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Exhibit 10.8
EMPLOYMENT AGREEMENT
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This Agreement is made as of the 1st day of August, 1994 between
Pamarco, Incorporated, a Maryland corporation (the "Company"), and Xxxxxxx X.
Xxxxxxx (the "Employee").
RECITALS
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The Employee is currently an executive employee of the Company pursuant
to an Employment Agreement dated December 11, 1992 (the "Former Agreement"). The
Company desires to continue the employment of the Employee under a new
agreement, and the Employee desires to continue to provide services to the
Company, upon the terms and conditions hereinafter set forth.
WITNESSETH:
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NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT.
The Former Agreement is terminated as of the date hereof and shall be
of no further force and effect. The Company hereby continues the employment of
the Employee as an executive-level employee, and the Employee hereby accepts
such continued employment. During the term of employment under this Agreement
(the "Employment Term"), the Employee shall perform such duties as are assigned
by any senior officer or the Board of Directors the Company, as the case may be,
provided that such duties are consistent in all material respects with
Employee's responsibilities as an executive-level employee of the Company
immediately prior to the date hereof.
2. PERFORMANCE.
The Employee shall devote his entire business efforts to the
performance of his duties hereunder; provided, however, that the Employee may
engage in personal investment activities so long as they do not interfere with
the performance of his duties hereunder.
3. TERM.
Unless otherwise terminated in accordance with Sections 6 or 7, the
Employment Term shall be for an initial term of five years from the date of this
Agreement and shall automatically continue thereafter for successive one-year
renewal terms unless one party provides the other with at least 90 days' prior
written notice that the current term shall not be extended.
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4. COMPENSATION FOR EMPLOYMENT.
(a) The basic annual rate of compensation of the Employee for his
employment services to the Company hereunder shall be $178,500 (the "Salary")
through December 31, 1995, which the Company shall pay to the Employee in equal
installments paid every two weeks. The Salary may be adjusted upward on an
annual basis as the Board of Directors of the Company (the "Board") may approve,
in its sole discretion, commencing on or after January 1, 1996, but the Salary
shall not be decreased.
(b) Commencing January 1, 1995, the Employee shall be entitled to a
bonus or such other incentive compensation as may be provided under any plan or
program established from time to time by the Board, in its sole discretion.
Through December 31, 1994, the Employee shall be entitled to an annual bonus
payable in accordance with the terms of the Company's Executive Committee
Incentive Program - 1993. Notwithstanding anything herein to the contrary, the
total bonus payable to the Employee for any calendar year shall not exceed 50%
of Salary.
(c) During the Employment Term, the Company shall provide, the Employee
with fringe benefits that are substantially equivalent to the fringe benefits
specified on Exhibit "A" (the "Fringe Benefits").
5. AGREEMENT NOT TO COMPETE.
During the Non-Competition Period (defined below), the Employee shall
not, within the United States, directly or indirectly, in any capacity, render
his services, engage or have a financial interest in, any business that shall be
competitive with any of those business activities in which the Company has been
or shall be engaged during his employment by the Company, including the
manufacture of anilox rolls or embossing rolls; nor shall the Employee assist
any person or entity that shall be engaged in such business, including by making
Company Information (defined below) available to any such person or entity. If a
court determines that the foregoing restrictions are too broad or otherwise
unreasonable under applicable law, including with respect to time or space, the
court is hereby requested and authorized by the parties hereto to revise the
foregoing restriction to include the maximum restrictions allowable under
applicable law. The "Non-Competition Period" means the period during which the
Employee is either employed by the Company or being paid the Salary despite his
termination under Section 7, plus an additional one year after the termination
of such employment or payments, whichever is later.
6. TERMINATION WITHOUT COMPENSATION.
(a) NON-RENEWAL OF TERM. The Employment Term may be terminated by
either party hereto as of the end of the initial term or any renewal term then
in effect by giving written notice of the intention to terminate the Employment
Term at least 90 days prior to the proposed termination date.
