1
EXHIBIT 10.22
RETENTION AGREEMENT
THIS RETENTION AGREEMENT is made and entered into as of June 10, 1999,
by and between NU-KOTE HOLDING, INC., a Delaware corporation (hereinafter, the
"Company"), and C. Xxxxxx Xxxxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into a certain retention
agreement on or around May 1, 1998 (the "Old Agreement"); and
WHEREAS, the Company is presently in the process of reorganizing (the
"Reorganization") under Chapter 11 of the United States Bankruptcy Code (the
"Code"); and
WHEREAS, pursuant to the provisions set forth in the Code, the Company
has the right to reject the Old Agreement, and notwithstanding such right of
rejection, the Company is willing to retain Employee as an employee until such
time as the Company determines the services of Employee are no longer required
and Employee desires to remain employed by the Company during such time and the
Employee has provided valuable services to the Company in connection with the
Chapter 11 filing;
NOW, THEREFORE, for the reasons set forth, in consideration of the
mutual promises, covenants and agreements made herein, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
1. Retention. The Company hereby retains Employee in the position of
Vice President/General Manager North American Operations and Employee hereby
accepts said retention by the Company on the terms and conditions specified
herein and subject specifically to approval by the Bankruptcy Court.
2. Term. The term of this Agreement shall commence on the date hereof
and, unless earlier terminated in accordance with the provisions set forth
herein below, shall expire on the earlier of (i) the date on which a Chapter 11
Plan for the Company is confirmed by the U.S. Bankruptcy Court for the Middle
District of Tennessee; or (ii) the sale of all or a substantial portion of the
Company's assets under ss. 363 of the Bankruptcy Code ("Period of Employment").
Notwithstanding anything to the contrary in this Section 2, the provisions of
Section 7 will survive the expiration or earlier termination of this Agreement.
In the event Employee and the Company desire to maintain an employment
relationship following the expiration of the Period of Employment, such
employment relationship shall be "at will" unless further agreements are made in
writing between the Employee and the Company.
3. Duties of Employee. Employee shall perform those duties which are
assigned to him/her by the chief executive officer of the Company and which are
commensurate with the Employee's position. Employee hereby represents that
his/her employment hereunder and
RETENTION AGREEMENT - PAGE 1
2
compliance by him/her with the terms and conditions of this Agreement will not
conflict with or result in the breach of any agreement to which he/she is a
party or by which he/she may be bound. Employee agrees to devote his/her full
time, attention and skill to his/her duties hereunder.
4. Compensation.
(a) As compensation for the duties and services performed by
Employee, the Company will pay Employee a monthly base salary at the rate
in effect on the date of this Agreement, subject to federal and state
withholding allowances and in accordance with the Company's standard
payroll practices.
(b) In addition, the Company acknowledges that Employee is
performing his/her job at a time when the Company's financial situation is
precarious and that Employee has other employment opportunities which
he/she has been asked to forego. Thus, the Company agrees that, in
addition to, and without limitation of, any other compensation
contemplated hereby, Employee shall receive upon the expiration of the
Period of Employment a cash bonus in the lump sum amount of Two Hundred
Twenty-Five Thousand Dollars and No/100ths ($225,000.00), subject to
applicable state and federal withholding allowances (the "Retention
Payment"). This Retention Payment shall be earned and payable, as a
post-petition administrative expense, in the next regular payroll cycle of
the Company following expiration of the Period of Employment, such
expiration being defined in Section 2.
(c) Employee shall be entitled to receive this Retention Payment so
long as the Employee is employed by the Company at the time the Period of
Employment expires as defined in Section 2 herein. Notwithstanding the
preceding provisions of this Section 4 should the Company terminate this
Agreement without cause, then the Retention Payment shall be payable
immediately as a post-petition administrative expense. However, if this
Agreement is terminated prior to the expiration of the Period of
Employment for cause by the Company or without cause by the Employee no
Retention Payment shall be payable.
5. Benefits. Employee shall also be entitled to participate in all benefit
plans and programs that are available to the Employee as of the date of this
Agreement. Additionally, the Employee shall be entitled to receive all benefits
which accrue through the date of termination of the Employee's employment with
the Company.
6. Termination.
(a) By the Company. The Company shall have the right at any time, by
written notice to the Employee to terminate this Agreement, if one of the
following events occurs:
(i) Employee's conviction in a court of law of any crime or
offense involving misuse or misappropriation of money or
other property of the Company; or
RETENTION AGREEMENT - PAGE 2
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(ii) Employee's willful failure or refusal to perform
specific directives of the chief executive officer of
the Company, which directives are consistent with the
scope and nature of Employee's duties and responsibilities
as described in this Agreement and which are not remedied
by the Employee within thirty (30) days after notice to
the Employee, or the commission of any intentional tort
by the Employee against the Company, or any breach by
Employee of the covenants set forth in Section 7 of this
Agreement; or
(iii) any action of dishonesty or disloyalty by Employee or
any act involving moral turpitude of the Employee which
materially adversely affect the business of the Company;
or
(iv) the inability of Employee to perform his/her duties
hereunder for a period of thirty (30) consecutive days
(or sixty (60) total days in any ninety (90) day period)
by reason of illness or mental or physical disability;
or
(v) any statements, observations, or opinions or communication
of information (whether oral or written) made by or
caused to be made by the Employee that disparages or is
likely in any way to harm the reputation of the Company;
or
(vi) Employee's death.
For purposes of this Section, it is understood and agreed that good faith errors
in judgment made by the Employee shall not constitute grounds for termination
for cause hereunder. Notwithstanding the above, it is the intent of the Company
at all times to comply with the Americans With Disabilities Act, the Family and
Medical Leave Act and any other applicable federal and state employment laws. In
the case of termination under this Section 6(a), all obligations of the parties
under this Agreement shall cease, except for the Company's obligations under
Sections 4(a) and 5 herein through the date of the Employee's separation and
Employee's obligations under Section 7 hereof.
(b) By Employee. This Agreement shall be terminable without cause by
Employee upon two (2) weeks written notice to the Company. This Agreement
shall be terminable by Employee for cause upon thirty (30) days written
notice to the Company, if the Company willfully breaches any material
terms of this Agreement and provided such breach has not been cured by the
Company within such thirty (30) day period. In the case of termination
under this Section 6(b), all obligations of the parties in this Agreement
shall cease, except for Employee's obligations under Section 7 and, unless
the termination by the Employee is without cause, Employer's obligation to
pay the Retention Payment.
7. Confidential Information. In consideration of the covenants of the
Company contained herein, Employee agrees as follows:
RETENTION AGREEMENT - PAGE 3
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(a) Employee hereby agrees and acknowledges that he/she has had
access to or is aware of certain confidential, restricted and/or
proprietary information concerning operation by the Company's business
(the "Business"). Employee hereby undertakes and agrees that he/she shall
have a duty to the Company to protect such information from use or
disclosure.
(b) For the purposes of this Section 7, the following definitions
shall apply:
(i) "Trade Secret" as related to the Business, shall mean
any specialized technical information or data relating
to (A) the manufacture and distribution of impact and
non-impact imaging supplies for office and home printing
devices (including the manufacture and distribution of
typewriter and printer ribbons, thermal fax ribbons,
cartridges and toner for laser printers, facsimile
machines and copiers, cartridges and ink for ink jet
printers, specialty papers, calculator ink rolls, and
carbon paper; (B) marketing strategy or plans of the
Company; (C) proprietary computer software; and (D)
terms of contracts with suppliers, employees and
principal customers of the Company which are not generally
known to the competitors of the Company.
(ii) "Confidential Information," as related to the Business,
shall mean any data or information, other than Trade
Secrets, which is material to the Company or its
affiliates and not generally known by the public.
Confidential Information shall include, without
limitation, any information pertaining to the business
opportunities of the Company, the details of this
Agreement, and the business plans, financial statements
and projections of the Company.
(c) Employee shall not, without the prior written consent of the
Company, use or disclose, or negligently permit any unauthorized person
who is not an employee of the Company to use, disclose, or gain access to,
any Trade Secrets or Confidential Information; provided, however, Employee
shall be permitted, and this Agreement shall constitute written consent of
the Company, to use Confidential Information, and to disclose such
Confidential Information to his/her advisors (including specifically,
without limitation, attorneys, accountants, bankers, and others) for the
purposes of assessing the viability of and preparing a plan to acquire a
portion of the assets of the Company.
(d) Employee hereby agrees to deliver to, or maintain on behalf of,
the Company and its affiliates all memoranda, notes, records, drawings,
manuals or other documents, including all copies of such materials,
containing Trade Secrets or Confidential Information, whether made or
compiled by Employee or furnished to him/her from any source by virtue
RETENTION AGREEMENT - PAGE 4
5
of his/her relationship with the Company or its affiliates. All such
memoranda, notes, records, drawings, manuals, other documents and
other materials shall be delivered to the Company by the Employee
upon termination of the Employee's employment with the Company.
8. Assignments; Successors and Assigns. The rights and obligations of
Employee hereunder are not assignable or delegable and any prohibited assignment
or delegation will be null and void. The Company may assign and delegate this
Agreement to a successor in interest to the Company's business. Any such
assignment shall expressly include the obligations herein and shall not relieve
the Company of same. The provisions hereof shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties hereto.
9. Governing Law. This Agreement shall be interpreted under, subject to
and governed by the substantive laws of the State of Tennessee, without giving
effect to provisions thereof regarding conflict of laws, and all questions
concerning its validity, construction, and administration shall be determined in
accordance thereby.
10. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original but all of
which will together constitute one and same instrument.
