EMPLOYMENT AGREEMENT
Execution Copy
This EMPLOYMENT AGREEMENT (this “Agreement”) dated as of November 1, 2016 (the “Effective Date”), is by and between CRYSTAL ROCK HOLDINGS, INC., a Delaware corporation (together with any subsidiaries, the “Company”), and XXXXX X. XXXXX (the “Executive”).
The Company and the Executive agree as follows:
1. Employment.
1.1 General. The Company shall employ the Executive, and the Executive accepts employment, as Chief Executive Officer (“CEO”) and President of the Company, upon the terms and conditions described herein. The Executive’s employment hereunder will commence on the Effective Date and will continue for the Employment Term (as defined in Section 2.1 hereof) unless terminated sooner as herein provided. During the Employment Term, the Executive shall devote all of his business time, attention and skills to the business and affairs of the Company, and will not undertake any commitments that would interfere with or impair his performance of his duties and responsibilities. Without limiting the generality of the foregoing, the Executive understands and agrees that he is subject to all of the terms and conditions of (i) the Company’s Code of Ethics as adopted by the Board of Directors on March 28, 2011 (“Code of Ethics”) and (ii) the Company’s Supplemental Conflict of Interest Policy for Director and Officers adopted June 23, 2016 (“Supplemental Policy”) including without limitation Section III.D. thereof, and the Executive represents and warrants hereby that he has made to the Company all of the disclosures required to be made pursuant to either the Code of Ethics or the Supplemental Policy.
1.2 Duties. The Executive shall at all times render his services at the direction of the Board of Directors (the “Board of Directors”) of the Company, and his duties generally will include those required for the day to day and long term planning, development, operation and advancement of the business of the Company and its affiliates. The Company may assign to the Executive such other executive and financial administrative duties for the Company or any affiliate of the Company as may be determined by the Board of Directors, consistent with the Executive’s status as CEO and President. The Executive agrees to diligently use his best efforts to promote and further the reputation and good name of the Company and perform his services well and faithfully.
2. Term, Renewal and Termination.
2.1 Term; Renewal. Subject to Section 2.2, the Executive’s employment by the Company shall begin on the Effective Date and end at 11:59 p.m., East Coast time, on December 31, 2019; provided, however, that the term of employment shall be extended for periods of one year commencing on January 1, 2020 and on each subsequent January 1 thereafter if the Executive, after June 30 and on or before September 15 of the then current term, gives written notice to the Company (with a copy to the Chair of the Compensation Committee of the Board of Directors) of his desire to extend his employment and the Company agrees by written notice to the Executive, on or before September 30 of the then current term of employment, to so extend the term of employment. The last day of such term, as so extended from time to time, is herein referred to as the “Expiration Date” and the period beginning on the Effective Date and ending on the Expiration Date is herein referred to as the “Employment Term.”
2.2 Early Termination. Notwithstanding anything to the contrary contained in this Agreement, the Executive’s employment may be terminated prior to the end of the Employment Term only as set forth in this Section.
2.2.1 Termination Upon Resignation or Death of Executive. The Executive’s employment shall terminate upon the resignation or death of the Executive. In case of termination pursuant to this Section 2.2.1, the Company shall pay to the Executive (or, in case of his death, to his estate or his beneficiary designated in writing), the base salary earned by the Executive pursuant to Section 3, prorated through the date of resignation or death.
2.2.2 Termination Upon Disability of Executive. The Executive’s employment shall terminate by reason of the disability of the Executive. For this purpose, “disability” shall mean the Executive’s inability, by reason of accident, illness or other physical or mental disability (determined in good faith by the Board of Directors with the advice of a qualified and independent physician), to perform satisfactorily the duties required by his employment hereunder for any consecutive period of 120 calendar days. In case of termination pursuant to this Section 2.2.2, the Executive shall continue to receive his base salary prorated through the time of such termination, less any amount the Executive receives during such period from any Company‑sponsored or Company‑paid source of insurance, disability compensation or government program.
2.2.3 Termination Upon Mutual Consent. The Executive’s employment may be terminated by the mutual consent of the Company and the Executive on such terms as they may agree.
