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EMPLOYMENT AGREEMENT
This Agreement is effective as of the 1st day of July, 1997, by and
between Xxxxxxx X. Xxxxxxx, (hereinafter referred to as "Employee"), and Decora
Industries, Inc., a Delaware Corporation, (hereinafter referred to as the
"Company").
WHEREAS, the Company wishes to employ Employee and Employee wishes to
accept such employment on the terms and conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. TERM OF EMPLOYMENT: The Company hereby employs Employee and
Employee hereby accepts employment on the terms and conditions of this Agreement
for a term of three years commencing July 1, 1997 (the "Term"), subject to the
provisions of paragraph 8 below.
2. DUTIES: Employee shall have the title of Executive Vice
President, Administration and Finance, and be responsible for duties assigned to
him which shall include, without limitation:
Principal Financial Officer;
Administration of Corporate Agreements, Policies and
Procedures;
Contribution to Business Planning, Development, Mergers
and Acquisitions; and
Investor Relations including shareholders and lenders.
3. NECESSARY SERVICES:
(a) Performance of Duties. Employee agrees that he will at all
times faithfully, industriously and to the best of his ability, experience and
talents, perform to the reasonable satisfaction of the Company all of the duties
that may be assigned to him hereunder and shall devote such time to the
performance of these duties as may be reasonably necessary therefor.
(b) Full-Time Service. During the term of the Agreement, Employee
shall be available on a full-time basis, to perform the duties assigned him, in
accordance with the prevailing policies of the Company. Expenditures of
reasonable amounts of time for personal, business, charitable and other
activities shall not be deemed a breach of this Agreement, provided that such
activities do not interfere with the services required to be rendered to the
Company hereunder.
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(c) Exclusive Services. Executive agrees that during the period
of his employment, Executive shall provide services exclusively pursuant to this
Agreement, and Executive will not, without the prior written consent of the
Company (which consent may be granted or withheld in the sole and absolute
discretion of the Company), directly or indirectly:
i) plan or organize any business activity competitive with
the business or planned business of the Company or its affiliates, or combine,
participate, or conspire with other employees of the Company or its affiliates
or other persons or entities for the purpose of organizing any such competitive
business activity; or
ii) divert or take away, or attempt to divert or take
away, any of the customers or potential customers of the Company or its
affiliates, either for himself or for any other person, firm, partnership,
corporation or other business entity.
4. THE COMPANY'S AUTHORITY: Employee agrees to observe and comply
with the Company's rules and regulations as adopted by the Company's board of
directors regarding performance of his duties and to carry out and to perform
orders, directions, and policies stated by the Company to him periodically,
either orally or in writing.
5. COMPENSATION:
(a) Salary. Subject to such deductions as the Company may from
time to time be required to make pursuant to law, governmental regulation or
order, the Company agrees to pay to Executive during the term hereof, and
Executive agrees to accept as payment in full for all services rendered by him
to or for the benefit of the Company, compensation in an amount equal to a
yearly rate of $132,000 payable in installments in accordance with the general
practice of the Company. Such salary shall be reviewed on an annual basis.
(b) Performance Compensation. For the fiscal year April 1, 1997
to March 31, 1998, the Executive shall be entitled to performance compensation
in accordance with the provisions of the Management Performance Incentive Plan
and the Salaried Employee Incentive Plan both to be adopted by the Compensation
Committee of the Board of Directors of the Company, subject to the reservation
by the Company contained in such plans of the right to amend or terminate such
plans at any time.
(c) Acquisition Compensation. For the fiscal year April 1, 1997
to March 31, 1998, the Executive shall be entitled to acquisition compensation
in accordance with the provisions of the Acquisition Incentive Plan to be
adopted by the Compensation Committee of the Board of Directors of the Company,
subject to the reservation by the Company contained in such plan of the right to
amend or terminate such plan at any time.
6. EMPLOYEE BENEFITS: In addition to the compensation set forth
above, Employee agrees to grant Employee the following benefits for the Term:
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(a) Annual accrued vacation in accordance with prevailing
policies of the Company, but not less than three (3) weeks per year;
(b) Sick leave and personal leave with pay in accord with the
prevailing policies of the Company;
(c) Health and medical benefit insurance as granted by the
Company to employees performing similar services;
(d) Car allowance of $500 a month;
(e) Any other benefits not specifically set forth herein as may
be granted by the Company, in its sole and absolute discretion, to employees
performing similar services.
7. BUSINESS EXPENSES: Employee may incur, on behalf of and for the
convenience of the Company, certain reasonable business expenses including
travel and entertainment and other miscellaneous expenses. Expenses of Employee
incurred on behalf of the Company will be reimbursed by the Company and it shall
be the responsibility of Employee to retain vouchers and other proof of proper
expenditures. The decision as to whether an expense incurred by Employee is for
the benefit of the Company shall be in the sole discretion of the Company, and
all expenses not deemed to be incurred for the benefit of the Company shall be
paid by Employee.
