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EXHIBIT 10.4
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CONFIDENTIAL
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is entered into as of
and is effective as of October 8, 1998, between ADVANCED LIGHTING TECHNOLOGIES,
INC., an Ohio corporation (the "Corporation" or "Advanced Lighting"), and XXXXX
X. XXXXXXX ("Xxxxxxx").
WITNESSETH:
WHEREAS, Xxxxxxx and Advanced Lighting entered into an Employment
Agreement dated October 6, 1995 (the "Original Employment Agreement");
WHEREAS, since the date of the Original Employment Agreement, Xxxxxxx
has served as the Chief Executive Officer, Chairman of the Board and President
of Advanced Lighting;
WHEREAS, the Board of Directors, in recognition of the importance of
Xxxxxxx'x continued and undistracted leadership to the future of the
Corporation, has authorized a loan to Hellman in the amount of $9,000,000, which
requires that Xxxxxxx extend the terms of the Original Employment Agreement for
an additional five (5) year term;
WHEREAS, in connection with the ADLT Loan, Advanced Lighting and
Xxxxxxx desire to enter into this Amended and Restated Employment Agreement to
ensure Advanced Lighting of the services of Xxxxxxx as Chief Executive Officer,
Chairman of the Board and President, and to set forth the rights and duties of
the parties hereto.
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NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
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1. EMPLOYMENT.
(a) Advanced Lighting hereby employs Xxxxxxx, and Xxxxxxx hereby
accepts employment, upon the terms and conditions hereinafter
set forth.
(b) During the term of this Employment Agreement, (for purposes
hereof, all references to the term of this Employment
Agreement shall be deemed to include all renewals or
extensions hereof, if any), Xxxxxxx shall devote his full-time
and best efforts to his employment and shall perform
diligently such duties as are, or may be, required by the
board of directors of Advanced Lighting (the "Board") within
the bounds of reasonableness and acceptable business standards
and ethics.
(c) During the term of this Employment Agreement, Xxxxxxx shall
not, without the prior written consent of the Board, directly
or indirectly, render services of a business, professional or
commercial nature to any other person or firm, whether for
compensation or otherwise, other than in the performance of
duties naturally inherent in the businesses of Advanced
Lighting or any subsidiary of Advanced Lighting.
2. TERM AND POSITION.
(a) Subject to the termination provisions contained herein, the
term of this Employment Agreement shall commence as of January
1, 1996 and shall continue for a term of eight (8) years from
such date.
(b) Xxxxxxx shall serve as President and Chief Executive Officer
of Advanced Lighting, and in such substitute or further
offices or positions with Advanced Lighting as shall be
assigned by the Board, without, however, any change in
Xxxxxxx'x compensation
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(but such substitute or further offices or positions shall
be consistent with the office and position of President and
Chief Executive Officer).
3. COMPENSATION.
(a) Subject to the provisions of this Employment Agreement, for
all services which Xxxxxxx may render to Advanced Lighting
during the term of this Employment Agreement and ending on the
last day of Advanced Lighting's fiscal year during which the
term of this Employment Agreement began, Xxxxxxx shall receive
a salary at the rate of One Hundred Ninety-Five Thousand
Dollars ($195,000.00) per annum, payable in equal, consecutive
biweekly installments.
(b) Provided that Xxxxxxx has satisfactorily performed his
services under this Employment Agreement, Xxxxxxx shall be
entitled to salary increases from time to time as determined
by the Compensation Committee of Advanced Lighting.
(c) Provided that Xxxxxxx has satisfactorily performed his
services under this Employment Agreement, Xxxxxxx shall be
entitled to annual bonuses from time to time as determined by
the Compensation Committee of Advanced Lighting.
4. OTHER BENEFITS.
During the term of this Employment Agreement, Xxxxxxx shall be entitled
to such vacation privileges, medical reimbursement and hospitalization benefits,
split dollar insurance and such other employment benefits Xxxxxxx currently
receives from the Company or any of its affiliates from time to time.
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5. TERMINATION AND FURTHER COMPENSATION.
(a) The employment of Hellman under this Employment Agreement, for
the term thereof, may be terminated by Advanced Lighting for
cause at any time by action of the Board. For purposes hereof,
the term "cause" shall mean:
(i) Xxxxxxx'x fraud, dishonesty, willful misconduct,
moral turpitude or gross negligence in the
performance of his duties hereunder; or
(ii) Xxxxxxx'x material breach of any provision of this
Employment Agreement.
Any termination by reason of the foregoing shall not be in limitation of any
other right or remedy Advanced Lighting may have under this Employment Agreement
or otherwise.
