1
EXHIBIT 4(b)
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of this 30th day of May, 1997, by and between
Xxxxxx Xxxxxxxxx of 00000 Xxxxxxxxx Xxxxxx, Xxxxxx Xxxxx, XX 00000 ("Executive")
and Survivair, Inc., a corporation organized under the laws of Connecticut (the
"Company").
W I T N E S S E T H :
WHEREAS, Bacou USA, Inc. has entered into an agreement to purchase the
Company and desires to clarify the terms and conditions upon which Executive
shall continue to be employed by the Company; and
WHEREAS, Company wishes to secure the services of Executive as Vice
President - Marketing & Sales, for the period provided in this Agreement; and
WHEREAS, Executive is willing to enter into this Agreement for such
period and on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual promises herein contained,
Company and Executive hereby agree as follows:
1. EMPLOYMENT. During the period of employment set forth in Section 2
of this Agreement, Company shall employ Executive, and Executive shall serve as
Vice President - Marketing & Sales of Company. Executive agrees to faithfully
perform the duties assigned to him to the best of his ability and, except for
vacations and periods of temporary illness, to devote his full time and
attention to the business of Company. Ancillary employment such as writing,
teaching or lecturing, as well as the acceptance of honorific titles may be
undertaken by the Executive only with the approval of the Chief Executive
Officer of Bacou USA, Inc. or his designee ("Chairman"). Executive also agrees
that he will not engage in any other business activities without the prior
approval of the Chairman. Executive may only serve as an officer, director,
trustee or committee member, or in any similar position, of a reasonable number
(maximum two) of trade associations and religious, charitable, educational,
civic or other non-business organizations, subject to the approval of the
Chairman. The Executive represents and warrants to Company that he is now under
no contract or agreement nor will he execute any contract or agreement that will
in any manner interfere, conflict with or prevent him from performing his duties
under the terms and conditions of this Agreement, recognizing that his
performance hereunder will require the devotion of his full time and attention
during and beyond regular business hours during the Term (as hereinafter
defined), including extensive travel.
2. PERIOD OF EMPLOYMENT. This Agreement shall become effective upon
the closing of the transaction in which Bacou USA, Inc. becomes the direct or
indirect owner of the Company and its terms shall be retroactively applicable to
the first day of the Initial Term, as defined herein. The Executive's employment
under this Agreement shall initially cover the period January 1, 1997 to
December 31, 1998 (the "Initial Term"). On December 31, 1998, and at the end of
each year thereafter, the period of employment shall be automatically extended,
without further action by either party, for successive one-year periods (each a
"Renewal Term") unless at least six months
2
prior to the end of any Term either party shall have served written notice on
the other of its election to allow this Agreement to terminate at the end of
such Term. The Initial Term and any Renewal Terms are hereinafter sometimes
collectively referred to as the "Term."
If either party notifies the other party that it shall not extend the
period of employment, Company may, at its option, decide that the Executive
shall take a leave-of-absence for part or all of the remaining time of his
employment, continuing to receive all compensation as if actively working.
3. TERMINATION. The period of employment shall be terminated upon the
first to occur of the following:
(i) The expiration of the period of employment pursuant to Section 2 of
this Agreement.
(ii) The Executive's death.
(iii) The Executive becoming permanently disabled. Permanent disability
shall mean physical or mental incapacity of a nature which prevents
Executive from performing his duties under this Agreement for a
period of more than six months in any twelve month period.
(iv) The Executive's employment being terminated by Company for cause.
Termination for cause shall mean termination by action of the Board
of Directors of Company because of the willful failure of Executive
to perform his duties and obligations under this Agreement or
failure to execute in a reasonable and responsible manner the
policies of Company or gross negligence in the performance of his
duties under this Agreement or the commission by Executive of a
felony.
4. COMPENSATION AND BENEFITS.
(a) The Executive shall receive regular compensation (the "Base
Salary") at the initial rate per annum of One Hundred Fifty-Three Thousand Five
Hundred Twenty-Eight Dollars ($153,528.00) per annum for the period January 1 to
December 31, 1997. The Base Salary shall be payable in arrears less the usual
payroll deductions at the same times and in the same manner as salaries paid to
other employees of the Company. The Executive shall participate in any wage
increases applicable generally to salaried employees of Company. The Base Salary
prevailing at any time shall be reviewed annually for a possible increase
beginning in January 1998.