8. TERMINATION:
(a) This Agreement shall terminate at the option of the Company:
i) Immediately upon the death or permanent disability of
Employee, "permanent disability" being defined as the inability of Employee to
perform his duties as required hereunder as a result of physical or mental
illness for a continuous period in excess of ninety (90) days.
ii) At the election of the Company, immediately upon the
dismissal of Employee by the Company for cause. "Cause", as used in this
section, shall include, without limitation, any one or more of the following:
(1) The breach by Employee of any material term or
condition of this Agreement;
(2) The refusal or failure to perform duties assigned
in accordance with the terms of this Agreement, if such refusal shall continue
after written instructions to perform such duties have been given under the
authority of the Board of Directors of the Company.
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(3) Engaging in one or more acts constituting a
felony;
(4) Engaging in one or more acts involving fraud or
serious moral turpitude;
(5) Engaging in acts of insubordination towards any
officer or duly authorized representative of the Company;
(6) Misappropriating the Company's assets or engaging
in gross misconduct materially injurious to the Company or its affiliates or
subsidiaries; or
(7) Breach of any Trade Secrets and Confidentiality
Agreement with the Company, including without limitation the agreement dated
April 23, 1993.
iii) Upon written notice from the Company, without Cause.
(b) The Compensation paid upon termination shall be determined as
follows:
(1) In the event of termination of this Agreement prior to
completion of the Term as set forth in Paragraph 10(a)(1) or 10(a)(2), Employee
shall be entitled to receive only accrued, but unpaid compensation up to the
date of termination.
(2) In the event of any other termination of the Agreement
prior to the completion of the Term, Employee shall be entitled to receive his
compensation and benefits as set forth in this Agreement for the greater of
twelve months from the date of termination or the remainder of the Term.
The Company shall have the option of paying such amount in
accordance with its regular payroll practices.
9. NOTICES. All notices or demands of any kind which either party
hereto may be required or may desire to serve upon the other party under the
terms of this Agreement, shall be in writing and shall be served upon such other
party by personal service upon such other party or by leaving a copy of said
notice or demand, addressed to such other party at the address hereafter set
forth, whereupon such service shall be deemed complete, or by mailing a copy
thereof by registered or express mail, postage prepaid with return receipt
requested, addressed as follows:
IF TO THE COMPANY:
Decora Industries, Inc.
0 Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
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WITH A COPY TO:
Xxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx
0000 Xxxxxxx Xxxx Xxxx
0xx Xxxxx
Xxx Xxxxxxx, XX 00000
IF TO EMPLOYEE:
Xx. Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, Xxx Xxxx 00000
In case of service by mail, service shall be deemed completed at the
expiration of the third day after the date of mailing. The addresses to which
notices and demands shall be delivered or sent may be changed from time to time
by written notice served as herein above provided by either party upon the other
party hereto.
10. ATTORNEYS' FEES: If either party sues the other to enforce any
of the terms of this Agreement, the prevailing party shall, in addition to all
other damages, be entitled to recover reasonable attorneys' fees.
11. LEGAL REPRESENTATION. Employee confirms that he is not
represented by Xxxxxx & Xxxxxxx and that he has been advised to seek the advice
of independent counsel in connection with the negotiation of this Agreement and
the transactions contemplated hereby.
12. MISCELLANEOUS:
(a) This Agreement shall be governed and construed in accordance
with the substantive laws of the State of New York.
(b) No change in the terms of this Agreement shall be effective
unless made in writing and signed by the Employee and a duly authorized
representative of the Company.
(c) A waiver of any term or condition of this Agreement shall not
be construed as a general waiver by the Company and the Company shall be free to
reinstate any such term or condition with or without notice to the other party.
(d) Employee's rights and obligations under this Agreement are
personal and not assignable.
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(e) This Agreement contains the entire Agreement and
understanding between the parties and supersedes all other agreements or
understandings between the parties concerning employment, whether oral or
written, including the Employment Agreement dated as of April 29, 1993. Neither
party has relied on any representations other than those as contained herein.
(f) This Agreement shall be binding on and inure to the benefit
of the heirs, personal representatives, successors, and assigns of the parties;
subject, however, to the restrictions on assignment contained herein.
(g) The paragraph headings used in this Agreement are for
reference and convenience only, and shall not in any way limit or amplify the
terms and provisions hereof, nor enter into the interpretation of this
Agreement.
IN WITNESS WHEREOF, he Company has caused this Agreement to be signed by
their duly authorized officers and Employee has executed this Agreement
effective as of the day and year first above written.
THE COMPANY: EMPLOYEE:
DECORA INDUSTRIES, INC.
By:--------------------- -----------------------------------
XXXXXXX X. XXXXXXX
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