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Exhibit 10.j
EMPLOYMENT AGREEMENT
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THIS AGREEMENT made as of this 19th day of December, 1996, by and between
Xxxxxxx X. Xxxxxxx of Chesterfield, Virginia ("Executive") and Titmus Optical,
Inc., a corporation organized under the law of Delaware (the "Company").
W I T N E S S E T H :
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WHEREAS, the Company wishes to secure the services of Executive as its Vice
President-Marketing, 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,
the Company and Executive hereby agree as follows:
1. EMPLOYMENT. During the period of employment set forth in Section 2 of
this Agreement, the Company shall employ Executive, and Executive shall serve as
Vice President-Marketing of the Company. 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
Company's business. Ancillary employment such as 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 the Company (the
"CEO"). Executive also agrees that he will not engage in any other business
activities without the prior approval of the CEO. Executive may only serve as an
officer, director, trustee or committee member, or in any similar position, of a
reasonable number (maximum two) trade associations and religious, charitable,
educational, civic or other non-business organizations, subject to the approval
of the CEO.
2. PERIOD OF EMPLOYMENT. The Executive's employment under this Agreement
shall initially cover the period January 1, 1997 to December 31, 1998 (the
"Initial Term"). On December 31, 1998, and at the end of each two-year period
thereafter, the period of employment shall be automatically extended, without
further action by either party, for a two (2) year period (each a "Renewal
Term") unless at least six months prior to the end of any such Initial Term or
Renewal Term either party shall have served written notice on the other of its
intention that the period of employment shall expire at the end of such term.
If either party notifies the other party that it shall not extend the
period of employment, the Company may, at its option, decide that the Executive
shall take a leave-of-absence for part or the total of the six months remaining
time of his employment, continuing to receive all compensation as if actively
working. If either party chooses not to renew this Agreement, such employment
shall terminate on December 31 of the then current year.
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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 the Company for cause.
Termination for cause shall mean termination by action of the Board of
Directors of the Company because of the willful failure of Executive
to perform his duties and obligations under this Agreement or fails to
execute in a reasonable and responsible manner the policies of the
Company or gross negligence in the performance of his duties under
this Agreement or the commission by Executive of a felony.
4. Compensation and Benefits.
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(a) During the Employment Period, the Executive shall receive regular
compensation (the "Base Salary") at the initial rate per annum of
____________________________ Dollars ($__________) per annum for the period
January 1, 1997 through December 31, 1997. 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. The Executive shall participate in
any wage increases applicable generally to the Company's salaried employees. The
Base Salary prevailing at any time shall be reviewed annually for a possible
increase in each year beginning in 1998.
(b) In addition to the Base Salary, the Executive shall be entitled to
receive annual incentive compensation payments ("Incentive Compensation"). The
bonus for the period January 1, 1997 through December 31, 1997 shall be
determined pursuant to the Company's Bonus Plan adopted by the Compensation
Committee of Bacou USA, Inc., a copy of which is attached to this Agreement and
for subsequent periods pursuant to the then applicable Bonus Plan adopted by
Bacou USA, Inc. applicable to Vice Presidents of the Company.
(c) Incentive Compensation shall be paid by the Company for the prior
fiscal year within ten (10) days after a decision is made by the Board of
Directors of the 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 March 31.
(d) The Executive shall be entitled to participate in any stock option plan
which Bacou USA, Inc. may adopt for the Company.
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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 the 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 will receive a taxable car allowance of Ten Thousand
Dollars ($10,000) per annum. Oil changes and gasoline expenses shall be paid by
the Company. All other costs relating to the operation and maintenance of the
automobile will be borne by the Executive. The Executive will pay all taxes on
the fringe benefit component of these payments.
(ii) The Executive shall be entitled to vacation pursuant to the
Company's Executive Vacation Policy. For 1997, the Executive shall be entitled
to fifteen (15) working days of vacation. Vacation days will be taken at a time
convenient for both the Executive and the 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 the Company, including
expenses for meals and lodging, entertainment, and similar items as required
from time to time by the Executive's duties. The Company shall reimburse the
Executive for all such expenses upon the presentation of an account therefor,
together with appropriate supporting documentation.
