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EXHIBIT 10.29
EMPLOYMENT AGREEMENT
MAARTEN D. HEMSLEY& OAKHURST COMPANY, INC.
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective as of this 18th
day of December 1998 by and between OAKHURST COMPANY, INC. (the "Company") and
MAARTEN ▇. ▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇") upon the following terms and conditions:
1. BACKGROUND. Prior to the date hereof, ▇▇. ▇▇▇▇▇▇▇ has consulted for the
Company pursuant to a consulting agreement between the Company and
Bryanston Management Limited dated as of March 1, 1998 (the "Consulting
Agreement"). On the date hereof, ▇▇. ▇▇▇▇▇▇▇ was elected a director and
an officer of the Company. Accordingly, the parties now wish to terminate
the Consulting Agreement and to employ ▇▇. ▇▇▇▇▇▇▇ pursuant to the terms
and conditions of this Agreement.
2. CONSIDERATION. The parties are entering into this Agreement for and in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
3. TERM. The term of this Agreement and of ▇▇. ▇▇▇▇▇▇▇'▇ employment shall
commence as of the date hereof and shall continue through and including
February 28, 2001 (the "Term") unless sooner terminated as provided in
Section 9, below.
4. SERVICES.
(a) ▇▇. ▇▇▇▇▇▇▇ shall provide to the Company the services of a
President, Chief Operating Officer and Chief Financial Officer and
shall if elected, serve as a director of the Company.
(b) In the event that for any reason ▇▇. ▇▇▇▇▇▇▇ is not elected a
director of the Company and as a result is not eligible to be
President of the Company, ▇▇. ▇▇▇▇▇▇▇ shall perform such other tasks
and responsibilities consonant with his experience and abilities as
the Board of Directors shall reasonably request.
(c) ▇▇. ▇▇▇▇▇▇▇ shall devote such time to the rendering of such services
as he and a majority of the Board of Directors consider to be
appropriate and commensurate with the responsibilities of those
offices.
(d) No restrictions shall be placed on other activities of ▇▇. ▇▇▇▇▇▇▇
provided that such activities (i) are not competitive with those of
the Company or any of its affiliates; (ii) do not create a conflict
of interest for ▇▇. ▇▇▇▇▇▇▇; and (iii) do not interfere with the
fulfillment by ▇▇. ▇▇▇▇▇▇▇ of his obligations under this Agreement.
5. THE BOARD OF DIRECTORS. For purposes of this Agreement, an action or
determination by "a majority of the Board of Directors" shall mean an
action or determination taken in the good faith exercise of their
discretion by more than half of the directors of the Company then in
office, but (i) with ▇▇. ▇▇▇▇▇▇▇ abstaining from such vote and (ii)
excluding ▇▇. ▇▇▇▇▇▇▇ from the count of the total number of directors
then in office.
6. SALARY. During the Term --
(a) The Company shall pay ▇▇. ▇▇▇▇▇▇▇ a salary of seven thousand
eighty-four dollars ($7,084) per month.
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(b) ▇▇. ▇▇▇▇▇▇▇'▇ salary shall be paid at the same time and in the same
installments as the salaries of other officers of the Company are
paid.
(c) ▇▇. ▇▇▇▇▇▇▇ has currently voluntarily agreed to the deferral of 10%
of his salary since October 1, 1998. That deferred salary shall be
re-paid to him at such time as the Compensation Committee of the
Board of Directors determines that the Company's cash flow from its
Steel City Products and ▇▇▇▇▇▇▇'▇ Fleet Service subsidiaries is
adequate to do so.
7. BUSINESS EXPENSES; USE OF COMPANY EQUIPMENT; CAR ALLOWANCE.
(a) ▇▇. ▇▇▇▇▇▇▇ shall be entitled to be reimbursed, or to the use of a
Company credit card, for reasonable business expenses incurred by
him in the performance of his duties and responsibilities hereunder,
including, but not limited to, travel from his office and/or
residence to the Company's facilities, all in accordance with
policies established for the Company by the Board of Directors from
time to time. ▇▇. ▇▇▇▇▇▇▇'▇ Company credit card charges and expense
reports will be subject to review by the Chief Executive Officer of
the Company.
(b) The Company shall make available in its discretion to ▇▇. ▇▇▇▇▇▇▇
the use of certain Company-owned office equipment from time to time.