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(b) TOTAL DISABILITY. If the Employee becomes totally disabled (as
defined below), the Employment Term may be terminated by the Company, and the
Company shall have no further liability or obligation to the Employee hereunder
except as follows: the Employee shall receive (i) any unpaid Salary and Fringe
Benefits that have accrued through the date of termination; (ii) continued
Salary for three months following the date he is considered totally disabled and
a proportionate share of any bonus otherwise payable in accordance with the
provisions of Section 4 for the calendar year in which he is considered to be
totally disabled, determined in the same manner as in Section 7 and (iii)
whatever benefits that he may be entitled to receive under any then existing
disability benefit plans of the Company, including any such plans included in
the Fringe Benefits. For the purposes hereof, the Employee shall be deemed to be
"totally disabled" if the Employee is considered totally disabled under the
Company's group disability plan in effect at that time, if any, or in the
absence of any such plan, under applicable Social Security regulations. In the
event of any dispute under this Section 6(b), the Employee shall submit to a
physical examination by a licensed physician mutually satisfactory to the
Company and the Employee, the cost of such examination to be paid by the
Company, and the determination of such physician shall be determinative.
(c) DEATH. If the Employee dies, this Employment Agreement shall
terminate, and thereafter the Company shall not have any further liability or
obligation to the Employee, his executors, administrators, heirs, assigns or any
other person claiming under or through him except that the Employee's estate
shall receive any unpaid Salary and Fringe Benefits that have accrued through
the date of termination.
(d) CAUSE. The Company may terminate the Employment Term for "cause" by
giving the Employee 30 days' notice of the termination date, and thereafter the
Company shall not have any further liability or obligation to the Employee,
except that the Employee shall receive any unpaid Salary and Fringe Benefits
that have accrued through the date of termination, net of any liabilities that
the Employee may have to the Company. For purposes of this Agreement, "cause"
shall mean the failure of the Employee to observe or perform (other than by
reason of illness, injury or incapacity) any of the material terms or provisions
of this Agreement, dishonesty, willful misconduct, material neglect of the
Company's business, conviction of a felony or other crime involving moral
turpitude, misappropriation of funds or habitual insobriety.
7. TERMINATION WITH COMPENSATION.
The Company shall have the right to terminate the Employment Term
without cause at any time by giving the Employee 30 days' notice of the
termination date. Under such circumstances, the Employee's Salary under Section
4(a) then in effect hereunder and the Fringe Benefits specified on Exhibit "B"
will continue for 24 months unless a different term is specified on Exhibit "B";
provided, however, that such Fringe Benefits shall not continue in effect for
any period during which the Company is precluded from continuing the Employee's
participation in the plan or program under which any such Fringe Benefit is
provided by reason of any applicable
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law or regulation, including the Federal tax law regarding discrimination. In
addition, for the calendar year in which the termination occurs, the Employee
shall be entitled to a proportionate bonus under Section 4(b) by assuming that
he remained employed for the full year and multiplying the bonus that otherwise
would have been due by a fraction the numerator of which is the number of full
months the Employee was actually employed by the Company during such calendar
year and the denominator of which is 12. Such payment shall be made at the same
time as the Company pays bonuses to other executives for that year. The Employee
shall not be entitled to any compensation under this Section 7 unless the
Employee executes and delivers to the Company after a notice of termination a
release in a form satisfactory to the Company in its sole discretion by which
the Employee releases the Company from any obligations and liabilities of any
type whatsoever, except for the Company's obligation to provide the Salary and
Fringe Benefits specified in this Section 7. The parties hereto acknowledge that
the Salary and Fringe Benefits to be provided under this Section 7 are to be
provided in consideration for the above-specified release.
8. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS.
