EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), dated as of the 1st
day of January, 1998, by and between Westbury Alloys, Inc. (the "Company") with
offices at 000 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000 and Xxxxxx Xxxxxxx
("Xxxxxxx") residing at 000 Xxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000.
WHEREAS, Xxxxxxx and the Company have agreed that Xxxxxxx
shall render services to the Company in the capacity of President and Chief
Executive Officer pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the premises and of the
mutual agreements herein set forth, the parties hereto have agreed and do hereby
mutually agree as follows:
1. Employment Term: The term of this Agreement shall commence
on the date hereof and shall expire three years thereafter (the "Employment
Period") subject to the provisions of Section 5.
2. Duties of Executive: Xxxxxxx shall serve as President and
Chief Executive Officer of the Company and shall be required to perform such
duties as may from time to time be required by the Board of Directors of the
Company.
3. Compensation:
(a) As compensation for his services hereunder, the Company shall pay Xxxxxxx,
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during the Employment Period, a base salary ("Base Salary") payable as follows:
One Hundred Seventy-five Thousand Dollars ($175,000.00) each year.
(b) Xxxxxxx shall also receive a bonus equal to 10% of the
pre-tax earnings of the Company in each fiscal year during the Employment Period
in excess of $500,000, to a maximum in each year equal to the Base Salary,
payable within ten (10) days after the completion of the year end audit for each
such fiscal year.
(c) The Company may withhold from payments of Employee's
salary amounts required to be withheld by the Company from time to time from
such salary under applicable Federal, State, and local laws and regulations then
in effect.
(d) Upon submission of written statements and bills in
accordance with the then regular procedures of the Company, Xxxxxxx shall be
entitled to reimbursement for reasonable out-of-pocket expenses necessarily
incurred in the performance of his duties hereunder, including, but not limited
to, reimbursement for travel and car expenses.
4. Employee Benefits:
(a) Xxxxxxx shall be included to the extent eligible
thereunder (at the expense of the Company, if appropriate) in any and all
existing plans (and any plans which may be adopted in the future) providing
benefits for the Company's employees generally, including, but not limited to,
group life and disability insurance, hospitalization, medical, vacation,
retirement, stock option plans and any and all similar or comparable benefits.
(b) Due to the fact that the Company's success is dependent
upon the activities of Xxxxxxx, the Company will provide keyman insurance on the
life of Xx. Xxxxxxx in the amount
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of $1,000,000.00 and Xxxxxxx will cooperate in obtaining and maintaining such
policy.
5. Termination:
(a) The Company may terminate Xxxxxxx'x employment hereunder at any time by
written notice but only after a decision by the Board of Directors of the
Company which is communicated to Xxxxxxx in writing thirty (30) days prior to
the effective date of termination; provided however, that the Company pays to
Xxxxxxx x xxxxxxxxx payment equal to the aggregate Base Salary otherwise owed to
him over the remaining term of the Employment Period.
(b) Notwithstanding the provisions of Section 5(a) above, the
Company shall not be required to pay the amount owed under such Section if
Xxxxxxx is terminated "for cause." For purposes of this Agreement "For Cause"
shall mean:
(i) Deliberate misappropriating any funds or properties of the Company;
(ii) Gross mismanagement of the Company;
(c) In the event Xxxxxxx is not nominated or re-elected to
serve as a member of the Board of Directors during the Employment Period, either
party may terminate this Agreement and Xxxxxxx shall be entitled to continue to
receive his Base Salary as set forth in Section 3 above for the remainder of the
Employment Period.
(d) If, during the term of this Agreement, Xxxxxxx personally
guarantees any indebtedness of the Company to banks or others, this Agreement
cannot be terminated by the Company until such time as Xxxxxxx is relieved of
all obligations as such guarantor.
(e) In the event that Xxxxxxx dies or becomes disabled so as
not to be able to perform his duties as set forth herein for a period exceeding
twelve (12) months, this Agreement
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shall terminate and no further compensation shall be payable to Xxxxxxx, except
as may otherwise be provided under any insurance policy, employee benefit plan,
or similar instrument; provided however, that during any such period of
disability, Xxxxxxx shall be entitled to his base salary as provided under
Section 3 for a period not to exceed twelve (12) months.
