Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT made and entered into as of January 1, 1988, by and
between CRP Holding Corp., a Florida corporation (the "Company") and Xxxxxxx X.
Xxxxxx (the "Executive").
RECITALS:
1. The Company wishes to employ the Executive upon the terms and
subject to the conditions set forth in this Agreement.
2. The Executive is willing to serve in the employ of the Company upon
the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1. EMPLOYMENT; DUTIES.
(a) The Company hereby employs the Executive as President and Chief
Executive Officer, and the Executive hereby accepts such employment.
(b) In his capacity as President and Chief Executive Officer, the
Executive shall have such responsibilities and duties consistent with his
respective positions, and of such a nature as are usually associated with his
offices as may be designated from time to time by the Board of Directors of the
Company (the "Board of Directors").
(c) The Executive shall faithfully and diligently discharge his duties
hereunder and use his best efforts to implement the policies established by the
Board of Directors. In the performance of his duties and functions under this
Agreement, the Executive shall devote such time as is consistent with his
position as President.
2. TERM.
(a) Initial Term. Unless renewed or sooner terminated as provided
herein, the initial term (the "Initial Term") of this Agreement shall begin on
the date hereof and shall continue for a period of two (2) years.
(b) Renewal Term. After the expiration of the Initial Term, this
Agreement shall be deemed renewed for a successive two (2) year term (such
two (2) year term being hereinafter referred to as a "Renewal Term"), unless
the Company or the Executive gives written notice to the other on or prior to
the date which is six (6) months prior to the end of the Initial Term or any
Renewal Term, of the election to terminate this Agreement
at the end of the Initial Term or the then current Renewal Term. The Initial
Term and any Renewal Terms shall be hereinafter collectively referred to as the
"Employment Term".
3. COMPENSATION.
(a) Salary. The Company shall pay the Executive an annual base gross
salary for the services to be rendered by him from the date hereof at the annual
rate of not less than $150,000, as determined by the Board of Directors, payable
in periodic installments in accordance with the Company's regular payroll
practices as in effect from time to time ("Salary"). The Salary may be increased
(but not decreased) from time to time by the Board of Directors, and shall in
any event be subject to annual review at the meeting of the Board of Directors
immediately following the annual meeting of the shareholders of the Company.
(b) Incentive Compensation. The Executive shall be entitled to an
annual performance bonus as may be determined by the Board of Directors, in its
sole discretion.
4. BENEFITS.
(a) Benefit Plans. The Executive shall be entitled to participate in
and receive the benefits under any pension, profit-sharing, bonus, stock
purchase, stock option, stock bonus, health, life, accident and disability
insurance plans or programs and any other employee benefit or fringe benefit
plans, perquisites or arrangements which the Company makes available generally
to other employees, including, without limitation, to the senior executive
officers of the Company, to the extent that the Executive is otherwise eligible
to participate in such plans or arrangements pursuant to the provisions of such
plans or arrangements as they may be in effect from time to time, and,
containing terms and benefits at least as favorable to the Executive as those
upon which any other senior executive officer of the Company may have rights to
participate in.
(b) Automobile. The Company shall provide the Executive with a leased
vehicle for use by the Executive. In addition, the Company shall also pay for
insurance, maintenance, fuel and other costs incurred by the Executive in the
use and maintenance of such a vehicle.
(c) Life Insurance; Medical Benefits.
(i) The Company shall, at its own cost and expense, continue to
maintain the present term life insurance policy on the life of the
Executive in the amount of $750,000, payable to such beneficiary or
beneficiaries as the Executive may designate, and, shall provide
medical benefits at least equivalent to those benefits which the
Executive currently received, for the period required herein.
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(ii) In the event the present term life insurance referred to
in (c)(1) above is terminated, and such termination is due to a default
by the Company under such policy or is otherwise the fault of the
Company, the Company shal1 obtain an equivalent life insurance policy
and maintain such life insurance policy for the period required herein.
In the event the present term life insurance referred to in (c)(1)
above is terminated, and such termination is not the result of any
action or inaction by the Company, the Company shall purchase such term
life insurance as shall be avallable at a cost equivalent to the
premium being paid for the present term life insurance, and maintain
the same for the period required herein.]