11. Invalidity. The invalidity or unenforceability of any provision of
this Agreement shall not affect any other provision hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
was omitted. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
12. Exclusiveness. This Agreement constitutes the entire understanding
and agreement between the parties with respect to the retention by the Company
of Employee and supersedes any and all other agreements, oral or written,
between the parties, including but not limited to the Old Agreement. To the
extent the Employee has a claim arising out of the Company's rejection of the
Old Agreement, such claim is waived.
13. Modification. This Agreement may not be modified or amended except
in writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
14. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
RETENTION AGREEMENT - PAGE 5
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(a) If to the Company, at 000 Xxxxxxx Xxxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxxx, 00000, Attention: President and Chief Executive
Officer, or at such other address as may have been furnished to the
Employee by the Company in writing; or
(b) If to the Employee, at the address stated below, or such other
address as may have been furnished to the Company by Employee in writing.
15. Consolidation, Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging in to or with, or
transferring all or substantially all of its assets to, another corporation
which assumes this Agreement and all obligations and undertaking of the Company
hereunder. No such consolidation, merger or transfer shall affect the rights of
the Employee or the obligations of the Company hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
NU-KOTE HOLDING, INC.
By:
-----------------------------------
Xxxxxxx X. Xxxxxx, President
"EMPLOYEE"
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C. Xxxxxx Xxxxxxxx
Employee's Principal Address:
--------------------------------------
--------------------------------------
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RETENTION AGREEMENT - PAGE 6
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RETENTION AGREEMENT
THIS RETENTION AGREEMENT is made and entered into as of June 10, 1999,
by and between NU-KOTE HOLDING, INC., a Delaware corporation (hereinafter, the
"Company"), and Xxxxxxx X. Xxxxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into a certain retention
agreement on or around May 1, 1998 (the "Old Agreement"); and
WHEREAS, the Company is presently in the process of reorganizing (the
"Reorganization") under Chapter 11 of the United States Bankruptcy Code (the
"Code"); and
WHEREAS, pursuant to the provisions set forth in the Code, the Company
has the right to reject the Old Agreement, and notwithstanding such right of
rejection, the Company is willing to retain Employee as an employee until such
time as the Company determines the services of Employee are no longer required
and Employee desires to remain employed by the Company during such time and the
Employee has provided valuable services to the Company in connection with the
Chapter 11 filing;
NOW, THEREFORE, for the reasons set forth, in consideration of the
mutual promises, covenants and agreements made herein, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
16. Retention. The Company hereby retains Employee in the position of
Senior Vice President/Chief Financial Officer and Employee hereby accepts said
retention by the Company on the terms and conditions specified herein and
subject specifically to approval by the Bankruptcy Court.
17. Term. The term of this Agreement shall commence on the date hereof
and, unless earlier terminated in accordance with the provisions set forth
herein below, shall expire on the earlier of (i) the date on which a Chapter 11
Plan for the Company is confirmed by the U.S. Bankruptcy Court for the Middle
District of Tennessee; or (ii) the sale of all or a substantial portion of the
Company's assets under ss. 363 of the Bankruptcy Code ("Period of Employment").
Notwithstanding anything to the contrary in this Section 2, the provisions of
Section 7 will survive the expiration or earlier termination of this Agreement.
In the event Employee and the Company desire to maintain an employment
relationship following the expiration of the Period of Employment, such
employment relationship shall be "at will" unless further agreements are made in
writing between the Employee and the Company.
18. Duties of Employee. Employee shall perform those duties which are
assigned to him/her by the chief executive officer of the Company and which are
commensurate with the Employee's position. Employee hereby represents that
his/her employment hereunder and
RETENTION AGREEMENT - PAGE 1
8
compliance by him/her with the terms and conditions of this Agreement will not
conflict with or result in the breach of any agreement to which he/she is a
party or by which he/she may be bound. Employee agrees to devote his/her full
time, attention and skill to his/her duties hereunder.
19. Compensation.
(a) As compensation for the duties and services performed by
Employee, the Company will pay Employee a monthly base salary at the rate
in effect on the date of this Agreement, subject to federal and state
withholding allowances and in accordance with the Company's standard
payroll practices.
(b) In addition, the Company acknowledges that Employee is
performing his/her job at a time when the Company's financial situation is
precarious and that Employee has other employment opportunities which
he/she has been asked to forego. Thus, the Company agrees that, in
addition to, and without limitation of, any other compensation
contemplated hereby, Employee shall receive upon the expiration of the
Period of Employment a cash bonus in the lump sum amount of One Hundred
Sixty Thousand Dollars and No/100ths ($160,000.00), subject to applicable
state and federal withholding allowances (the "Retention Payment"). This
Retention Payment shall be earned and payable, as a post-petition
administrative expense, in the next regular payroll cycle of the Company
following expiration of the Period of Employment, such expiration being
defined in Section 2.
(c) Employee shall be entitled to receive this Retention Payment so
long as the Employee is employed by the Company at the time the Period of
Employment expires as defined in Section 2 herein. Notwithstanding the
preceding provisions of this Section 4 should the Company terminate this
Agreement without cause, then the Retention Payment shall be payable
immediately as a post-petition administrative expense. However, if this
Agreement is terminated prior to the expiration of the Period of
Employment for cause by the Company or without cause by the Employee no
Retention Payment shall be payable.
20. Benefits. Employee shall also be entitled to participate in all
benefit plans and programs that are available to the Employee as of the date of
this Agreement. Additionally, the Employee shall be entitled to receive all
benefits which accrue through the date of termination of the Employee's
employment with the Company.
21. Termination.
(a) By the Company. The Company shall have the right at any time, by
written notice to the Employee to terminate this Agreement, if one of the
following events occurs:
(i) Employee's conviction in a court of law of any crime or
offense involving misuse or misappropriation of money or
other property of the Company; or
RETENTION AGREEMENT - PAGE 2
9
(ii) Employee's willful failure or refusal to perform specific
directives of the chief executive officer of the Company,
which directives are consistent with the scope and nature
of Employee's duties and responsibilities as described
in this Agreement and which are not remedied by the
Employee within thirty (30) days after notice to the
Employee, or the commission of any intentional tort by the
Employee against the Company, or any breach by Employee
of the covenants set forth in Section 7 of this Agreement;
or
(iii) any action of dishonesty or disloyalty by Employee or any
act involving moral turpitude of the Employee which
materially adversely affect the business of the Company;
or
(iv) the inability of Employee to perform his/her duties
hereunder for a period of thirty (30) consecutive days
(or sixty (60) total days in any ninety (90) day period)
by reason of illness or mental or physical disability; or
(v) any statements, observations, or opinions or communication
of information (whether oral or written) made by or caused
to be made by the Employee that disparages or is likely
in any way to harm the reputation of the Company; or
(vi) Employee's death.
For purposes of this Section, it is understood and agreed that good faith errors
in judgment made by the Employee shall not constitute grounds for termination
for cause hereunder. Notwithstanding the above, it is the intent of the Company
at all times to comply with the Americans With Disabilities Act, the Family and
Medical Leave Act and any other applicable federal and state employment laws. In
the case of termination under this Section 6(a), all obligations of the parties
under this Agreement shall cease, except for the Company's obligations under
Sections 4(a) and 5 herein through the date of the Employee's separation and
Employee's obligations under Section 7 hereof.
(b) By Employee. This Agreement shall be terminable without cause by
Employee upon two (2) weeks written notice to the Company. This Agreement
shall be terminable by Employee for cause upon thirty (30) days written
notice to the Company, if the Company willfully breaches any material
terms of this Agreement and provided such breach has not been cured by the
Company within such thirty (30) day period. In the case of termination
under this Section 6(b), all obligations of the parties in this Agreement
shall cease, except for Employee's obligations under Section 7 and, unless
the termination by the Employee is without cause, Employer's obligation to
pay the Retention Payment.
22. Confidential Information. In consideration of the covenants of the
Company contained herein, Employee agrees as follows:
RETENTION AGREEMENT - PAGE 3
10
(a) Employee hereby agrees and acknowledges that he/she has had
access to or is aware of certain confidential, restricted and/or
proprietary information concerning operation by the Company's business
(the "Business"). Employee hereby undertakes and agrees that he/she shall
have a duty to the Company to protect such information from use or
disclosure.
(b) For the purposes of this Section 7, the following definitions
shall apply:
(i) "Trade Secret" as related to the Business, shall mean
any specialized technical information or data relating
to (A) the manufacture and distribution of impact and
non-impact imaging supplies for office and home printing
devices (including the manufacture and distribution of
typewriter and printer ribbons, thermal fax ribbons,
cartridges and toner for laser printers, facsimile
machines and copiers, cartridges and ink for ink jet
printers, specialty papers, calculator ink rolls, and
carbon paper; (B) marketing strategy or plans of the
Company; (C) proprietary computer software; and (D) terms
of contracts with suppliers, employees and principal
customers of the Company which are not generally known to
the competitors of the Company.
(ii) "Confidential Information," as related to the Business,
shall mean any data or information, other than Trade
Secrets, which is material to the Company or its
affiliates and not generally known by the public.
Confidential Information shall include, without
limitation, any information pertaining to the business
opportunities of the Company, the details of this
Agreement, and the business plans, financial statements
and projections of the Company.
(c) Employee shall not, without the prior written consent of the
Company, use or disclose, or negligently permit any unauthorized person
who is not an employee of the Company to use, disclose, or gain access to,
any Trade Secrets or Confidential Information; provided, however, Employee
shall be permitted, and this Agreement shall constitute written consent of
the Company, to use Confidential Information, and to disclose such
Confidential Information to his/her advisors (including specifically,
without limitation, attorneys, accountants, bankers, and others) for the
purposes of assessing the viability of and preparing a plan to acquire a
portion of the assets of the Company.