6. Covenant Not to Compete:
(a) Xxxxxxx agrees that, commencing the date hereof and
continuing until the due date of his final payment of salary due hereunder, he
will not, except on behalf of the Company or with the written consent of the
Company (i) engage in any business activity in Nassau county, directly or
indirectly, on his own behalf or as a partner, stockholder (except by ownership
of less than ten percent (10%) of the outstanding stock of a publicly-held
corporation), director, trustee, principal, agent, employee, consultant or
otherwise of any person, firm or corporation which then is competitive with an
activity in which the Company or any parent or subsidiary of the Company is then
engaged at the time; (ii) allow the use of his name by or in connection with any
business activity in Nassau county which then is principally competitive with
any activity in which the Company or any of its parents or subsidiaries is then
engaged; or (iii) offer employment to or employ, for himself or on behalf of any
then competitor of the Company or any of its parents or subsidiaries, any
persons in Nassau county who at any time within the prior 6 months shall have
been employed by the Company or any parent or subsidiary of the Company.
(b) In the event Xxxxxxx is terminated without cause, the term
during which Xxxxxxx shall not be permitted to engage in the activities
described in Section 6(a) above shall commence on the date thereof and continue
until the date of final payment of Base Salary due
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hereunder.
7. Default - Remedies: In the event of proof of breach by
Xxxxxxx, the Company shall be entitled to pursue any remedy at law or equity,
and shall specifically have the right to terminate any further payments of any
kind or nature to be made under this Agreement.
8. Confidential Information: Except as otherwise required by
law, Xxxxxxx shall not disclose or use at any time, except as part of his
employment by the Company, either during or subsequent to such employment, any
secret or confidential information or knowledge obtained by Xxxxxxx while
employed by the Company. Without limiting the generality of the foregoing,
Xxxxxxx shall not disclose or use any information pertaining to the business of
the Company or any parent or subsidiary of the Company, including, but not
limited to, profit figures, names of or relationships with customers or
advertisers, or the terms of any contracts to which it or they may be a party.
The obligation imposed by this Section 8 shall survive the expiration or other
termination of this Agreement.
9. Surrender of Documents: Xxxxxxx shall, at the request of
the Company, promptly surrender to the Company or its nominee, upon any
termination of his employment hereunder, or at any time prior thereto, any
document, memorandum, record, letter, specification or other paper in his
possession or under his control relating to the operations, business, customers,
or affairs of the Company or its affiliates.
10. Waiver of Breach: The waiver be either the Company or
Xxxxxxx of any provision of this Agreement shall not operate or be construed as
a waiver of any subsequent
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breach by either the Company or Xxxxxxx.
11. Severability: The invalidity or unenforceability of any
provision of this Agreement, whether in whole or in part, shall not in any way
affect the validity or enforceability of any other part of such provision or of
any provision herein contained, and any invalid or unenforceable provision or
part thereof shall be deemed severable to the extent of any such invalidity or
unenforceability. If such invalidity or unenforceability is due to the
unreasonableness of the time or geographical area covered by the covenants or
restrictions of such provision, such covenants and restrictions shall
nevertheless be effective for such period of time and for such area as may be
determined to be reasonable by a court of competent jurisdiction.
12. Assignment; Binding Effect: The obligations of Xxxxxxx
hereunder may not be assigned or delegated without the prior written consent of
the Company. The rights and obligations of the parties shall inure to the
benefit of, and be binding upon, their respective heirs, personal
representatives, successors and assigns.
13. Notices:
(a) All notices, requests, demands, and other communications
hereunder must be in writing and shall be deemed to have been given if delivered
by hand or mailed within the continental United States by first class, certified
mail, return receipt requested, postage and
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registry fees prepaid, or sent by telecopier (with receipt confirmation), to the
applicable party and addressed as follows:
(i) if to the Company:
Westbury Alloys, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
(ii) if to Xxxxxxx:
000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
(b) Any notice or other communication given by certified mail
shall be deemed given at the time of certification thereof, except for a notice
changing a party's address which shall be deemed given at the time of receipt
thereof. Any notice or other communication sent by telecopier transmission shall
be deemed given at the time of written confirmation of receipt.
13. Entire Agreement of the Parties: This Agreement expresses
the entire agreement of the parties, and all promises, representations,
understandings, arrangements and prior agreements are merged herein and
superseded hereby. No person, other than pursuant to a resolution of the Board,
shall have any authority on behalf of the Company to agree to modify or change
this Agreement or anything in reference thereto, and any such modification or
change must be in writing and signed by both parties hereto.
14. Laws Governing: This Agreement has been entered into in
the State of New York and shall be construed, interpreted and governed in
accordance with the laws of the State of New York without regard to the choice
of laws provisions thereof.
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15. Counterparts: This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one document.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer, and Xxxxxxx has hereunto set his hand
as of the day and year first above written.
Westbury Alloys, Inc.
By:
Name:
Title:
Accepted and Agreed
By:
Xxxxxx Xxxxxxx
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