2.2.4 Termination For Cause. The Executive’s employment shall terminate immediately on notice to the Executive upon a good faith finding of the Board of Directors that the Executive has (i) willfully or repeatedly failed in any material respect to perform his duties in accordance with the provisions of this Agreement following 30 days’ prior written notice to the Executive and failure of the Executive to cure such deficiency, (ii) committed a breach of any provision of Section 4 hereof, (iii) misappropriated assets or perpetrated fraud against the Company, (iv) been convicted of a crime which constitutes a felony, or (v) been engaged in the illegal use of controlled or habit forming substances. The preceding clauses (i)–(v) shall constitute “Cause” for termination of the Executive hereunder. In the event of termination for Cause pursuant to this Section 2.2.4, the Company shall pay the Executive his base salary prorated through the date of termination.
Notwithstanding any other provision of this Agreement, the Executive shall not be terminated for Cause unless and until the Executive has had an opportunity to appear before the Board of Directors to hear and respond to the allegations of Cause for his termination.
2.2.5 Termination by Company Without Cause. The Company may terminate the Executive’s employment at any time and for any reason, without Cause, upon written notice to the Executive. Termination of employment on the Expiration Date by reason of non-renewal as provided in the first sentence of Section 2.1 shall not be considered a termination of employment without Cause.
In the event of termination pursuant to this Section 2.2.5, the Company shall, subject to Section 2.2.7, pay or provide to the Executive or the Executive’s estate should the Executive’s death occur after the termination date and before all payments have been made under this Section 2.2.5 the following termination benefits: (i) an amount (the “Payout Amount”) equal to the Executive’s annual base salary as of the termination date, payable as follows: 50% of the Payout Amount on the six-month anniversary of the termination date, followed by 8.3333% of the Payout Amount each month for six additional months in equal regular monthly installments, in each case less income taxes and other applicable withholdings, and (ii) the Executive’s “Fringe Benefits” (as defined in the following sentence) for 12 months (or, in the case of COBRA continuation benefits as described in the following paragraph, such longer period of time as such benefits continue in accordance with COBRA).
“Fringe Benefits” are the benefits described in this paragraph. The obligation of the Company to provide Fringe Benefits following any termination that is or is deemed to be without Cause shall mean that the Executive’s participation (including dependent coverage) in the life and health insurance plans of the Company in effect immediately prior to the termination shall be continued, or substantially equivalent benefits provided, by the Company, at a cost to the Executive no greater than his cost at the date of such termination, for the period in which the Company shall be obligated to pay the Payout Amount (but not more than 12 months). Notwithstanding the foregoing, if the Company shall be unable to provide for the continuation of an insurance benefit (such as life or health insurance) because such benefit was provided pursuant to an insurance policy that does not provide for the extension of such insurance benefit following termination of the employment of the Executive, then the Executive may purchase insurance providing such insurance benefit and, whether or not the Executive so elects to purchase insurance, the Company’s only obligation with respect to such insurance benefit shall be to reimburse the Executive for his premium costs, up to a maximum aggregate amount for all policies of insurance purchased by the Executive pursuant to this sentence of $15,000 per annum, prorated for partial years. If the Company is obligated pursuant to the so-called “COBRA” law to offer the Executive the opportunity for a temporary extension of health coverage (“continuation coverage”), then the Executive shall elect continuation coverage, and the premium cost of such coverage shall be borne by the Company and the Executive as provided in the first sentence of this paragraph. Continuation coverage provided pursuant to COBRA shall terminate in accordance with COBRA. To the extent that any benefit required to be provided to the Executive by the Company by reason of a termination for Cause shall be provided to the Executive by any successor employer, the Company’s obligation to provide that benefit to the Executive shall be correspondingly offset or shall cease, as the case may be. Except as expressly required by COBRA, in no event shall the Company have any obligation to provide Fringe Benefits after the expiration of the 12‑month period provided in this Section 2.2.5. The Executive shall not be entitled to any other expense or benefit following the termination of his employment for any reason.
