Exhibit 10.37
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EMPLOYMENT AGREEMENT
AGREEMENT dated the 1st day of December, 1999 by and between
TOUCHSTONE APPLIED SCIENCE ASSOCIATES, INC., a Delaware
corporation with its principal place of business at 0
Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxx, Xxx Xxxx 00000 ("TASA" or the
"Corporation") and XXXXX XXXXXXX, an individual residing at 0
Xxxxxx Xxx, Xxxxxxxx, XX 00000 ("Employee").
W I T N E S S E T H:
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WHEREAS, the Corporation recognizes that the current
business environment makes it difficult to attract and retain
highly qualified employees unless a certain degree of security
can be offered to such individuals against personnel changes;
and
WHEREAS, the Corporation desires to assure fair treatment of
such qualified employees and thereby increasing their
willingness to remain with the Corporation; and
WHEREAS, The Board of Directors (the "Board") of the
Corporation believes it is essential to provide Employee with
such degree of security and secure the services of Employee
for the Corporation, and, in order to accomplish these
objectives, the Board has caused the Corporation to enter into
this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements set forth herein, the parties hereto,
intending to be legally bound, agree as follows:
1. Employment and Term. Subject to the terms and
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conditions of this Agreement, the Corporation agrees to employ
Employee, and Employee hereby accepts employment by the
Corporation, for a term beginning as of January 1, 2000 (the
"Effective Date") and, except as provided in the next two
sentences, ending on the first anniversary of the Effective
Date. At the end of the first six month period of the Term,
and not later than thirty (30) days thereafter, the
Corporation shall advise Employee as to its determination to
extend the Term another twelve months from such sixth month
anniversary date. If such extension is granted, the Term
shall end on a date eighteen (18) months after the Effective
Date (the "Extended Term"). Thereafter, commencing on the
expiration date of the Extended Term, and on each annual
anniversary of such date (such date and each annual
anniversary thereof is hereafter referred to as the "Renewal
Date"), the term of this Agreement shall be automatically
extended so as to terminate one year from such Renewal Date,
unless at least 180 days prior to the Renewal Date either the
Corporation or Employee shall give written notice to the other
that the term of the Agreement shall not be so extended.
Notwithstanding anything to the contrary contained in this
Paragraph, the effectiveness of this Agreement is strictly
contingent upon a background investigation of Employee,
including references, criminal history and verification of
data provided, which shall be satisfactory to the Corporation
in all respects as it shall, in its sole discretion,
determine. Employee shall provide such information and
consents as shall be requested in connection with this
background investigation.
2. Certain Definitions.
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(a) A reference herein to a section of the Internal
Revenue Code of 1986, as amended (the "Code") or a subdivision
thereof shall be construed to incorporate reference to any
section or subdivision of the Code enacted as a successor
thereto, any applicable proposed, temporary or final
regulations promulgated pursuant to such sections and any
applicable interpretation thereof by the Internal Revenue
Service.
(b) A reference herein to a section of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any
rule or regulation promulgated thereunder shall be construed
to incorporate reference to any section of the Exchange Act or
any rule or regulation enacted or promulgated as a successor
thereto.
(c) "Subsidiary(ies)" means a company 50% or more of
the voting securities of which are owned by the Corporation or
a subsidiary of the Corporation and includes, among others,
Modern Learning Press Corporation ("MLP").
(d) "Employee Benefit Plan" means any written plan
providing benefits for employees of the Corporation or any
Subsidiary.
3. Duties. During the Employment Term, Employee shall
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serve in a capacity as Chief Operating Officer -- TASA/MLP and
Vice President of the Corporation, or in such other related
capacity or capacities as may be determined by the Board.
Employee shall perform such services as are customary for the
Chief Operating Officer of a corporation the principal
business of which is test assessment, and its subsidiary, MLP,
which primarily publishes educational materials, including,
but not limited to operational analysis, presentation and
reporting, and operational management, administration and
product development, and such other services as may be
required or requested by the Board or the President in
connection with the operation of the Corporation and MLP.
