EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT made as of the 1st day of June, 2000, by
and between BALTEK CORPORATION, a Delaware corporation with offices at 00
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxxxx Xxxxxxx,
residing at 00 Xxxxxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Executive").
W I T N E S S E T H:
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WHEREAS, the Executive has been employed by the Company as Vice
President, Operations & Sales/Marketing; and
WHEREAS, the Company desires to continue the employment of the
Executive as Vice President, Operations & Sales/Marketing and the Executive
desires to continue to be so employed by the Company, upon the terms and subject
to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants con tained in this Agreement, the Executive and the Company agree as
follows:
1. Employment. The Company agrees to continue to employ the Executive
as Vice President, Operations & Sales/Marketing, and the Executive agrees to
continue employment by the Company in such capacity, upon and subject to the
terms and conditions set forth in this Agreement.
2. Term. The Executive's employment under and in accordance with this
Agreement shall commence on June 1, 2000 and shall continue until terminated by
either party upon not less than twenty-four (24) months written notice to the
other party (the period from June 1, 2000 until the date this Agreement is
terminated pursuant to such notice being hereinafter referred to as the "Term"
of this Agreement).
3. Duties.
(a) During the Term of this Agreement, the Executive shall be employed
as Vice President, Operations & Sales/Marketing of the Company, shall utilize
his best efforts to enhance the business of the Company and, subject to the
supervision of the Company's President and Chief Executive Officer (the "CEO")
and the Company's Board of Directors (the "Board"), shall be responsible for the
general and supervisory duties normally and customarily attendant to such
position at the Company and its divisions and subsidiaries.
(b) During the Term of this Agreement, unless the Board shall otherwise
consent in writing, the Executive will, during the regular business hours of the
Company, devote his full time, energies, labor and skills to the business of the
Company and to the duties and responsibilities specified in subsection (a) of
this paragraph 3.
4. Compensation. In full consideration for all services to be performed
by the Executive for the Company and pursuant to this Agreement, the Company
shall pay to the Executive, and the Executive agrees to accept, an annual salary
of two hundred fifteen thousand ($215,000) dollars (or such higher amount as may
be approved from time to time by the Board), payable in monthly installments in
accordance with the Company's customary payroll practices. The Company shall
annually review the Executive's salary to determine whether, and to what extent,
if any, such salary shall be adjusted.
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Any increase in the Executive's salary shall be in the sole discretion of the
Company. In addition, the Company shall reimburse the Executive for all expenses
reasonably incurred by the Executive in connection with the performance of his
duties under this Agreement and the business of the Company, in accordance with
the Company's usual policies and practices for expense reimbursement.
5. Vacation. The Executive shall be entitled to four (4) weeks of paid
vacation during each twelve (12) month period of his employment under this
Agreement, to be taken at times mutually agreeable to the Executive and the
Company. Any vacation not taken during the twelve (12) month period in which
such vacation is earned may not be taken in any subsequent period, but the
Executive shall be entitled to be paid for up to two (2) weeks of any earned
vacation which is not taken during any twelve (12) month period. In the event
the Executive's employment is terminated for any reason, the Executive shall be
paid for accrued vacation time, if any, which has not been taken, calculated on
a pro-rata basis, but in no event shall such amount exceed more than four (4)
weeks' salary.
6. Benefits. Throughout the Term of this Agreement, the Executive shall
be eligible to participate in any pension, profit- xxxxxx, stock option or
similar plan or program of the Company now existing or hereafter established and
maintained for the benefit of the Company's employees or executives generally,
to the extent that the Executive is eligible under the general provisions
thereof. The Executive shall also be entitled to participate in any group
insurance, hospitalization, medical, health, accident, disability or similar
plan or program of the Company now existing or hereafter established for the
benefit of the Company's employees or executives generally, to the extent that
the Executive is eligible under the general provisions thereof. In the event the
employment of the Executive with the Company is terminated for any reason, such
benefits shall be continued, at the expense of the Company, to such extent and
for such period of time as may be required under the Consolidated Omnibus Budget
Reconciliation Act of 1985 and the regulations issued thereunder, as in effect
at the time of such termination of employment.
7. Company Car. To permit the Executive to perform his duties more
effectively, the Company shall, during the term of the Executive's employment
pursuant to this Agreement [and if the employment of the Executive pursuant to
this Agreement is terminated under any of the circumstances described in
subparagraph (f) of paragraph 8 of this Agreement, for a period of twelve (12)
months after such termination of such employment], lease a suitable automobile
for the use of the Executive, and reimburse the Executive for all expenses of
operating and maintaining such automobile, including, without limitation,
comprehensive and liability insurance, in accordance with the Company's policies
and practices for executive company cars.
