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EXHIBIT 10.9
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EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 1st day of February, 1999, by and between
Xxxx X. Xxxxxxx ("Executive"), currently residing at 00000 Xxxx Xxxxxxx Xxxxx,
Xxxx, Xxxxxx 00000, and Bacou USA Safety, Inc. (the "Company"), which is a
wholly owned subsidiary of Bacou USA, Inc. ("Bacou"), both being corporations
organized under the laws of Delaware and having their principal offices at 00
Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX 00000.
W I T N E S S E T H :
WHEREAS, Company wishes to secure the services of Executive as President
of its Uvex Safety division (the "Uvex Division") 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 of the Uvex Division, reporting to the President and Chief Executive
Officer of the Company. Executive shall promptly relocate his permanent
residence to the Smithfield, Rhode Island 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 the Company. Ancillary employment including
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 or his designee ("Bacou CEO"). Executive also agrees that he
will not engage in any other business activities without the prior approval of
the Bacou CEO. 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 Bacou CEO. 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
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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 February 1, 1999 to June
30, 2000 (the "Initial Term"). On July 1, 2000, and at July 1 of each year
thereafter, the period of employment shall be automatically extended, without
further action by either party, for successive one year periods ending June 30
of the following year (each a "Renewal Term") unless at least six months prior
to the end of any Term (i.e., by December 31 of any year) either party shall
have served written notice on the other of its election to allow this Agreement
to terminate at the end of its current 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.
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 Executive from 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 any of the
following: (a) 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 Smithfield, Rhode Island area); (b) the failure
to abide by, or to execute in a reasonable and responsible
manner, the policies and procedures of the Company as in effect
from time to time; (c) gross negligence in the performance of
his duties under this Agreement; (d) the
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commission by Executive of a felony; (e) engaging in any
activity that is competitive with the business of the Company;
or (f) engaging in fraudulent, unethical or dishonest
activities.
4. COMPENSATION AND BENEFITS.
(a) The Executive shall receive regular compensation (the
"Base Salary") at the initial rate of Two Hundred Fifty Thousand Dollars
($250,000.00) per annum during 1999. 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 Base Salary prevailing at
any time shall be reviewed for a possible increase on an annual basis beginning
in January 2000.
(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 the minimum amount of Incentive Compensation payable for 1999
shall be forty percent (40%) of the Base Salary paid to Executive in 1999.
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.
(c) Incentive Compensation shall be paid by Company for each
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 the Company or February 28 following the fiscal year for which the Incentive
Compensation is paid.
(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 Notice and Agreement attached hereto as Exhibit C, Executive
shall be granted options to purchase fifteen thousand (15,000) shares of common
stock of Bacou at a per share price equal to the closing price on the New York
Stock Exchange on February 1, 1999, subject to vesting 25 percent on August 1,
1999 and 25 percent each on the first through third 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) In connection with the execution of this Agreement,
the Company shall pay Executive Forty Thousand Dollars ($40,000.00) and provide
relocation assistance in accordance with the terms and conditions of the
Relocation Assistance Agreement attached hereto as EXHIBIT A.
5. LIMITATIONS ON AUTHORITY. Except as otherwise provided herein,
approval by the Bacou CEO 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;
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(b) Making unplanned capital expenditures or any commitment
therefor in an amount greater than $10,000 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, terminating, promoting or demoting executive
personnel with annual salary in excess of $50,000 or
granting unbudgeted raises, bonuses or other
compensatory payments to any employee of the Company;
(e) Granting retirement benefits or other non-earned income
to any person;
(f) Modification of any qualified plan or other benefit
plan, e.g., health insurance;
(g) Acquiring the assets or shares of any business;
(h) Acquiring or disposing of the assets or shares of the
Company or selling any fixed asset of the Company below
book value or writing off inventory of the Company with
an aggregate book value exceeding $50,000 in any fiscal
year;
(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;
(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;
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(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 Bacou CEO 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 Bacou CEO 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 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 seven (7) 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,
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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 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.
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(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:
(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
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(b) If to the Executive, to him at the current address shown
in the payroll records of the Company.
Either 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.)
12. CONSTRUCTION. This Agreement shall be construed under the laws
of the State of Rhode Island.
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 Providence, Rhode Island and any award shall be deemed to be a
Providence, Rhode Island award. There shall be a single arbitrator who shall be
admitted to practice law in Rhode Island, 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 Rhode Island. 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.
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IN WITNESS WHEREOF, Company and the Executive have duly executed this
Agreement as of the day and year first written above.
BACOU USA SAFETY, INC.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxx
Xxxxxx Xxxxxx Xxxxxx X. Xxxx
Chairman, President Vice Chairman, Secretary
and CEO and Treasurer
EXECUTIVE:
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
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