EXECUTIVE EMPLOYMENT AGREEMENT
EXECUTIVE EMPLOYMENT AGREEMENT made as of the 1st day of May, 2001, by and
between BALTEK CORPORATION, a Delaware corporation with offices at 00 Xxxxxxx
Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and Xxxxxxx X. Xxxx,
residing at 000 Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 (the "Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive as Director for Latin
America, and the Executive desires to be so employed by the Company, upon the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, the Executive and the Company agree as follows:
1. Employment. The Company agrees to employ the Executive as Director for
Latin America, and the Executive agrees to serve the Company in such capacity,
upon and subject to the terms and conditions set forth in this Agreement.
2. Term. The Executive's employment under and in accordance with this
Agreement shall commence on May 1, 2001 and shall continue until terminated by
either party upon not less than twenty-four (24) months written notice to the
other party (the period from May 1, 2001 until the date this Agreement is
terminated pursuant to such notice being hereinafter referred to as the "Term"
of this Agreement).
3. Duties.
(a) During the Term of this Agreement, the Executive shall be employed as
the Director for Latin America of the Company, shall utilize his best efforts to
enhance the business of the Company and, subject to the supervision of the
Company's President and Chief Executive Officer (the "CEO") and the Company's
Board of Directors (the "Board"), shall be responsible for the general and
supervisory duties normally and customarily attendant to such position at the
Company and its divisions and subsidiaries.
(b) During the Term of this Agreement, unless the Board shall otherwise
consent in writing, the Executive will, during the regular business hours of the
Company, devote his full time, energies, labor and skills to the business of the
Company and to the duties and responsibilities specified in subsection (a) of
this paragraph 3.
4. Compensation. In full consideration for all services to be performed by
the Executive for the Company and pursuant to this Agreement, the Company shall
pay to the Executive, and the Executive agrees to accept, an annual salary of
one hundred sixty-five thousand ($165,000) dollars (or such higher amount as may
be approved from time to time by the Board), payable in monthly installments in
accordance with the Company's customary payroll practices. The Company shall
annually review the Executive's salary to determine whether, and to what extent,
if any, such salary shall be adjusted. Any increase in the Executive's salary
shall be in the sole discretion of the Company. In addition, the Company shall
reimburse the Executive for all expenses reasonably incurred by the Executive in
connection with the performance of his duties under this Agreement and the
business of the Company, in accordance with the Company's usual policies and
practices for expense reimbursement.
5. Vacation. The Executive shall be entitled to four (4) weeks of paid
vacation during each twelve (12) month period of his employment under this
Agreement, to be taken at times mutually agreeable to the Executive and the
Company. Any vacation not taken during the twelve (12) month period in which
such vacation is earned may not be taken in any subsequent period, but the
Executive shall be entitled to be paid for up to two (2) weeks of any earned
vacation which is not taken during any twelve (12) month period. In the event
the Executive's employment is terminated for any reason, the Executive shall be
paid for accrued vacation time, if any, which has not been taken, calculated on
a pro-rata basis, but in no event shall such amount exceed more than four (4)
weeks' salary.
6. Benefits. Throughout the Term of this Agreement, the Executive shall be
eligible to participate in any pension, profit-sharing, stock option or similar
plan or program of the Company now existing or hereafter established and
maintained for the benefit of the Company's employees or executives generally,
to the extent that the Executive is eligible under the general provisions
thereof. The Executive shall also be entitled to participate in any group
insurance, hospitalization, medical, health, accident, disability or similar
plan or program of the Company now existing or hereafter established for the
benefit of the Company's employees or executives generally, to the extent that
the Executive is eligible under the general provisions thereof. In the event the
employment of the Executive with the Company is terminated for any reason, such
benefits shall be continued, at the expense of the Company, to such extent and
for such period of time as may be required under the Consolidated Omnibus Budget
Reconciliation Act of 1985 and the regulations issued thereunder, as in effect
at the time of such termination of employment.
7. Company Car. To permit the Executive to perform his duties more
effectively, the Company shall, during the term of the Executive's employment
pursuant to this Agreement [and if the employment of the Executive pursuant to
this Agreement is terminated under any of the circumstances described in
subparagraph (f) of paragraph 8 of this Agreement, for a period of twelve (12)
months after such termination of such employment], lease a suitable automobile
for the use of the Executive, and reimburse the Executive for all expenses of
operating and maintaining such automobile, including, without limitation,
comprehensive and liability insurance, in accordance with the Company's policies
and practices for executive company cars.
8. Termination of Executive's Employment.
(a) Notwithstanding any provisions to the contrary contained in this
Agreement, the Executive's employment may be terminated by the Company upon the
Executive's death or disability (as defined below) or for Cause (as defined
below), and the Executive may terminate his employment for Good Reason (as
defined below) upon sixty (60) days' prior written notice to the Company.