(d) Employee hereby agrees to deliver to, or maintain on behalf of,
the Company and its affiliates all memoranda, notes, records, drawings,
manuals or other documents, including all copies of such materials,
containing Trade Secrets or Confidential Information, whether made or
compiled by Employee or furnished to him/her from any source by virtue
RETENTION AGREEMENT - PAGE 4
11
of his/her relationship with the Company or its affiliates. All such
memoranda, notes, records, drawings, manuals, other documents and other
materials shall be delivered to the Company by the Employee upon
termination of the Employee's employment with the Company.
23. Assignments; Successors and Assigns. The rights and obligations of
Employee hereunder are not assignable or delegable and any prohibited assignment
or delegation will be null and void. The Company may assign and delegate this
Agreement to a successor in interest to the Company's business. Any such
assignment shall expressly include the obligations herein and shall not relieve
the Company of same. The provisions hereof shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties hereto.
24. Governing Law. This Agreement shall be interpreted under, subject
to and governed by the substantive laws of the State of Tennessee, without
giving effect to provisions thereof regarding conflict of laws, and all
questions concerning its validity, construction, and administration shall be
determined in accordance thereby.
25. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original but all of
which will together constitute one and same instrument.
26. Invalidity. The invalidity or unenforceability of any provision of
this Agreement shall not affect any other provision hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
was omitted. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
27. Exclusiveness. This Agreement constitutes the entire understanding
and agreement between the parties with respect to the retention by the Company
of Employee and supersedes any and all other agreements, oral or written,
between the parties, including but not limited to the Old Agreement. To the
extent the Employee has a claim arising out of the Company's rejection of the
Old Agreement, such claim is waived.
28. Modification. This Agreement may not be modified or amended except
in writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
29. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
RETENTION AGREEMENT - PAGE 5
12
(a) If to the Company, at 000 Xxxxxxx Xxxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxxx, 00000, Attention: President and Chief Executive
Officer, or at such other address as may have been furnished to the
Employee by the Company in writing; or
(b) If to the Employee, at the address stated below, or such other
address as may have been furnished to the Company by Employee in writing.
30. Consolidation, Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging in to or with, or
transferring all or substantially all of its assets to, another corporation
which assumes this Agreement and all obligations and undertaking of the Company
hereunder. No such consolidation, merger or transfer shall affect the rights of
the Employee or the obligations of the Company hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
NU-KOTE HOLDING, INC.
By:
-----------------------------------
Xxxxxxx X. Xxxxxx, President
"EMPLOYEE"
Xxxxxxx X. Xxxxxxxx
Employee's Principal Address:
--------------------------------------
--------------------------------------
--------------------------------------
RETENTION AGREEMENT - PAGE 6
13
RETENTION AGREEMENT
THIS RETENTION AGREEMENT is made and entered into as of June 10, 1999,
by and between NU-KOTE HOLDING, INC., a Delaware corporation (hereinafter, the
"Company"), and Xxx Xxxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into a certain retention
agreement on or around May 1, 1998 (the "Old Agreement"); and
WHEREAS, the Company is presently in the process of reorganizing (the
"Reorganization") under Chapter 11 of the United States Bankruptcy Code (the
"Code"); and
WHEREAS, pursuant to the provisions set forth in the Code, the Company
has the right to reject the Old Agreement, and notwithstanding such right of
rejection, the Company is willing to retain Employee as an employee until such
time as the Company determines the services of Employee are no longer required
and Employee desires to remain employed by the Company during such time and the
Employee has provided valuable services to the Company in connection with the
Chapter 11 filing;
NOW, THEREFORE, for the reasons set forth, in consideration of the
mutual promises, covenants and agreements made herein, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
31. Retention. The Company hereby retains Employee in the position of
Vice President - Product Development and Employee hereby accepts said retention
by the Company on the terms and conditions specified herein and subject
specifically to approval by the Bankruptcy Court.
32. Term. The term of this Agreement shall commence on the date hereof
and, unless earlier terminated in accordance with the provisions set forth
herein below, shall expire on the earlier of (i) the date on which a Chapter 11
Plan for the Company is confirmed by the U.S. Bankruptcy Court for the Middle
District of Tennessee; or (ii) the sale of all or a substantial portion of the
Company's assets under ss. 363 of the Bankruptcy Code ("Period of Employment").
Notwithstanding anything to the contrary in this Section 2, the provisions of
Section 7 will survive the expiration or earlier termination of this Agreement.
In the event Employee and the Company desire to maintain an employment
relationship following the expiration of the Period of Employment, such
employment relationship shall be "at will" unless further agreements are made in
writing between the Employee and the Company.
33. Duties of Employee. Employee shall perform those duties which are
assigned to him/her by the chief executive officer of the Company and which are
commensurate with the Employee's position. Employee hereby represents that
his/her employment hereunder and compliance by him/her with the terms and
conditions of this Agreement will not conflict with or
RETENTION AGREEMENT - PAGE 1
14
result in the breach of any agreement to which he/she is a party or by which
he/she may be bound. Employee agrees to devote his/her full time, attention and
skill to his/her duties hereunder.
34. Compensation.
(a) As compensation for the duties and services performed by
Employee, the Company will pay Employee a monthly base salary at the rate
in effect on the date of this Agreement, subject to federal and state
withholding allowances and in accordance with the Company's standard
payroll practices.
(b) In addition, the Company acknowledges that Employee is
performing his/her job at a time when the Company's financial situation is
precarious and that Employee has other employment opportunities which
he/she has been asked to forego. Thus, the Company agrees that, in
addition to, and without limitation of, any other compensation
contemplated hereby, Employee shall receive upon the expiration of the
Period of Employment a cash bonus in the lump sum amount of One Hundred
Five Thousand Dollars and No/100ths ($105,000.00), subject to applicable
state and federal withholding allowances (the "Retention Payment"). This
Retention Payment shall be earned and payable, as a post-petition
administrative expense, in the next regular payroll cycle of the Company
following expiration of the Period of Employment, such expiration being
defined in Section 2.
(c) Employee shall be entitled to receive this Retention Payment so
long as the Employee is employed by the Company at the time the Period of
Employment expires as defined in Section 2 herein. Notwithstanding the
preceding provisions of this Section 4 should the Company terminate this
Agreement without cause, then the Retention Payment shall be payable
immediately as a post-petition administrative expense. However, if this
Agreement is terminated prior to the expiration of the Period of
Employment for cause by the Company or without cause by the Employee no
Retention Payment shall be payable.
35. Benefits. Employee shall also be entitled to participate in all
benefit plans and programs that are available to the Employee as of the date of
this Agreement. Additionally, the Employee shall be entitled to receive all
benefits which accrue through the date of termination of the Employee's
employment with the Company.
36. Termination.
(a) By the Company. The Company shall have the right at any time, by
written notice to the Employee to terminate this Agreement, if one of the
following events occurs:
(i) Employee's conviction in a court of law of any crime or
offense involving misuse or misappropriation of money or
other property of the Company; or
(ii) Employee's willful failure or refusal to perform specific
directives of the chief executive officer of the Company,
RETENTION AGREEMENT - PAGE 2
15
which directives are consistent with the scope and nature
of Employee's duties and responsibilities as described
in this Agreement and which are not remedied by the
Employee within thirty (30) days after notice to the
Employee, or the commission of any intentional tort by the
Employee against the Company, or any breach by Employee
of the covenants set forth in Section 7 of this Agreement;
or
(iii) any action of dishonesty or disloyalty by Employee or
any act involving moral turpitude of the Employee which
materially adversely affect the business of the Company;
or
(iv) the inability of Employee to perform his/her duties
hereunder for a period of thirty (30) consecutive days
(or sixty (60) total days in any ninety (90) day period)
by reason of illness or mental or physical disability; or
(v) any statements, observations, or opinions or communication
of information (whether oral or written) made by or caused
to be made by the Employee that disparages or is likely
in any way to harm the reputation of the Company; or
(vi) Employee's death.
For purposes of this Section, it is understood and agreed that good faith errors
in judgment made by the Employee shall not constitute grounds for termination
for cause hereunder. Notwithstanding the above, it is the intent of the Company
at all times to comply with the Americans With Disabilities Act, the Family and
Medical Leave Act and any other applicable federal and state employment laws. In
the case of termination under this Section 6(a), all obligations of the parties
under this Agreement shall cease, except for the Company's obligations under
Sections 4(a) and 5 herein through the date of the Employee's separation and
Employee's obligations under Section 7 hereof.
(b) By Employee. This Agreement shall be terminable without cause by
Employee upon two (2) weeks written notice to the Company. This Agreement
shall be terminable by Employee for cause upon thirty (30) days written
notice to the Company, if the Company willfully breaches any material
terms of this Agreement and provided such breach has not been cured by the
Company within such thirty (30) day period. In the case of termination
under this Section 6(b), all obligations of the parties in this Agreement
shall cease, except for Employee's obligations under Section 7 and, unless
the termination by the Employee is without cause, Employer's obligation to
pay the Retention Payment.
37. Confidential Information. In consideration of the covenants of the
Company contained herein, Employee agrees as follows:
RETENTION AGREEMENT - PAGE 3
16
(a) Employee hereby agrees and acknowledges that he/she has had
access to or is aware of certain confidential, restricted and/or
proprietary information concerning operation by the Company's business
(the "Business"). Employee hereby undertakes and agrees that he/she shall
have a duty to the Company to protect such information from use or
disclosure.
(b) For the purposes of this Section 7, the following definitions
shall apply:
(i) "Trade Secret" as related to the Business, shall mean
any specialized technical information or data relating to
(A) the manufacture and distribution of impact and
non-impact imaging supplies for office and home printing
devices (including the manufacture and distribution of
typewriter and printer ribbons, thermal fax ribbons,
cartridges and toner for laser printers, facsimile
machines and copiers, cartridges and ink for ink jet
printers, specialty papers, calculator ink rolls, and
carbon paper; (B) marketing strategy or plans of the
Company; (C) proprietary computer software; and (D) terms
of contracts with suppliers, employees and principal
customers of the Company which are not generally known
to the competitors of the Company.
