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EXHIBIT 10.22
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 17th day of February, 1998, by and between
Xxxxxxxx X. Xxxxxx ("Executive"), currently residing at 0000 Xxxx Xxxx, Xxxxxx,
Xxxx 00000, and Titmus Optical, Inc., a corporation organized under the laws of
Delaware (the "Company"), with its principal offices at 0000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, XX 00000.
W I T N E S S E T H :
WHEREAS, Company wishes to secure the services of Executive as 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,
Company and Executive hereby agree as follows:
1. EMPLOYMENT. During the period of employment set forth in Section 2 of
this Agreement, Company shall employ Executive, and Executive shall serve as
President and Chief Executive Officer of Company. Executive shall promptly
relocate his permanent residence to the Petersburg, Virginia area. 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 business of Company. 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 Chief
Executive Officer of Bacou USA, Inc. or his designee ("Chairman"). Executive
also agrees that he will not engage in any other business activities without the
prior approval of the Chairman. Executive may only serve as an officer,
director, trustee or committee member, or in any similar position, of a
reasonable number (maximum two) of trade associations and religious, charitable,
educational, civic or other non-business organizations, subject to the approval
of the Chairman. The Executive represents and warrants to Company that he is now
under no contract or agreement nor will he execute any contract or agreement
that will in any manner interfere, conflict with or prevent him from performing
his duties under the terms and conditions of this Agreement, recognizing that
his performance hereunder will require the devotion of his full time and
attention during and beyond regular business hours during the Term (as
hereinafter defined), including extensive travel.
2. PERIOD OF EMPLOYMENT. The Executive's employment under this Agreement
shall initially cover the period beginning on the date when Executive is
available to begin
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work on a full-time basis at the Company's facility in Petersburg, Virginia
(which shall be not later than March 9, 1998) to December 31, 1999 (the "Initial
Term"). On January 1, 2000, and at the end of each year thereafter, the period
of employment shall be automatically extended, without further action by either
party, for successive one year periods (each a "Renewal Term") unless at least
six months prior to the end of any Term either party shall have served written
notice on the other of its election to allow this Agreement to terminate at the
end of such Term. The Initial Term and any Renewal Terms are hereinafter
sometimes collectively referred to as the "Term."
If either party notifies the other party that it shall not extend the
period of employment, Company may, at its option, decide that the Executive
shall take a leave-of-absence for part or all of the remaining time of his
employment, continuing to receive all compensation as if actively working. Any
amounts paid by the Company pursuant to this Section after Executive is relieved
of his duties shall be credited against any amounts payable under Section 4(g)
hereof and in no event shall the amount payable pursuant to this paragraph
exceed any amount payable under Section 4(g) hereof.
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
Executivefrom 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 Company for cause.
Termination for cause shall mean termination by action of the Board of
Directors of Company because of the willful failure of Executive to
perform his duties and obligations under this Agreement (including but
not limited to his obligation to promptly relocate his permanent
residence to the Petersburg, Virginia area) or failure 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.
4. COMPENSATION AND BENEFITS.
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(a) The Executive shall receive regular compensation (the "Base Salary") at
the initial rate of One Hundred Sixty Thousand Dollars ($160,000.00) per annum
during the Initial Term. 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 of the Company. The Executive shall participate in any
wage increases applicable generally to salaried employees of Company. The Base
Salary prevailing at any time shall be reviewed annually for a possible increase
beginning in January 1999.
(b) In addition to the Base Salary, the Executive shall be entitled to
receive annual incentive compensation payments ("Incentive Compensation") at
such times and in such amounts as may be determined pursuant to the Bonus Plan
for Executives of subsidiaries of Bacou USA, Inc., as in effect for the
applicable year (the "Company Plan"; a copy of the Company Plan for 1998 and
1999 is attached to this Agreement as Exhibit B), provided, however, that for
1998 the Executive shall be entitled to Incentive Compensation equal to the
greatest of the following three amounts:
(i) The amount determined pursuant to the Company Plan; or
(ii) the amount determined pursuant to Exhibit C attached to this
Agreement; or
(iii) $30,000.
Executive acknowledges that, by agreeing to participate in the Company Plan he
thereby waives any rights to participate in any other incentive compensation
plan of the Company, except for the special potential alternative bonus
calculation for 1998 as specified herein and on Exhibit C attached to this
Agreement.
(c) Incentive Compensation shall be paid by Company for the prior fiscal
year within ten (10) days after a decision is made by the Board of Directors of
Company as to the amount of such Incentive Compensation, but in any event no
later than the earlier of the annual meeting of the Board of Directors of
Company or March 31.
(d) The Executive shall be entitled to participate in any stock option plan
which Bacou USA, Inc. may adopt for Company at levels to be determined by the
Board of Directors of Company in their sole discretion. In connection with the
execution of this Agreement and subject to the execution of the Stock Option
Agreement attached hereto as Exhibit D, Executive shall be granted options to
purchase fifteen thousand (15,000) shares of common stock of Bacou at a per
share price equal to $17.750 per share, subject to vesting 20% on August 17,
1998 and 20% each on the first through fourth anniversaries of the date of this
Agreement.
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(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 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 shall have the use of a company car, subject to the
Automobile Policy of Bacou USA, Inc.
(ii) The Executive shall be entitled to vacation pursuant to the Bacou
USA, Inc. Executive Vacation Policy. Vacation days will be taken at a time
convenient for both the Executive and 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 Company, including
expenses for meals and lodging (regular hotel room, no suites), entertainment,
and similar items as required from time to time by the Executive's duties.
