EXHIBIT 10.17
EMPLOYMENT AGREEMENT
AGREEMENT, dated as of April 22, 1998, between Xxxxx Company, a
California corporation (the "Company"), and Xxxxx X. Xxxxxxxx (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Executive is a principal executive officer and a
principal shareholder in Monsey Products Co., a Pennsylvania corporation
("Monsey");
WHEREAS, the Company desires to retain the Executive's continued
employment in an executive capacity and the Executive desires to accept such
continued employment upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements herein
contained, the parties hereto agree as follows:
1. EMPLOYMENT. Pursuant to the terms and conditions set forth in
this Agreement, the Company hereby employs the Executive, and the Executive
hereby accepts such employment, as the President of Monsey Bakor Holdings,
Inc. The Executive shall report to Xxxxxxx Xxxxxxxxx, President of the Xxxxx
Group of Companies or his authorized designee, and shall have such powers and
duties consistent with the duties and office of a President of a Subsidiary
as shall from time to time be assigned to him by the Board of Directors of
the Company. The Executive agrees to use his best efforts to promote the
interests of the Company and its subsidiaries and to devote his full business
time and energies during normal business hours to the business and affairs of
the Company during the Employment Period (as hereinafter defined). The
Executive will not engage in any other business or professional activity,
with or without compensation, if such business or professional activity may
in any way hinder the Executive's ability, or infringe on the time necessary,
to perform his duties hereunder.
2. TERM OF EMPLOYMENT. The employment hereunder will be for the
three (3) year period commencing on February 22, 1998 and will end on the third
anniversary of such date, unless earlier terminated pursuant to the provisions
of Section 5 hereof (the term of such employment hereunder, the "Employment
Period").
3. REPRESENTATIONS OF EXECUTIVE. The Executive hereby represents
to the Company that (i) he is not subject to any restrictions on his ability
to enter into this Agreement, including but not limited to any applicable
covenant not to compete or similar
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agreement entered into in connection with any previous employment, and (ii)
he will not disclose or make use of any confidential information that is the
property of any third party (including, without limitation, any trade
secrets) in connection with his employment by the Company pursuant to this
Agreement.
4. COMPENSATION.
(a) BASE SALARY. As compensation for services hereunder
during the Employment Period, the Company will pay the Executive an annual
salary of $250,000 Canadian dollars ("Base Salary"), payable in appropriate
bi-weekly installments to conform to the regular payroll dates for the
Company's salaried personnel. The Executive's salary level shall be reviewed
annually, but in no event less than the Base Salary stated herein.
(b) BONUS. Executive may receive an annual bonus in the
amount of 0% to 50% of his Base Salary in the discretion of the Company
(c) BENEFITS. Executive will receive the benefits he
currently receives pursuant to his employment with Monsey, subject to the
same terms and conditions of those benefits.
5. TERMINATION.
(a) CAUSE. The Company may terminate the Executive's
employment hereunder for Cause. For the purposes of this Agreement,
termination for Cause shall mean:
(i) The Executive's willful failure or refusal, after
written notice thereof, to perform specific directives of the
President of the Xxxxx Group of Companies or his authorized designee,
when such directives are reasonable and consistent with the scope and
nature of the Executive's duties and responsibilities as determined by
the Board of Directors of the Company;
(ii) Dishonesty of the Executive affecting the Company, its
subsidiaries or affiliates;
(iii) Drunkenness or use of drugs which interferes with the
performance of the Executive's obligations under this Agreement, or
puts the Company, its subsidiaries or affiliates at risk of any
potential liability;
(iv) The Executive's conviction of, the indictment for (or
its procedural equivalent) or the entering of a guilty plea or plea of
no contest with respect to a felony or of any crime involving moral
turpitude, fraud or misrepresentation;
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(v) Any gross or willful misconduct of the Executive
resulting in substantial damage to the Company's reputation or theft
or defalcation from the Company or its subsidiaries; and
(vi) Any material breach (not covered by any of the clauses
(i) through (v)) of any of the provisions of this Agreement or the
Noncompetition Agreement entered into on the date hereof between Xxxxx
Company and the Executive if such breach is not cured within 15 days
after written notice thereof to the Executive by the Company.