All inventions, innovations, designs, ideas and product developments,
developed or conceived by the Employee, solely or jointly with others, whether
or not patentable or copyrightable, at any time during the Employment Term or
during his employment by the Company prior to the commencement of the Employment
Term and that relate to the actual or planned business activities of the Company
(collectively, the "Developments") and all of the Employee's right, title and
interest therein, shall be the exclusive property of the Company. The Employee
hereby assigns, transfers and conveys to the Company all of his right, title and
interest in and to any and all such Developments. The Employee shall disclose
fully, as soon as practicable and in writing, all Developments to the Board. At
any time and from time to time, upon the request of the Company, the Employee
shall execute and deliver to the Company any and all instruments, documents and
papers, give evidence and do any and all other acts that, in the opinion of
counsel for the Company, are or may be necessary or desirable to document such
transfer or to enable the Company to file and prosecute applications for and to
acquire, maintain and enforce any and all patents, trademark registrations or
copyrights under United States or foreign law with respect to any such
Developments or to obtain any extension, validation, reissue, continuance or
renewal of any such patent, trademark or copyright. The Company will be
responsible for the preparation of any such instruments, documents and papers
and for the prosecution of any such proceedings and will reimburse the Employee
for all reasonable expenses incurred by him in compliance with the provisions of
this Section.
9. CONFIDENTIAL INFORMATION.
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of the Company, including
writings, equipment, processes, drawings, reports, manuals, invention records,
financial information, business plans, customer
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lists, the identity of or other facts relating to prospective customers,
inventory lists, arrangements with suppliers and customers, computer programs,
or other material embodying trade secrets, customer or product information or
technical or business information of the Company. All such information, other
than any information that is in the public domain through no act or omission of
the Employee or which he is authorized to disclose, is referred to collectively
as the "Company Information." During and after the Employment Term, the Employee
shall not (i) use or exploit in any manner the Company Information for himself
or any person, partnership, association, corporation or other entity other than
the Company, (ii) remove any Company Information, or any reproduction thereof,
from the possession or control of the Company or (iii) treat Company Information
otherwise than in a confidential manner.
(b) All Company Information developed, created or maintained by the
Employee, alone or with others while employed by the Company, and all Company
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the Company. The Employee shall return to the Company all
Company Information, and reproductions thereof, whether prepared by him or
others, that are in his possession immediately upon request and in any event
upon the completion of his employment by the Company.
10. REMEDIES.
The Employee expressly acknowledges that the remedy at law for any
breach of Sections 5, 8 and 9 will be inadequate and that upon any such breach
or threatened breach, the Company shall be entitled as a matter of right to
injunctive relief in any court of competent jurisdiction, in equity or
otherwise, and to enforce the specific performance of the Employee's obligations
under these provisions without the necessity of proving the actual damage to the
Company or the inadequacy of a legal remedy. Subject to the remainder of this
Section 10, the rights conferred upon the Company by the preceding sentence
shall not be exclusive of, but shall be in addition to, any other rights or
remedies which the Company may have at law, in equity or otherwise.
11. SURRENDER OF OPTIONS.
In consideration for the undertakings of the Company under this
Agreement, the Employee agrees to surrender any and all rights that have been
granted to him prior to the date hereof to purchase any securities of the
Company, Pamarco Europe Ltd. or of any of their subsidiaries or affiliates.
12. GENERAL.
(a) GOVERNING LAW. The terms of this Agreement shall be governed by the
laws of the State of New Jersey.
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(b) COMPANY. For purposes of Sections 5, 8, 9 and 10, the term
"Company" shall be deemed to include any incorporated or unincorporated
subsidiaries or affiliates of the Company, including Pamarco Europe Ltd. and any
majority-owned subsidiaries thereof.
(c) BINDING EFFECT. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
(d) NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed by registered or certified mail, postage prepaid,
return receipt requested, or when sent by Federal Express or other overnight
delivery service, addressed as follows:
TO EMPLOYEE:
Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
TO THE COMPANY:
Pamarco, Incorporated
000 Xxxx 00xx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn: Chairman of the Board
With a copy to:
Xxxxxx X. Xxxxxxxxx, Esq.