Employee shall report directly to the President of the
Corporation and shall be headquartered at Brewster, New York,
or any office or location of the Corporation as the Board or
the President shall request. During the Employment Term, and
excluding any periods of vacation and sick leave, Employee
agrees to devote full time, best efforts to the business and
affairs of the Corporation to discharge the responsibilities
assigned to Employee hereunder, and to perform faithfully and
efficiently such responsibilities. During the Employment
Term it shall not be a violation of this Agreement for
Employee to (A) serve on corporate, civic or charitable boards
or committees, (B) deliver lectures, fulfill speaking
engagements or teach at educational institutions, and (C)
manage personal investments, so long as Employee's duties in
connection therewith do not unreasonably interfere with
Employee's duties under this Agreement. Activities of
Employee consistent with this Section 3 shall not permit the
Corporation to terminate Employee's employment for "Cause", as
defined below.
4. Compensation.
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(a) BASE SALARY. During the Employment Term, the
Corporation shall pay to Employee, in equal installments no
less frequently than monthly (or at such other intervals as
are in effect from time to time for other officers of the
Corporation), an annual base salary (the "Base Salary") of One
Hundred Fifty ($150,000.00) Dollars.
(b) BONUS. In addition to Base Salary, Executive
shall be awarded, for each fiscal year of the Corporation
ending during the Employment Term, beginning with the first
fiscal year of the Corporation during this Agreement, an
annual bonus ("Annual Bonus") in cash equal to four (4%)
percent of earnings of the Corporation before interest and
taxes ("EBIT") in excess of (10%) percent capital charge of
the purchase price of any product/entity acquired by either
the Corporation or MLP (inclusive of all forms of allocation
of such price). For example, with respect to the forecast for
1999, the Bonus would have been $20,000. Based upon the
preliminary budget for 2000, the Bonus would be $27,000.
Bonus shall be calculated pro rata, based upon the actual
number of complete months that Employee is employed in the
applicable fiscal year of the Corporation.
(c) INCENTIVE, SAVINGS, WELFARE BENEFIT PLANS AND
RETIREMENT PLANS. In addition to Base Salary, Employee shall
be eligible to participate in or benefit from, such medical
insurance, life insurance, disability insurance, pension,
bonus, profit-sharing, stock option, stock purchase and any
other fringe benefit plans, practices, programs or policies
provided by the Corporation to Employee in accordance with the
terms of such plans, practices, programs and policies, as
amended from time to time.
(d) KEY MAN INSURANCE. Employee agrees that the
Corporation may obtain key man life insurance with respect to
Employee, and in connection therewith, agrees to submit to all
reasonable and customary examinations by the provider of such
life insurance.
(e) EXPENSES. Employee shall be entitled to
reimbursement for all normal and reasonable travel,
entertainment and other expenses necessarily incurred by him
in the performance of his duties hereunder in accordance with
the policies, practices and procedures of the Corporation as
amended from time to time. The Corporation shall lease a
vehicle for the use of Employee during the Employment Term
comparable to those leased for employees of similar capacity
with the Corporation.
(e) DISABILITY. Except as hereinafter provided, the
Corporation shall pay Employee for any period, up to a maximum
of three months, during the Employment Term in which he is
unable fully to perform his duties because of physical or
mental disability or incapacity, an amount equal to the Base
Salary due him for such period pursuant to Section 4(a), less
the aggregate amount of all income disability benefits which
for such period he may receive by reason of (i) any group
health insurance plan, or disability insurance plan paid for
by the Corporation, in each case which is intended to function
as a salary replacement plan, (ii) any applicable compulsory
state disability law, (iii) the Federal Social Security Act,
(iv) any applicable workmen's compensation law or similar law
and (v) any plan towards which the Corporation or any
subsidiary or affiliate of the Corporation (including any
predecessor of any thereof) has contributed or for which it
has made payroll deductions, such as group accident or health
policies, other than those which reimburse for actual medical
expenses.
(f) VACATION. During the Employment Term, Employee
shall be entitled to paid vacation in accordance with the
plans, practices, policies and programs of the Corporation as
amended from time to time.
