EXHIBIT 10.8(i)
CONFIDENTIAL AND
LEGALLY PRIVILEGED
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of
December 1995, by and between XXXXX CORPORATION, a Delaware
corporation maintaining its principal office at Two Pennsylvania
Plaza, New York, New York (the "Company") and Xxxxx X. Xxxx, an
individual now residing at 00 Xxxxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxx
00000 (the "Employee").
WITNESSETH THAT:
WHEREAS, the Employee is currently serving in an executive
capacity as a Senior Vice President of the Company and the Company
desires to ensure that the Employee will continue to be available
to provide services in a similar capacity in the future, which
services are significant to the Company's long-range prospects and
the long-range prospects of the Company's subsidiaries; and
WHEREAS, to induce the Employee to provide such services, the
Company is offering to provide the Employee with the compensation,
benefits and security provided for in this Agreement.
NOW, THEREFORE, in consideration of the covenants and
agreements herein contained, the parties hereto agree as follows:
1. Employment/Capacity/Term.
(a) The Company agrees to and does hereby employ the
Employee, and the Employee agrees to and hereby does enter into the
employ of the Company upon the terms and conditions set forth in
this Agreement. Such employment shall be in an executive capacity
as Senior Vice President, Business Development - Asia of the
Company.
(b) Such employment shall commence on December 1, 1995
and shall continue through November 30, 1998, and from year to year
thereafter subject to the right of the Employee or the Company to
terminate such employment as of November 30, 1996, or any
subsequent November 30, by written notice given to the other party
at least sixty (60) days prior to such termination date stating an
intention to so terminate such employment. Termination by either
party, in accordance with the provisions of the preceding sentence
shall not require a statement of the reason or cause for such
termination and shall not be deemed a breach or violation of this
Agreement by the party giving such notice. As used in this
Agreement, the phrase "term of this Agreement" shall be deemed to
include the period subsequent to the date hereof and prior to
termination of this Agreement.
2. Time and Effort/Absences.
During the "term of this Agreement", the Employee shall
devote his entire time and attention during normal business hours
to the business of the Company and its subsidiaries (the "Xxxxx
Group") subject to the supervision of the Board of Directors of the
Company and the President and Chief Executive Officer of the
Company, and he shall not engage in any other business activity
whether or not such business activity is pursued for gain, profit,
or other pecuniary advantage, but this restriction shall not be
construed to restrict the Employee (i) from performing services as
a member of the Board of Directors, Board of Trustees or the like
of any non-profit entity for which the Employee receives no
compensation, provided that, such services do not unreasonably
interfere with the ability of the Employee to perform the services
and discharge the responsibilities required of him under this
Agreement, and (ii) from investing his assets in such form or
manner as will not require any services on the part of the Employee
in the operation of the business of the entity in which such
investments are made. The Employee shall be excused from rendering
his services during reasonable vacation periods and during other
reasonable temporary absences as authorized from time to time by
the Board of Directors or the President and Chief Executive Officer
of the Company.
3. Corporate Offices.
If elected, the Employee will serve, without additional
compensation, as an officer and director (or in either capacity) of
the Company and the Xxxxx Group.
4. Salary/Bonus/Other Benefits.
In consideration of the services and duties to be
rendered and performed by the Employee during the term of this
Agreement, the Company agrees to pay and provide for the Employee
the compensation and benefits described below:
(a) An annual salary, payable in equal monthly or bi-
weekly installments, in the amount of One Hundred Seventy Thousand
Dollars ($170,000) or in such greater amount as may from time to
time be fixed by the Board of Directors of the Company.
(b) An annual incentive bonus in such amount as may from
time to time be fixed by the Board of Directors of the Company.
(c) Other Benefits. It is intended that the Company
shall continue to provide the Employee with benefits at least as
favorable as benefits provided on behalf of other executives of the
Company who furnish services of comparable significance, as they
may exist from time to time. Such benefits presently include
Xxxxx'x Core Group Life Insurance, Supplemental Executive Group
Life Insurance, Medical and Health Insurance, Automobile, Xxxxx
Stock Option Plan, Executive Pension Plan, Xxxxx Select Plan and
Profit Sharing Plan. Except as otherwise provided herein, any such
participation shall be in accordance with the provisions of such
plans and nothing contained in this Agreement in intended to or
shall be deemed to affect adversely any of the Employee's rights as
a participant under any such plans. Nothing herein shall prevent
the Company from modifying or discontinuing any benefit plan on a
consistent and non-discriminatory basis applicable to all such
executives.