5. LIMITATIONS ON AUTHORITY. Except as otherwise provided herein, approval
by the CEO must be obtained prior to the Executive taking any of the following
actions on behalf of the Company or any of its affiliates:
(a) Acquisition or disposition of real property or any rights
deriving therefrom, or changing title in any such real
property.
(b) Making unplanned capital expenditures or any commitment
therefore;
(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 the
Company;
(d) Hiring or terminating salaried personnel;
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(e) Granting retirement benefits or other non-earned income to
any individual which is not available to all employees;
(f) Modification of the pension plan or other benefit plan,
e.g., health insurance;
(g) Acquiring the assets or shares of another company or
partnership;
(h) Acquiring or disposing of the assets or shares of the
Company or any of its affiliates;
(i) Entering into or terminating agreements of any kind or
nature with a monthly financial obligation in excess of U.S.
$3,000 for more than six (6) months;
(j) Making basic changes in the administration, organization,
production, and distribution of the Company or any of its
affiliates, as well as closing or curtailing the functions
of the Company or any of its affiliates;
(k) Filing any lawsuit;
(l) Entering into any transaction on behalf of the Company or
its affiliates which is not in the usual course of its
business;
(m) Adoption or modification of the annual budget.
Notwithstanding the foregoing, approval is not required for any action
provided for in the applicable annual budget or annual plan of the Company and
its affiliates. In addition, should the 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 the Company. The Executive will immediately
inform the CEO and President in writing concerning any such decisions made by
him.
6. NON-DISCLOSURE OF INFORMATION. It is understood that the business of the
Company and its affiliates is of a confidential nature. During the period of the
Executive's employment with the Company, the Executive may have received and/or
may secure confidential information concerning the Company or any of the
Company's affiliates or subsidiaries which, if known to competitors thereof,
would damage the 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 the 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 the Company or its subsidiaries or
affiliates, including, but not limited to, information pertaining to trade
secrets, systems, manuals,
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confidential reports, methods, processes, designs, equipment lists, operating
procedures, equipment and methods used and preferred by the Company's customers.
Upon termination of this Agreement, the Executive shall promptly deliver to the
Company all materials of a secret or confidential nature relating to the
business of the 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 the Company for a period of three (3) 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
the Company, assign, transfer, and set over to the Company or its designee all
right, title and interest in and to all trade secrets, secret processes,
inventions, improvements, patents, 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 the 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 the Company (whether during
or outside normal working hours) relating to or in any way pertaining to or
connected with the Company's business, shall be the sole and exclusive property
of the Company or its designee and the Executive, whenever requested to do so by
the Company, shall, without further compensation or consideration properly
execute any and all applications, assignments or other documents which the
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 the 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 the 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 the 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 the Company or
any of its affiliates. In the event that the Company chooses to exercise its
option to prevent the Executive from competing with the Company following
termination or non-renewal of his employment, the 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 the 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 the
Company exercises its option, the Company shall continue to pay Executive his
Base Salary at the time of
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termination, resignation or non-renewal for the period during which the
Executive is prohibited from competition with the 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 the 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.
(b) The Executive shall not during the term of his Employment under this
Agreement or any renewal thereof, and for a period of one (1) year thereafter,
employ, retain or arrange to have any other person or entity employ or retain
any person who was employed by the 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 the Company.
10. NOTICES. Any notice to be given to Executive by the Company under this
Agreement shall be deemed to have been given by the Company and received by
Executive if and when it is hand delivered to Executive, or it is sent by
registered or certified mail to Executive at his home address or transmitted by
facsimile transmission ("FAX"). Any notice to be given to the Company by
Executive under this Agreement shall be deemed to have been given by Executive
and received by the Company if and when it is hand delivered by Executive to the
CEO or his designee, it is sent by registered or certified mail, addressed to
the CEO of the Company by FAX confirmed in writing mailed to the CEO of the
Company.
11. FULL AND COMPLETE AGREEMENT; AMENDMENT. This Agreement 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.
12. CONSTRUCTION. This Agreement shall be construed under the laws of the
Commonwealth of Virginia.
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
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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 State 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.
IN WITNESS WHEREOF, the Company and the Executive have duly executed this
Agreement as of the day and year first written above.
TITMUS OPTICAL, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Chairman
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxx
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