(ii) "Confidential Information," as related to the Business,
shall mean any data or information, other than Trade
Secrets, which is material to the Company or its
affiliates and not generally known by the public.
Confidential Information shall include, without
limitation, any information pertaining to the business
opportunities of the Company, the details of this
Agreement, and the business plans, financial statements
and projections of the Company.
(c) Employee shall not, without the prior written consent of the
Company, use or disclose, or negligently permit any unauthorized person
who is not an employee of the Company to use, disclose, or gain access to,
any Trade Secrets or Confidential Information; provided, however, Employee
shall be permitted, and this Agreement shall constitute written consent of
the Company, to use Confidential Information, and to disclose such
Confidential Information to his/her advisors (including specifically,
without limitation, attorneys, accountants, bankers, and others) for the
purposes of assessing the viability of and preparing a plan to acquire a
portion of the assets of the Company.
(d) Employee hereby agrees to deliver to, or maintain on behalf of,
the Company and its affiliates all memoranda, notes, records, drawings,
manuals or other documents, including all copies of such materials,
containing Trade Secrets or Confidential Information, whether made or
compiled by Employee or furnished to him/her from any source by virtue of
his/her relationship with the Company or its affiliates. All such
memoranda, notes,
RETENTION AGREEMENT - PAGE 4
17
records, drawings, manuals, other documents and other materials shall
be delivered to the Company by the Employee upon termination of the
Employee's employment with the Company.
38. Assignments; Successors and Assigns. The rights and obligations of
Employee hereunder are not assignable or delegable and any prohibited assignment
or delegation will be null and void. The Company may assign and delegate this
Agreement to a successor in interest to the Company's business. Any such
assignment shall expressly include the obligations herein and shall not relieve
the Company of same. The provisions hereof shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties hereto.
39. Governing Law. This Agreement shall be interpreted under, subject
to and governed by the substantive laws of the State of Tennessee, without
giving effect to provisions thereof regarding conflict of laws, and all
questions concerning its validity, construction, and administration shall be
determined in accordance thereby.
40. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original but all of
which will together constitute one and same instrument.
41. Invalidity. The invalidity or unenforceability of any provision of
this Agreement shall not affect any other provision hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
was omitted. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
42. Exclusiveness. This Agreement constitutes the entire understanding
and agreement between the parties with respect to the retention by the Company
of Employee and supersedes any and all other agreements, oral or written,
between the parties, including but not limited to the Old Agreement. To the
extent the Employee has a claim arising out of the Company's rejection of the
Old Agreement, such claim is waived.
43. Modification. This Agreement may not be modified or amended except
in writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
44. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
RETENTION AGREEMENT - PAGE 5
18
(a) If to the Company, at 000 Xxxxxxx Xxxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxxx, 00000, Attention: President and Chief Executive
Officer, or at such other address as may have been furnished to the
Employee by the Company in writing; or
(b) If to the Employee, at the address stated below, or such other
address as may have been furnished to the Company by Employee in writing.
45. Consolidation, Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging in to or with, or
transferring all or substantially all of its assets to, another corporation
which assumes this Agreement and all obligations and undertaking of the Company
hereunder. No such consolidation, merger or transfer shall affect the rights of
the Employee or the obligations of the Company hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
NU-KOTE HOLDING, INC.
By:
---------------------------------------
Xxxxxxx X. Xxxxxx, President
"EMPLOYEE"
------------------------------------------
Xxx Xxxxxxx
Employee's Principal Address:
------------------------------------------
------------------------------------------
------------------------------------------
RETENTION AGREEMENT - PAGE 6
19
RETENTION AGREEMENT
THIS RETENTION AGREEMENT is made and entered into as of June 10, 1999,
by and between NU-KOTE HOLDING, INC., a Delaware corporation (hereinafter, the
"Company"), and Xxxxx Learner (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into a certain retention
agreement on or around May 1, 1998 (the "Old Agreement"); and
WHEREAS, the Company is presently in the process of reorganizing (the
"Reorganization") under Chapter 11 of the United States Bankruptcy Code (the
"Code"); and
WHEREAS, pursuant to the provisions set forth in the Code, the Company
has the right to reject the Old Agreement, and notwithstanding such right of
rejection, the Company is willing to retain Employee as an employee until such
time as the Company determines the services of Employee are no longer required
and Employee desires to remain employed by the Company during such time and the
Employee has provided valuable services to the Company in connection with the
Chapter 11 filing;
NOW, THEREFORE, for the reasons set forth, in consideration of the
mutual promises, covenants and agreements made herein, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
46. Retention. The Company hereby retains Employee in the position of
Vice President - Logistics and Employee hereby accepts said retention by the
Company on the terms and conditions specified herein and subject specifically to
approval by the Bankruptcy Court.
47. Term. The term of this Agreement shall commence on the date hereof
and, unless earlier terminated in accordance with the provisions set forth
herein below, shall expire on the earlier of (i) the date on which a Chapter 11
Plan for the Company is confirmed by the U.S. Bankruptcy Court for the Middle
District of Tennessee; or (ii) the sale of all or a substantial portion of the
Company's assets under ss. 363 of the Bankruptcy Code ("Period of Employment").
Notwithstanding anything to the contrary in this Section 2, the provisions of
Section 7 will survive the expiration or earlier termination of this Agreement.
In the event Employee and the Company desire to maintain an employment
relationship following the expiration of the Period of Employment, such
employment relationship shall be "at will" unless further agreements are made in
writing between the Employee and the Company.
48. Duties of Employee. Employee shall perform those duties which are
assigned to him/her by the chief executive officer of the Company and which are
commensurate with the Employee's position. Employee hereby represents that
his/her employment hereunder and compliance by him/her with the terms and
conditions of this Agreement will not conflict with or
RETENTION AGREEMENT - PAGE 1
20
result in the breach of any agreement to which he/she is a party or by which
he/she may be bound. Employee agrees to devote his/her full time, attention and
skill to his/her duties hereunder.
49. Compensation.
(a) As compensation for the duties and services performed by
Employee, the Company will pay Employee a monthly base salary at the rate
in effect on the date of this Agreement, subject to federal and state
withholding allowances and in accordance with the Company's standard
payroll practices.
(b) In addition, the Company acknowledges that Employee is
performing his/her job at a time when the Company's financial situation is
precarious and that Employee has other employment opportunities which
he/she has been asked to forego. Thus, the Company agrees that, in
addition to, and without limitation of, any other compensation
contemplated hereby, Employee shall receive upon the expiration of the
Period of Employment a cash bonus in the lump sum amount of Seventy-Five
Thousand Dollars and No/100ths ($75,000.00), subject to applicable state
and federal withholding allowances (the "Retention Payment"). This
Retention Payment shall be earned and payable, as a post-petition
administrative expense, in the next regular payroll cycle of the Company
following expiration of the Period of Employment, such expiration being
defined in Section 2.
(c) Employee shall be entitled to receive this Retention Payment so
long as the Employee is employed by the Company at the time the Period of
Employment expires as defined in Section 2 herein. Notwithstanding the
preceding provisions of this Section 4 should the Company terminate this
Agreement without cause, then the Retention Payment shall be payable
immediately as a post-petition administrative expense. However, if this
Agreement is terminated prior to the expiration of the Period of
Employment for cause by the Company or without cause by the Employee no
Retention Payment shall be payable.
50. Benefits. Employee shall also be entitled to participate in all
benefit plans and programs that are available to the Employee as of the date of
this Agreement. Additionally, the Employee shall be entitled to receive all
benefits which accrue through the date of termination of the Employee's
employment with the Company.
51. Termination.
(a) By the Company. The Company shall have the right at any time, by
written notice to the Employee to terminate this Agreement, if one of the
following events occurs:
(i) Employee's conviction in a court of law of any crime or
offense involving misuse or misappropriation of money or
other property of the Company; or
(ii) Employee's willful failure or refusal to perform specific
directives of the chief executive officer of the Company,
RETENTION AGREEMENT - PAGE 2
21
which directives are consistent with the scope and nature
of Employee's duties and responsibilities as described
in this Agreement and which are not remedied by the
Employee within thirty (30) days after notice to the
Employee, or the commission of any intentional tort by the
Employee against the Company, or any breach by Employee
of the covenants set forth in Section 7 of this Agreement;
or
(iii) any action of dishonesty or disloyalty by Employee or any
act involving moral turpitude of the Employee which
materially adversely affect the business of the Company;
or
(iv) the inability of Employee to perform his/her duties
hereunder for a period of thirty (30) consecutive days
(or sixty (60) total days in any ninety (90) day period)
by reason of illness or mental or physical disability; or
(v) any statements, observations, or opinions or communication
of information (whether oral or written) made by or caused
to be made by the Employee that disparages or is likely
in any way to harm the reputation of the Company; or
(vi) Employee's death.
For purposes of this Section, it is understood and agreed that good faith errors
in judgment made by the Employee shall not constitute grounds for termination
for cause hereunder. Notwithstanding the above, it is the intent of the Company
at all times to comply with the Americans With Disabilities Act, the Family and
Medical Leave Act and any other applicable federal and state employment laws. In
the case of termination under this Section 6(a), all obligations of the parties
under this Agreement shall cease, except for the Company's obligations under
Sections 4(a) and 5 herein through the date of the Employee's separation and
Employee's obligations under Section 7 hereof.
