TEL : 000-000-0000
FAX : 000-000-0000
xxx.xxxxx.xxx
[LETTERHEAD OF XXXXX MFG. & ELECRONICS CORP.]
SECOND AMENDED AND RESTATED XXXXXX XXXXXXX AGREEMENT (Revised)
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AGREEMENT dated as of February 20, 2009, by and between Xxxxx Mfg. & Electronics
Corp., a New York corporation having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxx Xxxx 00000 (the "Company") and Xxxxxx
Xxxxxxx, an individual residing at 0 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxx Xxxx,
00000 (the "Employee").
WHEREAS, the Employee has been a valued employee of the Company for many years,
and is now President and Chief Executive Officer of the Company;
WHEREAS, the Board of Directors of the Company wish to amend and restate again
the terms of an agreement originally dated as of May 25, 2006 and amended and
restated as of August 17, 2007, providing for transitional services by the
Employee incidental to his succession as Chief Executive Officer of the Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties agree as follows:
1. RESIGNATION OR TERMINATION. Upon the Employee's resignation or
termination as Chief Executive Officer during the Term (as
hereinafter defined) of this Agreement, the Employee shall become a
non-executive officer of the Company for a period of thirty-six (36)
months from the date of such resignation or termination.
2. COMPENSATION AND DUTIES. In consideration of the Employee's services
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for a period equivalent to ten (10) days a month, based upon a
regular work week of four (4) days, after his resignation or
termination as Chief Executive Officer, his agreement to perform
duties as reasonably requested by the Company and his compliance
with paragraph 5 herein, it is agreed as follows:
(A) The Employee shall receive $16,000 a month, and, to the extent
permissible, all benefits being received at the time of his resignation or
termination as Chief Executive Officer for a period of three months, after
the date of resignation or termination.
(B) At the end of the above three months, the Employee's
compensation will change to $8,666.67 per month for the next consecutive
33 months, and he shall receive all current benefits as above. The
Employee shall be eligible to participate, to the extent permissible, in
new benefits should they occur during this period of time. For ESOP and
all other benefit purposes, the Employee shall continue to be treated as a
full-time employee for the duration of the Agreement to the extent
permissible and consistent with the terms of the ESOP and all applicable
laws.
(C) It is agreed that the Employee shall be reasonably available by
telephone or otherwise to render advice and counsel, but need not be
physically present at the Company's offices, unless his physical presence
is reasonably requested by the Company. Should the employee be required to
engage in any activity not within the scope of this agreement, he shall be
reimbursed, in addition to his monthly salary, at an hourly rate to be
mutually agreed upon between an authorized representative of the Company
and himself.
(D) If the Employee dies either during the Term, before his
resignation or termination as Chief Executive Officer, or during the 36
month period after his transitional services become effective following
such resignation or termination, the compensation payments provided for in
Sections 2 (A) and
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(B) will be paid, as scheduled, to the Employee's estate. In the event of
the Employee's death, all other benefits shall cease at death.
(E) The compensation and benefits payable hereunder shall be the
Employee's sole and exclusive entitlement following his resignation or
termination as Chief Executive Officer.
3. EXPENSES. If the Employee is requested by the Company, at any point
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while he is receiving payments under paragraphs (A) or (B) of
Section 2 of this Agreement, to return to Saratoga Springs, and the
Employee is then not in the Saratoga Springs area, the Company shall
pay the reasonable transportation costs for the Employee to return.
The Employee shall not be reimbursed for any other expenses
hereunder unless the Employee and the Company so agree with respect
to a specific expense.
4. TERM. This Agreement shall continue in effect until December 31,
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2009 at which time this Agreement shall terminate (the "Term"). If
during the Term, the Employee resigns or is terminated as Chief
Executive Officer of the Company, then the provisions of this
Agreement shall continue in effect during the 36 month period
following such resignation or termination and as provided in Section
5 below.