(b) In the event of (i) termination of this Employment Agreement
for any of the reasons set forth in Subparagraph (a) of this
Paragraph 5, Xxxxxxx shall be entitled to no further salary,
bonus or other benefits under this Employment Agreement,
except as to that portion of any unpaid salary and other
benefits accrued and earned by him hereunder up to and
including the effective date of such termination.
(c) In the event of Xxxxxxx'x death or permanent disability (as
defined herein below) occurring during the term of this
Employment Agreement, this Employment Agreement shall be
deemed terminated and Xxxxxxx or his estate, as the case may
be, shall be entitled to no further salary or other
compensation provided for herein except as to that portion of
any unpaid salary accrued or earned by Xxxxxxx hereunder up to
and including the date of death or disability, and any
benefits under any insurance policies or other plans.
(d) Permanent disability means the inability of Xxxxxxx to perform
satisfactorily his usual or customary occupation for a period
of one hundred twenty (120) days in the
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aggregate out of one hundred fifty (150) consecutive days as
a result of a physical or mental illness or other
disability, which, in the written opinion of a physician
resident in Ohio of recognized ability and reputation
selected by Advanced Lighting, is likely to continue for a
significant period of time.
6. RENEWAL.
Not later than six (6) months prior to the termination of this
Agreement, Advanced Lighting shall be entitled to notify Xxxxxxx whether it
desires to renew this Employment Agreement with Xxxxxxx for an additional period
of three (3) years, which notice, if given, shall contain the compensation and
other benefits proposed to be paid and provided to Xxxxxxx by Advanced Lighting.
For a period of thirty (30) days after receipt of such notice, Xxxxxxx shall
have the option to accept such offer of renewal or, in the alternative, shall be
entitled to consult with Advanced Lighting with respect to different
compensation and/or benefits to be paid and provided to Xxxxxxx by Advanced
Lighting during said renewal period of employment. If at the end of said thirty
(30) day period Xxxxxxx and Advanced Lighting are unable to agree, then this
Employment Agreement shall not be renewed at the end of the term thereof, unless
otherwise agreed to by the parties. In the event, however, that Advanced
Lighting does not timely notify Xxxxxxx of its desire to renew this Employment
Agreement, then this Employment Agreement shall not be renewed at the end of the
term thereof, unless otherwise agreed upon by the parties.
7. REIMBURSEMENT.
Advanced Lighting shall reimburse Xxxxxxx during the term of this
Employment Agreement for travel, entertainment and other expenses reasonably and
necessarily incurred by Xxxxxxx in the promotion of Advanced Lighting's
business.
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8. COVENANTS REGARDING NONCOMPETITION AND CONFIDENTIAL INFORMATION.
(a) Xxxxxxx agrees during the term of this Employment Agreement
and for a period of two (2) years thereafter he will not,
directly or indirectly, do or suffer any of the following:
(i) Own, manage, control or participate in the
ownership, management, or control of, or be
employed or engaged by or otherwise affiliated or
associated as a consultant, independent contractor
or otherwise with any business of the type and
character of or in competition with the business
carried on by Advanced Lighting (as conducted on
the date Xxxxxxx ceases to be employed by Advanced
Lighting in any capacity) or its affiliates;
provided, however, that the ownership of not more
than one percent (1%) of the stock of any publicly
traded corporation shall not be deemed a violation
of this covenant;
(ii) Employ, assist in employing, or otherwise
associate in business with any present or former
or future employee, officer or agent of Advanced
Lighting or its affiliates;
(iii) Induce any person who is an employee, officer or
agent of Advanced Lighting or its affiliates to
terminate said relationship;
(iv) Disclose, divulge, discuss, copy or otherwise use
or suffer to be used in any manner, in competition
with, or contrary to the interests of Advanced
Lighting or its affiliates, the customer lists,
manufacturing methods, product research or
engineering data or other trade secrets of
Advanced Lighting or its affiliates, it being
acknowledged by Xxxxxxx that all such information
regarding the business of Advanced Lighting or its
affiliates developed,
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compiled or obtained by, or furnished to, Xxxxxxx while
Xxxxxxx shall have been employed by or associated with
Advanced Lighting or its affiliates is confidential
information and Advanced Lighting's or its affiliates'
exclusive property.
(b) Xxxxxxx expressly agrees and understands that the remedy at
law for any breach by him of this Paragraph 8 will be
inadequate and that the damages flowing from such breach are
not readily susceptible to being measured in monetary terms.