5. Expenses.
The Employee shall be reimbursed for out-of-pocket
expenses incurred from time to time on behalf of the Company and
the Xxxxx Group or in the performance of his duties under this
Agreement, upon the presentation of such supporting documents and
forms as the Company shall reasonably request.
6. Disability/Disability Benefit.
In the event that the Employee is incapable because of
physical or mental illness of rendering services of the character
contemplated hereby, for a period of six (6) consecutive months,
the Board of Directors of the Company may determine that the
Employee has become disabled. In the event of such a determination
of disability, the Company shall have the continuing right and
option while such disability continues to terminate this Agreement
by notice in writing to the Employee, effective thirty (30) days
after such notice of termination is so given, unless, within such
thirty (30) day period, the Employee resumes rendering full-time
services of the character contemplated hereby. The incapacity due
to physical or mental illness to render the services of the
character contemplated hereby, shall not constitute a breach of
this Agreement by the Employee. If this Agreement is terminated by
the Company as a result of a determination of disability, as
aforesaid, the Company shall be obligated to continue the salary of
the Employee as provided in Paragraph 4. for a period equal to the
greater of (a) twelve (12) months, or (b) such longer period as may
be determined by the Board of Directors of the Company, in each
case reduced by any disability insurance benefits provided for the
benefit of the Employee at the expense of the Company.
7. Death/Death Benefit.
In the event of the death of the Employee during the term
of this Agreement, this Agreement shall terminate and the
Employee's salary shall continue to be paid to his designated
beneficiary or, if none, to his personal representative, through
the last day of the month in which such death occurs.
8. Severance Pay.
If the Company gives notice to terminate in accordance
with Paragraph 1.(b), or if the employment of the Employee is
terminated at any time (i) by the Employee for Good Reason (as
defined in Paragraph 9., or (ii) by the Company for any reason
other than for Cause (as hereinafter defined), the Company will be
obligated to pay to the Employee a cash payment in an amount equal
to the product of (i) and (ii); where (i) shall equal the sum of
(A) the Employee's annual salary and (B) the Employee's annual
incentive bonus during the twelve (12) month period ending with the
close of the month in which such termination of employment occurs
(the "Date of Termination"), but not less than the incentive bonus
awarded to the Employee in December 1994, which was Seventy Five
Thousand Dollars ($75,000), divided by twelve (12); and where (ii)
shall be the lesser of, (x) thirty-six (36), or (y) the number of
months until the Employee's normal retirement date (the "Severance
Pay"). Termination of the Employee's employment on account of his
disability, death or retirement (as hereinafter defined) will not
be considered a termination of the Employee's employment by the
Company and will not require the Company to pay and provide any
Severance Pay. No Severance Pay will be required if the employment
of the Employee is terminated by the Company for Cause (as
hereinafter defined) or by the Employee (other than for Good Reason
as defined in Paragraph 9.) or if the Employee gives notice to
terminate in accordance with Paragraph 1.(b). The Severance Pay
provided herein is provided in order to reinforce and encourage the
continued loyalty, attention, and dedication of the Employee to the
Company's business and affairs without the concerns which normally
arise from the possibility of a loss of employment security. As
used herein, the terms "Retirement" and "Cause" shall have the
following meanings, respectively:
(a) Retirement.
Termination of the Employee's employment on account
of "Retirement" shall mean termination on or after the Employee's
normal retirement date in accordance with the terms of the Xxxxx
Profit Sharing Plan; and
(b) Cause.