(d) Vacation and Holidays. The Executive shall be entitled to four (4)
weeks paid vacation during each year of the Employment Term hereof. To the
extent the Executive shall not take four (4) weeks vacation during any year, the
unused time shall accrue and carry forward to future years. Upon termination of
the Executive's employment for any reason, the Executive shall receive a cash
payment for any accrued but unused vacation up to a maximum of six months. The
Executive shall be entitled to such holidays and sick days as determined by the
Company's policy with respect to senior executive officers in effect on the date
hereof, and as amended.
(e) Expenses. The Company shall pay or reimburse the Executive for all
reasonable expenses actually incurred or paid by the Executive in the
performance of his services hereunder (including 100% of reasonable travel and
entertainment expenses), provided, that the Executive submits expense statements
or vouchers or such other supporting information as the Company may reasonably
require of the Executive.
5. TERMINATION OF EMPLOYMENT.
(a) Notwithstanding the provisions of paragraph 2 hereof, this
Agreement may be terminated as follows:
(i) Upon Notice. At the end of the Employment Term with
respect to which notice is given by the Executive or the Company
pursuant to paragraph 2(a) hereof.
(ii) Death. The Executive's employment hereunder shall
terminate automatically as of the date of his death.
(iii) Disability. The Company may terminate the Executive's
employment hereunder after having established the Executive's
"Disability" (as defined below), by giving the Executive written notice
of its intention to terminate the Executives employment due to such
Disability. The date of Disability shall be the day on which the
Executive receives notice from the Company in accordance with Section
8(f) hereof.
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For purposes of this Agreement, "Disability" means the Executive's
inability to perform substantially his duties and responsibilities to
the Company by reason of a physical or mental incapacity or infirmity
(i) for a continuous period of ninety (90) days, not including any
permitted vacation days, holidays or sick days; or (ii) for a
cumulative period of ninety (90) days in any twelve month period, not
including permitted vacation days, holidays or sick days; or (iii) at
such earlier time as the Executive submits medical evidence
satisfactory to the Company that the Executive has a physical or mental
disability or infirmity that will likely prevent the Executive from
substantially performing his duties and responsibilities for one
hundred and twenty (120) days or longer. In the event of any
disagreement between the Executive and the Company, as to whether the
Executive is physically or mentally incapacitated so as to constitute a
"Disability" hereunder, the question of such incapacity shall be
submitted to an impartial and reputable physician selected by mutual
agreement of the Company and the Executive, or failing such agreement,
selected by two physicians (one of whom shall have been selected by the
Company, and the other by the Executive), and the determination of the
question of such incapacity by such physician shall be final and
binding upon the Company, as the case may be, and the Executive. The
Company shall pay the fees and expenses of such physician, and the
Executive shall submit to any medical examinations reasonably necessary
to enable such physician to make a determination as to whether the
Executive's incapacity constitutes a Disability hereunder.
(iv) Cause. The Company shall have the right to terminate the
Executive's employment for "Cause". For purposes of this Agreement,
"Cause" shall mean: (i) the willful and continued failure by the
Executive to perform substantially his duties to the Company (other
then any such failure resulting from his Disability) within a
reasonable period of time after a written demand for substantial
performance is delivered to the Executive by the Board of Directors,
which demand specifically identifies the manner in which the Board of
Directors, believes that the Executive has not substantially performed
his duties; (ii) the willful misconduct by the Executive in the
performance of his duties to the Company which has a detrimental effect
on the Company or its subsidiaries, and which remains uncorrected for a
reasonable period of time after receipt by the Executive of a written
notice from the Board of Directors setting forth the particular details
of such misconduct, (iii) the grossly negligent performance by the
Executive of his duties to the Company, if such grossly negligent
performance is determined by the Board of Directors, to have had or to
be reasonably likely to have a material adverse effect on the business,
assets, prospects or financial condition of the Company, (iv) the
conviction of the Executive of a felony, (v) the misappropriation of
any property of, or
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commission of fraud or embezzlement against the Company or any
of its subsidiaries, or (vi) material breach by the Executive of
Section 7 hereof.