(b) In addition to the Base Salary, the Executive shall be entitled
to receive annual incentive compensation payments ("Incentive Compensation") at
such times and in such amounts as may be determined pursuant to the Bonus Plan
for Executives of subsidiaries of Bacou USA, Inc., as in effect for the
applicable year. Executive acknowledges that, by agreeing to participate in the
Bonus Plan for subsidiaries of Bacou USA, Inc., he thereby waives any rights to
participate in any other incentive compensation plan of the Company.
2
3
(c) Incentive Compensation shall be paid by Company for the prior
fiscal year within ten (10) days after a decision is made by the Board of
Directors of Company as to the amount of such Incentive Compensation, but in any
event no later than the earlier of the annual meeting of the Board of Directors
of Company or March 31.
(d) The Executive shall be entitled to participate in any stock
option plan which Bacou may adopt for Company at levels to be determined by the
Board of Directors of Company in their sole discretion. In connection with the
execution of this Agreement and subject to the execution of the Stock Option
Agreement attached hereto as Exhibit A, Executive shall be granted options to
purchase 10,000 shares of common stock of Bacou at a per share price equal to
the closing price on the trading day immediately preceding the date on which he
executes this Agreement.
(e) The Executive shall be entitled to participate in all savings,
thrift, retirement or pension, short term and long term disability, health and
accident, Blue Cross/Blue Shield, Major Medical or other hospitalization,
holiday, vacation, and other fringe benefit programs generally available to
executives of Company in accordance with and subject to the terms and conditions
of such programs.
(f) In addition, the Executive shall be entitled to receive the
following benefits:
(i) The Executive shall have the use of a company car, subject
to the Automobile Policy of Bacou USA, Inc.
(ii) The Executive shall be entitled to vacation pursuant to
the Bacou USA, Inc. Executive Vacation Policy. Vacation days will be taken at a
time convenient for both the Executive and Company. To the extent the Executive
does not take all vacation days the remaining days will be carried forward for
an unlimited period or be paid to the Executive at the level of his Base Salary
valid for the fiscal year in which vacation days are not taken.
(iii) When traveling on Company business, the Executive will be
provided coach-class airfare on domestic trips; business class airfare will be
provided on international trips.
(iv) The Executive is authorized to incur reasonable expenses
in connection with and for the promotion of the business of Company, including
expenses for meals and lodging (regular hotel room, no suites), entertainment,
and similar items as required from time to time by the Executive's duties.
Company shall reimburse the Executive for all such expenses upon the
presentation of an account therefor, together with appropriate supporting
documentation.
5. LIMITATIONS ON AUTHORITY. Except as otherwise provided herein,
approval by the Chairman must be obtained prior to the Executive taking any of
the following actions on behalf of the Company or any of its affiliates:
(a) Acquisition or disposition of real property or any rights
deriving therefrom, or changing title in any such real
property.
3
4
(b) Making unplanned capital expenditures or any commitment
therefore;
(c) Borrowing or guaranteeing any borrowings from or on behalf of
any party, or altering the terms of any loan agreements for
such borrowings except for any such loans or borrowings as
shall be agreed upon by the Board of Directors of Company;
(d) Hiring or terminating executive personnel;
(e) Granting retirement benefits or other non-earned income to any
individual which is not available to all employees;
(f) Modification of any qualified plan or other benefit plan, e.g.,
health insurance;
(g) Acquiring the assets or shares of another Company or
partnership;
(h) Acquiring or disposing of the assets or shares of the Company,
or selling any fixed asset of the Company below book value;
(i) Entering into or terminating agreements of any kind or nature
with a monthly financial obligation in excess of U.S. $3,000
for more than six (6) months except purchase orders for
materials required for the manufacture of products for sale in
the ordinary course of business;
(j) Making basic changes in the administration, organization,
production, and distribution of Company or any of its
affiliates, as well as closing or curtailing the functions of
Company or any of its affiliates;
(k) Filing any lawsuit;
(l) Entering into any transaction on behalf of Company or its
affiliates which is not in the usual course of its business;
(m) Adoption or modification of the annual budget.
