EMPLOYMENT AGREEMENT
AGREEMENT dated as of April 24, 1997 by and between JANUS INDUSTRIES, INC.,
a Delaware corporation, with its principal offices located at Xxx Xxxxxxxxxx
Xxxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Company"), and XXXXX X. XXXXXX, with an
address at 0000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxx 00000 ("Employee");
RECITALS:
WHEREAS, the Company wishes to employ Employee as a senior officer; and
WHEREAS, the Employee wishes to be employed by the Company pursuant to the
terms as hereinafter set forth.
NOW, THEREFORE, it is agreed as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth below:
1.1 "Affiliate" shall mean a corporation which, directly or
indirectly, controls, is controlled by or is under common control with the
Company, and for purposes hereof, "control" shall mean the ownership of 20% or
more of the Voting Stock of the corporation in question.
1.2 "Basic Salary" shall have the meaning assigned to that term in
Section 5.1 of this Agreement.
1.3 "Board" shall mean the Board of Directors of the Company as duly
constituted from time to time. Any action of the Board hereunder with respect to
this Agreement shall require the approval of a majority of the whole Board of
Directors of the Company.
1.4 "Business" shall mean the business to be conducted by the Company
or any Subsidiary, directly or indirectly, including, but not limited to, the
ownership and operation of hotel properties.
1.5 "Cause" shall mean any of the following:
(a) The conviction of Employee for a felony, or the willful
commission by Employee of a criminal act that in the reasonable judgment of the
Board causes or will likely cause substantial economic damage to the Company or
substantial injury to the business reputation of the Company;
(b) The willful commission by Employee of an act of fraud in the
performance of such Employee's duties on behalf of the Company or a Subsidiary;
or
(c) The continuing willful failure of Employee to perform the
substantive duties of Employee to the Company (other than any such failure
resulting from Employee's incapacity due to physical or mental illness) after
written notice thereof (specifying the particulars thereof in reasonable detail)
and a reasonable opportunity to be heard and cure such failure are given to
Employee by the Board.
For purposes of this subparagraph, no act, or failure to act, on
Employee's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company or a Subsidiary.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as amended
and the rules, regulations and interpretations issued thereunder.
1.7 "Commencement Date" shall be April 24, 1997.
1.8 "Confidential Information" shall include, without limitation by
reason of specification, any information, including, without limitation, trade
secrets, operational methods, methods of doing business, technical processes,
formulae, designs and design projects, inventions, research projects, strategic
plans, possible acquisition information and other business affairs of the
Company or its Affiliates, which (i) is or are designed to be used in, or are or
may be useful in connection with, the Business of the Company, any Subsidiary or
any Affiliate of any thereof, or which, in the case of any of these entities,
results from any of the research or development activities of any such entity,
or (ii) is private or confidential in that it is not generally known or
available to the public, except as the result of unauthorized disclosure by or
information supplied by Employee, or (iii) gives the Company or a Subsidiary or
any Affiliate an opportunity or the possibility of obtaining an advantage over
competitors who may not know or use such information or who are not lawfully
permitted to use the same.
1.9 "Date of Termination" shall mean the Term Date or any date upon
which this Agreement shall terminate pursuant to Section 7 hereof.
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1.10 "Disability" shall mean the inability of Employee to perform
Employee's duties of employment for the Company, if employed by the Company or a
Subsidiary, pursuant to the terms of this Agreement and by-laws of the Company
as hereinafter provided, because of physical or mental disability, where such
disability shall have existed for a period of more than 90 consecutive days or
an aggregate of 120 days in any 365 day period. The existence of a Disability
means that Employee's mental and/or physical condition substantially interferes
with Employee's performance of his duties for the Company and/or its
Subsidiaries as specified in this Agreement. The fact of whether or not a
Disability exists hereunder shall be determined by professionally qualified
medical experts selected by the Board and reasonably acceptable to Employee or
his agent.
1.11 "Duties" shall have the meaning assigned to that term in Section
2.1 of this Agreement.
1.12 "Employment Year" shall mean each twelve-month period, or part
thereof, during which Employee is employed hereunder, commencing on the
Commencement Date and on the same day of any subsequent calendar year and each
consecutive 12 month period thereafter.
1.13 "Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, public benefit corporation,
entity or government (whether federal, state, county, city, municipal or
otherwise, including, without limitation, any instrumentality, division, agency,
body or department thereof).
1.14 "Subsidiary" shall mean a corporation of which more than 50% of
the Voting Stock is owned, directly or indirectly, by the Company.
