdiction or as otherwise
required by law), directly or indirectly, divulge, disclose or appropriate to
his own use, or to the use of any third party, any secret, proprietary or
confidential information or knowledge obtained by him during the term hereof
concerning such confidential matters of the Company or its subsidiaries or
affiliates, including, but not limited to, information pertaining to trade
secrets, systems, manuals, confidential reports, methods, processes, designs,
equipment lists, operating procedures, equipment and methods used and preferred
by the Company's customers. Upon termination of this Agreement, the Executive
shall promptly deliver to the Company all materials of a secret or confidential
nature relating to the business of the Company or any of its subsidiaries or
affiliates which are, directly or indirectly, in the possession or under the
control of the Executive. The provisions of this paragraph shall continue to
apply after the Executive ceases to be employed by the Company for a period of
three (3) years except in respect of any information or knowledge disclosed to
the public, other than through an unauthorized disclosure by the Executive.
7. TRADE SECRETS. The Executive covenants that he shall, while employed
by the Company, assign, transfer, and set over to the Company or its designee
all right, title and interest in and to all trade secrets, secret processes,
inventions, improvements, patents, patent applications, trademarks, trademark
applications, copyrights, copyright registrations, discoveries and/or other
developments (hereinafter "Inventions") which he may, thereafter, alone or in
conjunction with others, during or outside normal working hours, conceive, make,
acquire or suggest at any time which relate to the products, processes, work,
research, or other activities of the Company or any of its subsidiaries or
affiliates. Any and all Inventions which are of a proprietary nature and which
the Executive may conceive, may acquire or suggest, either alone or in
conjunction with others, during his employment with the Company (whether during
or outside normal working hours) relating to or in any way pertaining to or
connected with the Company's business, shall be the sole and exclusive property
of the Company or its designee and the Executive, whenever requested to do so by
the Company, shall, without further compensation or consideration properly
execute any and all applications, assignments or other documents which the
Company or its designee shall deem necessary in order to apply for and obtain
Letters Patent of the United
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States and/or comparable rights afforded by foreign countries for the
Inventions, or in order to assign and convey to the Company or its designee the
sole and exclusive right, title and interest in and to the Inventions. This
obligation shall continue beyond the termination of this Agreement with respect
to Inventions conceived or made by the Executive during the term of his
employment by the Company, and shall be binding upon his assigns, executors,
administrators, and other legal representatives.
8. NON-COMPETITION. (a) During the term of this Agreement or any renewal
thereof, and for a period of one year thereafter, should the Executive's
contract not be renewed, the Executive agrees that he will not within the
geographical area of the United States, engage, either directly or indirectly,
individually or as an owner, partner, joint venturer, employee, officer,
director, stockholder, consultant, independent contractor or lender of or to any
corporation, holding company or other business entity which is in a business
similar to that of the Company or any of its affiliates. Notwithstanding the
foregoing, the Executive (as hereinbefore described in Section 2(d)) may own
five (5%) percent of the securities of any business in competition with the
business of the Company or any of its affiliates, which securities are regularly
traded on a public exchange, provided that any such ownership shall not result
in the Executive becoming a record or beneficial owner at any time of more than
five (5%) percent of equity securities of said business entity.
(b) The Executive shall not during the term of his Employment under this
Agreement or any renewal thereof, and for a period of one (1) year thereafter,
employ, retain or arrange to have any other person or entity employ or retain
any person who was employed by the Company or any of its affiliated companies
having a salary of at least U.S. $50,000 per annum during the term of this
Agreement or any renewal thereof.
(c) If any provision of this Section is held to be unenforceable because
of the scope, duration or area of its applicability or otherwise, the legal
entity making that determination will have the power to modify the scope,
duration or area, or all of them, and the provision will then apply in its
modified form.
9. PROPERTY. All letters, memoranda, documents, business notes (including
all copies thereof) and other information contained on any other computer media
including computer disks and hard drives of the Executive in any manner relating
to the duties of Executive under this agreement are the property of the Company.
10. NOTICES. Any notice to be given to Executive by the Company under
this Agreement shall be deemed to have been given by the Company and received by
Executive if and when it is hand delivered to Executive, or it is sent by
registered or certified mail to Executive at his home address or transmitted by
facsimile transmission ("FAX"). Any notice to be given to the Company by
Executive under this Agreement shall be deemed to have been given by Executive
and received by the Company if and when it is hand delivered by Executive to the
Chairman or his designee, it is sent by registered or certified mail, addressed
to the Board of Directors of the Company c/o Bacou USA, Attention: President or
transmitted by FAX confirmed in writing mailed to the Board of Directors of the
Company c/o Bacou USA, Inc., Attention: President.
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11. FULL AND COMPLETE AGREEMENT; AMENDMENT. This Agreement constitutes
the full and complete understanding and agreement of the parties and supersedes
all prior understandings and agreements. This Agreement may be modified only by
a written instrument executed by both parties.
12. CONSTRUCTION. This Agreement shall be construed under the laws of the
Commonwealth of Virginia.
13. ARBITRATION. Notwithstanding the fact that the parties shall be
entitled to equitable relief in order to enforce certain provisions hereunder
(e.g., temporary restraining orders or injunctive relief), any dispute,
controversy or claim arising out of or relating to this Agreement, or the breach
hereof, shall be settled by arbitration in accordance with the "Commercial
Arbitration Rules" of the American Arbitration Association in effect on the date
of this Agreement, except as varied below. The situs of any such arbitration
shall be Richmond, Virginia and any award shall be deemed to be a Richmond,
Virginia award. There shall be a single arbitrator who shall be admitted to
practice law in Virginia, with no less than ten (10) years experience in the
handling of commercial or corporate matters or disputes. The arbitrator shall
render a written decision stating his reasons therefor, and shall render an
award within six (6) months of the request for arbitration, and such award shall
be final and binding upon both parties. Judgment upon the award rendered by the
arbitrator may be entered in any court of competent jurisdiction in any state of
the United States or country or application may be made to such court for a
judicial acceptance of the award and an enforcement, as the law of such
jurisdiction may require or allow. The substantive law to be applied to any case
determined pursuant to this Section 13 is that of the Commonwealth of Virginia.
The expense of arbitration shall be borne by the respective parties except to
the extent that the arbitrators shall determine that the entire expense shall be
borne by a single party.
IN WITNESS WHEREOF, the Company and the Executive have duly executed this
Agreement as of the day and year first written above.
TITMUS OPTICAL, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Chairman
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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