(b) Intentionally left blank.
(c) TERMINATION BY THE COMPANY WITHOUT CAUSE. The Company
may terminate the Executive's employment hereunder for any reason or no
reason at any time by giving a Notice of Termination (as defined below) to
the Executive.
(d) TERMINATION BY THE EXECUTIVE. The Executive may
terminate his employment hereunder for any reason by giving a Notice of
Termination (as defined below) to the Company.
(e) DEATH. The Executive's employment hereunder shall
terminate upon his death.
(f) DISABILITY. If, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from his duties hereunder on a full-time basis for 180 consecutive
days, and, within thirty (30) days after a Notice of Termination is given by
the Company, the Executive shall not have returned to the performance of his
duties hereunder on a full-time basis, the Company may terminate the
Executive's employment hereunder. The Company may provide such Notice of
Termination on or after the date on which the Executive has been absent for
150 consecutive days.
(g) NOTICE OF TERMINATION. Any termination by the Company
pursuant to subparagraphs (a), (c) or (f) above or by the Executive pursuant
to subparagraph (d) above shall be communicated by written Notice of
Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice indicating the specific
termination provision in this Agreement relied upon and setting forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so indicated.
(h) DATE OF TERMINATION. Date of Termination shall mean (i)
if the Executive's employment is terminated by his death, the day after his
death; (ii) if the
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Executive's employment is terminated pursuant to subparagraph (c) or (f)
above, thirty (30) days after Notice of Termination is given (provided that,
in the case of termination under subparagraph (f), the Executive shall not
have returned to the performance of his duties on a full-time basis during
such thirty day period); (iii) if the Executive's employment is terminated
pursuant to subparagraph (d) above, thirty (30) days after Notice of
Termination is given; and (iv) if the Executive's employment is terminated
pursuant to subparagraph (a) above, the date specified in the Notice of
Termination.
6. COMPENSATION UPON TERMINATION.
(a) TERMINATION FOR CAUSE. If the Executive's employment is
terminated for Cause, the Company shall pay the Executive his full Base
Salary, Bonus and benefits through the Date of Termination at the rate in
effect at the time Notice of Termination is given, and the Company shall have
no further obligations to the Executive under this Agreement.
(c) TERMINATION BY THE COMPANY WITHOUT CAUSE. If the
Executive's employment is terminated without cause pursuant to Section 5(c)
of this Agreement, the Company shall continue to pay the Executive's Base
Salary as provided in this Agreement, and shall continue to provide the
benefits provided for in Section 4(c) of this Agreement, for the lesser of
(i) [six (6)] months from the Date of Termination, or (ii) the date the
Executive enters into an employment, consulting, advisory or similar
relationship with another company or business.
(d) VOLUNTARY TERMINATION. If the Executive terminates his
employment hereunder pursuant to Section 5(d) hereof, the Company will pay
the Executive, through the Date of Termination, his full Base Salary, Bonus
and benefits at the rate in effect at the time Notice of Termination is
given, and the Company will have no further obligations to the Executive
under this Agreement.
(e) TERMINATION UPON DEATH. If this Agreement terminates as
a result of the Executive's death, the Company's obligations to the Executive
will cease, including the obligation to pay any Base Salary, Bonus and
benefits, on the Date of Termination.
(f) TERMINATION UPON DISABILITY. During any period that the
Executive fails to perform his duties hereunder as a result of incapacity due
to physical or mental illness, the Executive shall continue to be paid his
Base Salary, Bonus and benefits, except that after termination of employment
pursuant to Section 5(f) hereto, the Company's obligations to the Executive
shall cease, including the obligation to pay Base Salary, Bonus and benefits.
7. INTELLECTUAL PROPERTY; CONFIDENTIALITY.
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(a) INTELLECTUAL PROPERTY. The Executive expressly agrees
that during the Employment Period, to the extent the Executive discovers or
creates any inventions, formulas, techniques, processes, improvements or
other rights constituting a trade secret (cumulatively, a "Trade Secret"),
all such Trade Secrets and any patent, copyright or licensing relating
thereto or arising therefrom shall be the sole and exclusive rights of the
Company.