8. Termination of Executive's Employment.
(a) Notwithstanding any provisions to the contrary contained in this
Agreement, the Executive's employment may be terminated by the Company upon the
Executive's death or disability (as defined below) or for Cause (as defined
below), and the Executive may terminate his employment for Good Reason (as
defined below) upon sixty (60) days' prior written notice to the Company.
(b) For purposes of this Agreement, "disability" shall mean that, for a
period of one hundred twenty (120) consecutive days or more, or for one hundred
eighty (180) days or more (even though not consecutive) within any three hundred
sixty (360) day period, the Executive is mentally orphysically unable to perform
the essential duties of his position as Vice President, Operations & Sales/
Marketing of the Company (notwithstanding reasonable accommodation by the
Company as required by law), as evidenced by the written certification of a
qualified physician agreed to by the Company and the Executive or, in the
absence of such agreement, by a qualified physician selected by the agreement of
a qualified physician selected by the Company and a qualified physician selected
by the Executive.
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(c) For purposes of this Agreement, "Cause" shall mean: (i) the
conviction of the Executive for a felony by a federal or state court of
competent jurisdiction; or (ii) the Executive's failure either (A) to follow a
direct substantive written order, within the reasonable scope of the Executive's
duties, from the CEO, pursuant to authority from the Board, or (B) to adhere to
any written policy or guideline established by the Company from time to time, if
such failure to follow such order or adhere to such policy or guideline is not
cured within thirty (30) days after written notice to the Executive specifying
such failure.
(d) For purposes of this Agreement, "Good Reason" shall mean any of the
following: (i) the assignment by the Company to the Executive of substantial
duties significantly below the level of the Executive's position as Vice
President, Operations & Sales/Marketing of the Company, as set forth in
paragraph 3 of this Agreement; or (ii) the failure of the Company to assign to
the Executive substantial duties and responsibilities consistent with such
position; or (iii) any reduction by the Company of the Executive's salary or
benefits as set forth in paragraphs 4 or 6 of this Agreement (it being
understood that a reduction of benefits applicable to all executives of the
Company (including the Executive) shall not be deemed a reduction of the
Executive's benefits for purposes of this definition.
(e) In the event that the Executive's employment under this Agreement
is terminated as a result of death, disability or for Cause by the Company, or
without Good Reason by the Executive, then the Company shall have no further
obligation or liability to the Executive under this Agreement, such that all
salary and benefits provided for in this Agreement shall terminate
simultaneously with the termination of the Executive's employment, except for
salary and benefits earned and accrued through the date of such termination.
(f) In the event that the Company terminates the employment of the
Executive pursuant to this Agreement prior to the end of the Term of this
Agreement, other than for Cause, death or disability, or the Executive
terminates his employment with the Company with Good Reason prior to the end of
the Term of this Agreement (i) the Company shall pay to the Executive, in each
month following such termination, until the end of the Term of this Agreement,
an amount equal to one-twelfth of the Executive's annual salary in effect on the
date of termination, and (ii) if such termination shall occur ninety (90) days
or less prior to the end of a fiscal year of the Company, the Company shall, in
accordance with any executive compensation or incentive plan of the Company in
effect at the time of such termination, pay to the Executive any bonus and make
on behalf of the Executive any profit sharing plan contribution which the
Company would otherwise have paid or made if the Executive had remained in the
employ of the Company through the end of such fiscal year.
9. Covenants of the Executive.
(a) The Executive acknowledges that his employment by the Company has
brought him and will throughout his employment continue to bring him into close
contact with many confidential affairs of the Company, including information
about costs, profits, markets, sales, key personnel, pricing policies,
operational methods and other business affairs, methods and information,
including plans for future developments, not readily available or generally
known to the public.