2.2.6 No Other Termination Benefits; Release. The Executive understands and agrees that the termination payments and benefits described in Section 2.2 constitute all of the payments and benefits to which he (or his estate or beneficiary) will be or become entitled to receive in case of termination of his employment, and that such payments and benefits are in lieu of any and all other payments and benefits of every kind or description to which he may be entitled, including, without limitation, the right to receive a bonus payment or any portion thereof. Any accrued but unpaid vacation compensation shall be payable upon termination of employment. In addition, the Executive understands and agrees that the Company’s obligation to pay or provide the termination payments and benefits described herein is conditioned upon and subject to the execution and non-revocation by the Executive of a separation agreement in form and substance reasonably satisfactory to the Company and a form of release of claims against the Company, the principal terms and conditions of which release of claims shall be as set forth in Exhibit A to this Agreement.
2.2.7 No Duty to Mitigate; Termination of Benefits. The Executive shall not be required to mitigate the amount of any compensation payable to him pursuant to Section 2 hereof, whether by seeking other employment or otherwise, nor shall any compensation earned by the Executive during the period of continuance of any payments under Section 2 hereof reduce the amount of compensation payable under Section 2.
3. Compensation. During the Employment Term, the Company shall pay, in full payment for all of the Executive’s services rendered hereunder, the following compensation:
3.1 Base Salary. The Company shall pay the Executive an annual base salary, less income taxes and other applicable withholdings, of $445,000 in accordance with the Company’s standard payroll installments. The Compensation Committee of the Board of Directors will review the annual base salary amount as soon as practicable after the end of each fiscal year of Company to consider whether or not it should be increased. Such determination shall be in the sole discretion of the Committee using such criteria as the members of the Committee deem relevant, including, but not limited to, the performance of the Company and the Executive.
3.2 Bonuses. In its sole discretion, the Compensation Committee of the Board of Directors may (but is not required to) determine that the Company shall pay a bonus to the Executive after the end of each fiscal year of the Company. Such determination shall take place as soon as practicable after the end of the fiscal year, using such criteria as the members of the Committee shall deem relevant, including, but not limited to, the performance of the Company and the Executive. Any bonus that is to be paid to the Executive under this Section 3.2 shall be paid within 75 days after the end of the fiscal year of the Company to which it relates.
3.3 Vacation. The Executive shall be entitled to four (4) weeks of vacation in each 12‑month period during the Employment Term, without carryover of unused vacation time. No more than two (2) weeks may be taken consecutively.
3.4 Executive Benefit Plans. The Executive shall be entitled to participate in all plans or programs sponsored by the Company for employees in general, including without limitation, participation in any group health, medical reimbursement, or life insurance plans.
3.5 Expense Allowance. The Company shall reimburse the Executive for all reasonable and necessary expenses incurred by him from time to time in the performance of his duties hereunder, against receipts therefor in accordance with the then effective policies and requirements of the Company.
3.6 Disability Insurance; Automobile. The Company shall have no obligation to provide disability insurance to the Executive. The Company shall provide the Executive with an automobile for use by the Executive during the Executive’s employment with the Company.
4. Protection of Confidential Information; Non‑Compete.
4.1 Acknowledgements. The Executive acknowledges that:
(a) The Executive has obtained and, during his employment by the Company, will obtain secret and confidential information concerning the business of the Company and its affiliates, including, without limitation, highly confidential strategic and financial information about the Company and other confidential information having to do with the day-to-day operation of the business, including without limitation customer lists and sources of supply, their needs and requirements, the nature and extent of contracts with them, and related cost, price and sales information.
(b) The Company and its affiliates will suffer substantial and irreparable damage which will be difficult to compute if, during the period of his employment with the Company or thereafter, the Executive should enter a competitive business or should divulge secret and confidential information relating to the business of the Company and its affiliates heretofore or hereafter acquired by him in the course of his employment with the Company.
(c) The provisions of this Agreement are reasonable and necessary for the protection of the business of the Company and its affiliates.
