EXHIBIT 10.1
EMPLOYMENT AGREEMENT
BY AND AMONG
KSW MECHANICAL SERVICES, INC.
KSW, INC.
AND
XXXXX XXXXXX
DATED AS OF APRIL 1, 2004
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT dated as of April 1, 2004 (this "Agreement"), by
and among KSW MECHANICAL SERVICES, INC., a Delaware Corporation, (the
"Company"), KSW, Inc., a Delaware Corporation ("KSWI"), and XXXXX XXXXXX
("Warkol").
WHEREAS, the Company is a subsidiary of KSWI;
WHEREAS, the Company recognizes that Warkol can contribute to the
growth and success of the Company and desires to retain the benefits of Warkol's
knowledge, expertise, experience and services; and
WHEREAS, the Company desires to continue to employ Warkol on the
terms and conditions set forth below; and WHEREAS, Warkol desires to continue to
be employed by the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and promises of the parties hereto contained herein, the parties agree
as follows:
1. EMPLOYMENT
1.1 Term. The Company agrees to continue to employ Warkol as Chairman
and Chief Executive Officer of the Company and Warkol agrees to continue such
employment, subject to the terms and provisions hereof, for the period beginning
the date hereof and ending 21 months following such date, unless terminated
earlier pursuant to Article 3 or 4 hereof (the "Term"). During the Term, and for
so long as Warkol is employed by the Company hereunder, Warkol shall also serve
as the President and Chief Executive Officer of KSWI and KSWI shall employ
Warkol in that capacity. If Warkol is not a director of the Company or KSWI, he
shall nonetheless be entitled to attend Board of Directors meetings of the
Company and KSWI.
1.2 Duties. During the Term, Warkol shall serve the Company as its
senior executive officer and shall be responsible for the management and
operations of the Company, including, without limitation, all decisions made in
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the ordinary course of business. Warkol shall report to the Board of Directors
of KSWI. Warkol shall perform his duties hereunder diligently, faithfully and to
the best of his ability. In addition to his duties as Chairman and Chief
Executive Officer of the Company, Warkol shall perform such duties as may from
time to time be assigned to Warkol by an authorized vote of the Board of
Directors of the Company. During the Term, unless this Agreement is terminated,
Warkol shall not serve as a director of any other business without the prior
consent of the Board of Directors, other than serving on the Board of Directors
of various trade associations.
1.3 Place of Performance. Warkol shall perform his services hereunder
in the New York City metropolitan area and shall be provided with an office
similar in size and location to the office he now occupies. Warkol may be
required to travel periodically on behalf of the Company consistent with the
nature and scope of his duties.
1.4 Time Devoted to Employment. During the period April 1, 2004
through December 31, 2004, Warkol shall work five weekdays a week. During 2005,
Warkol shall work four weekdays a week, at his choice. Warkol shall devote all
of his business time to the affairs and the business of the Company and to the
performance of his duties hereunder, except that Warkol may spend a portion of
his business time in the management of his personal investments and serving as
an officer and/or director of industry associations which enhance Warkol's
visibility in the business community; provided that doing so does not materially
interfere with the performance of his duties and services hereunder.
1.5 Vacations. During each calendar year during the Term, Warkol
shall be entitled to four weeks vacation, to be extended, subject to the
reasonable concurrence of the Board of Directors, to six weeks if Warkol's
absence during the additional two weeks, does not adversely impact the Company,
and provided that Warkol's duties can be adequately carried out by the
management of the Company.
2. COMPENSATION AND RELATED MATTERS
2.1 Base Salary. Subject to the provisions of Article 4 and 5 hereof,
as compensation for services rendered hereunder in 2004,Warkol shall be paid
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based upon an annual salary of $450,000, pro-rated over nine months. In 2005,
Warkol shall be paid an annual salary of $450,000, based on a five-day workweek
and pro-rated for a four-day week. Salary is to be paid weekly in accordance
with the Company's normal payroll practices, subject to deduction for
withholding and other applicable taxes and similar charges.
2.2 Benefits. (a) During the Term, and subject to the provisions of
Article 4 hereof, Warkol and his spouse shall be entitled to participate in and
be covered by, at the Company's cost and expense, medical insurance coverage at
the same level of coverage previously provided to Warkol.
(b) The Company shall maintain, at its own cost and expense, a policy
or policies of life insurance on Warkol's life with $1 million payable to the
beneficiary of Warkol's choice upon Warkol's death. Should Warkol's employment
with the Company be terminated, Warkol shall be entitled to have such policy
assigned to him, whereupon he shall assume all costs associated therewith. The
Company shall, at its own cost and expense, provide to Warkol disability
insurance coverage providing benefits equal to 60% of Base Salary, to the extent
commercially available.