5. Stock Options.
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(a) As part of the consideration to be paid to
Employee for his services hereunder, Employee shall be
eligible to participate in any stock incentive plan adopted by
the Corporation (the "Plan") for which an executive level
employee may participate.
(b) The Corporation hereby agrees that it shall cause
to be filed with the Securities and Exchange Commission a
registration statement on Form S-8 (or equivalent form as may
be in effect at such time) with respect to all options
theretofore granted to Employee under the Plan. The
Corporation covenants that it will keep such registration
statement current until Employee is no longer employed by the
Corporation. The Corporation hereby agrees that, for so long
as either the Corporation does not have an effective
registration statement on Form S-8 or the Corporation has an
effective registration statement on Form S-8 but Employee is
restricted in his ability to resell shares acquired pursuant
to the exercise of options because of the provisions of
General Instruction C.2(b) to Form S-8, Employee shall have
"piggyback" registration rights with respect to the options
granted to Employee under the Plan and the shares underlying
such options.
(c) As an incentive to enter into this Agreement, the
Corporation, immediately upon the Effective Date of this
Agreement, shall deliver to Employee a Stock Option Agreement
pursuant to its Amended and Restated 1991 Stock Option
Incentive Plan, granting to Employee ten (10) year options for
40,000 shares of the common stock of the Corporation at fair
market value as of the Effective Date, exercisable one year
after the anniversary of the date of the grant.
6. Rights of Termination.
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(a) CAUSE. During the Employment Term, the
Corporation shall have the right, at any time effective upon
notice to Employee, to terminate Employee's employment for
"Cause" (as hereinafter defined). For purposes of this
Agreement, "Cause" shall mean (i) an act or acts of personal
dishonesty engaged in by Employee, (ii) violations by
Employee of Employee's obligations under Section 3 of this
Agreement which are not remedied within thirty (30) days after
receipt of written notice from the Corporation; (iii)
commission by Employee of a felony or any act of embezzlement
or misappropriation of funds, (iv) material breach of any
representation or warranty hereunder or fraud or negligence in
the performance of his duties hereunder, and (v) an inability
in the reasonable opinion of the President of the Corporation,
to work cohesively with other key personnel if not remedied to
the reasonable satisfaction of the President within thirty
(30) days after written notice from the Corporation.
(b) DISABILITY; DEATH. In the event that Employee,
due to physical or mental disability or incapacity, is unable
to substantially perform his duties hereunder for a period of
three or more successive months, the Corporation or Employee
shall have the right to terminate this Agreement and
Employee's employment hereunder upon 30 days' prior written
notice and termination shall be effective on the 30th day
after receipt of such notice by the Employee (the "Disability
effective date"). In the event that Employee is able to and
recommences rendering services and substantially performing
his duties hereunder within such 30-day notice period,
Employee shall be reinstated and such notice shall be without
further force or effect. If Employee dies during the Term,
this Agreement shall terminate immediately upon his death.
(c) NOTICE OF TERMINATION. Any termination of
Employee's employment by the Corporation or by Employee shall
be communicated by Notice of Termination to the other party
hereto given in accordance with Section 16 of this Agreement.
(d) DATE OF TERMINATION. "Date of Termination" means
the date of receipt of the Notice of Termination or any later
date specified therein, as the case may be; provided, however,
that if Employee's employment is terminated by reason of death
or Disability, the Date of Termination shall be the date of
death of Employee or the Disability effective date, as the
case may be.
7. Effects of Termination. In the event that Employee's
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employment is terminated pursuant to Section 6 hereof,
Employee's employment hereunder shall terminate without
further obligations to Employee, other than those obligations
accrued or earned and vested (if applicable) by Employee
through the Date of Termination, including for this purpose
all "Accrued Obligations", defined as those obligations
accrued or earned and vested (if applicable) by Employee as of
the Date of Termination, including, for this purpose (i)
Employee's pro rata Base Salary accrued but unpaid as of the
Date of Termination, (ii) any compensation previously deferred
by Employee (together with any accrued earning thereon) and
not yet paid by the Corporation and any accrued vacation pay
not yet paid by the Company and (iii) if applicable, all
amounts payable to the estate or designated beneficiaries of
Employee under any pension, savings, life insurance or other
plans, practices, policies and programs of the Corporation,
and/or all other amounts payable pursuant to Section 4 hereof.
