Exhibit 10(k)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, entered into as of the 1st day of January, 2001, by
and between XXXXXX HOLDINGS, LTD., hereinafter the "Employer" and XXXXXX X.
XXXXXXXXX, hereinafter the "Employee."
WITNESSETH:
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WHEREAS, this Employer and Employee entered into an Employment Agreement as
of January 1, 1994, which Employment Agreement, as amended (the "1994
Agreement"), terminated on December 31, 2000 in all respects (including without
limitation the severance provisions thereof) and is of no further effect; and
WHEREAS, Employer and Employee wish to enter into a new Employment
Agreement on the terms set forth herein.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto intending to be legally bound hereunder,
agree as follows:
1. TERM OF EMPLOYMENT
Subject to the terms and conditions hereinafter set forth, Employer
hereby agrees to employ Employee for a term of two years ending on December 31,
2002.
2. SCOPE OF EMPLOYMENT
During the term of employment, Employee shall serve as President and
Chief Operating Officer of Employer. Employee shall faithfully render and
perform such services as are necessary to fulfill the responsibilities of the
office of President and Chief Operating Officer, and such services as may be
assigned to him by or under the authority of the Board of Directors of Employer.
Employee shall devote full time efforts to the business affairs of Employer and
shall render such services to the best of his ability in the best interests of
Employer. Employee shall maintain his offices at 000 Xxxxxxxxxxxx Xxxx.,
Xxxxxxxxxxxx, Xxxxxxxxxxxx, or at such other addresses to which the Company may
relocate. Employee shall be permitted to engage in other business activities or
trades, provided, however, that such business activities or trades do not
interfere with his duties hereunder.
3. COMPENSATION
(a) For all services rendered by Employee to Employer during the term
of employment, Employer shall pay, or cause to be paid to Employee base
compensation ( "Base Compensation"), payable weekly in the amount of $233,000
per annum, subject to adjustment as provided below.
(b) The Base Compensation will be increased as of January 1, 2002 to
$263,000 per annum.
(c) Employee shall be eligible for annual bonuses of up to 15% of his
Base Compensation based upon the following calculation:
(i) Employee shall be entitled to 5% of Base Compensation if
(but only if) the Company's revenues for the year ended meet or exceed the
Revenue Target (as hereinafter defined); plus
(ii) Employee shall be entitled to 5% of Base Compensation if
(but only if) the Company's EBITDA for the year ended meets or exceeds the
EBITDA Target (as hereinafter defined); plus
(iii) 5% of Base Compensation if, as and when declared by the
Board of Directors of Employer, in its sole discretion.
(d) "Revenue Target" for the year ended shall mean the estimated
gross revenues of the Company for the applicable year as shown in the pro forma
financial chart presented to the Board of Directors of Employer at the December
6, 2000 meeting of the Board of Directors of Employer. A copy of such pro forma
financial chart is being contemporaneously provided to Employee.
(e) "EBITDA Target" for the year ended shall mean the EBITDA of the
Company for the applicable year as shown in the pro forma financial chart
presented to the Board of Directors of Employer at the December 6, 2000 meeting
of the Board of Directors of Employer.
4. REIMBURSEMENT FOR EXPENSES
The Employee shall be reimbursed by the Employer for all actual,
ordinary, necessary and reasonable expenses incurred by him in the course of the
business of the Employer. The Employee shall keep an itemized account of such
expenses to be rendered to the Employer, together with vouchers and/or receipts
verifying the same.
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5. EMPLOYEE BENEFITS
Employee shall be entitled to participate in all employee benefit
programs, including without limitation, group life insurance, medical and
hospitalization plans, pension and profitsharing plans, as are being presently
offered by Employer or which may hereafter during the term of employment be
offered by employer generally to its executive officers. Employer shall also
furnish to Employee an automobile for Employee's usage during the term of
employment. The Employer shall be responsible for all expenses in maintaining
the automobile, including, but not limited to insurance, gasoline costs, and all
necessary repairs.