(c) The Company has established a 401-(k) plan, in compliance with
the applicable regulations, and Warkol shall be entitled to continue to
participate in such plan.
(d) The Company recognizes the benefits of Warkol's involvement in
the American Subcontractors' Association and shall permit Warkol to continue
such involvement at the expense of the Company, which involvement may include
attendance at board meetings and conventions at the expense of the Company.
(e) At any time that Warkol is required to travel by airplane on a
trans-continental or international basis for the purposes of conducting Company
business, Warkol shall be entitled, at the expense of the Company, to fly in
business class. All other air travel shall be coach class.
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(f) At the Company's cost and expense, in order to assist Warkol in
the performance of his duties, Warkol shall be provided with the use of a car
and the services of a chauffeur of substantially the same nature that Warkol was
previously provided prior to the date hereof. The Company acknowledges that the
nature of Warkol's duties requires Warkol during the course of a business day to
be in a number of different locations and accordingly, it is beneficial to the
Company for Warkol to have the availability of a car and chauffeur.
(g) The Company shall reimburse Warkol for all necessary and
reasonable business expenses incurred by him in the performance of his duties
under this Agreement which are substantiated by receipted vouchers or paid bills
in accordance with the Company's policies.
(h) The Company shall provide to Warkol such additional compensation,
fees, bonus or other forms of compensation as the Compensation Committee of the
Board of Directors in its sole discretion shall authorize or agree to pay,
payable on such terms and conditions as it shall determine.
3. TERMINATION
3.1 Cause. The Company may terminate the employment of Warkol for
"Cause" at any time. For purposes hereof, the term "Cause" shall mean
termination based upon (a) the willful and continued failure by Warkol to
substantially perform his material duties hereunder or the breach by Warkol of
any of the material provisions hereof, which failure or material breach shall
have continued for at least thirty (30) days after receipt of written notice
from the Company of such failure; (b) and act of fraud or embezzlement against
the Company or misappropriation of the Company's assets; (c) Warkol's conviction
of or guilty or nolo contendere plea concerning any felony; (d) the inability of
Warkol to perform his material duties as a result of any addiction to alcohol or
controlled substances, other than medication legally prescribed and administered
by a duly licensed physician. A termination of Warkol's employment from the
Company other than for "Cause" or as provided in Article 4 shall be deemed a
termination "without cause".
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3.2 Upon A Sale. The Company or Warkol shall be entitled to terminate
his Agreement upon 60 days of the sale of the Company and/or KSWI or the sale of
all or substantially all of the Company's assets.
3.3 Notice of Termination. Any purported termination of Warkol's
employment by the Company or by Warkol shall be communicated by written notice
of termination to the other party hereto in accordance with Section 8.6 hereof.
3.4 Date of Termination. "Date of Termination" for purposes of
determining Warkol's right to compensation hereunder shall mean the date set
forth in the notice of termination.
4. DISABILITY OR DEATH
4.1 If, as the result of any physical or mental disability, Warkol
shall have failed or been unable to perform his duties to the Company hereunder
for a period of 180 consecutive days, the Company may, by notice to Warkol
subsequent thereto, terminate his employment under this Agreement as of the date
of the notice without any further payment or the furnishing of any benefit by
the Company under this Agreement) other than accrued and unpaid base salary at
the then current rate salary and benefits which have accrued pursuant to any
plan or by law and except as otherwise required by applicable law).
4.2 In the event of the death of Warkol during the term of his
employment hereunder, the estate or other legal representative of Warkol shall
be entitled to base salary at the then current rate salary for a period ending
on the earlier of (i) two (2) months following the date of Warkol's death or
(ii) the last day of the term of this Agreement.
5. COMPENSATION AND TERMINATION
Upon termination of Warkol's employment, Warkol shall be entitled to
his salary base through the Date of Termination at the rate in effect at the
time the notice of termination is given and shall provide to Warkol the benefits
described hereunder through the Date of Termination, except as otherwise
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provided by applicable law. Thereafter, the Company shall have no further
obligations to Warkol under this Agreement.
6. COVENANTS OF WARKOL
6.1 Return of Documents. Upon termination of his employment with the
Company hereunder, Warkol agrees to return all documents and other property
provided to him or prepared by him during his employment with the Company which
relate to the business and affairs of the Company, including without limitation,
contracts, agreements, customer lists, working specifications, plans, proposals,
photographs, books, notes and all copies thereof.