(b) For purposes of this Agreement, "disability" shall mean that, for a
period of one hundred twenty (120) consecutive days or more, or for one hundred
eighty (180) days or more (even though not consecutive) within any three hundred
sixty (360) day period, the Executive is mentally or physically unable to
perform the essential duties of his position as Director for Latin America of
the Company (notwithstanding reasonable accommodation by the Company as required
by law), as evidenced by the written certification of a qualified physician
agreed to by the Company and the Executive or, in the absence of such agreement,
by a qualified physician selected by the agreement of a qualified physician
selected by the Company and a qualified physician selected by the Executive.
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(c) For purposes of this Agreement, "Cause" shall mean: (i) the conviction
of the Executive for a felony by a federal or state court of competent
jurisdiction; or (ii) the Executive's failure either (A) to follow a direct
substantive written order, within the reasonable scope of the Executive's
duties, from the CEO, pursuant to authority from the Board, or (B) to adhere to
any written policy or guideline established by the Company from time to time, if
such failure to follow such order or adhere to such policy or guideline is not
cured within thirty (30) days after written notice to the Executive specifying
such failure.
(d) For purposes of this Agreement, "Good Reason" shall mean any of the
following: (i) the assignment by the Company to the Executive of substantial
duties significantly below the level of the Executive's position as Chief
Financial Officer of the Company, as set forth in paragraph 3 of this Agreement;
or (ii) the failure of the Company to assign to the Executive substantial duties
and responsibilities consistent with such position; or (iii) any reduction by
the Company of the Executive's salary or benefits as set forth in paragraphs 4
or 6 of this Agreement, it being understood that a reduction of benefits
applicable to all executives of the Company (including the Executive) shall not
be deemed a reduction of the Executive's benefits for purposes of this
definition.
(e) In the event that the Executive's employment under this Agreement is
terminated as a result of death, disability or for Cause by the Company, or
without Good Reason by the Executive, then the Company shall have no further
obligation or liability to the Executive under this Agreement, such that all
salary and benefits provided for in this Agreement shall terminate
simultaneously with the termination of the Executive's employment, except for
salary and benefits earned and accrued through the date of such termination.
(f) In the event that the Company terminates the employment of the
Executive pursuant to this Agreement prior to the end of the Term of this
Agreement, other than for Cause, death or disability, or the Executive
terminates his employment with the Company with Good Reason prior to the end of
the Term of this Agreement (i) the Company shall pay to the Executive, in each
month following such termination, until the end of the Term of this Agreement,
an amount equal to one-twelfth of the Executive's annual salary in effect on the
date of termination, and (ii) if such termination shall occur ninety (90) days
or less prior to the end of a fiscal year of the Company, the Company shall, in
accordance with any executive compensation or incentive plan of the Company in
effect at the time of such termination, pay to the Executive any bonus and make
on behalf of the Executive any profit sharing plan contribution which the
Company would otherwise have paid or made if the Executive had remained in the
employ of the Company through the end of such fiscal year.
9. Covenants of the Executive.
(a) The Executive acknowledges that his employment by the Company has
brought him and will throughout his employment continue to bring him into close
contact with many confidential affairs of the Company, including information
about costs, profits, markets, sales, key personnel, pricing policies,
operational methods and other business affairs, methods and information,
including plans for future developments, not readily available or generally
known to the public. The Executive further acknowledges that the services to be
performed by him under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character, and that the Company currently
competes or intends to compete with other organizations that are located in all
of the states of the United States. In recognition of the foregoing, the
Executive covenants and agrees that:
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(i) he will not during his employment with the Company or following
the expiration of this Agreement or the termination of his employment with
the Company for any reason (the date of such expiration or termination
being hereinafter referred to as the "Termination Date") divulge, disclose,
publish or use (other than for the benefit of the Company) any matter
relating to the Company which is not publicly available and generally known
and will not intentionally disclose such matter to anyone (other than to
executives or employees of the Company who are required to have knowledge
of such matter), except that the Executive may make such disclosure as may
be required by law, provided the Company is notified by the Executive in
writing of such requirement not less than ten (10) business days prior to
the date such disclosure is so required and the Company has not obtained an
order or ruling to prevent such disclosure;
(ii) he will deliver promptly to the Company at the end of the Term of
this Agreement, or at any other time the Company may so request, all
memoranda, notes, records, reports and other documents (and all copies
thereof) relating to the business of the Company which he obtained while
employed by or otherwise serving or acting on behalf of, the Company, and
which he may then possess or have under his control;
(iii) during the Term of this Agreement and any additional period
during which the Executive may be employed by the Company (whether or not
such employment shall be pursuant to a written agreement), he will not,
unless the Board shall otherwise consent in writing, alone or together with
any other person, firm, partnership, corporation or other entity whatsoever
(except a subsidiary or affiliate of the Company), directly or indirectly,
whether as an officer, director, stockholder, partner, proprietor,
associate, employee, representative, public relations or advertising
representative, management consultant or otherwise, engage in, or have any
material financial or monetary interest in, or have any financial or
monetary association with, any other person, corporation, firm, partnership
or other entity engaged in, the composite materials or seafood business or
any other business which is competitive with any business conducted or
contemplated by the Company; and
(iv) for a period of twenty-four (24) months following the Termination
Date, he will not:
(A) solicit, or attempt to solicit, any person or entity who or
which is a customer of the Company (as of the Termination Date or at
any time prior thereto) as a customer for any person or entity engaged
in the composite materials or seafood business, or any other business
which is competitive with any business conducted or contemplated by
the Company; or
(B) otherwise disrupt or interfere with, or attempt to disrupt or
interfere with, the Company's relations with any actual or potential
customer or supplier or any other relationship of the Company.
