Exhibit 10.9
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FORM OF EMPLOYMENT AGREEMENT
This is an agreement by and between SPECIALTY PRODUCTS & INSULATION CO., a
Pennsylvania corporation ("Employer") and XXXXXXX X. XXXXX, an adult individual
(the "Employee").
Background
Employer is currently a wholly-owned subsidiary of Irex Corporation ("Irex").
Irex plans to distribute the stock of Employer to the shareholders of Irex.
Immediately thereafter, Employer plans to complete an offering of its securities
to the public. In contemplation of these transactions, Employer desires to
employ the Employee and the Employee desires to accept such employment on the
terms set forth herein.
WITNESSETH:
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth
and intending to be legally bound, the parties hereby agree as follows:
1. Effective Date. This agreement shall be effective on the date that
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Irex distributes the stock of Employee to the shareholders of Irex. If such
distribution does not occur by December 31, 1998, this agreement will have no
effect.
2. Employment and Term. The Employer hereby employs the Employee, and
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the Employee hereby agrees to work for the Employer, on the terms and conditions
hereinafter set forth, for the period ("Employment Period") com mencing on the
effective date hereof and ending at the close of business on that date one year
after the effective date subject to earlier termination as hereinafter provided.
In the event that the Employee should continue to work for the Employer
following the expiration of the Employment Period, he shall have the status of
an employee at will, unless and until such time as he and the Employer shall
enter into a new written agreement.
3. Duties. The Employee shall be employed as Employer's Vice President
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and Regional Manager for the Eastern Pennsylvania and North Jersey Groups, or in
such other position or location as the Employer may decide. During the
Employment Period, the Employee shall devote his full time, energy, and skill to
the business and affairs of the Employer and to the promotion of the interests
thereof.
4. Other Activities. During the Employment Period, the Employee shall not
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directly or indirectly engage in any other activities, duties, or services of a
business, professional, or commercial nature. This paragraph shall not be
construed to prevent Employee from personally, and for his own account,
investing in stocks, bonds, securities, real estate, or other forms of passive
investment for his own benefit, or from providing uncompensated service in
connection with such an investment, through, for example, participation in a
condominium association.
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5. Compensation. As compensation for the Employee's services hereunder
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during the Employment Period, the Employer will pay to the Employee a salary
(the "Base Salary") at the rate of $88,200.00 per annum, payable in equal semi-
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monthly installments during each calendar month, together with any increase
thereto determined from time to time through application of Employer's regular
salary administration program. The Employer will also provide the Employee with
such regular incentive and benefit packages applicable to employees of the
Employer in comparable positions; provided, however, that the Employer shall
have the discretion to amend or terminate any program or package or make
distinctions between employees of similar job classifications.
6. Termination of the Employment Period.
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A. Employment Period shall terminate upon the earliest of
the following dates:
(i) The date one year after the effective
date;
(ii) The date of death of the Employee;
(iii) The date which shall be ninety (90) days
after the commencement and continuation of a
disability of the Employee (as hereinafter defined);
(iv) The date on which the Employer terminates
the Employee's employment for cause (as hereinafter
defined);
(v) Employee's voluntary termination of his
employment with Employer.
The Employee's right to Base Salary, incentive and
benefits shall terminate as of the date of termination of the
Employment Period, except as required by operation of law;
provided, however, that Employee will retain all of his rights
in benefits which have accrued, vested, or been purchased prior
to such date of termination.
B. As used in this Paragraph, "cause" means any of the
following:
(i) Serious and willful misconduct by the
Employee in the course of or connected with his employment
by the Employer; or
(ii) Rendition of any services by the
Employee to any competitor of the Employer, whether as an
employee, independent contractor, proprietor or otherwise;
or
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(iii) Use of the name of the Employee by or in
any business which is a competitor of the Employer; or
(iv) Conviction of the Employee for any
criminal offense higher than the degree of misdemeanor.
C. As used in this Paragraph, "disability" means a mental
or physical illness or condition rendering the Employee incapable
of performing his normal duties with the Employer.
7. Covenant Not to Compete. The Employee covenants and agrees that for a
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period of one year from the effective date, he will not, directly or indirectly
(whether as principal, agent, proprietor, sales person, employee, consultant,
independent contractor, officer, director, investor, or otherwise), participate
in the ownership, management, operation, or control of, or have any interest of
any nature whatsoever in any organization, corporation, firm, or other business
which is engaged in or which proposes to engage in any business which is in
competition with the business now or hereafter operated and conducted by the
Employer in any geographic area for which Employee has managerial responsibility
during the Employment Period. Without limiting the foregoing, the Employee
agrees that he will not, for a period of one year from the effective date,
directly or indirectly, divert or take away or attempt to divert or take away,
by soliciting, supplying, serving, advising, or otherwise, any customer or
business entity with which the Employer did business during the Employment
Period. It will not be a violation of this provision for Employee to own shares
in a widely traded public company which competes with Employer if the investment
is entirely passive and the number of shares held is sufficiently small that
Employee cannot exercise any influence or control over the management of the
public company.
8. Covenant Not to Divulge Confidential Information. The Employee
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recognizes and acknowledges that he will, during the course of his employment by
the Employer, have access to certain proprietary material and confidential
business information concerning the business and operations of the Employer
which are valuable property of a confidential nature and which belong to the
Employer, which is not public knowledge. The Employee covenants and agrees that
he will not during the Employment Period or at any time thereafter disclose to
any person, except in the regular course of business of the Employer, or use in
competition with the Employer any such proprietary material or confidential
business information.
9. Effect of Termination of the Employment Period. Termination of the
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Employment Period shall not in any way relieve Employee of his obligations under
Paragraphs 7 or 8 above.
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10. Specific Performance. The Employee acknowledges and agrees that the
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Employer will suffer substantial and irreparable damage, not readily
ascertainable or compensable in monetary terms, in the event of any breach of
any provision of Paragraphs 7 or 8 above. The Employee therefore agrees that, in
the event of any such breach, the Employer shall be entitled, without limitation
of any other rights or remedies otherwise available to it, to obtain an
injunction or other form of equitable relief from any court of competent
jurisdiction. In the event that any provision of this Agreement is determined by
any court to be unreasonably broad or otherwise unenforceable, it shall be
modified to the extent necessary to render it reasonable and enforceable.
11. Parties in Interest. This Agreement shall be binding upon and shall
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inure to the benefit of the Employer and the Employee and their heirs, personal
representatives, successors, and assigns.
12. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the Commonwealth of Pennsylvania.
13. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties and supersedes any and all prior agreements, arrangements,
and understandings, oral or written, relating to the subject matter hereof.
This Agreement may be modified or amended only by written instrument signed by
both Employer and the Employee.
14. Enforcement. Should it become necessary to enforce any provision of
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this Agreement through an attorney, the prevailing party shall be entitled to a
reasonable attorney's fee.
IN WITNESS WHEREOF, this Agreement is executed the day and year first above
written.
SPECIALTY PRODUCTS & INSULATION CO.
Witness: By:
Witness:
Xxxxxxx X. Xxxxx
