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Exhibit 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of June 1, 1996 by
and between Applied Extrusion Technologies, Inc., a Delaware corporation (the
"Company"), and Xxxx X. Xxxxxxxx ("Employee").
For and in consideration of the mutual promises, terms, provisions and
conditions contained in this Agreement, the Company and Employee hereby agree as
follows:
1. EMPLOYMENT. The Company offers and Employee accepts employment subject
to the terms and conditions set forth in this Agreement.
2. TERM. Subject to earlier termination as hereinafter provided, Employee's
employment hereunder shall be for a term of three years, commencing on June 1,
1996 and ending June 1, 1999, and shall automatically renew thereafter for
subsequent one year periods (the initial term and any renewal terms being
hereafter referred to collectively as the "Employment Term").
3. CAPACITY AND PERFORMANCE. Employee shall serve on a full-time basis as
the Vice President and General Manager, Specialty Nets and Profiles or in such
other senior executive position as the President of the Company may designate
from time to time, and shall perform such duties and responsibilities on behalf
of the Company as may be designated from time to time by the President of the
Company or by his designee. During the Employment Term, Employee shall devote
his full time and best efforts, business judgement, skill and knowledge to the
advancement of the Company's interests and to the discharge of his duties and
responsibilities hereunder. Employee shall not engage in any other business
activity during the term of this Agreement, except as may be approved in advance
in writing by the President.
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4. COMPENSATION AND BENEFITS. Subject to performance of Employee's duties
and of the obligations of Employee to the Company, pursuant to this Agreement or
otherwise:
(a) BASE SALARY. As compensation for all services performed under and
during that portion of the Employment Term commencing on June 1, 1996, the
Company shall pay Employee an annual base salary of $182,000 effective June 1,
1996 and thereafter. The base salary payable to Employee in periods after June
1, 1997 shall be subject to upward adjustment only as recommended by the
President of the Company or his designee consistent with the Company's
compensation policies and guidelines. The base salary in effect from time to
time is hereafter referred to as the "Base Salary." The Base Salary shall be
payable in accordance with the payroll practices of the Company for its
executives.
(b) BONUSES. The Employee's position with the Company will at all times
be a bonus-eligible position. Bonuses will be based upon objective criteria that
are defined annually by the Company.
(c) BENEFITS. Employee shall be entitled to participate in any and all
employee benefit plans, medical insurance plans, life insurance plans,
disability income plans, retirement plans, incentive compensation plans and
other benefit plans from time to time in effect for executives of the Company
generally, except to the extent such plans are duplicative of benefits otherwise
provided to Employee under this Agreement. In accordance with Company's policy,
Employee shall also be entitled to three weeks of paid vacation in any fiscal
year during his employment hereunder.
(d) BUSINESS EXPENSES. The Company shall pay or reimburse Employee for
all reasonable business expenses incurred or paid by him in the performance of
his duties and
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responsibilities hereunder, subject to such reasonable substantiation and
documentation as may be requested by the Company.
(e) COUNTRY CLUB DUES. The Company shall pay or reimburse Employee for
reasonable annual dues at a country club to be agreed upon by the Company and
Employee.
5. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the provisions of
Section 2, Employee's employment hereunder shall terminate under the following
circumstances:
(a) DEATH. In the event of Employee's death, Employee's employment
hereunder shall immediately and automatically terminate. In such event, the
Company shall pay to the Employee's estate an amount equal to any unpaid Base
Salary and declared bonus and benefits accrued through the date of Employee's
death.
(b) Disability.
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(i) The Company may terminate Employee's employment hereunder,
upon written notice to Employee, in the event that Employee becomes disabled
through any illness, injury, accident or condition of either a physical or
psychological nature and, as a result, is unable to perform substantially all of
his duties and responsibilities hereunder for one hundred eighty (180) days
during any period of three hundred and sixty-five (365) consecutive calendar
days.
(ii) The President of the Company may designate another employee to
act in Employee's place during any period of his disability. Notwithstanding any
such designation, Employee shall continue to receive his full salary and
benefits in accordance with Section 4 of this Agreement until he becomes
eligible for disability income under the Company's disability income plan or
until the termination of his employment hereunder, whichever shall first occur.