(b) By Employee. This Agreement shall be terminable without cause by
Employee upon two (2) weeks written notice to the Company. This Agreement
shall be terminable by Employee for cause upon thirty (30) days written
notice to the Company, if the Company willfully breaches any material
terms of this Agreement and provided such breach has not been cured by the
Company within such thirty (30) day period. In the case of termination
under this Section 6(b), all obligations of the parties in this Agreement
shall cease, except for Employee's obligations under Section 7 and, unless
the termination by the Employee is without cause, Employer's obligation to
pay the Retention Payment.
52. Confidential Information. In consideration of the covenants of the
Company contained herein, Employee agrees as follows:
RETENTION AGREEMENT - PAGE 3
22
(a) Employee hereby agrees and acknowledges that he/she has had
access to or is aware of certain confidential, restricted and/or
proprietary information concerning operation by the Company's business
(the "Business"). Employee hereby undertakes and agrees that he/she shall
have a duty to the Company to protect such information from use or
disclosure.
(b) For the purposes of this Section 7, the following definitions
shall apply:
(i) "Trade Secret" as related to the Business, shall mean
any specialized technical information or data relating
to (A) the manufacture and distribution of impact and
non-impact imaging supplies for office and home printing
devices (including the manufacture and distribution of
typewriter and printer ribbons, thermal fax ribbons,
cartridges and toner for laser printers, facsimile
machines and copiers, cartridges and ink for ink jet
printers, specialty papers, calculator ink rolls, and
carbon paper; (B) marketing strategy or plans of the
Company; (C) proprietary computer software; and (D) terms
of contracts with suppliers, employees and principal
customers of the Company which are not generally known to
the competitors of the Company.
(ii) "Confidential Information," as related to the Business,
shall mean any data or information, other than Trade
Secrets, which is material to the Company or its
affiliates and not generally known by the public.
Confidential Information shall include, without
limitation, any information pertaining to the business
opportunities of the Company, the details of this
Agreement, and the business plans, financial statements
and projections of the Company.
(c) Employee shall not, without the prior written consent of the
Company, use or disclose, or negligently permit any unauthorized person
who is not an employee of the Company to use, disclose, or gain access to,
any Trade Secrets or Confidential Information; provided, however, Employee
shall be permitted, and this Agreement shall constitute written consent of
the Company, to use Confidential Information, and to disclose such
Confidential Information to his/her advisors (including specifically,
without limitation, attorneys, accountants, bankers, and others) for the
purposes of assessing the viability of and preparing a plan to acquire a
portion of the assets of the Company.
(d) Employee hereby agrees to deliver to, or maintain on behalf of,
the Company and its affiliates all memoranda, notes, records, drawings,
manuals or other documents, including all copies of such materials,
containing Trade Secrets or Confidential Information, whether made or
compiled by Employee or furnished to him/her from any source by virtue of
his/her relationship with the Company or its affiliates. All such
memoranda, notes,
RETENTION AGREEMENT - PAGE 4
23
records, drawings, manuals, other documents and other materials shall
be delivered to the Company by the Employee upon termination of the
Employee's employment with the Company.
53. Assignments; Successors and Assigns. The rights and obligations of
Employee hereunder are not assignable or delegable and any prohibited assignment
or delegation will be null and void. The Company may assign and delegate this
Agreement to a successor in interest to the Company's business. Any such
assignment shall expressly include the obligations herein and shall not relieve
the Company of same. The provisions hereof shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties hereto.
54. Governing Law. This Agreement shall be interpreted under, subject
to and governed by the substantive laws of the State of Tennessee, without
giving effect to provisions thereof regarding conflict of laws, and all
questions concerning its validity, construction, and administration shall be
determined in accordance thereby.
55. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original but all of
which will together constitute one and same instrument.
56. Invalidity. The invalidity or unenforceability of any provision of
this Agreement shall not affect any other provision hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
was omitted. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
57. Exclusiveness. This Agreement constitutes the entire understanding
and agreement between the parties with respect to the retention by the Company
of Employee and supersedes any and all other agreements, oral or written,
between the parties, including but not limited to the Old Agreement. To the
extent the Employee has a claim arising out of the Company's rejection of the
Old Agreement, such claim is waived.
58. Modification. This Agreement may not be modified or amended except
in writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
59. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
RETENTION AGREEMENT - PAGE 5
24
(a) If to the Company, at 000 Xxxxxxx Xxxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxxx, 00000, Attention: President and Chief Executive
Officer, or at such other address as may have been furnished to the
Employee by the Company in writing; or
(b) If to the Employee, at the address stated below, or such other
address as may have been furnished to the Company by Employee in writing.
60. Consolidation, Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging in to or with, or
transferring all or substantially all of its assets to, another corporation
which assumes this Agreement and all obligations and undertaking of the Company
hereunder. No such consolidation, merger or transfer shall affect the rights of
the Employee or the obligations of the Company hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
NU-KOTE HOLDING, INC.
By:
--------------------------------------
Xxxxxxx X. Xxxxxx, President
"EMPLOYEE"
------------------------------------------
Xxxxx Learner
Employee's Principal Address:
------------------------------------------
------------------------------------------
------------------------------------------
RETENTION AGREEMENT - PAGE 6
25
RETENTION AGREEMENT
THIS RETENTION AGREEMENT is made and entered into as of June 10, 1999,
by and between NU-KOTE HOLDING, INC., a Delaware corporation (hereinafter, the
"Company"), and Xxxxx Xxxxxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into a certain retention
agreement on or around May 1, 1998 (the "Old Agreement"); and
WHEREAS, the Company is presently in the process of reorganizing (the
"Reorganization") under Chapter 11 of the United States Bankruptcy Code (the
"Code"); and
WHEREAS, pursuant to the provisions set forth in the Code, the Company
has the right to reject the Old Agreement, and notwithstanding such right of
rejection, the Company is willing to retain Employee as an employee until such
time as the Company determines the services of Employee are no longer required
and Employee desires to remain employed by the Company during such time and the
Employee has provided valuable services to the Company in connection with the
Chapter 11 filing;
NOW, THEREFORE, for the reasons set forth, in consideration of the
mutual promises, covenants and agreements made herein, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
61. Retention. The Company hereby retains Employee in the position of
Senior Vice President - Office Products and Employee hereby accepts said
retention by the Company on the terms and conditions specified herein and
subject specifically to approval by the Bankruptcy Court.
62. Term. The term of this Agreement shall commence on the date hereof
and, unless earlier terminated in accordance with the provisions set forth
herein below, shall expire on the earlier of (i) the date on which a Chapter 11
Plan for the Company is confirmed by the U.S. Bankruptcy Court for the Middle
District of Tennessee; or (ii) the sale of all or a substantial portion of the
Company's assets under ss. 363 of the Bankruptcy Code ("Period of Employment").
Notwithstanding anything to the contrary in this Section 2, the provisions of
Section 7 will survive the expiration or earlier termination of this Agreement.
In the event Employee and the Company desire to maintain an employment
relationship following the expiration of the Period of Employment, such
employment relationship shall be "at will" unless further agreements are made in
writing between the Employee and the Company.
63. Duties of Employee. Employee shall perform those duties which are
assigned to him/her by the chief executive officer of the Company and which are
commensurate with the Employee's position. Employee hereby represents that
his/her employment hereunder and compliance by him/her with the terms and
conditions of this Agreement will not conflict with or
RETENTION AGREEMENT - PAGE 1
26
result in the breach of any agreement to which he/she is a party or by which
he/she may be bound. Employee agrees to devote his/her full time, attention and
skill to his/her duties hereunder.
64. Compensation.
(a) As compensation for the duties and services performed by
Employee, the Company will pay Employee a monthly base salary at the rate
in effect on the date of this Agreement, subject to federal and state
withholding allowances and in accordance with the Company's standard
payroll practices.
(b) In addition, the Company acknowledges that Employee is
performing his/her job at a time when the Company's financial situation is
precarious and that Employee has other employment opportunities which
he/she has been asked to forego. Thus, the Company agrees that, in
addition to, and without limitation of, any other compensation
contemplated hereby, Employee shall receive upon the expiration of the
Period of Employment a cash bonus in the lump sum amount of Seventy
Thousand Dollars and No/100ths ($70,000.00), subject to applicable state
and federal withholding allowances (the "Retention Payment"). This
Retention Payment shall be earned and payable, as a post-petition
administrative expense, in the next regular payroll cycle of the Company
following expiration of the Period of Employment, such expiration being
defined in Section 2.
(c) Employee shall be entitled to receive this Retention Payment so
long as the Employee is employed by the Company at the time the Period of
Employment expires as defined in Section 2 herein. Notwithstanding the
preceding provisions of this Section 4 should the Company terminate this
Agreement without cause, then the Retention Payment shall be payable
immediately as a post-petition administrative expense. However, if this
Agreement is terminated prior to the expiration of the Period of
Employment for cause by the Company or without cause by the Employee no
Retention Payment shall be payable.
65. Benefits. Employee shall also be entitled to participate in all
benefit plans and programs that are available to the Employee as of the date of
this Agreement. Additionally, the Employee shall be entitled to receive all
benefits which accrue through the date of termination of the Employee's
employment with the Company.