(v) Termination For Good Reason. The Executive may terminate
his employment under this Agreement for "Good Reason." For purposes of
this Agreement, "Good Reason" shall mean, without the Executive's
express written consent, (i) a substantial alteration in the nature or
status of the Executive's responsibilities from those contemplated by
Section 1(a) or the assignment to the Executive of any duties
inconsistent with the Executive's status as President and Chief
Executive Officer, (ii) a reduction in the Executive's compensation
from that contemplated by Section 3(a) (as the same may be increased
from time to time); or (iii) without limiting the generality or effect
of the foregoing, any material breach of this Agreement by the Company.
(vi) Transfer Event. The Executive shall have the right to
terminate this Agreement upon thirty days prior written notice to the
Company, or any successor of the Company, as the case may be, in the
event of a "Transfer Event" (as defined below). For purposes of this
Agreement, "Transfer Event" means:
(A) a transfer of substantially all of the assets of the
Company, (B) a change in control of the board of directors of the
Company pursuant to which any single Person or two or more Persons
acting in concert (other than one or more Affiliates of the Company on
the date hereof) acquires control of such board of directors, or (C)
the Transfer of at least 51% or more of the voting equity interests in
the Company (or any parent of the Company), whether by sale, merger,
consolidation or otherwise, to any single Person or two or more Persons
acting in concert; provided that two or more Persons shall be
considered to be acting in concert for purposes of clauses (B) and (C)
hereof only if such Persons would have been considered to be acting in
concert as a "group" for purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended, for such purposes treating voting
equity interests of the Company held or acquired by such Persons as if
such voting equity interests were equity securities in respect of which
a Schedule 13D would be required to be filed with the Securities and
Exchange Commission and as if the requisite percentage and other
threshold conditions to such filing were satisfied; provided, further,
that a "Transfer Event" shall not include a pledge of the voting equity
interests in the Company to the holders of debt financing or any
refinancing thereof (but not a Transfer arising from the exercise of
such holders rights under such pledge). For purposes of this Section
5(a)(vi):
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
governmental body.
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"Affiliate" means. with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or it under common control
with such Person.
"Transfer" means sell, transfer, convey, lease and/or deliver (other
tenses of the term have similar meaning) or sale, transfer, assignment,
conveyance, lease and/or delivery, as indicated by the context.
(b) In the event that this Agreement is terminated pursuant to
Section (a) above, the Executive shall be released from any further
obligations under Section 1 hereof, and the Company shall be released
from any further obligations hereunder, except for obligations accrued
to the date of termination. Termination of this Agreement pursuant to
Section 5(a) and shall in no way abrogate or relieve the Executive of
his obligations under Section 7 hereof.
6. EFFECT OF TERMINATION.
(a) Upon and following termination of the Executive's
employment because of death as provided in subsection 5(a)(ii) above,
the Company shall (i) continue to pay to the Executive's spouse the
amount of the Executive's Salary as provided in Section 3(a) at the
rate in effect immediately prior to termination of his employment, for
the remainder of the Employment Term or for a period of one (1) year
from the date of termination of the Executive's employment, whichever
is longer, (ii) continue to provide medical benefits equivalent to the
medical benefits contemplated in Section 4(a) hereof for the
Executive's spouse for a period of one (1) year from the date of
termination of the Executive's employment.
(b) Upon and following termination of the Executive's
employment because of Disability as provided in subsection 5(a)(iii)
above, the Company shall (i) continue to pay the Executive, or, in the
event of the death of the Executive, his spouse in the event of her
death subsequent to that of the Executive's, as the case may be, the
amount of the Executive's Salary as provided in Section 3(a) at the
rate in effect immediately prior to termination of his employment, for
the remainder of the Employment Term or for a period of twelve (12)
months from the date of termination, whichever is longer, less the
amount of any disability payments made by the Company or any Company
plan, (ii) continue to provide medical benefits equivalent to the
medical benefits contemplated in Section 4(a) hereof and to maintain
the term life insurance contemplated in Section 4(c) hereof for a
period of one year from the date of termination of the Executive's
employment, and (iii) continue to provide an automobile as contemplated
in Section 4(b) hereof for a period of twelve (12) months from the date
of termination of the Executive's employment.