4.2 Confidentiality.
4.2.1 Non-Disclosure. The Executive agrees that he will not at any time, either during the Employment Term or thereafter, divulge to any person, firm or corporation any information obtained or learned by him during the course of his employment with the Company, with regard to the operational, financial, business or other affairs of the Company and its affiliates, and their respective officers and directors, including, without limitation, trade secrets, customer lists, sources of supply, pricing policies, operational methods or technical processes, except (i) in the course of performing his authorized duties hereunder, (ii) with the Company’s express written consent; (iii) to the extent that any such information is lawfully in the public domain other than as a result of the Executive’s breach of any of his obligations hereunder; or (iv) where required to be disclosed by court order, subpoena or other government process. In the event that the Executive shall be required to make any disclosure pursuant to the provisions of clause (iv) of the preceding sentence, the Executive promptly, but in no event more than 48 hours after learning of such subpoena, court order, or other government process, shall notify the Company, by personal delivery or by e-mail or other electronic means, confirmed by mail, to the Chairman of the Board of the Company and, if the Company so elects and at the Company’s expense, the Executive shall: (a) take all reasonably necessary steps requested by the Company to defend against the enforcement of such subpoena, court order or other government process, and (b) permit the Company to intervene and participate with counsel of its choice in any proceeding relating to the enforcement thereof.
4.2.2 Protected Activities. The Executive understands that nothing in this Agreement or any other Company agreement, policy, practice, procedure, directive or instruction limits his ability to: (i) file a charge or complaint with any governmental agency, governmental commission or other governmental authority (“Governmental Authority”), (ii) report possible violations of law or regulation to any Governmental Authority, (iii) make other disclosures that are protected under the whistleblower provisions of applicable law or regulation, or (iv) receive a whistleblower or other award from a Governmental Authority for information provided to a Governmental Authority. The Executive further understands that he does not need permission from anyone at the Company or the Company’s legal counsel in order to take any of the actions described in this paragraph, nor does he have to notify the Company that he has taken or intends to take any of these actions. The Executive further understands that nothing in this Agreement is intended to interfere with or restrain the immunity provided under 18 U.S.C. section 1833(b) for confidential disclosures of trade secrets (a) to lawyers or government officials solely for the purpose of reporting or investigating a suspected violation of law or (b) in a sealed filing in court or another legal proceeding.
4.3 Return of Property. Upon termination of his employment with the Company, or at any time the Company may so request, the Executive will promptly deliver to the Company all Company property, including without limitation all memoranda, notes, records, reports, manuals, drawings, blueprints, computer and peripheral software and hardware, files, databases, documentation, procedures, financial statements, employee manuals, customer and vendor lists and contracts, and product material or information, and all copies thereof, relating to the business of the Company and its affiliates, and all other property associated therewith, which he may then possess or have under this control.
4.4 Non‑Competition. During the Employment Term and for a period equal to the time during which Executive receives severance payments for benefits pursuant to Section 2 of this Agreement or for a period of 12 months in the event the Executive is terminated without entitlement to severance benefits herein, the Executive shall not, without the prior written permission of the Company, in the United States, its territories and possessions, directly or indirectly, (i) engage in any activity or business that is the same or substantially similar to the work performed by Executive for the Company and/or of the same substantive competency or nature as the work performed by Executive for the Company, whether or not such engagement is as a consultant, independent contractor, agent, employee, officer, partner, director or otherwise, alone or for his own account or in association with any other person, corporation or other entity, for any Competitive Business (as defined below); (ii) directly or indirectly, hire or attempt to hire any person who was employed or retained by the Company or its affiliates while the Executive was employed by the Company, or solicit, entice or encourage any such person to terminate his or her relationship with the Company; or (iii) solicit, interfere with, or endeavor to entice away from the Company or its affiliates any of their customers or sources of supply. However, nothing in this Agreement shall preclude the Executive from investing his personal assets in the securities of any Competitive Business if such securities are traded on a national stock exchange and if such investment does not result in his beneficially owning, at any time, more than 1.0% of the publicly‑traded equity securities of such competitor. “Competitive Business” shall mean any business or enterprise which (a) designs, sells, manufactures, markets and/or distributes still or sparkling spring or purified bottled water products or beverages, or office refreshment products, including coffee, in the home and office market, or (b) engages in any other business in which Company or its affiliates is involved at any time during the 12‑month period immediately prior to the termination of the Executive’s employment.