66. Termination.
(a) By the Company. The Company shall have the right at any time, by
written notice to the Employee to terminate this Agreement, if one of the
following events occurs:
(i) Employee's conviction in a court of law of any crime or
offense involving misuse or misappropriation of money or
other property of the Company; or
(ii) Employee's willful failure or refusal to perform specific
directives of the chief executive officer of the Company,
RETENTION AGREEMENT - PAGE 2
27
which directives are consistent with the scope and nature
of Employee's duties and responsibilities as described
in this Agreement and which are not remedied by the
Employee within thirty (30) days after notice to the
Employee, or the commission of any intentional tort by
the Employee against the Company, or any breach by
Employee of the covenants set forth in Section 7 of this
Agreement; or
(iii) any action of dishonesty or disloyalty by Employee or any
act involving moral turpitude of the Employee which
materially adversely affect the business of the Company;
or
(iv) the inability of Employee to perform his/her duties
hereunder for a period of thirty (30) consecutive days
(or sixty (60) total days in any ninety (90) day period)
by reason of illness or mental or physical disability; or
(v) any statements, observations, or opinions or communication
of information (whether oral or written) made by or caused
to be made by the Employee that disparages or is likely in
any way to harm the reputation of the Company; or
(vi) Employee's death.
For purposes of this Section, it is understood and agreed that good faith errors
in judgment made by the Employee shall not constitute grounds for termination
for cause hereunder. Notwithstanding the above, it is the intent of the Company
at all times to comply with the Americans With Disabilities Act, the Family and
Medical Leave Act and any other applicable federal and state employment laws. In
the case of termination under this Section 6(a), all obligations of the parties
under this Agreement shall cease, except for the Company's obligations under
Sections 4(a) and 5 herein through the date of the Employee's separation and
Employee's obligations under Section 7 hereof.
(b) By Employee. This Agreement shall be terminable without cause by
Employee upon two (2) weeks written notice to the Company. This Agreement
shall be terminable by Employee for cause upon thirty (30) days written
notice to the Company, if the Company willfully breaches any material
terms of this Agreement and provided such breach has not been cured by the
Company within such thirty (30) day period. In the case of termination
under this Section 6(b), all obligations of the parties in this Agreement
shall cease, except for Employee's obligations under Section 7 and, unless
the termination by the Employee is without cause, Employer's obligation to
pay the Retention Payment.
67. Confidential Information. In consideration of the covenants of the
Company contained herein, Employee agrees as follows:
RETENTION AGREEMENT - PAGE 3
28
(a) Employee hereby agrees and acknowledges that he/she has had
access to or is aware of certain confidential, restricted and/or
proprietary information concerning operation by the Company's business
(the "Business"). Employee hereby undertakes and agrees that he/she shall
have a duty to the Company to protect such information from use or
disclosure.
(b) For the purposes of this Section 7, the following definitions
shall apply:
(i) "Trade Secret" as related to the Business, shall mean any
specialized technical information or data relating to
(A) the manufacture and distribution of impact and
non-impact imaging supplies for office and home printing
devices (including the manufacture and distribution of
typewriter and printer ribbons, thermal fax ribbons,
cartridges and toner for laser printers, facsimile
machines and copiers, cartridges and ink for ink jet
printers, specialty papers, calculator ink rolls, and
carbon paper; (B) marketing strategy or plans of the
Company; (C) proprietary computer software; and (D) terms
of contracts with suppliers, employees and principal
customers of the Company which are not generally known
to the competitors of the Company.
(ii) "Confidential Information," as related to the Business,
shall mean any data or information, other than Trade
Secrets, which is material to the Company or its
affiliates and not generally known by the public.
Confidential Information shall include, without
limitation, any information pertaining to the business
opportunities of the Company, the details of this
Agreement, and the business plans, financial statements
and projections of the Company.
(c) Employee shall not, without the prior written consent of the
Company, use or disclose, or negligently permit any unauthorized person
who is not an employee of the Company to use, disclose, or gain access to,
any Trade Secrets or Confidential Information; provided, however, Employee
shall be permitted, and this Agreement shall constitute written consent of
the Company, to use Confidential Information, and to disclose such
Confidential Information to his/her advisors (including specifically,
without limitation, attorneys, accountants, bankers, and others) for the
purposes of assessing the viability of and preparing a plan to acquire a
portion of the assets of the Company.
(d) Employee hereby agrees to deliver to, or maintain on behalf of,
the Company and its affiliates all memoranda, notes, records, drawings,
manuals or other documents, including all copies of such materials,
containing Trade Secrets or Confidential Information, whether made or
compiled by Employee or furnished to him/her from any source by virtue of
his/her relationship with the Company or its affiliates. All such
memoranda, notes,
RETENTION AGREEMENT - PAGE 4
29
records, drawings, manuals, other documents and other materials shall
be delivered to the Company by the Employee upon termination of the
Employee's employment with the Company.
68. Assignments; Successors and Assigns. The rights and obligations of
Employee hereunder are not assignable or delegable and any prohibited assignment
or delegation will be null and void. The Company may assign and delegate this
Agreement to a successor in interest to the Company's business. Any such
assignment shall expressly include the obligations herein and shall not relieve
the Company of same. The provisions hereof shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties hereto.
69. Governing Law. This Agreement shall be interpreted under, subject
to and governed by the substantive laws of the State of Tennessee, without
giving effect to provisions thereof regarding conflict of laws, and all
questions concerning its validity, construction, and administration shall be
determined in accordance thereby.
70. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original but all of
which will together constitute one and same instrument.
71. Invalidity. The invalidity or unenforceability of any provision of
this Agreement shall not affect any other provision hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
was omitted. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
72. Exclusiveness. This Agreement constitutes the entire understanding
and agreement between the parties with respect to the retention by the Company
of Employee and supersedes any and all other agreements, oral or written,
between the parties, including but not limited to the Old Agreement. To the
extent the Employee has a claim arising out of the Company's rejection of the
Old Agreement, such claim is waived.
73. Modification. This Agreement may not be modified or amended except
in writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
74. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
RETENTION AGREEMENT - PAGE 5
30
(a) If to the Company, at 000 Xxxxxxx Xxxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxxx, 00000, Attention: President and Chief Executive
Officer, or at such other address as may have been furnished to the
Employee by the Company in writing; or
(b) If to the Employee, at the address stated below, or such other
address as may have been furnished to the Company by Employee in writing.
75. Consolidation, Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging in to or with, or
transferring all or substantially all of its assets to, another corporation
which assumes this Agreement and all obligations and undertaking of the Company
hereunder. No such consolidation, merger or transfer shall affect the rights of
the Employee or the obligations of the Company hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
NU-KOTE HOLDING, INC.
By:
-------------------------------------
Xxxxxxx X. Xxxxxx, President
"EMPLOYEE"
----------------------------------------
Xxxxx Xxxxxxxxx
Employee's Principal Address:
----------------------------------------
----------------------------------------
----------------------------------------
RETENTION AGREEMENT - PAGE 6
31
RETENTION AGREEMENT
THIS RETENTION AGREEMENT is made and entered into as of June 10, 1999,
by and between NU-KOTE HOLDING, INC., a Delaware corporation (hereinafter, the
"Company"), and Xxxxx Xxxxxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into a certain retention
agreement on or around May 1, 1998 (the "Old Agreement"); and
WHEREAS, the Company is presently in the process of reorganizing (the
"Reorganization") under Chapter 11 of the United States Bankruptcy Code (the
"Code"); and
WHEREAS, pursuant to the provisions set forth in the Code, the Company
has the right to reject the Old Agreement, and notwithstanding such right of
rejection, the Company is willing to retain Employee as an employee until such
time as the Company determines the services of Employee are no longer required
and Employee desires to remain employed by the Company during such time and the
Employee has provided valuable services to the Company in connection with the
Chapter 11 filing;
NOW, THEREFORE, for the reasons set forth, in consideration of the
mutual promises, covenants and agreements made herein, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
76. Retention. The Company hereby retains Employee in the position of
Vice President - Customer Service and Employee hereby accepts said retention by
the Company on the terms and conditions specified herein and subject
specifically to approval by the Bankruptcy Court.
77. Term. The term of this Agreement shall commence on the date hereof
and, unless earlier terminated in accordance with the provisions set forth
herein below, shall expire on the earlier of (i) the date on which a Chapter 11
Plan for the Company is confirmed by the U.S. Bankruptcy Court for the Middle
District of Tennessee; or (ii) the sale of all or a substantial portion of the
Company's assets under ss. 363 of the Bankruptcy Code ("Period of Employment").
Notwithstanding anything to the contrary in this Section 2, the provisions of
Section 7 will survive the expiration or earlier termination of this Agreement.
In the event Employee and the Company desire to maintain an employment
relationship following the expiration of the Period of Employment, such
employment relationship shall be "at will" unless further agreements are made in
writing between the Employee and the Company.
78. Duties of Employee. Employee shall perform those duties which are
assigned to him/her by the chief executive officer of the Company and which are
commensurate with the Employee's position. Employee hereby represents that
his/her employment hereunder and compliance by him/her with the terms and
conditions of this Agreement will not conflict with or
RETENTION AGREEMENT - PAGE 1
32
result in the breach of any agreement to which he/she is a party or by which
he/she may be bound. Employee agrees to devote his/her full time, attention and
skill to his/her duties hereunder.
79. Compensation.
(a) As compensation for the duties and services performed by
Employee, the Company will pay Employee a monthly base salary at the rate
in effect on the date of this Agreement, subject to federal and state
withholding allowances and in accordance with the Company's standard
payroll practices.
(b) In addition, the Company acknowledges that Employee is
performing his/her job at a time when the Company's financial situation is
precarious and that Employee has other employment opportunities which
he/she has been asked to forego. Thus, the Company agrees that, in
addition to, and without limitation of, any other compensation
contemplated hereby, Employee shall receive upon the expiration of the
Period of Employment a cash bonus in the lump sum amount of Forty-Five
Thousand Dollars and No/100ths ($45,000.00), subject to applicable state
and federal withholding allowances (the "Retention Payment"). This
Retention Payment shall be earned and payable, as a post-petition
administrative expense, in the next regular payroll cycle of the Company
following expiration of the Period of Employment, such expiration being
defined in Section 2.