1.15 "Term" shall mean the term of employment of Employee under this
Agreement.
1.16 "Term Date" shall have the meaning assigned to that term in
Section 3 of this Agreement.
1.17 "Voting Stock" shall mean capital stock of a corporation which
gives the holder the right to vote in the election of directors for such
corporation in the ordinary course of business and not as the result of, or
contingent upon, the happening of any event.
Wherever from the context it appears appropriate, each word or phrase
stated in either the singular or the plural shall include the singular and the
plural, and each pronoun stated in the masculine, feminine or neuter gender
shall include the masculine, feminine and neuter.
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2. EMPLOYMENT AND DUTIES OF EMPLOYEE
2.1 Employment; Title; Duties. The Company hereby employs Employee,
and Employee hereby accepts appointment, as Vice Chairman of the Company. The
duties of Employee shall be to pursue the objectives of the Business, to perform
generally those responsibilities typical of a vice chairman and to render
services as are necessary and desirable to protect and to advance the best
interests of the Company and its Subsidiaries (collectively, the "Duties"),
acting, in all instances, in accordance with the policies set by the Board.
Without further compensation, Employee shall attend meetings of the Board and
committees of the Board, as applicable, and serve as an officer and/or director
of any Subsidiary.
2.2 Performance of Duties. Employee shall devote such time as in his
reasonable discretion he believes necessary to perform the Duties as Vice
Chairman of the Company and for the performance of such other executive duties
as are assigned to him from time-to-time by the Board. The Company acknowledges
that Employee is (i) currently the owner of the other business ventures
(conducted through corporations, general partnerships, limited partnerships,
limited liability companies and otherwise) that are engaged in the same business
as the Company, and (ii) serving as an officer, director or partner of such
businesses. The Company further acknowledges that in certain instances such
businesses may be considered to be in competition with the business of the
Company. The Company agrees that Employee may continue to engage in such
business ventures as such ventures are presently conducted or as reorganized or
recapitalized. Employee agrees that he shall not engage in any business that
competes with the business of the Company other than those presently engaged in
as described above without the prior written consent of the Board which may be
given or withheld by the Board in its absolute discretion. During the Term,
Employee shall comply with all laws, statutes, ordinances, rules and regulations
relating to the Business.
3. TERM OF EMPLOYMENT
The employment of Employee pursuant to this Agreement commenced as of
the Commencement Date and shall end three years thereafter, unless sooner
terminated pursuant to Section 7 (the "Term Date").
4. COMPENSATION AND BENEFITS
The Company and/or its Subsidiaries shall pay Employee, as
compensation for all of the services to be rendered by him hereunder during the
Term and the Restricted Period, and in consideration of the various restrictions
imposed upon Employee during the Term and the Restricted Period, and otherwise
under this Agreement, the Basic Salary and other benefits as provided for and
determined pursuant to Sections 5 and 6, inclusive, of this Agreement; provided,
however, that no compensation shall be paid to the Employee under this Agreement
for any period subsequent to the termination of employment of the Employee for
any reason whatsoever, except as provided in Section 7.
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5. BASIC SALARY/BONUS
5.1 Basic Salary. The Company shall pay Employee, as compensation for all
of the services to be rendered by him hereunder during each Employment Year, a
salary of $175,000 per Employment Year (as adjusted upward by the Board from
time to time) (the "Basic Salary"), payable in substantially equal monthly
payments, less such deductions or amounts as are required to be deducted or
withheld by applicable laws or regulations, deductions for employee
contributions to welfare benefits provided by the Company or a Subsidiary to
Employee and such other deductions or amounts, if any, as are authorized by
Employee. The Basic Salary shall be prorated for the month in which employment
by the Company or a Subsidiary commences or terminates, and for any Employment
Year which is less than twelve (12) months in duration. The Basic Salary may be
increased from time-to-time by the Board (without Employee's participation as a
director) and, once increased, shall not thereafter be reduced. The Basic Salary
shall be reviewed at least once in every Employment Year by a committee of the
Board responsible for determining compensation of senior management of the
Company, each of the members of which is a "non-employee-director" as defined in
Rule 16b-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended (the "Committee"). Any increase in Basic Salary
shall not serve to offset or reduce any other obligation to Employee under this
Agreement.
5.2 Bonus. At the discretion of the Board, the Company may pay
Employee a cash bonus in the event that during the Term the Company successfully
carries out the objectives of the Business and the Employee's services are
determined as having contributed to same. The bonus shall be established by the
Committee based on goals established in advance for each fiscal year of the
Company and shall be related to the estimated budget for the Company for such
fiscal year.