(c) In lieu of charging the Company for automobile travel expenses and
to avoid the attendant paper work resulting therefrom, the Company
shall pay ▇▇. ▇▇▇▇▇▇▇ a fixed automobile usage fee of two hundred
fifty dollars ($250) per month and shall reimburse to ▇▇. ▇▇▇▇▇▇▇
one-half (1/2) the costs required to repair, maintain and operate
one full-sized automobile (other than the costs of gasoline consumed
by the private use of such automobile by ▇▇. ▇▇▇▇▇▇▇), including
excise taxes, and the costs of collision, fire, theft and liability
insurance in reasonable amounts and with reasonable deductibles.
8. BENEFITS. ▇▇. ▇▇▇▇▇▇▇ shall be entitled to the same health and other
benefits as are made available to the Company's senior executives
generally and on the same basis. The Company shall also reimburse to ▇▇.
▇▇▇▇▇▇▇ one-half (1/2) of the premiums for the long term disability
insurance coverage maintained by ▇▇. ▇▇▇▇▇▇▇.
9. TERMINATION.
(a) Termination By the Company. ▇▇. ▇▇▇▇▇▇▇'▇ employment may be
terminated only by a majority of the Board of Directors and only as
follows:
(i) For Cause (as defined below), by written notice to ▇▇.
▇▇▇▇▇▇▇, in which event the Company shall pay to him so much
of his salary as was accrued, but not paid at the date of
termination.
(ii) Without Cause, by written notice to ▇▇. ▇▇▇▇▇▇▇, in which
event, all stock options then held by ▇▇. ▇▇▇▇▇▇▇ shall
thereupon become exercisable in full, and the Company shall
pay to ▇▇. ▇▇▇▇▇▇▇ his salary at the rate then in effect that
was accrued, but not paid at the date of termination, and
within fifteen (15) days of such termination, shall pay in a
lump sum his salary at the rate then in effect multiplied by
the greater of (1) twenty-four (24); or (2) the number of
whole calendar months remaining in the Term at the date the
notice of termination is given to ▇▇. ▇▇▇▇▇▇▇.
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After receipt of such lump sum payment, upon the request of a
majority of the Board of Directors, ▇▇. ▇▇▇▇▇▇▇ shall resign
as a director and officer of the Company and of any of its
subsidiaries.
(iii) "Cause" shall mean any act or acts by ▇▇. ▇▇▇▇▇▇▇ of
dishonesty or fraud or that constitute serious moral
turpitude; misconduct of a material nature or a material
breach in connection with the performance by him of his
responsibilities hereunder; or the failure by ▇▇. ▇▇▇▇▇▇▇ for
a substantial period to devote adequate time to rendering the
services provided for hereunder (other than by reason of his
death or permanent disability.)
(iv) Upon a determination that because of a permanent disability,
▇▇. ▇▇▇▇▇▇▇ is no longer able to carry out his duties and
responsibilities hereunder, in which event the Company shall
give notice of such termination to ▇▇. ▇▇▇▇▇▇▇ and shall
thereafter continue to pay him his salary at the rate then in
effect for a period of three (3) full calendar months.
(v) Upon the death of ▇▇. ▇▇▇▇▇▇▇, in which event the Company
shall pay to his legal representative so much of ▇▇.
▇▇▇▇▇▇▇'▇ salary as was accrued, but not paid at the date of
his death.
(b) Termination By ▇▇. ▇▇▇▇▇▇▇.
(i) ▇▇. ▇▇▇▇▇▇▇ may resign his employment on sixty (60) days'
prior written notice to the Company, in which event the
Company shall continue to pay him his salary at the rate then
in effect for such sixty-day period; provided however, that
in the event that ▇▇. ▇▇▇▇▇▇▇ gives notice of his resignation
within sixty (60) days after a Change in Control of the
Company (as defined below), all stock options then held by
▇▇. ▇▇▇▇▇▇▇ shall thereupon become exercisable in full, and
the Company shall pay ▇▇. ▇▇▇▇▇▇▇ the amount provided for
under Section 9(a)(ii), above, as if his employment had been
terminated by the Company without Cause on the date ▇▇.
▇▇▇▇▇▇▇ gave the Company notice of his resignation.