Notwithstanding the foregoing, approval is not required for any action
provided for in the approved and applicable annual budget or annual plan of
Company. In addition, should the Chairman be unavailable, if an emergency arises
which requires the Executive to take immediate action in which approval as set
forth in this Section would otherwise be required, the Executive is no longer
bound by the limitations described above and is authorized to make a decision in
the best interests of Company. The Executive will immediately inform the
Chairman and the Executive Vice President of Bacou USA, Inc. of any such
decisions made by him.
4
5
6. NON-DISCLOSURE OF INFORMATION. It is understood that the business
of Company and its affiliates is of a confidential nature. During the period of
the Executive's employment with Company, the Executive may have received and/or
may secure confidential information concerning Company or any of Company's
affiliates or subsidiaries which, if known to competitors thereof, would damage
Company or its said affiliates or subsidiaries. The Executive agrees that during
and after the term of this Agreement he will not (except as authorized by
Company or in the proper performance of his duties or except as ordered by a
court or other body of competent jurisdiction or as otherwise required by law),
directly or indirectly, divulge, disclose or appropriate to his own use, or to
the use of any third party, any secret, proprietary or confidential information
or knowledge obtained by him during the term hereof concerning such confidential
matters of Company or its subsidiaries or affiliates, including, but not limited
to, information pertaining to trade secrets, systems, manuals, confidential
reports, methods, processes, designs, equipment lists, operating procedures,
equipment and methods used and preferred by Company's customers. Upon
termination of this Agreement, the Executive shall promptly deliver to Company
all materials of a secret or confidential nature relating to the business of
Company or any of its subsidiaries or affiliates which are, directly or
indirectly, in the possession or under the control of the Executive. The
provisions of this paragraph shall continue to apply after the Executive ceases
to be employed by Company for a period of three (3) years except in respect of
any information or knowledge disclosed to the public, other than through an
unauthorized disclosure by the Executive.
7. TRADE SECRETS. The Executive covenants that he shall, while
employed by Company, assign, transfer, and set over to Company or its designee
all right, title and interest in and to all trade secrets, secret processes,
inventions, improvements, patents, patent applications, trademarks, trademark
applications, copyrights, copyright registrations, discoveries and/or other
developments (hereinafter "Inventions") which he may, thereafter, alone or in
conjunction with others, during or outside normal working hours, conceive, make,
acquire or suggest at any time which relate to the products, processes, work,
research, or other activities of Company or any of its subsidiaries or
affiliates. Any and all Inventions which are of a proprietary nature and which
the Executive may conceive, may acquire or suggest, either alone or in
conjunction with others, during his employment with Company (whether during or
outside normal working hours) relating to or in any way pertaining to or
connected with Company's business, shall be the sole and exclusive property of
Company or its designee and the Executive, whenever requested to do so by
Company, shall, without further compensation or consideration properly execute
any and all applications, assignments or other documents which Company or its
designee shall deem necessary in order to apply for and obtain Letters Patent of
the United States and/or comparable rights afforded by foreign countries for the
Inventions, or in order to assign and convey to Company or its designee the sole
and exclusive right, title and interest in and to the Inventions. This
obligation shall continue beyond the termination of this Agreement with respect
to Inventions conceived or made by the Executive during the term of his
employment by Company, and shall be binding upon his assigns, executors,
administrators, and other legal representatives.
8. NON-COMPETITION. (a) During the term of this Agreement or any
renewal thereof and, at Company's option for a period of up to one year
thereafter, should the Executive's contract be terminated or not be renewed, the
Executive agrees that he will not within the geographical area of the United
States, engage, either directly or indirectly, individually or as an owner,
partner, joint venturer, employee, officer, director, stockholder, consultant,
independent contractor or lender of
5
6
or to any corporation, holding Company or other business entity which is in a
business similar to that of Company or any of its affiliates. In the event that
Company chooses to exercise its option to prevent the Executive from competing
with Company following termination or non-renewal of his employment, Company
shall notify the Executive in writing within two (2) weeks following his last
day of employment or within two (2) weeks of notice by Company of its decision
that the Executive shall take a leave-of-absence, in either case specifying the
period of up to one year following termination, resignation, or non-renewal of
employment during which such competitive activity shall be prohibited. In the
event Company exercises its option, Company shall continue to pay Executive his
Base Salary at the time of termination, resignation or non-renewal for the
period during which the Executive is prohibited from competition with Company.