6. INSURANCE
Subject to the limitation set forth in the following sentence, the
Employer shall maintain for the Employee a life insurance policy (or its
equivalent) in the face amount of $500,000 wherein the Employee, or his
designee, will be the owner of said policy and will retain all rights to
designate beneficiaries thereunder. The Employer shall be solely responsible
for maintaining the policy and paying premiums as they become due during the
term of this Agreement; provided however, that the Employer shall not be
obligated to pay annual premiums in excess of $3,000.
7. DISABILITY
Employee shall be entitled to the disability coverage ("Base
Disability Coverage") currently provided to the Employer's employees generally
(as such coverage may be increased from time to time with the approval of the
Employer's Board of Directors). In addition, commencing upon the date that
Employee is entitled to begin receiving benefits under the Base Disability
Coverage, the Employer shall be obligated make the following payments to
Employee (payable to Employee in accordance with the Employer's then normal
payroll practices):
(a) For a period of twelve (12) weeks, an amount equal to: (i) 100%
of Base Compensation otherwise payable on account of such twelve (12) week
period; less (ii) payments received by Employee on account of such twelve (12)
week period pursuant to the Base Disability Coverage.
(b) For the period commencing at the end of the twelve week period
referred to in paragraph (a) above, until the later of forty (40) weeks or the
end of the term of this Agreement, an amount equal to 50% of Base Compensation
otherwise payable for such period without reduction for Base Disability
Coverage, provided that, in no event shall the sum of payments pursuant to this
paragraph (b) on account of such period plus payments received by Employee
pursuant to the Base Disability Coverage on account of such period exceed 100%
of Base Compensation otherwise payable for such period.
(c) For the period commencing at the end of the period referred to in
paragraph (b) above, and ending three (3) years later, an amount equal to: (i)
$1,000 per week;
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less (ii) any payments received by Employee pursuant to the Base Disability
Coverage for such three year period.
8. TERMINATION
(a) By Death.
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If the Employee dies, then this Agreement shall continue for a
period of 60 days with full benefits after which time this Agreement shall
terminate immediately, and his rights to compensation and fringe benefits
hereunder shall terminate as of the date of such 60 day period, except that
Employee's heirs, personal representatives or estate shall be entitled to any
unpaid portion of his salary, accrued bonus and accrued benefits, if any, up to
the date of such termination.
(b) For Cause.
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The Employer may terminate the Employee's employment and rights
to compensation and benefits hereunder immediately for "cause" (subject to the
last paragraph of this subparagraph (b)), except that the Employee shall be
entitled to any unpaid portion of his salary, accrued bonus, and accrued fringe
benefits, if any, up to the date of termination. "Cause" shall exist if:
(i) the Employee substantially fails to perform his duties
hereunder;
(ii) the Employee intentionally commits any acts or omits to
take any action, or commits any act of dishonesty or breach of trust, resulting
directly or indirectly in personal gain or enrichment of the Employee to the
detriment of the Employer; or
(iii) the Employee commits a felony.
If "cause" exists as set forth in subparagraph (i) above, Employer
shall give Employee thirty (30) days prior written notice of termination
specifying the nature of the alleged "cause" and the Employee shall have such
thirty (30) day period in which to take remedial action to cure the situation
that constituted the "cause". If after receiving said thirty (30) day notice,
the Employee does not cure said "cause" within such time period, then this
Agreement shall terminate as of the end of such time period.
(c) Procedure Upon Termination.
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Upon termination of his employment, the Employee shall promptly
return to the Employer all documents, including without limitation, copies and
all other materials and properties of the Employer, or pertaining to its
business, including without limitation, customer and prospect lists, contacts,
files, manuals, letters, reports and records in his possession and control, no
matter from whom or in what manner acquired.