6. ADDITIONAL BENEFITS AND REIMBURSEMENT FOR EXPENSES
6.1 Additional Benefits. The Company shall provide such benefits as
the Board shall lawfully adopt and approve.
6.2 Reimbursement for Expenses. The Company shall pay or reimburse
Employee for all reasonable expenses actually incurred or paid by him during the
Term in the performance of his services under this Agreement, upon presentation
of such bills, expense statements, vouchers or such other supporting information
as the Board may reasonably require. In the event the Company requires Employee
to travel on business during the Term, Employee shall be reimbursed for any
travel expenses in accordance with this Section 6.2.
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7. TERMINATION OF EMPLOYMENT
7.1 Death. If Employee dies during the Term, this Agreement shall
terminate, except that the Company shall continue to pay to Employee's spouse,
or in the absence of a surviving spouse, his estate, Employee's Basic Salary for
a period through the third full month following the date of death.
7.2 Disability. If, during the Term, Employee has a Disability, the
Company may, at any time after Employee has a Disability, terminate Employee's
employment by written notice to him. In the event that Employee's employment is
terminated, this Agreement shall terminate except that the Company shall
continue to pay Employee's Basic Salary for a period through the third full
month following the date of termination of his employment.
7.3 Voluntary Termination. The Agreement may be terminated by Employee
at any time with or without cause upon sixty (60) days prior written notice to
the Company.
7.4 Termination for Cause. The Company may terminate Employee's
employment hereunder for Cause at any time by written notice given to Employee
by the Board.
7.5 Notice of Termination. Any purported termination of employment by
the Company by reason of Employee's Disability or for Cause shall be
communicated by written Notice of Termination to Employee by the Company. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice given
by the Company, which shall indicate the specific basis for termination of
employment and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for determination of any payments under this
Agreement.
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7.6 Date of Termination. For purposes of this Agreement, "Date
of Termination" shall mean the date of termination of employment specified in
the Notice of Termination, which shall not be more than ninety (90) days after
such Notice of Termination is given, as such date may be modified pursuant to
the following two sentences. If within thirty (30) days after any Notice of
Termination is given, Employee notifies the Company that a Dispute exists (a
"Notice of Dispute"), the Date of Termination shall be the date on which the
Dispute is finally determined, either by mutual written agreement of the
parties, by the Panel, or by a final judgment, order or decree of a court of
competent jurisdiction (the time for appeal therefrom having expired and no
appeal having been perfected); provided that the Date of Termination shall be
extended by a Notice of Dispute only if such notice is given in good faith and
the party giving such notice pursues the resolution of such Dispute with
reasonable diligence and provided further that pending the resolution of any
such Dispute, the Company shall continue to pay Employee the same Basic Salary
and to provide Employee with the same or substantially comparable welfare
benefits and prerequisites, including participation in the Company's retirement
plans, profit sharing plans, to the extent then so available at the date of such
determination, stock option plans, stock award plans or stock appreciation right
plans that Employee was paid and provided to the extent that such continued
participation is possible under the general terms and provisions of such plans,
programs and benefits but in no event beyond the Term Date. Should a Dispute
ultimately be determined in favor of the Company, then all sums (net of tax
withholdings by the Company from such sums) paid by the Company to Employee from
the Date of Termination specified in the Notice of Termination until final
resolution of the Dispute pursuant to this paragraph shall be repaid promptly by
Employee to the Company, all options, rights and stock awards granted to
Employee during such period shall be cancelled or returned to the Company, and
no service as an employee shall be credited to Employee for such period for
pension purposes. Employee shall not be obligated to pay to the Company the cost
of providing Employee with welfare benefits and prerequisites for such period
unless the final judgment, order or decree of a court arbitration panel or other
body resolving the Dispute determines that Employee acted in bad faith in giving
a Notice of Dispute. Should a Dispute ultimately be determined in favor of
Employee, then Employee shall be entitled to retain all sums paid to Employee
under this subparagraph pending resolution of the Dispute and shall be entitled
to receive, in addition, the payments and other benefits provided for in Section
7 to the extent not previously paid hereunder and the payment of Employee's
reasonable legal fees incurred as a result of such Dispute upon submission to
the Company of a detailed statement of fees from Employee's attorneys.