Notwithstanding the foregoing, the Executive (as hereinbefore described in
Section 2(d)) may own five (5%) percent of the securities of any business in
competition with the business of Company or any of its affiliates, which
securities are regularly traded on a public exchange, provided that any such
ownership shall not result in the Executive becoming a record or beneficial
owner at any time of more than five (5%) percent of equity securities of said
business entity.
(b) The Executive shall not during the term of his Employment under
this Agreement or any renewal thereof, and for a period of one (3) years
thereafter, employ, retain or arrange to have any other person or entity employ
or retain any person who was employed by Company or any of its affiliated
companies having an annual compensation of at least U.S. $50,000 per annum
during the term of this Agreement or any renewal thereof.
(c) If any provision of this Section is held to be unenforceable
because of the scope, duration or area of its applicability or otherwise, the
legal entity making that determination will have the power to modify the scope,
duration or area, or all of them, and the provision will then apply in its
modified form.
9. PROPERTY. All letters, memoranda, documents, business notes
(including all copies thereof) and other information contained on any other
computer media including computer disks and hard drives of the Executive in any
manner relating to the duties of Executive under this agreement are the property
of Company.
10. NOTICES. Any notices or other communications required to be given
pursuant to this Agreement shall be in writing and shall be deemed given: (i)
upon delivery, if by hand; (ii) three (3) business days after mailing, if sent
by registered or certified mail, postage prepaid, return receipt requested;
(iii) one (1) business day after mailing, if sent via overnight courier; or (iv)
upon transmission, if sent by telex or facsimile except that if such notice or
other communication is received by telex or facsimile after 5:00 p.m. on a
business day at the place of receipt, it shall be effective as of the following
business day. All notices and other communications hereunder shall be given as
follows:
6
7
(a) If to the Company, to it at:
Survivair, Inc.
0000 X. Xxxxx Xxxxxx
Xxxxx Xxx, XX 00000
Attention: President
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
with copies to:
Bacou USA, Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: President
Telephone No.: 000-000-0000
Fax No.: 000-000-0000
Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) If to the Executive, to him at:
00000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Telephone No.: 000-000-0000
with a copy to his attorney at:
Telephone No.: ( )
Telecopier No.: ( )
Any party may change its address for receiving notice by written notice given to
the other names above in the manner provided above.
7
8
11. FULL AND COMPLETE AGREEMENT; AMENDMENT. This Agreement constitutes
the full and complete understanding and agreement of the parties and supersedes
all prior understandings and agreements. This Agreement may be modified only by
a written instrument executed by both parties.
12. CONSTRUCTION. This Agreement shall be construed under the laws of
the State of California.
13. ARBITRATION. Notwithstanding the fact that the parties shall be
entitled to equitable relief in order to enforce certain provisions hereunder
(e.g., temporary restraining orders or injunctive relief), any dispute,
controversy or claim arising out of or relating to this Agreement, or the breach
hereof, shall be settled by arbitration in accordance with the "Commercial
Arbitration Rules" of the American Arbitration Association in effect on the date
of this Agreement, except as varied below. The site of any such arbitration
shall be Providence, Rhode Island and any award shall be deemed to be a
Providence, Rhode Island award. There shall be a single arbitrator who shall be
admitted to practice law in Rhode Island, with no less than ten (10) years
experience in the handling of commercial or corporate matters or disputes. The
arbitrator shall render a written decision stating his reasons therefor, and
shall render an award within six (6) months of the request for arbitration, and
such award shall be final and binding upon both parties. Judgment upon the award
rendered by the arbitrator may be entered in any court of competent jurisdiction
in any state of the United States or country or application may be made to such
court for a judicial acceptance of the award and an enforcement, as the law of
such jurisdiction may require or allow. The substantive law to be applied to any
case determined pursuant to this Section 13 is that of State of Rhode Island.
The expense of arbitration shall be borne by the respective parties except to
the extent that the arbitrators shall determine that the entire expense shall be
borne by a single party.
14. BINDING NATURE. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective heirs, personal
representatives, successors and assigns.
IN WITNESS WHEREOF, Company and the Executive have duly executed this
Agreement as of the day and year first written above.
SURVIVAIR, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Title: Chairman
EXECUTIVE:
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
8