6.2 Retention by the Company. Warkol agrees that all improvements,
inventions and other developments made by him in the course of providing
services to the Company, either alone or jointly with others, shall belong
solely to the Company and Warkol shall not have any intellectual property rights
to any such developments. Warkol further agrees that, during the Term and
thereafter, he will fully cooperate with the Company, including executing all
transfer instruments, to obtain and maintain intellectual property rights, and
otherwise to confirm the Company's proprietary interest in, such developments.
7. COVENANTS OF THE COMPANY AND KSWI
7.1 Indemnification. The Company shall indemnify Warkol to the
fullest extent permitted by Section 145 of the Delaware General Corporation Law,
in any legal action, suit or proceeding involving Warkol in connection with his
duties pursuant to this Agreement.
8. MISCELLANEOUS
8.1 Binding Agreement. This Agreement shall be binding and shall
inure to the benefit of the parties hereto and the heirs, personal
representatives and estate of Warkol, provided, however, that the duties of
Warkol hereunder are personal to Warkol and may not be delegated or assigned by
him.
8.2 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS
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MADE AND PERFORMED IN THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
8.3 Enforcement and Reformation. Since it is the agreement and desire
of Warkol and the Company that the provisions of this Agreement be enforced to
the fullest extent possible under the laws and public policies applied in each
jurisdiction in which enforcement is sought, should any particular provision of
this Agreement be deemed invalid or unenforceable, the same shall be deemed
reformed and amended to delete that portion that is adjudicated to be invalid,
and the deletion shall apply only with respect to the operation of said
provision and to the extent of said provision, and, to the extent that a
provision of this Agreement would be deemed unenforceable by virtue of its
scope, but may be made enforceable by limitation thereon, each party agrees that
this Agreement shall be reformed and amended so that the same shall be
enforceable to the fullest extent permissible under the laws and public policies
applied in the jurisdiction in which enforcement is sought.
8.4 Amendment and Modification. Subject to applicable law, this
Agreement may be amended, modified, or supplemented only by an instrument in
writing signed by each of the parties hereto.
8.5 Waiver of Compliance; Consents. Except as otherwise provided in
this Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party or parties
entitled to the benefits thereof only by a written instrument signed by the
party granting such waiver, but such waiver or failure to insist upon strict
compliance with any such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure of such obligation, covenant, agreement or condition. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing and signed by the party granting such consent.
8.6 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given and effective if delivered personally or by
facsimile transmission (during regular business hours to the extent such
facsimile is confirmed), mailed by registered or certified mail (return receipt
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requested), postage prepaid, four (4) business days after being so mailed to the
parties at the following addresses (or at such other address as a party shall
specify by like notice; provided that notices of a change of address shall be
effective only upon receipt thereof):
(a) If to the Company, or KSWI to:
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Board of Directors
(b) If to Warkol:
Xxxxx Xxxxxx
Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
8.7 Interpretation. The Article and Section headings contained in
this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties and shall not in any way affect the meaning or
interpretation of this Agreement.
8.8 Entire Agreement. This Agreement, including the documents
referred to herein, embodies the entire agreement and understanding of the
parties hereto in respect of the subject matter hereof, except as may be
modified by the parties in writing. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof.
8.9 Aribitration. Any dispute, controversy or claim arising out of or
relating to this Agreement or the transactions contemplated hereby that the
parties are unable to resolve within thirty (30) business days after written
notice by a party to the other parties hereto or such dispute, controversy or
claim shall be finally resolved by arbitration as herein provided. Such dispute,
controversy or claim shall be submitted to binding arbitration by any party
after such thirty (30) day period. The arbitration shall be held in accordance
with the commercial rules of the American Arbitration Association. In the event
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of any conflict between such rules and this Section 10, the provisions of this
Section 10 shall govern and be controlling. The arbitration, including the
rendering of the award, shall take place in New York, U.S.A., which the parties
hereby irrevocably agree shall be exclusive forum for resolving any such
dispute, controversy or claim. The decision of the arbitrators shall be final,
conclusive and binding upon the parties thereto, and the expense of the
arbitration (including, without limitation, any award of attorneys' fees and
expenses to the prevailing party) shall be paid as the arbitrators determine.
The arbitration shall be conducted by one arbitrator mutually acceptable to the
parties, or if they cannot agree as to one arbitrator, each of KSWI and Warkol
shall appoint one arbitrator and those two arbitrators shall choose a third
arbitrator. A decision by a majority of the arbitrators shall be binding on the
parties.
8.10 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of Warkol, the Company, and KSWI has
executed this Agreement, or caused this Agreement to be executed by its duly
authorized officer, as of the date first above written.
KSW, INC. COMPENSATION COMMMITTEE KSW MECHANICAL SERVICES, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxx
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Xxxx Xxxxxxxx Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
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