In addition:
(i) the Corporation shall pay to Employee all
Accrued Obligations such that the Accrued Obligations
specified in Section 4 hereof, shall be paid to Employee in a
lump sum in cash within 30 days of the Date of Termination,
and the other Accrued Obligations shall be paid in accordance
with Employee's specific elections pursuant to, and otherwise
in accordance with the terms of, any plan, practice, policy or
program providing benefits forming a part of the Accrued
Obligations;
(ii) all then non-exercisable options shall
immediately and automatically terminate, and
(iii) any registration rights theretofore
granted which have not been invoked with respect to shares of
Common Stock of the Corporation either acquired by Employee
pursuant to the exercise of stock options or underlying vested
options shall immediately and automatically terminate.
8. Confidentiality.
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(a) Employee understands and acknowledges that as a
result of Employee's employment with the Corporation, and
involvement with the business of the Corporation he is or
shall necessarily become informed of, and have access to,
confidential information of the Corporation including, without
limitation, inventions, patents, patent applications, trade
secrets, technical information, know-how, plans,
specifications, financial information and business strategy,
marketing plans and information, pricing information, identity
of customers and prospective customers and identity of
suppliers, and that such information, even though it may have
been or may be developed or otherwise acquired by Employee, is
the exclusive property of the Corporation to be held by
Employee in trust and solely for the Corporation's benefit.
Employee shall not at any time, either during or subsequent to
his employment hereunder, reveal, report, publish, transfer or
otherwise disclose to any person, corporation or other entity,
or use, any of the Corporation's confidential information,
without the written consent of the Board, except for use on
behalf of the Corporation in connection with the Corporation's
business, and except for such information which legally and
legitimately is or becomes of general public knowledge from
authorized sources other than Employee.
(b) Upon the termination of his employment with the
Corporation for any reason, Employee shall promptly deliver to
the Corporation all drawings, manuals, letters, notes,
notebooks, reports and copies thereof and all other materials,
including, without limitation, those of a secret or
confidential nature, relating to the Corporation's business
which are in Employee's possession or control.
(c) For purposes of this Section 8 and Section 9, the
term "Corporation" includes the Corporation and any other
predecessor corporation, and affiliates (including, without
limitation, distributors, licensees, franchisees, Subsidiaries
and joint ventures).
(d) Employee represents and warrants to the Corporation
that the execution and delivery of this Agreement shall not
conflict with, or violate the terms of, or constitute a breach
of any other agreement or document to which he is a party,
including, but not limited to any employment, consulting,
non-competition, restrictive covenant or other form of
confidentiality agreement.
9. Non-Competition. Employee agrees that, for a period
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commencing on the date hereof and ending one year after the
termination of his employment with the Corporation for any
reason, he shall not, anywhere in the United States (or for
such lesser area or such lesser period as may be determined by
a court of competent jurisdiction to be a reasonable
limitation on the competitive activity of Employee) directly
or indirectly:
(a) solicit or attempt to solicit business of any
customers of the Corporation (including prospective
customers solicited by the Corporation during the
term of his employment) for products or services the
same or similar to those offered, sold, produced or
under development by the Corporation during the term
of his employment therewith or dealt in by Employee
during his employment with the Corporation;
(b) solicit or attempt to solicit for any business
endeavor any employee of the Corporation;
(c) interfere with any business relationship
between the Corporation and any other person or
entity;
(d) use the name of the Corporation or a name
similar thereto; or
(e) render any services as an officer, director,
employee, partner, consultant or otherwise to, or
have any interest as a stockholder, partner, lender
or otherwise in, any entity which is engaged in
activities which, if performed by Employee would
violate this Section 9.
10. Remedies and Survival. Because the Corporation does
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not have an adequate remedy at law to protect its interest in
its trade secrets, privileged, proprietary or confidential
information and similar commercial assets, or its business
from Employee's competition, the Corporation and each of its
Subsidiaries shall be entitled to injunctive relief, in
addition to such other remedies and relief that would, in the
event of a breach of the provisions of Sections 8 or 9, be
available to the Corporation and each of its Subsidiaries.