Termination by the Company of the Employee's
employment for "Cause" shall mean termination as a result of (i)
the willful and continued failure by the Employee to perform
substantially the services contemplated by this Agreement (other
than any such failure resulting from the Employee's incapacity due
to physical or mental illness) after a written demand for
substantial performance is delivered to the Employee by a member or
representative of the Board of Directors of the Company or the
President and Chief Executive Officer of the Company which
specifically identifies the manner in which it is alleged that the
Employee has not substantially performed such services, or (ii) the
willful engaging by the Employee in gross misconduct which is
materially and demonstrably injurious to the Company; provided
that, no act, or failure to act, on the Employee's part shall be
considered "willful" unless done, or omitted to be done, in bad
faith and without reasonable belief that such action or omission
was in, or not opposed to, the best interests of the Company.
9. Termination by the Employee for Good Reason.
The termination by the Employee of this Agreement and his
employment for "Good Reason" shall be deemed a justifiable
termination of his employment and shall excuse the Employee from
the obligation to render services as provided in Paragraph 2.
hereof. Upon such termination, the Employee shall be entitled to
Severance Pay in accordance with the provisions of Paragraph 8.
hereof. As used herein, the phrase "Good Reason" shall mean:
(a) a change in the Employee's status, title or position
as an officer of the Company in the executive capacity set forth in
this Agreement which, in his reasonable judgment, does not
represent a promotion from or enhancement of his status, title and
position, or, any removal of the Employee from or any failure to
reappoint or reelect him to such position, except in connection
with a justifiable termination by the Company of the Employee's
employment for Cause or on account of disability, the retirement or
death of the Employee or the termination by the Employee of his
employment other than for Good Reason;
(b) a reduction in the Employee's annual salary or a
failure by the Company to pay to the Employee any installment of
the annual salary required by Paragraph 4. which failure continues
for a period of twenty (20) days after written notice thereof is
given by the Employee to the Company;
(c) the failure by the Company within ten (10) days of
notice from the Employee to obtain the assumption of this Agreement
in form and substance to the reasonable satisfaction of the
Employee by any successor (other than by merger of consolidation
for which no separate assumption is necessary) as referred to in
Paragraph 16; or
(d) any refusal by the Company to allow the Employee to
attend to matters or engage in activities not directly related to
the business of the Company which is permitted by this Agreement.
10. Notice of Termination.
Any purported notice of termination of the Employee's
employment (other than a Notice given by either party pursuant to
Paragraph 1. hereof) shall be communicated in writing and delivered
to the other party as provided in Paragraph 17. (hereinafter a
"Notice of Termination").
11. Trade Secrets, Etc.
The Employee acknowledges that prior to his employment by
the Company he had no knowledge of the formulae, processes or
methods of manufacture or other trade secrets of the Company. Upon
the termination of his employment, the Employee agrees forthwith to
deliver up to the Company notebooks and other data relating to
research or experiments as conducted by him or relating to the
products, formulae, processes or methods of manufacture of the
Company.
12. Customer List.
The Employee recognizes and acknowledges that the written
list of the customers of the Company, its subsidiaries and
affiliates, as it may exist from time to time, is a valuable,
special and unique asset. The Employee agrees that he will not
during the term of his employment or within five (5) years
thereafter, use for his own personal benefit or disclose the
written list of the customers of the Company, its subsidiaries and
affiliates or any part thereof, to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever.
13. Limited Covenant Not to Compete.
If the employment of the Employee hereof is terminated
(i) by the Employee pursuant to Paragraph 1.(b) hereof, or (ii) by
the Company for Cause (as defined in Paragraph 8. above), then in
either case (y) the Employee will not, for a period of two (2)
years form such termination of employment within the territorial
confines of the United States of America, directly or indirectly,
own, manage, operate, control, be employed by, participate in, or
be connected in any manner with the ownership, management,
operation or control of any business in competition with the
business conducted by the Company at the time of such termination,
and (z) the Employee will, for a period of two (2) years from such
termination refrain from carrying on a business similar to that
presently carried on by the Company within the states in which the
business of the Company has been carried on, so long as the Company
carries on like business therein.
14. Injunctive Relief.
In the event of a breach or threatened breach by the
Employee of the provisions of Paragraph 11., 12., or 13. during or
after the term of this Agreement, the Company shall be entitled to
an injunction restraining the Employee from violation of such
paragraph. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedy it may have in the event of
breach of this Agreement by the Employee.