For avoidance of doubt, in case of any conflict between the provisions of this Section 4 and the provisions of the Supplemental Policy, the provisions of the Supplemental Policy shall govern and determine the matter.
4.5 Enforcement. If the Executive commits a breach, or threatens to commit a breach, of any of the provisions of Section 4, the Company shall have the right and remedy to have the provisions of this Agreement specifically enforced by any court having jurisdiction over the matter, it being acknowledged and agreed by the Executive that the services being rendered hereunder to the Company are of a special, unique and extraordinary character and that any such breach or threatened breach will cause irreparable injury to the Company and that money damages will not provide an adequate remedy to the Company. Such right and remedy shall be in addition to, and not in lieu of, any other rights and remedies available to the Company under law or equity.
4.6 Blue Penciling. If any provision of Section 4 is held to be unenforceable because of the scope, duration or area of its applicability, the tribunal making such determination shall have the power to modify such scope, duration or area, or all of them, and such provision or provisions shall then be applicable in such modified form.
5. Representations of Executive. The Executive represents and warrants to the Company that he has had an opportunity to consult his personal counsel and other advisors in connection with the preparation, execution and delivery of this Agreement, and that he understands that Company counsel represented the Company and did not and does not represent the Executive in this matter. The Executive is not a party to or bound by any agreement, understanding or restriction that would or may be breached by the Executive’s execution and full performance of this Agreement. The Executive expressly undertakes and agrees that none of his acts or duties hereunder that will violate any obligations he may have to any other employer (or will impose on the Company any liability to any other employer) and that he has complied with all requirements of notice applicable to the termination of any prior employment before he commenced his employment with the Company. The Executive further represents and warrants that he has delivered to the Company complete copies of all employment agreements, understanding and restrictions to which he has been subject at any time during the last five years.
6. Construction of this Agreement.
6.1 Choice of Law. This Agreement is to be construed pursuant to the laws of the State of Connecticut, without regard to the laws affecting choice of law.
6.2 Invalid Agreement Provisions. Should any provision of this Agreement become legally unenforceable, no other provision of this Agreement shall be affected, and this Agreement shall continue as if the Agreement had been executed absent the unenforceable provision.
6.3 No Other Agreements. This Agreement represents the full agreement between the Company and the Executive with respect to the subject matter hereof and the Company and the Executive have made no agreements, representations or warranties relating to the subject matter of this Agreement that are not set forth herein, it being understood that the Executive is also bound by the Code of Ethics and the Supplemental Policy. This Agreement supersedes any and all other agreements, oral or written, that may define the employment relationship between the Executive and the Company or any affiliate of the Company, and all of such other agreements are hereby terminated, without liability to any party thereto. Nothing in this Agreement confers any rights or remedies on any person or entity or than the parties hereto.
6.4 Notices. All notices provided for in this Agreement shall be in writing and shall be deemed to be given when delivered personally to the party to receive the same, when transmitted by e-mail or other electronic means or when mailed first class, postage prepaid by certified mail, return receipt requested, addressed to the party to receive the same at the applicable addresses set forth below or such other address as the party to receive the same shall have specified by written notice give in the manner provided for in this Section. All notices shall be deemed to have been given as of the date of personal delivery, transmittal or mailing thereof, except that notices to the Company by facsimile or electronic transmittal that are received after 5:00 p.m., East Coast time, shall be deemed to have been received at 9:00 a.m. on the next succeeding business day.
If to the Executive: Xx. Xxxxx X. Xxxxx, c/o Xxxxxxx Rock, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, with a copy to the Executive’s personal attorney, whose name, address and telephone number shall be designated by the Executive to the Company in writing.
If to the Company: Crystal Rock Holdings, Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Chairman of the Board, with a copy to: Xxxxxxx X. Xxxx, Esq., Xxxxx Xxxx LLP, 000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, telephone 000-000-0000.