(c) Employee shall be entitled to receive this Retention Payment so
long as the Employee is employed by the Company at the time the Period of
Employment expires as defined in Section 2 herein. Notwithstanding the
preceding provisions of this Section 4 should the Company terminate this
Agreement without cause, then the Retention Payment shall be payable
immediately as a post-petition administrative expense. However, if this
Agreement is terminated prior to the expiration of the Period of
Employment for cause by the Company or without cause by the Employee no
Retention Payment shall be payable.
80. Benefits. Employee shall also be entitled to participate in all
benefit plans and programs that are available to the Employee as of the date of
this Agreement. Additionally, the Employee shall be entitled to receive all
benefits which accrue through the date of termination of the Employee's
employment with the Company.
81. Termination.
(a) By the Company. The Company shall have the right at any time, by
written notice to the Employee to terminate this Agreement, if one of the
following events occurs:
(i) Employee's conviction in a court of law of any crime or
offense involving misuse or misappropriation of money or
other property of the Company; or
(ii) Employee's willful failure or refusal to perform specific
directives of the chief executive officer of the Company,
RETENTION AGREEMENT - PAGE 2
33
which directives are consistent with the scope and nature
of Employee's duties and responsibilities as described
in this Agreement and which are not remedied by the
Employee within thirty (30) days after notice to the
Employee, or the commission of any intentional tort by the
Employee against the Company, or any breach by Employee
of the covenants set forth in Section 7 of this
Agreement; or
(iii) any action of dishonesty or disloyalty by Employee or any
act involving moral turpitude of the Employee which
materially adversely affect the business of the Company;
or
(iv) the inability of Employee to perform his/her duties
hereunder for a period of thirty (30) consecutive days
(or sixty (60) total days in any ninety (90) day period)
by reason of illness or mental or physical disability; or
(v) any statements, observations, or opinions or communication
of information (whether oral or written) made by or caused
to be made by the Employee that disparages or is likely
in any way to harm the reputation of the Company; or
(vi) Employee's death.
For purposes of this Section, it is understood and agreed that good faith errors
in judgment made by the Employee shall not constitute grounds for termination
for cause hereunder. Notwithstanding the above, it is the intent of the Company
at all times to comply with the Americans With Disabilities Act, the Family and
Medical Leave Act and any other applicable federal and state employment laws. In
the case of termination under this Section 6(a), all obligations of the parties
under this Agreement shall cease, except for the Company's obligations under
Sections 4(a) and 5 herein through the date of the Employee's separation and
Employee's obligations under Section 7 hereof.
(b) By Employee. This Agreement shall be terminable without cause by
Employee upon two (2) weeks written notice to the Company. This Agreement
shall be terminable by Employee for cause upon thirty (30) days written
notice to the Company, if the Company willfully breaches any material
terms of this Agreement and provided such breach has not been cured by the
Company within such thirty (30) day period. In the case of termination
under this Section 6(b), all obligations of the parties in this Agreement
shall cease, except for Employee's obligations under Section 7 and, unless
the termination by the Employee is without cause, Employer's obligation to
pay the Retention Payment.
82. Confidential Information. In consideration of the covenants of the
Company contained herein, Employee agrees as follows:
RETENTION AGREEMENT - PAGE 3
34
(a) Employee hereby agrees and acknowledges that he/she has had
access to or is aware of certain confidential, restricted and/or
proprietary information concerning operation by the Company's business
(the "Business"). Employee hereby undertakes and agrees that he/she shall
have a duty to the Company to protect such information from use or
disclosure.
(b) For the purposes of this Section 7, the following definitions
shall apply:
(i) "Trade Secret" as related to the Business, shall mean
any specialized technical information or data relating
to (A) the manufacture and distribution of impact and
non-impact imaging supplies for office and home printing
devices (including the manufacture and distribution of
typewriter and printer ribbons, thermal fax ribbons,
cartridges and toner for laser printers, facsimile
machines and copiers, cartridges and ink for ink jet
printers, specialty papers, calculator ink rolls, and
carbon paper; (B) marketing strategy or plans of the
Company; (C) proprietary computer software; and (D) terms
of contracts with suppliers, employees and principal
customers of the Company which are not generally known to
the competitors of the Company.
(ii) "Confidential Information," as related to the Business,
shall mean any data or information, other than Trade
Secrets, which is material to the Company or its
affiliates and not generally known by the public.
Confidential Information shall include, without
limitation, any information pertaining to the business
opportunities of the Company, the details of this
Agreement, and the business plans, financial statements
and projections of the Company.
(c) Employee shall not, without the prior written consent of the
Company, use or disclose, or negligently permit any unauthorized person
who is not an employee of the Company to use, disclose, or gain access to,
any Trade Secrets or Confidential Information; provided, however, Employee
shall be permitted, and this Agreement shall constitute written consent of
the Company, to use Confidential Information, and to disclose such
Confidential Information to his/her advisors (including specifically,
without limitation, attorneys, accountants, bankers, and others) for the
purposes of assessing the viability of and preparing a plan to acquire a
portion of the assets of the Company.
(d) Employee hereby agrees to deliver to, or maintain on behalf of,
the Company and its affiliates all memoranda, notes, records, drawings,
manuals or other documents, including all copies of such materials,
containing Trade Secrets or Confidential Information, whether made or
compiled by Employee or furnished to him/her from any source by virtue of
his/her relationship with the Company or its affiliates. All such
memoranda, notes,
RETENTION AGREEMENT - PAGE 4
35
records, drawings, manuals, other documents and other materials shall
be delivered to the Company by the Employee upon termination of the
Employee's employment with the Company.
83. Assignments; Successors and Assigns. The rights and obligations of
Employee hereunder are not assignable or delegable and any prohibited assignment
or delegation will be null and void. The Company may assign and delegate this
Agreement to a successor in interest to the Company's business. Any such
assignment shall expressly include the obligations herein and shall not relieve
the Company of same. The provisions hereof shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties hereto.
84. Governing Law. This Agreement shall be interpreted under, subject
to and governed by the substantive laws of the State of Tennessee, without
giving effect to provisions thereof regarding conflict of laws, and all
questions concerning its validity, construction, and administration shall be
determined in accordance thereby.
85. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original but all of
which will together constitute one and same instrument.
86. Invalidity. The invalidity or unenforceability of any provision of
this Agreement shall not affect any other provision hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
was omitted. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
87. Exclusiveness. This Agreement constitutes the entire understanding
and agreement between the parties with respect to the retention by the Company
of Employee and supersedes any and all other agreements, oral or written,
between the parties, including but not limited to the Old Agreement. To the
extent the Employee has a claim arising out of the Company's rejection of the
Old Agreement, such claim is waived.
88. Modification. This Agreement may not be modified or amended except
in writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
89. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
RETENTION AGREEMENT - PAGE 5
36
(a) If to the Company, at 000 Xxxxxxx Xxxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxxx, 00000, Attention: President and Chief Executive
Officer, or at such other address as may have been furnished to the
Employee by the Company in writing; or
(b) If to the Employee, at the address stated below, or such other
address as may have been furnished to the Company by Employee in writing.
90. Consolidation, Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging in to or with, or
transferring all or substantially all of its assets to, another corporation
which assumes this Agreement and all obligations and undertaking of the Company
hereunder. No such consolidation, merger or transfer shall affect the rights of
the Employee or the obligations of the Company hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
NU-KOTE HOLDING, INC.
By:
-----------------------------------------
Xxxxxxx X. Xxxxxx, President
"EMPLOYEE"
--------------------------------------------
Xxxxx Xxxxxxxx
Employee's Principal Address:
--------------------------------------------
--------------------------------------------
--------------------------------------------
RETENTION AGREEMENT - PAGE 6
37
RETENTION AGREEMENT
THIS RETENTION AGREEMENT is made and entered into as of June 10, 1999,
by and between NU-KOTE HOLDING, INC., a Delaware corporation (hereinafter, the
"Company"), and Xxxx Xxxxx (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company and Employee entered into a certain retention
agreement on or around May 1, 1998 (the "Old Agreement"); and
WHEREAS, the Company is presently in the process of reorganizing (the
"Reorganization") under Chapter 11 of the United States Bankruptcy Code (the
"Code"); and
WHEREAS, pursuant to the provisions set forth in the Code, the Company
has the right to reject the Old Agreement, and notwithstanding such right of
rejection, the Company is willing to retain Employee as an employee until such
time as the Company determines the services of Employee are no longer required
and Employee desires to remain employed by the Company during such time and the
Employee has provided valuable services to the Company in connection with the
Chapter 11 filing;
NOW, THEREFORE, for the reasons set forth, in consideration of the
mutual promises, covenants and agreements made herein, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
91. Retention. The Company hereby retains Employee in the position of
Vice President - OEM and Employee hereby accepts said retention by the Company
on the terms and conditions specified herein and subject specifically to
approval by the Bankruptcy Court.
92. Term. The term of this Agreement shall commence on the date hereof
and, unless earlier terminated in accordance with the provisions set forth
herein below, shall expire on the earlier of (i) the date on which a Chapter 11
Plan for the Company is confirmed by the U.S. Bankruptcy Court for the Middle
District of Tennessee; or (ii) the sale of all or a substantial portion of the
Company's assets under ss. 363 of the Bankruptcy Code ("Period of Employment").
Notwithstanding anything to the contrary in this Section 2, the provisions of
Section 7 will survive the expiration or earlier termination of this Agreement.
In the event Employee and the Company desire to maintain an employment
relationship following the expiration of the Period of Employment, such
employment relationship shall be "at will" unless further agreements are made in
writing between the Employee and the Company.