15. Certain Proprietary Rights.
Employee agrees to and hereby does assign to the Company
all his right, title and interest in and to all inventions, whether
or not patentable, which are made or conceived solely or jointly by
him:
(a) At any time during the term of his employment by the
Company in an executive, managerial, planning, technical research
or engineering capacity (including development, manufacturing,
systems, applied science and sales), or
(b) During the course of or in connection with his
duties during the term of this Agreement, or
(c) With the use of time or materials of the Company.
The Employee agrees to communicate to the Company or its
representatives all facts known to him concerning such inventions,
to sign all rightful papers, make all rightful oaths and generally
to do everything possible to aid the Company in obtaining and
enforcing proper patent protection for all such inventions in all
countries and in vesting title to such inventions and patents in
the Company. For the purpose of this Agreement, the subject matter
of any application for patent naming Employee as a sole or joint
inventor filed during the course of employment or within one year
subsequent to the termination thereof shall be deemed to be an
invention made or conceived by him during the course of his
employment by the Company and assignable to the Company hereunder,
unless the Employee establishes by a preponderance of the evidence
that such invention was made or conceived by him subsequent to
termination of his employment hereunder. At the Company's request
(during or after the term of this Agreement) and expense, the
Employee will promptly execute a specific assignment of title to
the Company, and perform any other acts reasonably necessary to
implement the foregoing assignment.
16. Binding Effect.
This Agreement shall be binding upon and inure to the
benefit of:
(a) Any successors or assigns of the Company, whether by
way of a merger or consolidation, or liquidation of the Company, or
by way of the Company selling all or substantially all of the
assets of the Company to a successor entity; however, in the event
of the assignment by the Company of this Agreement, the Company
shall nevertheless remain liable and obligated to the Employee in
accordance with the terms hereof; and
(b) The Employee's estate, his executors, adminis-
trators, heirs and beneficiaries.
17. Notices.
Any notice or other communication required under this
Agreement shall be in writing, shall be deemed to have been given
and received when delivered in person, or, if mailed, shall be
deemed to have been given when deposited in the United States mail,
first class, registered or certified, return receipt requested,
with proper postage prepaid, and shall be deemed to have been
received on the third business day thereafter, and shall be
addressed as follows:
If to the Company, addressed to:
Xxxxx Corporation
Xxx Xxxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
If to the Employee, addressed to:
Xxxxx X. Xxxx
00 Xxxxx Xxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
or such other address as to which any party hereto may have
notified the other in writing.
18. Governing Law.
This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York.
19. Entire Agreement.
This Agreement contains the entire arrangement or
understanding between the Employee and the Company relating to the
employment of the Employee by the Company. No provision of the
Agreement may be modified or amended except by any instrument in
writing by or for both parties hereto. All references to
paragraphs refer to paragraphs of this Agreement.
20. Waiver.
Failure of either party hereto to insist upon strict
compliance by the other party with any term, covenant or condition
hereof shall not be deemed a waiver of such term, covenant or
condition, nor shall any waiver or relinquishment or failure to
insist upon strict compliance of any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such
right or power at any other time or times.
21. Assignment by Employee.
The rights and benefits of the Employee under this
Agreement are personal to him and no such right or benefit shall be
subject to voluntary or involuntary alienation, assignment or
transfer; provided, however, that nothing in this Paragraph 21
shall preclude the Employee from designating a beneficiary or
beneficiaries to receive any benefit payable on his death.
22. Severability.
If for any reason any provision of this Agreement shall
be held invalid, such invalidity shall not affect any other
provision of this Agreement not held so invalid, and all other
provisions shall to the full extent consistent with law continue in
full force and effect. If any such provision shall be held invalid
in part, such invalidity shall in no way affect the remaining
portion of such provision not held so invalid, and the remaining
portion of such provision, together with all other provisions of
this Agreement, shall to the full extent consistent with law
continue in full force and effect.
23. Headings.
The headings of paragraphs are included solely for
convenience of reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
XXXXX CORPORATION
/s/Xxxxx X. Xxxx By: /s/R. Xxxxxxx Xxxxx
Xxxxx X. Xxxx - Employee President and Chief Executive
Officer