The provisions of Sections 8 and 9 and this Section 10 shall
survive any termination of Employee's employment with the
Corporation or MLP for any reason whatsoever.
11. Set-off. The payments and performance by the
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Corporation as provided for in this Agreement shall be subject
to any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Corporation may have against
Employee.
12. Non-exclusivity of Rights. Except as specifically
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provided in this Agreement, it is intended that Employee's
present and future participation in any benefit, bonus,
incentive or other plans, practices, policies or programs
provided by the Corporation and for which Employee or
Employee's family may otherwise qualify and be eligible be
limited or unavailable. Nothing contained in this Agreement,
however, shall limit or otherwise affect such rights as
Employee may have under any stock option agreements with the
Corporation. Amounts which are vested benefits or which
Employee is otherwise entitled to receive at or subsequent to
the Date of Termination shall be payable in accordance with
the plan, practice, policy or program of the Corporation under
which Employee has such entitlement, if any.
13. Entire Agreement. This Agreement sets forth the
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entire understanding of the parties hereto with respect to its
subject matter, merges and supersedes any prior or
contemporaneous agreements or understandings with respect to
its subject matter, and shall not be modified or terminated
except by another agreement in writing executed by the
Corporation and Employee. Failure of a party to enforce one
or more of the provisions of this Agreement or to require at
any time performance of any of the obligations hereof shall
not be construed to be a waiver of such provisions by such
party nor to in any way affect the validity of this Agreement
or such party's right thereafter to enforce any provision of
this Agreement, nor to preclude such party from taking any
other action at any time which it would legally be entitled to
take.
14. Severability. If any provision of this Agreement is
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held to be invalid or unenforceable by any court or tribunal
of competent jurisdiction, the remainder of this Agreement
shall not be affected by such judgement and such provision
shall be carried out as nearly as possible according to its
original terms and intent to eliminate such invalidity or
unenforceability.
15. Successors and Assigns. This Agreement is personal
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to Employee and without the prior written consent of the
Corporation shall not be assignable by Employee. This
Agreement shall inure to the benefit of and be enforceable by
Employee's legal representatives or Successors in Interest.
This Agreement shall inure to the benefit of and be binding
upon the Corporation and its successors and assigns. As used
in the Agreement, "Corporation" shall mean the Corporation as
hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law or otherwise.
16. Communications and Notices. All notices and other
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communications under this Agreement shall be in writing and
shall be deemed to have been duly given three (3) business
days after they are mailed in any United States post office
enclosed in a registered or certified postage-paid envelope
and addressed as set forth at the beginning of this Agreement,
or to such other address as any party may specify by notice to
the other parties, or delivered by Federal Express or a
similar overnight courier to such address with evidence of
delivery; provided, however, that any notice of change of
address shall be effective only upon receipt.
17. Construction; Counterparts. The headings contained
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in this Agreement are for convenience only and shall in no way
restrict or otherwise affect the construction of the
provisions hereof. References in this Agreement to Sections
are to the sections of this Agreement. This Agreement may be
executed in multiple counterparts, each of which shall be an
original and all of which together shall constitute one and
the same instrument.
18. Validity. The invalidity or unenforceability of any
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provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement.
Employee's failure to insist upon strict compliance with any
provision hereof shall not be deemed to be a waiver of such
provision. This Agreement contains the entire understanding
of the Corporation and Employee with respect to the subject
matter hereof but does not supersede or override the
provisions of any stock option, employee benefit or other
plan, program, policy or practice in which Employee is a
participant or under which Employee is a beneficiary.
19. Governing Law. This Agreement shall be governed by
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and construed under the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned parties have executed
and delivered this Agreement as of the date first above
written.
TOUCHSTONE APPLIED SCIENCE
ASSOCIATES, INC.
By: /s/ XXXXXX X. XXXXX
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Name: Xxxxxx X. Xxxxx
Title: President
EMPLOYEE:
/s/ XXXXX XXXXXXX
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Xxxxx Xxxxxxx