6.5 Assignment. This Agreement shall be binding upon and inure to the benefit of the Company’s successors and assigns.
6.6 Disputes and Controversies. The parties hereto agree that in case of any dispute, controversy or claim arising out of or relating to this Agreement, other than pursuant to Sections 4 and 6 hereof, the dispute, controversy or claim shall be determined by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of the arbitration shall be Hartford, Connecticut. Any arbitration award shall be based upon and accompanied by a written opinion containing findings of fact and conclusions of law. The determination of the arbitrator(s) shall be conclusive and binding on the parties hereto, and any judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
6.7 Counterparts. This Agreement may be executed by the parties in separate counterparts, each of which when so executed and delivered will be an original, but all of which together will constitute one and the same agreement. In pleading or proving this Agreement, it will not be necessary to produce or account for more than one such counterpart.
6.8 Waivers; Amendments. No waiver of any breach or default hereunder will be valid unless in a writing signed by the waiving party. No failure or other delay by any party exercising any right, power, or privilege hereunder will be or operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. No amendment or modification of this Agreement will be valid or binding unless in a writing signed by both the Executive and the Company.
6.9 Relationship to Prior Agreement. As of the Effective Date, this Agreement replaces and supersedes in its entirety the Employment Agreement between the Company and the Executive dated as of January 1, 2007 and all amendments thereto (collectively, the “Prior Agreement”). For avoidance of doubt, no notice of termination required under the Prior Agreement shall be required or applicable to terminate and supersede in its entirety the Prior Agreement, and the Executive’s employment with the Company shall not be deemed to have terminated.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal on November 1, 2016, but as of the date first written above.
COMPANY: CRYSTAL ROCK HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Chairman
EXECUTIVE: /s/ Xxxxx X. Xxxxx
XXXXX X. XXXXX
EXHIBIT A
Terms of Release
As a condition to the Company’s obligation to pay or provide termination payments or benefits, the Executive irrevocably and unconditionally releases, acquits and forever discharges the Company, its affiliated and related corporations and entities, and each of their predecessors and successors, and each of their agents, directors, officers, trustees, attorneys, present and former employees, representatives, and related entities (collectively referred to as the “Released Entities”) from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action, suits, rights, demands, costs, losses, damages and expenses (including attorneys’ fees and costs actually incurred) arising out of or in connection with his employment with or termination from the Company, which the Executive now has, owns or holds, or claims to have, own or hold, or which at any time heretofore, had owned or held, or claimed to have owned or held, or which the Executive at any time hereafter may have, own or hold, or claim to have owned or held against the Released Entities, based upon, arising out of or in connection with his employment with or termination from the Company up to the date of this Release, including but not limited to, claims or rights under any federal, state, or local statutory and/or common law in any way regulating or affecting the employment relationship, including but not limited to Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act and any other federal, state, local statutory and/or common law regulating or affecting the employment relationship. The Executive acknowledges and understands that the termination payment or benefits to be provided to the Executive constitute a full, fair and complete payment for the release and waiver of all of the Executive’s possible claims arising out of or in connection with his employment with or termination from the Company.
This Release does not preclude the Executive from filing a charge of discrimination with, or participating in or cooperating with an investigation by, the United States Equal Employment Opportunity Commission or the Connecticut Human Rights Commission, but Executive will not be entitled to, expressly agrees to waive, any monetary or other relief on the basis of or in connection with such charge or investigation, including related court litigation. Nothing in this Release prohibits, or is intended in any manner to prohibit, the Executive from engaging in any of the “Protected Activities” set forth in Section 4.2.2 of the Employment Agreement of which this Exhibit A is a part.
The Executive acknowledges that he has been provided at least twenty-one (21) days to consider whether to sign this Release, that he has been advised to consult with an attorney of his choosing concerning this Release, and that he has executed and delivered this Release and waived any claims knowingly and willingly. The Executive may revoke this Release within seven (7) days after it is signed, and it shall not become effective or enforceable until such seven (7) day revocation period has expired.