Company shall reimburse the Executive for all such expenses upon the
presentation of an account therefor, together with appropriate supporting
documentation.
(v) The Executive will receive relocation assistance in accordance
with the terms and conditions of the Relocation Assistance Agreement attached
hereto as Exhibit A.
(g) In the event that either (a) during the term of this Agreement the
Executive is discharged by the Company for reasons other than those set forth in
Section 3(iv) hereof or (b) the Company fails to renew this Agreement pursuant
to Section 2 of this Agreement, then the Company agrees to pay the Executive a
severance payment equal to twelve (12) months of direct salary and benefits,
payable at normal payroll intervals during the severance period. However, in the
event that the Executive is able to find other full time employment, the
Company's obligation to pay the severance benefit shall cease and be limited to
the actual number of weeks the Executive is unemployed
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following his discharge by the Company, pro-rated to the nearest whole week. To
support the Executive's efforts to find new employment the Company will cover
cost associated with an Executive Outplacement Service reasonably acceptable to
both Company and Executive.
5. LIMITATIONS ON AUTHORITY. Pursuant to the Bylaws of 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 or the Executive Vice President of Bacou must
be obtained prior to the Executive taking any of the following actions on behalf
of the Company:
(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
in an amount greater than $5,000 for any individual expenditure
and $50,000 in the aggregate in any fiscal year;
(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 of Directors of Company;
(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 any qualified 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
selling any fixed asset of the Company below book value;
(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 except purchase orders for materials
required for the manufacture of products for sale in the ordinary
course of business;
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(j) Making basic changes in the administration, organization,
production, and distribution of Company or any of its affiliates,
as well as closing or curtailing the functions of 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 Company or its
affiliates which is not in the usual course of its business;
(o) Adoption or modification of the annual budget.
Notwithstanding the foregoing, approval is not required for any action
provided for in the approved and applicable annual budget or annual plan of
Company. In addition, should the Chairman or Executive Vice President 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 Company. The
Executive will immediately inform the Chairman and the Executive Vice President
of Bacou USA, Inc. of any such decisions made by him.
6. NON-DISCLOSURE OF INFORMATION. It is understood that the business of
Company and its affiliates is of a confidential nature. During the period of the
Executive's employment with Company, the Executive may have received and/or may
secure confidential information concerning Company or any of Company's
affiliates or subsidiaries which, if known to competitors thereof, would damage
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
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 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 Company's customers. Upon
termination of this Agreement, the Executive shall promptly deliver to Company
all materials of a secret
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or confidential nature relating to the business of 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 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
Company, assign, transfer, and set over to 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 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 Company (whether during or outside normal working
hours) relating to or in any way pertaining to or connected with Company's
business, shall be the sole and exclusive property of Company or its designee
and the Executive, whenever requested to do so by Company, shall, without
further compensation or consideration properly execute any and all applications,
assignments or other documents which Company or its designee shall deem
necessary in order to apply for and obtain Letters Patent of the United States
and/or comparable rights afforded by foreign countries for the Inventions, or in
order to assign and convey to 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 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, at Company's option for a period of up to one year thereafter,
should the Executive's contract be terminated or 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 Company or any
of its affiliates. In the event that Company chooses to exercise its option to
prevent the Executive from competing with Company following termination or
non-renewal of his employment, Company shall notify the Executive in writing
within two (2) weeks following his last day of employment or within two (2)
weeks of notice by Company of its decision that the Executive shall take a
leave-of-absence, in either case specifying the
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period of up to one year following termination, resignation, or non-renewal of
employment during which such competitive activity shall be prohibited. In the
event Company exercises its option, Company shall continue to pay Executive his
Base Salary at the time of termination, resignation or non-renewal for the
period during which the Executive is prohibited from competition with Company.
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 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 three (3) years
thereafter, employ, retain or arrange to have any other person or entity employ
or retain any person who was employed by Company or any of its affiliated
companies having an annual compensation 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 Company.
10. NOTICES. Any notices or other communications required to be given
pursuant to this Agreement shall be in writing and shall be deemed given: (i)
upon delivery, if by hand; (ii) three (3) business days after mailing, if sent
by registered or certified mail, postage prepaid, return receipt requested;
(iii) one (1) business day after mailing, if sent via overnight courier; or (iv)
upon transmission, if sent by telex or facsimile except that if such notice or
other communication is received by telex or facsimile after 5:00 p.m. on a
business day at the place of receipt, it shall be effective as of the following
business day. All notices and other communications hereunder shall be given as
follows:
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(a) If to the Company, to it at:
Bacou USA, Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: President
Telephone No.: 000-000-0000
Telecopier No.: 000-000-0000
with a copy to:
Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) If to the Executive, to him at:
0000 Xxxx Xxxx
Xxxxxx, XX 00000
Telephone No.: 000-000-0000
with a copy to:
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Telephone No.: ( )
Telecopier No.: ( )
Any party may change its address for receiving notice by written notice given to
the other names above in the manner provided above.
11. FULL AND COMPLETE AGREEMENT; AMENDMENT. This Agreement (together with
the Exhibits attached hereto) 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 (except Exhibit B which is subject to modification from time to
time by Bacou USA, Inc.)
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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 site 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 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.
14. BINDING NATURE. This Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective heirs, personal representatives,
successors and assigns.
IN WITNESS WHEREOF, Company and the Executive have duly executed this
Agreement as of the day and year first written above.
TITMUS OPTICAL, INC.
By: /s/ X. Xxxxxx
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Xxxxxx Xxxxxx, Chairman
EXECUTIVE:
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
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