8. ARBITRATION
Except as otherwise provided herein, the parties hereby agree that any
Dispute or any dispute regarding the rights and obligations of any party under
this Agreement or under any law governing the relationship created by this
Agreement, including without limitation Employee's challenge of a purported
termination for Cause or Disability, must be resolved pursuant to this Section
8. Within seven (7) days of either party's written notice to the other of his or
its desire to submit any Dispute or arbitrable matter as set forth herein to
arbitration, the parties will meet to attempt to amicably resolve their
differences and, failing such resolution, either or both of the parties may
submit the matter to mandatory and binding arbitration with the Center for
Public Resources ("CPR"). The issue(s) in dispute shall be settled by
arbitration in accordance with the Center for Public Resources Rules for
Non-Administered Arbitration of Business Disputes, by a panel of three
arbitrators (the "Panel"). The only issue(s) to be determined by the Panel will
be those issues specifically submitted to the Panel. The Panel will not extend,
modify or suspend any of the terms of this Agreement. The arbitration shall be
governed by the United States Arbitration Act, 9 U.S.C. ss.1-16, and judgment
upon the award rendered by the Panel may be entered by any court having
jurisdiction thereof. A determination of the Panel shall be by majority vote.
Promptly following receipt of the request for arbitration, CPR shall
convene the parties in person or by telephone to attempt to select the
arbitrators by agreement of the parties. If agreement is not reached, the
Company shall select one arbitrator and Employee shall select one other
arbitrator. These two arbitrators shall select a third arbitrator. If these two
arbitrators are unable to select the third arbitrator by mutual agreement, CPR
shall submit to the parties a list of not less than eleven (11) candidates. Such
list shall include a brief statement of each candidate's qualifications. Each
party shall number the candidates in order of preference, shall note any
objection they may have to any candidate, and shall deliver the list so marked
back to CPR. Any party failing without good cause to return the candidate list
so marked within ten (10) days after receipt shall be deemed to have assented to
all candidates listed thereon. CPR shall designate the arbitrator willing to
serve for whom the parties collectively have indicated the highest preference
and who does not appear to have a conflict of interest. If a tie should result
between two candidates, CPR may designate either candidate.
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This agreement to arbitrate is specifically enforceable. Judgment upon any
award rendered by the Panel may be entered in any court having jurisdiction. The
decision of the Panel within the scope of the submission is final and binding on
all parties, and any right to judicial action on any matter subject to
arbitration hereunder hereby is waived (unless otherwise provided by applicable
law), except suit to enforce this arbitration award or in the event arbitration
is not available for any reason or in the event the Company shall seek equitable
relief to enforce Section 9 of this Agreement. If the rules of the CPR differ
from those of this Section 8, the provisions of this Section 8 will control. The
Company shall pay all the costs of arbitration including the fees of the
arbitrators, and the arbitrators shall award reasonable legal fees to Employee,
unless the arbitrators or a judicial forum shall finally determine that Employee
acted in bad faith.
9. CONFIDENTIAL INFORMATION AND PROPRIETARY INTERESTS
9.1 Acknowledgment of Confidentiality. Employee understands and
acknowledges that he may obtain Confidential Information during the course of
his employment by the Company. Accordingly, Employee agrees that he shall not
during the Term or at any time within two years after the Date of Termination
(the "Restricted Period") (i) use or disclose any such Confidential Information
outside the Company, its Subsidiaries and Affiliates; or (ii) except as required
in the proper performance of his services hereunder, remove or aid in the
removal of any Confidential Information or any property or material relating
thereto from the premises of the Company or any Subsidiary or Affiliate.
The foregoing confidentiality provisions shall cease to be applicable to
any Confidential Information which becomes generally available to the public
(except by reason of or as a consequence of a breach by Employee of his
obligations under this Section 9).
In the event Employee is required by law or a court order to disclose any
such Confidential Information, he shall promptly notify the Company of such
requirement and provide the Company with a copy of any court order or of any law
which in his opinion requires such disclosure and, if the Company so elects, to
the extent that he is legally able, permit the Company an adequate opportunity,
at its own expense, to contest such law or court order.
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9.2 Delivery of Material. Employee shall promptly, and without charge,
deliver to the Company on the termination of his employment hereunder, or at any
other time the Company may so request, all memoranda, notes, records, reports,
manuals, computer disks, videotapes, drawings, blueprints and other documents
(and all copies thereof) relating to the Business of the Company and the
Affiliates, and all property associated therewith, which he may then possess or
have under his control.
10. SURVIVAL
The provisions of Section 7, 8, 9, and this Section 10 shall survive
termination of this Agreement and remain enforceable according to their terms.
11. SEVERABILITY
The invalidity of unenforceability of any provision of this Agreement shall
in no way affect the validity or enforceability of any other provisions hereof.