(iii) While receiving disability income payments under the Company's
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disability income plan, Employee shall not be entitled to receive any Base
Salary under Section 4(a) or any bonus under Section 4(b), but shall continue to
participate in Company benefit plans in accordance with Section 4(c) until the
termination of his employment hereunder. The terms of the disability plan
maintained by the Company, if any, will govern the Employee's entitlement to and
the payment of disability income to Employee.
(iv) If any question shall arise as to whether during any period
Employee is disabled, Employee may, and at the request of the Company shall,
submit to a medical examination by a physician selected by the Company to whom
Employee or his guardian has no reasonable objection to determine whether
Employee is so disabled and such determination shall for the purposes of this
Agreement be conclusive of this issue. If such question shall arise and Employee
shall fail to submit to such medical examination, the Company's determination of
the issue shall be binding on Employee.
(c) TERMINATION BY THE COMPANY FOR CAUSE. The Company may terminate
Employee's employment hereunder for cause at any time upon written notice to
Employee setting forth in reasonable detail the nature of such cause. The
following shall constitute "cause" for termination:
(i) Employee's willful and material failure to perform (except by
reason of disability or death), or willful and material
negligence in the performance of, his duties and
responsibilities;
(ii) other material breach by Employee of any provision of this
Agreement; or
(iii) other conduct by Employee that is materially harmful to the
business or interests of the Company,
as determined by the Company in its reasonable judgment. Upon the giving of
written notice of
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termination of Employee's employment hereunder for cause, the Company shall have
no further obligation to Employee other than for Base Salary earned to the date
of termination.
(d) TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE. The Company may
terminate Employee's employment hereunder other than for cause at any time upon
written notice to Employee. In the event of such termination, (i) the Company
shall continue to pay Employee the Base Salary at the rate in effect at the date
of termination for the remaining balance of the term of his employment hereunder
payable at such times and in such amounts as Employee would have received if his
employment hereunder had not been terminated, and (ii) Employee may, subject to
applicable employee contribution, continue participation in the Company's group
medical insurance plan; PROVIDED, HOWEVER, that if such termination is after
June 1, 1998, then until the earliest of (iii) the date after June 1, 1999 on
which Employee has commenced full-time employment and (iv) one year from the
date of termination, the Company shall continue to pay to Employee the Base
Salary at the rate in effect at the date of termination, payable at such times
and in such amounts as Employee would have received if his employment hereunder
had not been terminated.
(e) TERMINATION BY EMPLOYEE. The Employee may terminate his employment
hereunder at any time upon 90 days written notice to the Company.
6. EFFECT OF TERMINATION. Payment by the Company of any amount that it may
be required to pay Employee pursuant to Section 5 upon termination of his
employment hereunder shall constitute the entire obligation of the Company to
Employee, and performance by the Company shall constitute full settlement of any
claim that Employee might otherwise assert against the Company or any director,
officer or employee of the Company as a result of or in connection
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with such termination. The provisions of Sections 6, 7, 8 and 9 of this
Agreement shall survive termination.
7. NONDISCLOSURE AND NONUSE OF CONFIDENTIAL INFORMATION. Employee shall not
disclose to any other person (except as required by applicable law or in
connection with the performance of his duties and responsibilities hereunder),
or use for his own benefit or gain, any Confidential Information (as defined
below) relating to the business conducted or proposed to be conducted by the
Company. Employee understands that this restriction shall continue to apply
after Employee's employment terminates, regardless of the reason for such
termination. "Confidential Information" includes without limitation such
information relating to (i) the development, research, testing, manufacturing
and marketing activities of the Company, (ii) the products manufactured, sold or
distributed by the Company, (iii) the costs, sources of supply and strategic
plans of the Company, (iv) the identity and special needs of the customers of
the Company and (v) people and organizations with whom the Company has business
relationships and the existence or nature of those relationships. Confidential
Information also includes comparable information that the Company may receive or
has received belonging to customers or others who do business with the Company.