5. RESTRICTIVE COVENANT: CONFIDENTIAL INFORMATION.
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(A) The Employee agrees that during the Term of this Agreement and
for a period of five (5) years thereafter, he shall not directly or
indirectly, on behalf of himself or on behalf of any other corporation,
person or entity other than the Company, compete or interfere with the
Company, render any services to, consult for, contract with or become an
employee, officer, director, partner, member, or (except as a five percent
(5%) or less shareholder of any publicly traded company) owner or
shareholder of, any individual or entity which engages in the Company's
business or which otherwise competes with the Company.
(B) The Employee recognizes and acknowledges that there has been
made available to him confidential information concerning matters
affecting or relating to the products, services or business of the
Company, its subsidiaries, or affiliates, including, but not limited to,
intellectual property, technology, proprietary information, customer lists
and other financial information, contractual relationships, past or
contemplated actions, personnel matters, marketing or sales data and
written or oral communications or understandings of any sort of the
Company or of any of its customers in either tangible or intangible form
("Confidential Information"). The Employee further recognizes and
acknowledges that this Confidential Information as it may exist from time
to time belongs to the Company and is a valuable, special and unique asset
of the Company's business. The Employee will not, during or after the Term
of this Agreement, at any time, directly or indirectly, divulge, disclose
or communicate any Confidential Information to any person, firm,
corporations, association or other entity for any reason or purpose
whatsoever.
The Employee will promptly deliver to the Company all copies of all
Confidential Information and all material of any nature belonging to the
Company, and the Employee will not take with him any such Confidential
Information, materials or reproductions thereof or any proprietary
information of the Company in tangible or intangible form.
6. MISCELLANEOUS. Not withstanding any provision in this Agreement to
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the contrary, if during the Term of this Agreement the Employee is
terminated from the Company for good and sufficient cause then all
payments and benefits provided herein shall immediately cease unless
the Employee seeks Arbitration pursuant to Section 14. Arbitration
herein in which case such payments and benefits shall continue until
the arbitrator has made an award or decision. Good and sufficient
cause shall mean: (a) willful misconduct with respect to the
reasonable directions of the Board; (b) conviction of a crime or
indecent exposure; or (c) gross negligence or malfeasance in the
performance of his obligations hereunder.
7. SUCCESSOR AND ASSIGNS. This Agreement shall be binding upon and
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insure to the benefit of the parties hereto, and their respective
legal representatives, heirs, successors and assigns.
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8. NOTICES. Any notices, consents or information required or requested
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or permitted by this Agreement shall be sent to the parties at the
addresses shown above, unless such address is changed by written
notice hereunder.
9. SEVERABILITY. In the event any provision of this Agreement or any
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portion thereof shall be deemed invalid or unenforceable for any
reason, that portion or provision shall be deemed excised from this
Agreement and this Agreement shall be governed, interpreted and
enforced in all respects as if such invalid or unenforceable
provision were originally omitted from this Agreement.
10. WAIVER. The waiver of any party of a breach of any provision of this
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Agreement shall not operate as or be construed as a waiver of any
subsequent breach.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York.
12. HEADINGS. The descriptive headings used in this Agreement are for
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purposes of convenience only and do not constitute a part of this
Agreement.
13. ENTIRE AGREEMENT. This Agreement is the entire Agreement among the
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parties regarding the subject matter hereof, and supersedes any
prior agreements or discussions.
14. ARBITRATION. Any claim, controversy or dispute arising out of or
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relating to this Agreement, or the breach thereof, shall be settled
by final and binding arbitration before a single arbitrator in
accordance with the rules of the American arbitration Association,
and judgment upon the award or decision rendered by the arbitrator
may be entered in a Court. Any such arbitration shall be held in New
York and the parties to this Agreement shall be equally the costs of
the arbitrator.
This AGREEMENT may not be altered or amended except in writing signed by
both parties. In the event of any conflict between this Agreement and the
terms of any of the Company's employment policies, manuals, or other
statements regarding employment generally, now existing or hereafter
promulgated, the terms of the Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXX MFG. & ELECTRONICS CORP.
By:
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Name: Xxxxx X'Xxxx
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Title: Treasurer
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Employee:
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Xxxxxx Xxxxxxx
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