Accordingly, it is acknowledged that upon adequate proof of
Xxxxxxx'x violation of any legally enforceable provision of
this Paragraph 8, Advanced Lighting shall be entitled to
immediate injunctive relief and may obtain a temporary order
restraining any threatened or further breach. Nothing in
this Paragraph 8 shall be deemed to limit Advanced
Lighting's remedies at law or in equity for any breach by
Xxxxxxx of any of the provisions of this Paragraph 8 which
may be pursued or availed of by Advanced Lighting.
(c) In the event Xxxxxxx shall violate any legally enforceable
provision of this Paragraph 8 as to which there is a
specific time period during which he is prohibited from
taking certain actions or from engaging in certain
activities as set forth in such provision then, in such
event, such violation shall toll the running of such time
period from the date of such violation until such violation
shall cease.
9. SEVERABLE PROVISIONS.
The provisions of this Employment Agreement are severable and if any
one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the
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remaining provisions and any partially unenforceable provision to the extent
enforceable in any jurisdiction shall, nevertheless, be binding and enforceable.
10. BINDING AGREEMENT.
The rights and obligations of Advanced Lighting under this Employment
Agreement shall inure to the benefit of, and shall be binding upon, Advanced
Lighting and its successors and assigns, and the rights and obligations of
Xxxxxxx under this Employment Agreement shall inure to the benefit of, and shall
be binding upon, Xxxxxxx and his heirs, personal representatives and estate
except as otherwise provided herein.
11. ARBITRATION.
Any controversy or claim arising out of or relating to this Employment
Agreement, or the breach thereof, shall be settled by arbitration in accordance
with the Rules of the American Arbitration Association then pertaining in the
City of Cleveland, Ohio, and judgment upon the award rendered by the Arbitrator
or Arbitrators may be entered in any court having jurisdiction thereof. The
Arbitrator or Arbitrators shall be deemed to possess the powers to issue
mandatory orders and restraining orders in connection with such arbitration;
provided, however, that nothing in this Paragraph 11 shall be construed so as to
deny Advanced Lighting the right and power to seek and obtain injunctive relief
in a court of equity for any breach or threatened breach of Xxxxxxx of any of
his covenants contained in Subparagraph (a) of Paragraph 8 hereof.
12. NOTICES.
Any Notice to be given under this Employment Agreement shall be
personally delivered in writing or shall have been deemed duly given when
received after it is posted in the United States mails, postage prepaid,
registered or certified, return receipt requested, and if mailed to Advanced
Lighting, shall be addressed to its principal place of business, Attention:
Xxxxx X. Xxxx, and if mailed
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to Hellman, shall be addressed to Xxxxxxx at his home address last known on the
records of Advanced Lighting, or at such other address or addresses as either
Advanced Lighting or Xxxxxxx may hereafter designate in writing to the other.
13. WAIVER.
The failure of either party to enforce any provision or provisions of
this Employment Agreement shall not in any way be construed as a waiver of any
such provision or provisions as to any future violations thereof, nor prevent
that party thereafter from enforcing each and every other provision of this
Employment Agreement. The rights granted the parties herein are cumulative and
the waiver of any single remedy shall not constitute a waiver of such party's
right to assert all other legal remedies available to it under the
circumstances.
13. ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the parties hereto
and supersedes all prior agreements and understandings between the parties. This
Agreement may not be modified or terminated orally. No modification, termination
or attempted waiver shall be valid unless in writing and signed by the party
against whom the same it is sought to be enforced.
15. GOVERNING LAW.
This Employment Agreement shall be governed by and construed according
to the laws of the State of Ohio.
14. BOARD APPROVAL.
Notwithstanding any provision of this Employment Agreement to the
contrary, this Employment Agreement shall not become effective for any purpose
unless and until shall have been approved by the Board at a meeting duly held or
by the Directors' unanimous written consent in lieu of such meeting, which
action shall be considered by the Board within ninety (90) days hereof.
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15. CAPTIONS AND PARAGRAPH HEADINGS.
Captions and paragraph headings used herein are for convenience and are
not a part of this Employment Agreement and shall not be used in construing it.
16. MISCELLANEOUS.
Where necessary or appropriate to the meaning hereof, the singular and
plural shall be deemed to include each other, and the masculine feminine and
neuter shall be deemed to include each other.
IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Employment Agreement on the day and year first set forth above.
ATTEST: ADVANCED LIGHTING TECHNOLOGIES, INC.
/S/ Xxxxxxxx X. Xxxxx By: /S/ Xxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxxx Name: Xxxxx X. Xxxx
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/s/ Xxxx Xxxxxx Its: Executive Vice President
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Name: Xxxx Xxxxxx
ATTEST:
/s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxx Xxxxx X. Xxxxxxx
/s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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