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The Executive further acknowledges that the services to be performed by him
under this Agreement are of a special, unique, unusual, extraordinary and
intellectual character, and that the Company currently competes or intends to
compete with other organizations that are located in all of the states of the
United States. In recognition of the foregoing, the Executive covenants and
agrees that:
(i) he will not during his employment with the
Company or following the expiration of this Agreement or the
termination of his employment with the Company for any reason
(the date of such expiration or termination being hereinafter
referred to as the "Termination Date") divulge, disclose,
publish or use (other than for the benefit of the Company) any
matter relating to the Company which is not publicly available
and generally known and will not intentionally disclose such
matter to anyone (other than to executives or employees of the
Company who are required to have knowledge of such matter),
except that the Executive may make such disclosure as may be
required by law, provided the Company is notified by the
Executive in writing of such requirement not less than ten
(10) business days prior to the date such disclosure is so
required and the Company has not obtained an order or ruling
to prevent such disclosure;
(ii) he will deliver promptly to the Company at the
end of the Term of this Agreement, or at any other time the
Company may so request, all memoranda, notes, records, reports
and other documents (and all copies thereof) relating to the
business of the Company which he obtained while employed by or
otherwise serving or acting on behalf of, the Company, and
which he may then possess or have under his control;
(iii) during the Term of this Agreement and any
additional period during which the Executive may be employed
by the Company (whether or not such employment shall be
pursuant to a written agreement), he will not, unless the
Board shall otherwise consent in writing, alone or together
with any other person, firm, partnership, corporation or other
entity whatsoever (except a subsidiary or affiliate of the
Company), directly or indirectly, whether as an officer,
director, stockholder, partner, proprietor, associate,
employee, representative, public relations or advertising
representative, management consultant or otherwise, engage in,
or have any material financial or monetary interest in, or
have any financial or monetary association with, any other
person, corporation, firm, partnership or other entity engaged
in, the composite materials or seafood business or any other
business which is competitive with any business conducted or
contemplated by the Company; and
(iv) for a period of twenty-four (24) months
following the Termination Date, he will not:
(A) solicit, or attempt to solicit, any
person or entity who or which is a customer of the
Company (as of the Termination Date or at any time
prior thereto) as a customer for any person or entity
engaged in the composite materials or seafood
business, or any other business which is competitive
with any business conducted or contemplated by the
Company; or
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(B) otherwise disrupt or interfere with, or
attempt to disrupt or interfere with, the Company's
relations with any actual or potential customer or
supplier or any other relationship of the Company.
(b) The Executive recognizes that the territorial and time limitations
in this paragraph 9 are reasonable and properly required for the adequate
protection of the business of the Company, and that in the event that any such
territorial or time limitation is deemed to be unreasonable by a court of
competent jurisdiction, the Executive agrees to a reduction of said such
territorial or time limitation, as the case may be, to such area or period as
such court deems reasonable. In the event that the Executive shall be in
violation of any of the covenants contained in this paragraph 9, the time
limitation thereof shall be extended for a period of time equal to the period of
time during which such breach or breaches should exist.
(c) The Executive further agrees that the remedy at law for any breach
or threatened breach of any of the covenants contained in this paragraph 9 will
be inadequate and that the Company, in addition to such other remedies as may be
available to it, at law or in equity, shall be entitled to injunctive relief
without bond or other security. This paragraph 9 constitutes independent and
severable covenants and, if any or all of the provisions of this paragraph 9 is
or are held to be invalid or unenforceable for any reason, such invalidity or
unenforceability shall not in any way invalidate or affect the remainder of this
paragraph 9 or the remainder of this Agreement, as the case may be, which shall
remain in full force and effect.
10. Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New Jersey applicable to contracts
executed in and to be performed solely within such state.
11. Notices. All notices required or permitted to be given by either
party pursuant to this Agreement, including notice of change of address, shall
be in writing and delivered by hand, or mailed, postage prepaid, certified or
registered mail, return receipt requested, to the other party as follows:
If to the Company: Baltek Corporation
00 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention:
President and Chief Executive Officer
If to the Executive: Xxxxxx Xxxxxxx
00 Xxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
12. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior oral or written agree ments and understandings relating to the
employment of the Executive by the Company. There are no oral promises,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution this Agreement by the Executive or in
effect between the parties.
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This Agreement may not be amended, and no provision hereof shall be waived,
except by a writing signed by the Company and the Executive (or in the case of a
waiver of a provision of this Agreement, by the party waiving compliance
therewith), which states that it is intended, as the case may be, to amend this
Agreement or waive a provision of this Agreement. Any waiver of any right or
failure to act in a specific instance shall relate only to such instance and
shall not be construed as an agreement to waive any right or failure to act in
any other instance, whether or not similar.
(b) Severability. Should any provision of this Agreement be held by a
court of competent jurisdiction to be unenforceable or prohibited by applicable
law, this Agreement shall be considered divisible as to such provision, which
shall be inoperative, and the remainder of this Agreement shall be valid and
binding as if such provision were not included in this Agreement.
(c) Successors and Assigns. This Agreement shall inure to the benefit
of, and be binding upon, the Company and any corporation with which the Company
merges or consolidates or to which the Company sells all or substantially all of
its assets, and upon the Executive and his executors, administrators, heirs and
legal representatives.
(d) Headings. All headings in this Agreement are for convenience only
and are not intended to affect the meaning of any provision hereof.
(e) Counterparts. This Agreement may be executed in two (2) or more
counterparts with the same effect as if the signatures to all such counterparts
were upon the same instrument, and all such counterparts shall constitute but
one instrument.
IN WITNESS WHEREOF, the Executive has executed this Agreement and the
Company has caused this Agreement to be executed by its duly authorized officer
as of the day and year first above written.
BALTEK CORPORATION
By: /s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
President and Chief Executive Officer
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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