Exhibit 10(k)
EMPLOYMENT AGREEMENT
This Agreement, dated as of August 3, 1998, between Xxxxxx
International, Inc., a Delaware corporation (hereinafter referred to as the
"Company"), and Xxxx Baarends (hereinafter referred to as the "Employee").
RECITALS
The Employee has been employed by the Company and currently serves as
Vice President of Research and Development. Because of the Employee's extensive
experience and his familiarity with the affairs of the Company, the Company
wishes to assure that, in the event of a "Change of Control," as hereinafter
defined, it will continue to have the Employee available to perform duties
substantially similar to those currently being performed by him and to continue
to contribute to the Company's growth and success as he has in the past. The
Employee is willing to commit to continue in the performance of his services for
the Company upon the terms and conditions set forth herein.
COVENANTS
NOW, THEREFORE, in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby agrees that, effective upon a "Change in
Control" and provided that Employee is still serving as an employee of the
Company at that time, it will continue to employ Employee as the Vice
President of Research and Development of the Company to perform the duties
described herein, and Employee hereby accepts such employment on the terms
and conditions stated herein. It is understood that prior to such "Change
in Control," this Agreement shall confer no rights of employment or other
benefits (or obligations) whatsoever upon Employee, and that Employee shall
remain subject to termination at will.
2. TERM OF EMPLOYMENT. Subject to provisions for termination set forth herein,
the term of Employee's employment hereunder shall commence on the date of a
"Change in Control" and shall extend until two years after the date of such
"Change in Control." For purposes of this Agreement a "Change in Control"
shall mean a change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934; provided that,
without limitation, such a Change in Control shall be deemed to have
occurred if during any period of two consecutive years individuals who at
the beginning of such period constitute members of the board of directors
cease for any reason to constitute at least a majority thereof, unless the
nomination or election of each director who was not a director at the
beginning of the period was approved by
a vote of a majority of the directors still in office at the time of such
nomination or election who were directors at the beginning of the period.
3. DUTIES OF EMPLOYEE. Employee shall be the Vice President of Research and
Development of the Company and shall perform such duties and
responsibilities for the Company as may be assigned to him by the Board of
Directors of the Company and which are not unreasonably inconsistent with
the duties currently being performed by the Employee. During the term of
his employment, Employee shall devote substantially all of his business
time, attention and energy, and his reasonable best efforts, to the
interests and business of the Company and to the performance of his duties
and responsibilities on behalf of the Company.
4. COMPENSATION. Throughout the term of Employee's employment hereunder, the
Company shall pay Employee, for services to be rendered by him hereunder, a
guaranteed minimum salary at an annual rate equal to that being paid on the
date the term of employment hereunder commences, less all applicable
federal and state income tax withholding, FICA taxes and other payroll
taxes. The guaranteed minimum salary shall be reviewed by the Company on a
yearly basis to ascertain if any upward adjustment in the annual rate is in
order, and if any increase is made, the new annual rate shall become the
guaranteed minimum salary under this Section 4. Such compensation shall be
payable semi-monthly.
5. WORKING FACILITIES AND FRINGE BENEFITS. The Employee shall be furnished
with office space, secretarial assistance and such other facilities and
services as are appropriate to his position and adequate for the
performance of his duties. The Company also shall provide to Employee
during the term of employment fringe benefits and perquisites at least
equal to those provided to Employee immediately prior to the date thereof,
and the Company shall not discriminate against Employee with respect to any
vacation or holiday plan, medical, hospital, life and disability insurance
programs, pension programs and other similar welfare benefit programs from
time to time made available to the Company's officers and key employees.
6. EXPENSES. The company shall pay or reimburse Employee for all reasonable
expenses actually incurred or paid by him in the performance of services
rendered by him pursuant to this Agreement. Such expenses shall be
supported by the documentary evidence required to substantiate them as
income tax deductions.
7. COVENANT RESTRICTING COMPETITION; NON-DISCLOSURE OF CONFIDENTIAL
INFORMATION.
(a) Employee acknowledges that his services are special and unique, and of
an unusual and extraordinary character which gives them peculiar
value, the loss of which cannot adequately be compensated in damages.