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(c) In the event Executive's employment is terminated by the
Executive for Good Reason or upon the occurrence of a Transfer Event,
or by the Company other than for death, Disability, Cause, or pursuant
to notice as provided in Section 5(a) bereof, the Company shall make a
lump sum payment to the Executive of the Salary for the remainder of
the Employment Term, or for one year from the date of termination,
whichever is greater (or in the event of the subsequent death of the
Executive to his spouse) and, shall continue to provide medical
benefits equivalent to the medical benefits contemplated in Section
4(a) hereof [and to maintain the term life insurance contemplated by
Section 4(c) hereof for such period.]
(d) Upon and following the termination of the employment by
the Executive hereunder, for any reason, the Executive shall be
entitled to any Salary, incentive compensation, and Salary relating to
accrued but unused vacation, to the extent such amounts are accrued and
unpaid on the date of termination of the Executive's employment, and
all expense reimbursements that are due under Section 4(e) hereof and
remain unpaid.
(e) Notwithstanding anything to the contrary contained in this
Agreement, in the event of a termination by the Company of the
Executive's employment hereunder, or the termination by the Executive
of his employment for Good Cause or upon the occurrence of a Transfer
Event, the Executive shall not be required to seek other employment in
mitigation of his damages, nor shall the possibility or fact of any
other such employment and the compensation which the Executive might
reasonably be expected to receive, actually receives, or to which the
Executive becomes entitled, by reason thereof, be considered as
mitigating his damages.
7. COVENANTS.
(a) In view of the fact that the Company is engaged in
specialized businesses, which businesses are conducted throughout the
world, and the information, research and marketing data developed by
the Company or any of its subsidiaries or affiliates are confidential,
the Executive agrees that, during his employment and for a period of
one (1) year from the termination of his employment with the Company,
he will not (i) directly or indirectly engage in the business
substantially conducted by the Company at the date of such termination,
either for himself or for any person, employer, business or other
entity in competition with the Company, (ii) engage in any such
business on his own account, or (iii) become interested in any such
business, directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent, employee, trustee,
consultant or in any other relationship or capacity; provided, however,
that ownership of less than 5% of any class of outstanding securities
of a company registered pursuant to Section 12(g) of the Securities
Exchange Act of 1934, as amended, shall not be deemed to constitute
engaging, participating in, or crested in any such business.
(b) During his employment and for a period of one (1) year
thereafter, the Executive and any entity controlled by the Executive
shall not, directly or indirectly, (i)
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make any false or malicious statement, oral or written, which is
injurious to the business, reputation or operations of the Company,
its officers or directors, as applicable, or which may interfere with
the good will of the Company or its relations with its customers and
suppliers, or (ii) solicit, interfere with, hire, offer to hire or
induce any person who is an officer, employee or agent of the Company
to discontinue his or her relationship with the Company or any
subsidiary or affiliate of the Company, or to accept employment by any
other entity or person.
(c) The Executive agrees to keep secret and retain in the
strictest confidence all confidential matters which relate to the
Company, including, without limitation, customer lists, trade secrets,
pricing policies and other confidential business affairs of the Company
and any of its subsidiaries or affiliates ("Confidential Information")
learned by him from the Company or any of its subsidiaries affiliates
and not to disclose any such Confidential information to anyone outside
the Company or any of its affiliates, whether during or after his
period of service with the Company, except in the course of performing
his duties hereunder, provided, however, Confidential Information shall
not include information that (i) is known generally by the public on
the date of the Executive's termination, (ii) has otherwise come into
the public domain without a breach by the Executive, under this
Agreement, or (iii) is required to be disclosed pursuant to applicable
Federal, state or local laws or judicial process. Upon request by the
Company, the Executive agrees to deliver promptly to the Company upon
termination of his employment, or at any time thereafter as the Company
may request, all Company memoranda, notes, records, reports, manuals,
drawings, designs, computer files in any media and other documents (and
all copies thereof) containing such Confidential Information and all
property of the Company or any of its subsidiaries or affiliates which
the Executive may then possess or have under his control.