(ii) For purposes of this Section 9(b), a "Change in Control of
the Company" shall mean the acquisition after the date hereof
by a person, an entity or a group of persons or entities of
20% or more of the Company's voting securities (other than as
a result of the exercise by stockholders of rights under the
Company's Shareholders Rights Plan).
(iii) The Company may deem any such notice given by ▇▇. ▇▇▇▇▇▇▇ as
a resignation by him, effective upon the giving of such
notice, of any one or more of the offices then held by him in
the Company and its subsidiaries.
10. CONFIDENTIAL INFORMATION.
(a) So long as ▇▇. ▇▇▇▇▇▇▇ is an employee and/or director of the Company
and after any or all of such relationships terminate for whatever
reason, ▇▇. ▇▇▇▇▇▇▇ shall (i) not disclose to any person or entity
Confidential Information (as defined below) except in the proper
performance of his duties and responsibilities or except as may be
expressly authorized by the Board of Directors of the Company; and
(ii) shall not use Confidential Information for his own benefit or
for the benefit of any person or entity other than the Company and
its subsidiaries.
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(b) For purposes of this Agreement, "Confidential Information" is
defined as including trade secrets, customer names and lists, vendor
names and lists, business plans, marketing plans, non-public
financial data, product specifications and designs, the existence,
nature, substance, progress and results of research and development
projects, concepts, inventions, discoveries, formulae, processes,
drawings, documents, records, software, or any other information of
the Company, its parent or of any of their subsidiaries that is not
generally available, or any such information of any third party that
is held by the Company, its parent or any of their subsidiaries
under an obligation of confidentiality. Without limiting the
generality of the foregoing, it is understood and agreed that the
intellectual property, plans, methods and techniques of the Company
or that were disclosed to the Company by a third party that relate
to the realization of the benefits of net loss operating
carryforwards are included within the term Confidential Information.
(c) ▇▇. ▇▇▇▇▇▇▇'▇ obligation of confidentiality shall not, however,
relate to any information --
(i) that is or becomes generally or widely known through no act
or fault of ▇▇. ▇▇▇▇▇▇▇;
(ii) that is received by ▇▇. ▇▇▇▇▇▇▇ (without a breach of this or
any other agreement) from a third party with no restrictions
as to its disclosure; or
(iii) that is required to be disclosed pursuant to applicable law,
a court order or a judicial proceeding, including a
proceeding to enforce this Agreement.
11. NON-COMPETE OBLIGATIONS.
(a) ▇▇. ▇▇▇▇▇▇▇'▇ obligations with respect to competing with the Company
and soliciting its employees shall be as follows:
(i) ▇▇. ▇▇▇▇▇▇▇ shall not render services or advice, whether for
compensation or without compensation and whether as an
employee, officer, director, consultant, principal or
otherwise, to any person or organization that is competitive
with the Company's current aftermarket automobile parts and
supplies distribution business or with any planned business
of the Company as to which ▇▇. ▇▇▇▇▇▇▇ was involved in the
planning within a radius of 200 miles of any facility of the
Company.
(ii) ▇▇. ▇▇▇▇▇▇▇ shall not either directly or indirectly as agent
or otherwise in any manner solicit, influence or encourage
any customer, client or associate of the Company to take away
or to divert or direct its business to ▇▇. ▇▇▇▇▇▇▇ or to any
person or entity by or with which ▇▇. ▇▇▇▇▇▇▇ is employed,
associated, affiliated or otherwise related (other than the
Company).
(iii) ▇▇. ▇▇▇▇▇▇▇ shall not recruit or otherwise solicit or induce
any person to terminate his or her employment or other
relationship with the Company.
(b) ▇▇. ▇▇▇▇▇▇▇'▇ obligations under Section 11(a), above, shall continue
so long as he is an employee of the Company. Such obligations also
shall continue after the termination of his employment as follows:
(i) in the event of the termination of his employment for any
reason other than his voluntary resignation, for a period of
one (1) year after the date of such termination;
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(ii) in the event of his voluntary resignation from the Company's
employ, until the later of (1) the expiration of one (1) year
after the date of such termination, or (2) February 28, 2002.
(c) For purposes of this Section 11, the word "Company" shall include
the Company and any subsidiary of the Company.