(b) CONFIDENTIALITY. The Executive agrees that he will not,
during the Employment Period or subsequent thereto, divulge to anyone (other
than the Company or any persons employed or designated by the Company) any
knowledge or information of any type whatsoever of a confidential nature
relating to the business of the Company or any of its subsidiaries or
affiliates, including, without limitation, all types of trade secrets (unless
readily ascertainable from public or published information or trade sources
other than as a result of a disclosure by the Executive). The Executive
further agrees that he will not, during the Employment Period or subsequent
thereto, disclose, publish or make use of any such knowledge or information
of a confidential nature without the prior written consent of the Company.
8. BREACH. In the event of the Executive's breach of this
Agreement, the Company may institute and prosecute proceedings in any court
of competent jurisdiction, either in law or in equity (a) to obtain damages
for any such breach, (b) to obtain specific performance of this Agreement by
the Executive or (c) to enjoin the Executive from performing services for any
such other person, firm or corporation.
9. ASSIGNMENT; SUCCESSORS AND ASSIGNS. Executive agrees that he
will not assign, sell, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, or by operation of law, any rights or
obligations under this Agreement, nor shall the Executive's rights be subject
to encumbrance or the claims of creditors and any purported assignment,
transfer or delegation shall be null and void. Nothing in this Agreement
shall prevent the consolidation of the Company with, or its merger into, any
other corporation, or the sale by the Company of all or substantially all of
its properties or assets or the assignment of this Agreement by the Company
and the performance of its obligations hereunder to any successor in interest
or any affiliated company. Subject to the foregoing, this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns. In the event of any
attempted assignment or transfer of rights hereunder by the Executive
contrary to the provisions hereof, the Company shall have no further
liability for payments hereunder.
10. GOVERNING LAW; CAPTIONS. This Agreement shall be governed by
the laws of the Province of Ontario. This Agreement may not be changed
orally, but only by agreement in writing signed by the party against whom
enforcement of any waiver, change, modification or discharge is sought. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
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Agreement. Paragraph headings are for convenience of reference only and
shall not be considered a part of this Agreement.
11. COMPLETE AGREEMENT. This Agreement terminated all prior
agreements between the parties relating to the subject matter herein
addressed and, together with the Non-Competition Agreement, constitutes the
entire agreement between the parties as to the employment relation between
the parties. In the event of termination of employment under any of the
circumstances described herein, the arrangements provided for by this
Agreement will constitute the entire obligation of the Company to the
Executive and performance thereof by the Company will constitute full
settlement of any claim that the Executive might otherwise assert against the
Company or its affiliates on account of such termination.
12. NOTICES. Any notices or other communications required or
permitted hereunder shall be in writing and will be deemed effective when
delivered in person (in the Company's case, to the President of the Xxxxx
Group of Companies and in the Executive's case, to Xxxxx X. Xxxxxxxx or, if
mailed, on the date of deposit in the mail, postage prepaid, addressed as
follows:
If to the Company:
The Xxxxx Group of Companies
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxx, XX 00000
If to Executive:
Xxxxx X. Xxxxxxxx
Monsey Bakor
000 Xxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
or to such other address as shall have been specified in writing by any party
to the other parties.
13. ARBITRATION OF DISPUTES. Any dispute over the interpretation
or enforcement of any provision of this Agreement or any controversy or claim
arising out of or relating to this Agreement or the Executive's employment
with the Company shall be settled by arbitration administered by the Canadian
Arbitration Association under its National Rules for the Resolution of
Employment Disputes. The parties expressly waive all rights to a jury trial.
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The arbitration shall be conducted before a single arbitrator and
shall occur in the Province of Ontario. Judgment upon the award rendered by
the arbitrator may be entered in any court of competent jurisdiction. The
Arbitrator shall have the authority to determine who should bear the costs
and expenses (including attorneys' fees) of arbitration.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but together shall
constitute one and the same document.
IN WITNESS WHEREOF, the Company has by its appropriate officer
signed this Agreement and the Executive has signed this Agreement, as of the
day and year first above written.
Company:
XXXXX COMPANY
/s/ Xxxxxxx X. Xxxxxxxxx
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By: Xxxxxxx X. Xxxxxxxxx
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Its: President
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Executive:
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
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