(d) The Executive agrees that all processes, technologies and
inventions, including new contributions, improvements, formats,
packages, programs, systems, compositions of matter manufactured,
developments, applications and discoveries which are related in any
manner to the business (commercial or experimental) of the Company
during the term of the Executive's employment, whether patentable or
not, conceived, developed, invented or made by the Executive, or by the
Executive jointly with others during the term of his employment with
the Company, or by the Company or its affiliates or on their behalf
(collectively, "New Developments"), shall belong to the Company, and,
the Company shall have the sole right to all proceeds arising from or
related to such New Developments. The Executive shall further: (a)
promptly disclose such New Developments to the Company; (b) assign to
the Company, without additional compensation, all patent or othar
rights to such New Developments for the United States and foreign
countries; (c) sign all papers necessary to carry out the foregoing;
and (d) give testimony in support of his inventorship, all at the sole
cost and expense of the Company.
(e) If the Executive commits a material breach of any of the
provisions of this Section 7, the Company shall have the right and
remedy to have the provisions of this
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Agreement specifically enforced by any court of competent
jurisdiction, it being acknowledged and agreed to by the Executive
that any such breach will cause irreparable injury to the Company and
that money damages will not provide an adequate remedy to the Company.
Such rights and remedies shall be in addition to, and not in lieu of,
any other rights and remedies available to the Company at law or in
equity. The provisions of this Section 7 shall survive the expiration
or termination of this Agreement.
(f) Although the restrictions contained in this Section 7 are
considered to be fair and reasonable in the circumstances, it is
recognized that restrictions of the nature contained in this Section 7
may fail for technical reasons; accordingly, if any of such
restrictions sha11 be adjudged to be void or unenforceable for whatever
reason, but would be valid if part of the wording thereof were deleted,
or the period thereof reduced or the area dealt with thereby reduced in
scope, the restrictions contained in this Section 7 shall apply, at the
election of the Company, with such modifications as may be necessary to
make them valid, effective and enforceable, in the particular
jurisdiction in which such restrictions are adjudged to be void or
unenforceable.
8. MISCELLANEOUS.
(a) This Agreement or any rights or obligations hereunder may
not be assigned by any of the parties hereto without the prior written
consent of the other parties; provided, however, that this Agreement
shall inure to the bencfit of and be binding upon the successors and
assigns of the Company upon any sale of all or substantially all of the
Company's assets, or upon any merger or consolidation of the Company
with or into any other corporation, all as though such successors and
assigns of the Company and their respective successors and assigns were
the Company, as the case may be.
(b) This Agreement and the relationships of the parties in
connection with the subject matter of this Agreement shall be construed
and enforced according to the laws of the State of New York without
giving effect to the conflict of laws rules thereof.
(c) This Agreement contains the full and complete agreement
of the parties relating to the employment of the Executive hereunder
and supersedes all prior agreements, arrangements or understandings,
whether written or oral, relating thereto. Neither this Agreement, nor
any provision hereof, may be amended, modified, waived or supplemented
by written instrument signed by the parties hereto, and a written
waiver of any of the provisions shall be valid and effective only if
signed by each of the parties hereto and shall be valid and effective
only in the instance for which given.
(d) If any provision of this Agreement is held to be invalid
or enforceable by any judgment of a tribunal of competent jurisdiction,
the remainder of this Agreement shall not be affected by such judgment,
and this Agreement shall be carried out as near to its original terms
and intent as possible.
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(f) All notices, requests and demands given to or made upon
the respective parties hereto shall be deemed to have been received
five (5) business days after the date of mailing when mailed by
certified mail, postage prepaid, or one business day after the date of
delivery by a recognized overnight delivery service, or, upon receipt
of confirmation of transmission when sent by telecopier, addressed to
the parties at their addresses set forth below or to such other
addresses furnished by notice given in accordance with this subsection
(f): (a) if to the Company to Clean Room Products Holding Corporation,
0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxx 00000, Telecopier No.: (516)
588-7863 Attention: Board of Directors, and (b) if to the Executive, at
his address set forth on the signature page hereof.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
CLEAN ROOM PRODUCTS HOLDING CORPORATION
By: Xxxxxxx X. Xxxxxx
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Naie: Xxxxxxx X. Xxxxxx
Title: President
Xxxxxxx X. Xxxxxx
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Address: 0 Xxxxxxx Xx.
Xxxxxxxx, XX 00000