12. PRORATION. To the extent that ▇▇. ▇▇▇▇▇▇▇'▇ salary at the rate in effect
from time to time needs to be prorated for a period of less than a full
month, such salary shall be deemed earned on a daily basis and shall be
pro rated based on a 365-day year.
13. NOTICES. All notices required or permitted under this Agreement shall be
in writing and shall be deemed given to a party either (a) when hand
delivered to such party; (b) when deposited with a courier service with
instructions to provide next-business-day delivery and proof of delivery
to such party; or (c) when sent by facsimile transmission to such party
as follows:
If to the Company, at: Oakhurst Company, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy other
than by facsimile to ▇▇▇▇ ▇. Lever, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to ▇▇. ▇▇▇▇▇▇▇ at: Maarten ▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address of a party as that party shall notify the other
party in the manner provided herein.
14. ENTIRE AGREEMENT ETC.
(a) This Agreement contains the entire understanding of the parties;
shall not be amended except by written agreement of the parties
signed by each of them; and shall be binding upon and inure to the
benefit of the parties and their successors, personal
representatives and permitted assigns. Because the obligations of
▇▇. ▇▇▇▇▇▇▇ hereunder are personal, this Agreement shall not be
assignable by him.
(b) Each provision of this Agreement shall be interpreted and enforced
without the aid of any canon, custom or rule of law requiring or
suggestion construction against the party drafting or causing the
drafting of such provision.
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(c) No representation, affirmation of fact, course of prior dealings,
promise or condition in connection herewith or usage of the trade
not expressly incorporated herein shall be binding on the parties.
(d) The words "herein," "hereof," "hereunder," "hereby," "herewith" and
words of similar import when used in this Agreement shall be
construed to refer to this Agreement as a whole.
(e) The failure by a party to insist upon strict compliance with any
term, covenant or condition, or to exercise any right, contained
herein shall not be deemed a waiver of such term, covenant,
condition or right; and no waiver or relinquishment of any term,
covenant, condition or right at any one or more times shall be
deemed a waiver or relinquishment thereof at any other time or
times.
(f) The captions of the paragraphs herein are for convenience only and
shall not be used to construe or interpret this Agreement.
15. SEVERABILITY. If any provision or part of a provision of this Agreement
is finally declared to be invalid by any tribunal of competent
jurisdiction, such part shall be deemed automatically adjusted, if
possible, to conform to the requirements for validity, but, if such
adjustment is not possible, it shall be deemed deleted from this
Agreement as though it had never been included herein. In either case,
the balance of any such provision and of this Agreement shall remain in
full force and effect. Notwithstanding the foregoing, however, no
provision shall be severed if it is clearly apparent under the
circumstances that either or both of the parties would not have entered
into this Agreement without such provision.
16. SURVIVAL. The termination of ▇▇. ▇▇▇▇▇▇▇'▇ employment and/or this
Agreement shall not relieve ▇▇. ▇▇▇▇▇▇▇ of his obligations under Section
10 ("Confidential Information") or Section 11 ("Non-Compete Obligations")
hereof. In addition, any other obligations of the parties that by their
terms are to be performed or are to have continued effect after the
termination of ▇▇. ▇▇▇▇▇▇▇'▇ employment or of this Agreement shall
survive such expiration or termination.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving
effect to any choice of law or conflict of law provision or rule (whether
of the State of Delaware or of any other jurisdiction) that would cause
the application hereto of the laws of any jurisdiction other than the
State of Delaware.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as
of the date first set forth above.
OAKHURST COMPANY, INC.
By: /s/ ▇▇▇▇ ▇. Lever /s/ Maarten ▇. ▇▇▇▇▇▇▇
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▇▇▇▇ ▇. Lever MAARTEN ▇. ▇▇▇▇▇▇▇
For the Board of Directors
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CONSENT
The undersigned, BRYANSTON MANAGEMENT LIMITED, hereby consents to the
cancellation effective December 18, 1998 of that certain Consulting
Agreement with the Company dated as of March 1, 1998 on the condition
that the fees payable thereunder are prorated through such date and all
reimbursable expenses incurred thereunder prior to such date are
reimbursed in due course.
BRYANSTON MANAGEMENT LIMITED
By: /s/ Maarten ▇. ▇▇▇▇▇▇▇
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Maarten ▇. ▇▇▇▇▇▇▇, President
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