93. Duties of Employee. Employee shall perform those duties which are
assigned to him/her by the chief executive officer of the Company and which are
commensurate with the Employee's position. Employee hereby represents that
his/her employment hereunder and compliance by him/her with the terms and
conditions of this Agreement will not conflict with or
RETENTION AGREEMENT - PAGE 1
38
result in the breach of any agreement to which he/she is a party or by which
he/she may be bound. Employee agrees to devote his/her full time, attention and
skill to his/her duties hereunder.
94. Compensation.
(a) As compensation for the duties and services performed by
Employee, the Company will pay Employee a monthly base salary at the rate
in effect on the date of this Agreement, subject to federal and state
withholding allowances and in accordance with the Company's standard
payroll practices.
(b) In addition, the Company acknowledges that Employee is
performing his/her job at a time when the Company's financial situation is
precarious and that Employee has other employment opportunities which
he/she has been asked to forego. Thus, the Company agrees that, in
addition to, and without limitation of, any other compensation
contemplated hereby, Employee shall receive upon the expiration of the
Period of Employment a cash bonus in the lump sum amount of Fifty-Seven
Thousand Five Hundred Dollars and No/100ths ($57,500.00), subject to
applicable state and federal withholding allowances (the "Retention
Payment"). This Retention Payment shall be earned and payable, as a
post-petition administrative expense, in the next regular payroll cycle of
the Company following expiration of the Period of Employment, such
expiration being defined in Section 2.
(c) Employee shall be entitled to receive this Retention Payment so
long as the Employee is employed by the Company at the time the Period of
Employment expires as defined in Section 2 herein. Notwithstanding the
preceding provisions of this Section 4 should the Company terminate this
Agreement without cause, then the Retention Payment shall be payable
immediately as a post-petition administrative expense. However, if this
Agreement is terminated prior to the expiration of the Period of
Employment for cause by the Company or without cause by the Employee no
Retention Payment shall be payable.
95. Benefits. Employee shall also be entitled to participate in all
benefit plans and programs that are available to the Employee as of the date of
this Agreement. Additionally, the Employee shall be entitled to receive all
benefits which accrue through the date of termination of the Employee's
employment with the Company.
96. Termination.
(a) By the Company. The Company shall have the right at any time, by
written notice to the Employee to terminate this Agreement, if one of the
following events occurs:
(i) Employee's conviction in a court of law of any crime or
offense involving misuse or misappropriation of money or
other property of the Company; or
(ii) Employee's willful failure or refusal to perform specific
directives of the chief executive officer of the Company,
RETENTION AGREEMENT - PAGE 2
39
which directives are consistent with the scope and nature
of Employee's duties and responsibilities as described in
this Agreement and which are not remedied by the Employee
within thirty (30) days after notice to the Employee, or
the commission of any intentional tort by the Employee
against the Company, or any breach by Employee of the
covenants set forth in Section 7 of this Agreement; or
(iii) any action of dishonesty or disloyalty by Employee or any
act involving moral turpitude of the Employee which
materially adversely affect the business of the Company; or
(iv) the inability of Employee to perform his/her duties
hereunder for a period of thirty (30) consecutive days (or
sixty (60) total days in any ninety (90) day period) by
reason of illness or mental or physical disability; or
(v) any statements, observations, or opinions or communication
of information (whether oral or written) made by or caused
to be made by the Employee that disparages or is likely
in any way to harm the reputation of the Company; or
(vi) Employee's death.
For purposes of this Section, it is understood and agreed that good faith errors
in judgment made by the Employee shall not constitute grounds for termination
for cause hereunder. Notwithstanding the above, it is the intent of the Company
at all times to comply with the Americans With Disabilities Act, the Family and
Medical Leave Act and any other applicable federal and state employment laws. In
the case of termination under this Section 6(a), all obligations of the parties
under this Agreement shall cease, except for the Company's obligations under
Sections 4(a) and 5 herein through the date of the Employee's separation and
Employee's obligations under Section 7 hereof.
(b) By Employee. This Agreement shall be terminable without cause by
Employee upon two (2) weeks written notice to the Company. This Agreement
shall be terminable by Employee for cause upon thirty (30) days written
notice to the Company, if the Company willfully breaches any material
terms of this Agreement and provided such breach has not been cured by the
Company within such thirty (30) day period. In the case of termination
under this Section 6(b), all obligations of the parties in this Agreement
shall cease, except for Employee's obligations under Section 7 and, unless
the termination by the Employee is without cause, Employer's obligation to
pay the Retention Payment.
97. Confidential Information. In consideration of the covenants of the
Company contained herein, Employee agrees as follows:
RETENTION AGREEMENT - PAGE 3
40
(a) Employee hereby agrees and acknowledges that he/she has had
access to or is aware of certain confidential, restricted and/or
proprietary information concerning operation by the Company's business
(the "Business"). Employee hereby undertakes and agrees that he/she shall
have a duty to the Company to protect such information from use or
disclosure.
(b) For the purposes of this Section 7, the following definitions
shall apply:
(i) "Trade Secret" as related to the Business, shall mean
any specialized technical information or data relating
to (A) the manufacture and distribution of impact and
non-impact imaging supplies for office and home printing
devices (including the manufacture and distribution of
typewriter and printer ribbons, thermal fax ribbons,
cartridges and toner for laser printers, facsimile
machines and copiers, cartridges and ink for ink jet
printers, specialty papers, calculator ink rolls, and
carbon paper; (B) marketing strategy or plans of the
Company; (C) proprietary computer software; and (D) terms
of contracts with suppliers, employees and principal
customers of the Company which are not generally known to
the competitors of the Company.
(ii) "Confidential Information," as related to the Business,
shall mean any data or information, other than Trade
Secrets, which is material to the Company or its
affiliates and not generally known by the public.
Confidential Information shall include, without
limitation, any information pertaining to the business
opportunities of the Company, the details of this
Agreement, and the business plans, financial statements
and projections of the Company.
(c) Employee shall not, without the prior written consent of the
Company, use or disclose, or negligently permit any unauthorized person
who is not an employee of the Company to use, disclose, or gain access to,
any Trade Secrets or Confidential Information; provided, however, Employee
shall be permitted, and this Agreement shall constitute written consent of
the Company, to use Confidential Information, and to disclose such
Confidential Information to his/her advisors (including specifically,
without limitation, attorneys, accountants, bankers, and others) for the
purposes of assessing the viability of and preparing a plan to acquire a
portion of the assets of the Company.
(d) Employee hereby agrees to deliver to, or maintain on behalf of,
the Company and its affiliates all memoranda, notes, records, drawings,
manuals or other documents, including all copies of such materials,
containing Trade Secrets or Confidential Information, whether made or
compiled by Employee or furnished to him/her from any source by virtue of
his/her relationship with the Company or its affiliates. All such
memoranda, notes,
RETENTION AGREEMENT - PAGE 4
41
records, drawings, manuals, other documents and other materials shall
be delivered to the Company by the Employee upon termination of the
Employee's employment with the Company.
98. Assignments; Successors and Assigns. The rights and obligations of
Employee hereunder are not assignable or delegable and any prohibited assignment
or delegation will be null and void. The Company may assign and delegate this
Agreement to a successor in interest to the Company's business. Any such
assignment shall expressly include the obligations herein and shall not relieve
the Company of same. The provisions hereof shall inure to the benefit of and be
binding upon the permitted successors and assigns of the parties hereto.
99. Governing Law. This Agreement shall be interpreted under, subject
to and governed by the substantive laws of the State of Tennessee, without
giving effect to provisions thereof regarding conflict of laws, and all
questions concerning its validity, construction, and administration shall be
determined in accordance thereby.
100. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be deemed an original but all of
which will together constitute one and same instrument.
101. Invalidity. The invalidity or unenforceability of any provision of
this Agreement shall not affect any other provision hereof, and this Agreement
shall be construed in all respects as if such invalid or unenforceable provision
was omitted. Furthermore, in lieu of such illegal, invalid, or unenforceable
provision there shall be added automatically as a part of this Agreement a
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible and be legal, valid and enforceable.
102. Exclusiveness. This Agreement constitutes the entire understanding
and agreement between the parties with respect to the retention by the Company
of Employee and supersedes any and all other agreements, oral or written,
between the parties, including but not limited to the Old Agreement. To the
extent the Employee has a claim arising out of the Company's rejection of the
Old Agreement, such claim is waived.
103. Modification. This Agreement may not be modified or amended except
in writing signed by the parties. No term or condition of this Agreement will be
deemed to have been waived except in writing by the party charged with waiver. A
waiver shall operate only as to the specific term or condition waived and will
not constitute a waiver for the future or act on anything other than that which
is specifically waived.
104. Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be deemed to have been made when
delivered or mailed first-class postage prepaid by registered mail, return
receipt requested, or when delivered if by hand, overnight delivery service or
confirmed facsimile transmission, to the following:
RETENTION AGREEMENT - PAGE 5
42
(a) If to the Company, at 000 Xxxxxxx Xxxxx, X.X. Xxx 0000,
Xxxxxxxx, Xxxxxxxxx, 00000, Attention: President and Chief Executive
Officer, or at such other address as may have been furnished to the
Employee by the Company in writing; or
(b) If to the Employee, at the address stated below, or such other
address as may have been furnished to the Company by Employee in writing.
105. Consolidation, Merger or Sale of Assets. Nothing in this Agreement
shall preclude the Company from consolidating or merging in to or with, or
transferring all or substantially all of its assets to, another corporation
which assumes this Agreement and all obligations and undertaking of the Company
hereunder. No such consolidation, merger or transfer shall affect the rights of
the Employee or the obligations of the Company hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
NU-KOTE HOLDING, INC.
By:
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Xxxxxxx X. Xxxxxx, President
"EMPLOYEE"
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Xxxx Xxxxx
Employee's Principal Address:
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RETENTION AGREEMENT - PAGE 6