12. NOTICES
All notices, demands and requests required or permitted to be given under
the provisions of this Agreement shall be deemed duly given if made in writing
and delivered personally or mailed by postage prepaid certified or registered
mail, return receipt requested, accompanied by a second copy sent by ordinary
mail, which notices shall be addressed as follows:
If to the Company
Janus Industries, Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx X. Xxxxxx, President
If to Employee:
Xxxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
By notifying the other parties in writing, given as aforesaid, any party
may from time-to-time change its address or the name of any person to whose
attention notice is to be given, or may add another person to whose attention
notice is to be given, in connection with notice to any party.
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13. ASSIGNMENT AND SUCCESSORS
Neither this Agreement nor any of his rights or duties hereunder may be
assigned or delegated by Employee. This Agreement is not assignable by the
Company, including, without limitation, to any successor in interest which takes
over all or substantially all of the business of the Company, as it is conducted
at the tie of such assignment, without the consent of Employee. Any corporation
into or with which the Company is merged or consolidated or which takes over all
or substantially all of the business of the Company shall be deemed to be a
successor of the Company for purposes hereof and the Company shall require as a
condition thereof that such corporation assume this Agreement in form and
substance satisfactory to Employee. This Agreement shall be binding upon and,
except as aforesaid, shall inure to the benefit of the parties and their
respective successors and permitted assigns.
14. ENTIRE AGREEMENT, WAIVER AND OTHER
14.1 Integration. This Agreement contains the entire agreement of the
parties hereto on its subject matter and supersedes all previous agreements
between the parties hereto, written or oral, express or implied, covering the
subject matter hereof. No representations, inducements, promises or agreements,
oral or otherwise, not embodied herein, shall be of any force or effect.
14.2 No Waiver. No waiver or modification of any of the provisions of
this Agreement shall be valid unless in writing an signed by or on behalf of the
party granting such waiver or modification. No waiver by any party of any breach
or default hereunder shall be deemed a waiver of any repetition of such breach
or default or shall be deemed a waiver of any other breach or default, nor shall
it in any way affect any of the other terms or conditions of this Agreement or
the enforceability thereof. No failure of the Company to exercise any power
given it hereunder or to insist upon strict compliance by Employee with any
obligation hereunder, and no custom or practice at variance with the terms
hereof, shall constitute a waiver of the right of the Company to demand strict
compliance with the terms hereof.
Employee shall not have the right to sign any waiver or modification of any
provisions of this Agreement on behalf of the Company, nor shall any action
taken by Employee reduce his obligations under this Agreement.
This Agreement may not be supplemented or rescinded except by instrument in
writing signed by all of the parties hereto after the date hereof. Neither this
Agreement nor any of the rights of any of the parties hereunder may be
terminated except as provided herein.
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15. GOVERNING LAW
15.1 Miscellaneous. This Agreement shall be governed by and construed,
and the rights and obligations of the parties hereto enforced, in accordance
with the laws of the State of Florida.
15.2 Headings. The Section and Subsection heading contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
15.3 Severability. The invalidity or unenforceability of any provision
of this Agreement shall in no way affect the validity or enforceability of any
other provisions hereof.
15.4 Obligations of Company. The Company's obligation to pay Employee
the compensation and to make the arrangements provided herein shall be absolute
and unconditional and shall not be affected by any circumstances, including,
without limitation, any setoff, counterclaim, recoupment, defense or other right
which the Company may have against Employee or anyone else. All amounts payable
by the Company hereunder shall be paid without notice or demand. Except as
expressly provided herein, the Company waives all rights which it may now have
or may hereafter have conferred upon it, by statute or otherwise, to terminate,
cancel or rescind this Agreement in whole or in part. Except as provided in
Section 7.6 herein, each and every payment made hereunder by the Company shall
be final and the Company will not seek to recover for any reason all or any part
of such payment from Employee or any person entitled thereto. Employee shall not
be required to mitigate the amount of any payment or other benefit provided for
in this Agreement by seeking other employment or otherwise.
15.5 Rights of Beneficiaries of Employee. This Agreement shall inure
to the benefit of, and be enforceable by, Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Employee should die while any amounts would still be
payable to Employee hereunder if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Employee's devisee, legatee or other designee or, if there be
no such designee, to Employee's estate.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above, to be effective as of the Commencement Date.
JANUS INDUSTRIES, INC.
By:________________________________________
Name: Xxxxx X. Xxxx
Title: Chairman of the Board
________________________________________
Xxxxx X. Xxxxxx
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