Xxxxxx, Xxxxx & Bockius
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
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and
Bradford Ventures Ltd.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
(e) ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the
entire agreement of the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any way except in writing by the parties
hereto.
(f) DURATION. Notwithstanding the termination of the Employment Term
and of the Employee's employment by the Company, this Agreement shall continue
to bind the parties for so long as any obligations remain under the terms of
this Agreement.
(g) WAIVER. No waiver of any breach of this Agreement shall be
construed to be a waiver as to succeeding breaches.
(h) SEVERABILITY. If any provision of this Agreement or application
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or render unenforceable such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Agreement as of the day and year first written
above.
PAMARCO, INCORPORATED
By:__________________________
Xxxxxx X. Xxxxx
Chairman of the Board
______________________________
XXXXXXX X. XXXXXXX
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EXHIBIT A
FRINGE BENEFITS
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(a) Medical, dental, term life, disability and travel accident
insurance coverage, all at levels comparable to those provided to Xxxxxxx as of
August 1, 1994.
(b) Participation in all pension and 401(k) savings plans, all at
levels comparable to those provided to Xxxxxxx as of August 1, 1994.
(c) Provision to Xxxxxxx of a late model automobile comparable to that
provided to Xxxxxxx as of August 1, 1994, including all related fuel,
maintenance, repair, insurance and other costs.
(d) Maintenance in effect during Xxxxxxx'x employment of Northwestern
Mutual Whole Life Insurance Policy No. 12411195 insuring Xxxxxxx'x life (at
annual premium cost of $32,586).
(e) Annuity, upon Xxxxxxx'x retirement at age 65 or upon earlier
termination of Xxxxxxx'x employment without cause or by reason of death or
disability, payable to Xxxxxxx or his widow, as the case may be, purchased by
the Company with the net cash surrender value of the Northwestern Mutual Whole
Life Insurance Policy referred to in paragraph (d).
(f) Reimbursement, in accordance with the Company's policies, upon
proper accounting, of reasonable expenses and disbursements incurred by Xxxxxxx
in the course of his duties.
(g) Reimbursement of health and golf club membership fees.
(h) Paid holidays in accordance with the Company's policies.
(i) Paid vacation of six weeks per year.
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EXHIBIT B
FRINGE BENEFITS
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(a) Medical, dental, term life, disability and travel accident
insurance coverage, all at levels comparable to those provided to Xxxxxxx as of
August 1, 1994.
(b) Participation in all pension and 401(k) savings plans, all at
levels comparable to those provided to Xxxxxxx as of August 1, 1994.
(c) Provision to Xxxxxxx for a period of three months of a late model
automobile comparable to that provided to Xxxxxxx as of August 1, 1994,
including all related fuel, maintenance, repair, insurance and other costs.
(d) Maintenance in effect during Xxxxxxx'x employment of Northwestern
Mutual Whole Life Insurance Policy No. 12411195 insuring Xxxxxxx'x life (at
annual premium cost of $32,586), with the Company bearing the cost during
Xxxxxxx'x termination period.
(e) Annuity, upon Xxxxxxx'x retirement at age 65 or upon earlier
termination of Xxxxxxx'x employment without cause or by reason of death or
disability, payable to Xxxxxxx or his widow, as the case may be, purchased by
the Company with the net cash surrender value of the Northwestern Mutual Whole
Life Insurance Policy referred to in paragraph (d), with the Company bearing the
cost during Xxxxxxx'x termination period.
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AMENDMENT TO EMPLOYMENT AGREEMENT
This Amendment to Employment Agreement (the "Amendment") is made as of
April ___, 1997, to that certain Employment Agreement dated as of August 1, 1994
(the "Employment Agreement") between Pamarco, Incorporated and Xxxxxxx X.