8. RESTRICTED ACTIVITIES. Employee agrees that some restrictions on his
activities during and after his employment with the Company are necessary to
protect the goodwill, Confidential Information and other legitimate business
interests of the Company. In recognition thereof, while he is employed by the
Company and for a period of two years immediately following termination of his
employment with the Company (the "Restricted Period"), Employee shall not,
directly or indirectly, whether as owner, partner, investor, consultant, agent,
employee,
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co-venturer or otherwise, compete with the Company. Specifically, but without
limiting the foregoing, Employee agrees not to engage in any manner in any
activity that is directly or indirectly competitive or potentially competitive
with the business of the Company as conducted at any time during his employment
by the Company. The foregoing restriction shall not prevent Employee from owning
5% or less of the equity securities of any publicly traded company or from
accepting employment from or providing consulting services to any person who
does not compete with the Company.
9. RELIEF, INTERPRETATION. Employee agrees that the Company shall, in
addition to any other remedies available to it, be entitled to preliminary and
permanent injunctive relief against any breach by him of the covenants contained
in Sections 6, 7 and 8, without having to post bond. In the event that any
provision of Sections 6, 7, and 8 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its being extended over too great
a time, too large a geographic area or too great a range of activities, it shall
be interpreted to extend only over the maximum period of time, geographic area
or range of activities as to which it may be enforceable. For purposes of
Sections 6, 7 and 8, the term "Company" shall mean the Company and any of its
subsidiaries and affiliates who are such during the term of the Employee's
employment with the Company.
10. CONFLICTING AGREEMENTS. Employee hereby represents and warrants that
the execution of this Agreement and the performance of his obligations hereunder
will not breach or be in conflict with any other agreement to which he is a
party or is bound, and that he is not subject to any covenants against
competition or similar covenants which would affect the performance of his
obligations hereunder. Employee will not disclose to or use on behalf of the
Company any proprietary information of a third party without such party's
consent.
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11. WITHHOLDING. All payments made by the Company under this Agreement
shall be reduced by any tax or other amounts required to be withheld by the
Company under applicable law.
12. ASSIGNMENT. Neither the Company nor Employee may make any assignment of
this Agreement or any interest herein, by operation of law or otherwise, without
the prior written consent of the other party; PROVIDED, HOWEVER, that the
Company may assign its rights and obligations hereunder without the consent of
Employee in the event that the Company shall hereafter effect a reorganization,
consolidate with, or merge into any other person or transfer all or
substantially all of its properties or assets to any other person. This
Agreement shall inure to the benefit of and be binding upon the Company and
Employee, their respective successors, executors, administrators, heir and
permitted assigns.
13. ENFORCEABILITY. If any portion or provision of this Agreement shall be
to any extent be declared illegal or unenforceable by a court of competent
jurisdiction, then the remainder of this Agreement, or the application of such
portion or provisions in circumstances other than those as to which is so
declared illegal or unenforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
14. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving party. The failure of either party to
require the performance of any term or obligation of this Agreement, or the
waiver by either party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
15. NOTICES. Any notices, requests, demands or other communications
provided for by
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this Agreement shall be in writing and shall be effective when delivered in
person or deposited in the United States mail, postage prepaid, registered or
certified mail, and addressed to Employee at his address set forth under his
signature on the last page hereof or such other address as Employee shall have
notified the Company of in writing, or, in the case of notice to the Company,
addressed to it at its main office, to the attention of the President.
16. MISCELLANEOUS. This Agreement constitutes the entire agreement between
the parties and supersedes any prior communications, agreements and
understandings, written or oral, with respect to the terms and conditions of
Employee's employment. This Agreement may be amended or modified only by a
written instrument signed by Employee and by a duly authorized representative of
the Company. This is a Massachusetts contract and shall be construed and
enforced in accordance with the laws of The Commonwealth of Massachusetts,
without regard to the conflict of laws principles thereof.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
by the Company, by its duly authorized officer, and by Employee, as of the date
first above written.
EMPLOYEE: APPLIED EXTRUSION TECHNOLOGIES, INC.
/s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Address: 0000 Xxxxxxxxxx Xx. Title: President and Chief Executive
Xxxxxxxxxx, XX 00000 Officer
Date: 10/02/96
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