Therefore, Employee agrees that he will not, except with the written
consent of the Company, for a continuous period of eighteen (18)
months commencing immediately following termination of Employee's
employment hereunder, directly or indirectly engage or become
interested in, as a partner, director, officer, principal, agent or
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employee, any business which competes with products produced, marketed
or in development by the Company at the time of such termination.
(b) Employee acknowledges that in his employment he is or will be making
use of, acquiring or adding to, confidential information of the
Company, and is or will be familiar with the Company's business,
activities, employees, customers and suppliers. Therefore, in order to
protect the Company's confidential information and to protect other
employees who depend upon the Company for regular employment, Employee
agrees that, except in connection with his employment by the Company,
or with the consent of the Company, he will not during or after the
term of his employment hereunder in any way utilize any of said
confidential information and he will not copy, reproduce, or take with
him the original or any copies of said confidential information and
will not disclose any of said confidential information to anyone.
In the event of a breach of the covenants contained in this Section 7,
the Company shall be entitled to an injunction restraining such breach
in addition to any other remedies provided by law.
If any provision of this Section 7 is adjudged by a court to be
invalid or unenforceable, the same will in no way affect any other
provision of this Section 7 or any other part of this Agreement, the
application of such provision in any other circumstances or the
validity or enforceability of this Agreement. If any such provision,
or any part thereof, is held to be unenforceable because of the
duration of such provision or the area covered thereby, the parties
agree that the court making such determination will have the power to
reduce the duration and/or area of such provision, and/or to delete
specific words or phrases, and in its reduced form such provision will
then be enforceable and will be enforced.
8. TERMINATION BY COMPANY.
(a) DISABILITY. The Company may terminate the active employment of the
Employee if, in the reasonable judgment of the Board of Directors of
the Company, he becomes unable to satisfactorily perform his duties
and responsibilities hereunder during the term of his employment
because of mental or physical disability. Upon such termination, the
Employee shall be relieved of all further obligations hereunder except
obligations pursuant to Section 7. In the event of such termination,
the Company shall continue to pay to the Employee, until the end of
the term of his employment hereunder, a salary at a rate equal to
three-quarters of the annual rate in effect on the date of such
termination (as set forth in Section 4). Notwithstanding the
foregoing, the amounts so payable shall be reduced by any amounts
payable to the Employee during the term of his employment hereunder
pursuant to any disability benefit or wage continuation plan of the
Company in effect.
(b) DEATH. In the event of the death of the Employee during the term, the
Company shall make, until the end of the term of employment hereunder,
payments at a rate
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equal to one-half of the annual rate in effect on the date of death.
The payments to be made under this Section 8(b) shall not be reduced
by reason of any insurance proceeds payable directly to the Employee's
beneficiaries or estate pursuant to insurance carried or provided by
the Company, and shall be made to such beneficiary as the Employee may
designate for that purpose by written notice given to the Secretary of
the Company prior to this death, or if the Employee has not so
designated, then to the personal representative of his Estate.
(c) TERMINATION FOR CAUSE. In the event fraud, defalcation, or other
similar dishonesty of the Employee involving the operations, funds or
other assets of the Company is established, or Employee is convicted
of a crime involving moral turpitude, or Employee breaches the terms
of this Agreement in any material respect, then the Company may
terminate this Agreement upon giving written notice to the Employee
and thereafter, neither the Employee, his surviving spouse or his
estate shall be entitled to any further salary or compensation from
the Company pursuant to this Agreement, but the Employee's obligations
under Section 7 shall remain in effect. The parties agree that the
provisions of this Section 8(c) shall not be utilized in any manner by
the Company to avoid, negate or frustrate application of the
provisions of Section 9 of this Agreement.
9. TERMINATION BY EMPLOYEE.
(a) IF LOCATION OF OFFICE CHANGES. In the event that, at any time during
the term of employment, the Company, without Employee's consent,
changes the location of the Company's offices at which Employee works
to a city more than 150 miles from its present location, the Employee
may terminate his employment with the Company by giving to the
Secretary of the Company notice in writing within three months after
this right to termination arises.