Xxxxxxx (the "Employee"). Pamarco, Incorporated has assigned its rights, title
and interests in the Employment Agreement to Pamarco Technologies Inc. ("PTI"),
and PTI has assumed all of Pamarco, Incorporated's obligations under the
Employment Agreement, pursuant to that certain Assignment and Assumption
Agreement dated as of January 1, 1997 by and among Pamarco, Incorporated, PTI
and the Employee.
WHEREAS, PTI and the Employee desire to amend the Employment Agreement
and PTI and the Employee are willing to affect such Amendment.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DELETION OF SECTION 6(a). Section 6(a) of the Employment Agreement
shall be deleted in its entirety.
2. AMENDMENT AND RESTATEMENT OF SECTION 7. Section 7 of the Employment
Agreement shall be deleted in its entirety and replaced with the following:
"7. TERMINATION WITH COMPENSATION.
(a) NON-RENEWAL OF TERM. The Employment Term may be terminated
by either party hereto as of the end of the initial term or any renewal
term then in effect by giving written notice of the intention to
terminate the Employment Term at least 90 days prior to the proposed
termination date. Upon termination by the Company pursuant to this
Section 7(a), the Company shall provide the Employee with the
Termination Compensation specified in Section 7(c).
(b) WITHOUT CAUSE. The Company shall have the right to
terminate the Employment Term without cause at any time by giving the
Employee 30 days' notice of the termination date. Under such
circumstances, the Company shall provide the Employee with the
Termination Compensation specified in Section 7(c).
(c) TERMINATION COMPENSATION. The "Termination Compensation"
shall consist of the following: (i) payment of the Employee's Salary
under Section 4(a), at the level in effect at the date of termination,
for 24 months after the termination date, (ii) provision of the Fringe
Benefits specified on Exhibit "B" for 24 months unless a different term
is specified on Exhibit "B"; provided, however, that such Fringe
Benefits shall not
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continue in effect for any period during which the Company is precluded
from continuing the Employee's participation in the plan or program
under which any such Fringe Benefit is provided by reason of the terms
of such plan or program or of any applicable law or regulation,
including the Federal tax law regarding discrimination, and (iii) for
the calendar year in which the termination occurs, payment of a
proportionate bonus under Section 4(b) calculated by assuming that the
Employee remained employed for the full year and multiplying the bonus
that otherwise would have been due by a fraction the numerator of which
is the number of full months the Employee was actually employed by the
Company during such calendar year and the denominator of which is 12.
Such bonus payment shall be made at the same time as the Company pays
bonuses to other executives for that year. The Employee shall not be
entitled to any Termination Compensation under this Section 7 unless
the Employee executes and delivers to the Company after a notice of
termination a release in a form satisfactory to the Company in its sole
discretion by which the Employee releases the Company from any
obligations and liabilities of any type whatsoever, except for the
Company's obligation to provide the Salary, Fringe Benefits and bonus
specified in this Section 7. The parties hereto acknowledge that the
Salary, Fringe Benefits and bonus to be provided under this Section 7
are to be provided in consideration for the above-specified release.
(d) EXCLUSIVITY. Upon any termination by the Company under
Section 7(a) or Section 7(b), the Company shall not have any obligation
to the Employee, his executors, administrators, heirs, assigns or any
other person claiming under or through him other than to provide the
Termination Compensation under the terms and conditions of Section
7(c). Upon any termination by the Employee under Section 7(a), the
Company shall not have any further liability or obligation to the
Employee, his executors, administrators, heirs, assigns or any other
person claiming under or through him except to provide to the Employee
any unpaid Salary and Fringe Benefits that shall have accrued to him
through the date of termination."
3. COUNTERPARTS. This Amendment may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
4. MISCELLANEOUS. Except as herein modified and amended, all terms and
conditions of the Employment Agreement shall remain unchanged and in full force
and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
PAMARCO TECHNOLOGIES INC.
BY:___________________________
Name:
Title:
XXXXXXX X. XXXXXXX
_______________________________