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9. RESTRICTIVE COVENANT
(a) Employee agrees that, during the term of employment and so long
thereafter as he receives payments pursuant to Section 10 (Employee having the
right voluntarily to terminate such payments at any time), the Employee shall
not directly or indirectly engage in any business which is the same as, similar
to, or in competition with the business of the Employer. Employee acknowledges
that the restrictions contained herein in view of the nature of the business in
which Employee has been engaged, are reasonable and necessary to protect the
legitimate interest of Employer, and that any violation of these restrictions
would result in irreparable injury to Employer. Employee acknowledges that in
the event of a violation of any such restrictions, Employer shall be entitled to
preliminary and permanent injunctive relief as well as an equitable accounting
of all earnings, profits and other benefits arising from such violation which
rights shall be cumulative and in addition to any other rights or remedies to
which Employer may be entitled. In the event that the Employee shall engage,
directly or indirectly in any business in competition with the business of
employer, the period of non-competition referred to above shall be extended by a
period of time equal to that period beginning when such violation commenced, and
ending when the activities constituting such a violation shall have finally been
terminated in good faith.
(b) In addition, during the term of employment, and at all times
thereafter, the Employee shall not disclose confidential information of the
Employer to any other person, entity, corporation, trust, association or
partnership. For the purposes hereof, the term "confidential information" shall
include, but not be limited to, all lists or the identity of any customers,
suppliers, creditors or contacts of Employer. It shall also include any and all
information pertaining to any formulas, business opportunities, processes,
techniques, plans, contracts, sales or other financial data of Employer.
(c) Notwithstanding anything to the contrary contained herein, in the
event that any court of equity determines that time period and/or scope of this
Restrictive Covenant is held be unenforceably long or broad, as the case may be,
then, and either such event, neither the enforceability nor the validity this
paragraph as a whole shall be affected. Rather, the time period and/or scope of
the restriction so affected shall be reduced to the maximum permitted by law.
10. SEVERANCE
If at the end of the term of this Agreement, Employer and Employee
have not entered into a mutually satisfactory extension of or replacement to
this Employment Agreement for a term of a least one (1) year, with at least a
continuation of the present compensation structure hereunder, Employer agrees to
pay Employee, as his severance payment, an amount equal to fifty (50%) percent
of Employee's prior year Base Compensation, which amount may be paid in equal
weekly installments over a six month period without interest. Such amount shall
be paid regardless of whether Employee obtains other employment during such
time, provided such employment does not violate Section 9 hereof.
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11. VACATION
Employee shall be entitled to a vacation of no more than four (4)
weeks per fiscal year.
12. ARBITRATION
Any dispute between the parties hereunder shall be determined by
arbitration in accordance with the rules of the American Arbitration Association
in Philadelphia, Pennsylvania. The Award in any such arbitration shall be final
and binding, and any party may enter judgement thereon in any court having
jurisdiction.
13. ASSIGNMENT
The Employer has the right to assign this Agreement to any successors
and assigns or other parties to whom the Board of Directors of Employer consents
to such assignment. Assignment of this Agreement by the Employee shall be
absolutely prohibited. Employee shall further be restricted from the delegation
of the performance of his duties hereunder.
14. NOTICE
Any notice required or permitted to be given under this agreement
shall be sufficient, if in writing, and if sent by registered mail to Employee
or to Employer at Employer's principal place of business.
15. APPLICABLE LAW
This Employment Agreement shall be construed in accordance with the
laws of the Commonwealth of Pennsylvania.
16. ENTIRE AGREEMENT
This instrument contains the entire agreement of the parties and
supercedes all prior agreements including, without limitation, the 1994
Agreement. It may not be changed orally but only by an agreement in writing
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
17. CHANGE IN CONTROL
Employee and Employer shall execute contemporaneously with the
execution of this Agreement, a Change of Control Agreement in the form attached
hereto as Exhibit A (the "Change of Control Agreement"). To the extent Employee
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is entitled to benefits under Section 10 of this Agreement, Employee shall be
entitled to the greater of: (a) the benefits conferred by
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Section 10 of this Agreement; and (b) the benefits conferred under the Change of
Control Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
XXXXXX HOLDINGS, LTD.
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxxx Xxxxxxxx X. Xxxxxxxx
Chief Executive Officer
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