(b) IF POSITION CHANGES. It is the intention of the parties that the
Employee will have the positions specified in Section 1 hereof during
the entire term of employment. In the event that, at any time during
the term hereunder, Employee, without his consent, does not hold such
positions with the Company and have the duties and responsibilities
that would normally be expected of an officer of the Company with
these positions (except by reason of termination under Section 8),
Employee may terminate his employment with the Company hereunder by
giving to the Secretary of the Company written notice of such
termination within three months after this right to terminate arises.
(c) LUMP SUM PAYMENT. In the event of termination pursuant to subsection
(a) or (b) of this Section 9, the Company shall pay to the Employee,
in a lump sum and within 30 days of such termination, an amount equal
to the aggregate balance (based on the annual rate in effect at the
time of such termination) which would have been payable to the
Employee during the remaining portion of the term hereunder had such
termination not occurred, including any benefits payable to Employee.
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(d) REIMBURSEMENT. If a tax is imposed pursuant to Section 4999 of the
Internal Revenue Code, or successor provision of like import, upon
payments due under this Agreement or upon other payments to the
Employee by the Company, the Employee shall be paid an additional
amount calculated so as to provide the Employee, after he has paid the
tax (including any related interest and/or penalty) imposed by Section
4999 of the Code, with the same compensation he would have received
had not tax (including any related interest and/or penalty) been
imposed by Section 4999. For purposes of this subsection (d), the term
"Company" shall include any parent, subsidiary, affiliate, assignee,
or successor in interest of the company or of such assignee or
successor in interest.
10. ASSIGNMENT. This agreement is binding upon and shall be for the benefit of
the successors and assigns of the Company, including any corporation or any
other form of business organization with which the Company may merge or
consolidate, or to which it may transfer substantially all of its assets.
Employee shall not assign his interest in this Agreement or any part
thereof.
11. CONSENT OF THE COMPANY. Any act, request, approval, consent or opinion of
the Company under this Agreement must be in writing and may be authorized,
given or expressed only be resolution of the Board of Directors of the
Company, or by such other person as the Board of Directors of the Company
may designate.
12. NOTICES. Any notice required hereunder to be given shall be in writing and
if:
(a) by the Company to Employee shall be directed to him at his address set
forth below, or to such other address as he shall have furnished in
writing to the Company; or
(b) by Employee to the Company shall be directed to Xxxxxx International,
Inc., 0000 - 00xx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxx 00000, Attn:
Secretary, or to such designee or other address as the Board of
Directors shall name and have furnished in writing to Employee.
13. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Wisconsin applicable to contracts
made and to be performed therein.
14. ENFORCEMENT EXPENSES AND ARBITRATION. The Company agrees to reimburse the
Employee for all costs and expenses incurred by him (including the
reasonable fees of his counsel) in successfully enforcing any of his rights
under this Agreement or any claim arising out of the breach thereof. In
addition, the parties acknowledge the relative economic power of the
Company versus the Employee, and the ability of the Company to resist the
conclusion of litigation should the Employee institute legal proceedings to
enforce this Agreement or to recover damages for the breach thereof. In
recognition of this, any controversy or claim arising out of or relating to
this Agreement, including any dispute over or interpretation of the
occurrence of a "Change in Control," as previously defined, shall be
settled by arbitration in
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accordance with the Commercial Arbitration Rules of the American
Arbitration Association, at the sole election of the Employee; provided,
however, that an action by the Company to enforce its rights under Section
7 hereof shall be excluded from the arbitration provisions of this Section
14. Any such election by Employee shall be made by written notice given to
the Company any time after such controversy or claim arises, and in the
event Employee is served with process relating to any court proceeding
concerning any such claim or controversy commenced by the company, such
election, to be effective, shall be made by written notice within 15 days
of the time Employee is served with such process. Commencement of court
proceedings by Employee shall be deemed an election not to arbitrate. In
the event the Company commences court proceedings (other than an action by
the Company solely to enforce its rights under Section 7 hereof) and is
given notice of the election to arbitrate by the Employee within the time
period set forth above, the Company agrees to promptly dismiss such court
proceedings and submit to arbitration. In the event of such arbitration,
judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxx X. X'Xxxxxxx
Title:
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/s/ Xxxx Baarends
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Xxxx Baarends
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Address
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