(b) The Executive recognizes that the territorial and time limitations
in this paragraph 9 are reasonable and properly required for the adequate
protection of the business of the Company, and that in the event that any
such territorial or time limitation is deemed to be unreasonable by a court
of competent jurisdiction, the Executive agrees to a reduction of said such
territorial or time limitation, as the case may be, to such area or period
as such court deems reasonable. In the event that the Executive shall be in
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violation of any of the covenants contained in this paragraph 9, the time
limitation thereof shall be extended for a period of time equal to the
period of time during which such breach or breaches should exist.
(c) The Executive further agrees that the remedy at law for any breach
or threatened breach of any of the covenants contained in this paragraph 9
will be inadequate and that the Company, in addition to such other remedies
as may be available to it, at law or in equity, shall be entitled to
injunctive relief without bond or other security. This paragraph 9
constitutes independent and severable covenants and, if any or all of the
provisions of this paragraph 9 is or are held to be invalid or
unenforceable for any reason, such invalidity or unenforceability shall not
in any way invalidate or affect the remainder of this paragraph 9 or the
remainder of this Agreement, as the case may be, which shall remain in full
force and effect.
10. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New Jersey applicable to
contracts executed in and to be performed solely within such state.
11. Notices. All notices required or permitted to be given by either
party pursuant to this Agreement, including notice of change of address,
shall be in writing and delivered by hand, or mailed, postage prepaid,
certified or registered mail, return receipt requested, to the other party
as follows:
If to the Company: Baltek Corporation
00 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx Xxxx
President and Chief Executive Officer
If to the Executive: Xxxxxxx X. Xxxx
000 Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
12. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior oral or written agreements and understandings relating to the
employment of the Executive by the Company. There are no oral promises,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution this Agreement by the Executive or in
effect between the parties. This Agreement may not be amended, and no provision
hereof shall be waived, except by a writing signed by the Company and the
Executive (or in the case of a waiver of a provision of this Agreement, by the
party waiving compliance therewith), which states that it is intended, as the
case may be, to amend this Agreement or waive a provision of this Agreement. Any
waiver of any right or failure to act in a specific instance shall relate only
to such instance and shall not be construed as an agreement to waive any right
or failure to act in any other instance, whether or not similar.
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(b) Severability. Should any provision of this Agreement be held by a court
of competent jurisdiction to be unenforceable or prohibited by applicable law,
this Agreement shall be considered divisible as to such provision, which shall
be inoperative, and the remainder of this Agreement shall be valid and binding
as if such provision were not included in this Agreement.
(c) Successors and Assigns. This Agreement shall inure to the benefit of,
and be binding upon, the Company and any corporation with which the Company
merges or consolidates or to which the Company sells all or substantially all of
its assets, and upon the Executive and his executors, administrators, heirs and
legal representatives.
(d) Headings. All headings in this Agreement are for convenience only and
are not intended to affect the meaning of any provision hereof.
(e) Counterparts. This Agreement may be executed in two (2) or more
counterparts with the same effect as if the signatures to all such counterparts
were upon the same instrument, and all such counterparts shall constitute but
one instrument.
IN WITNESS WHEREOF, the Executive has executed this Agreement and the
Company has caused this Agreement to be executed by its duly authorized officer
as of the day and year first above written.
BALTEK CORPORATION
By:/s/Xxxxxxx Xxxx
------------------
Xxxxxxx Xxxx
President and Chief Executive Officer
/s/Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
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