EMPLOYMENT AGREEMENT
AGREEMENT dated as of the September 19, 1997 by and between DREW
SHOE CORPORATION, an Ohio corporation with principal offices at 000 Xxxxxx Xxxx,
Xxxxxxxxx, Xxxx 00000 (hereinafter the "Company") and Xxxxx X. Xxxxxx, residing
at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxx, Xxxx 00000 (hereinafter the "Employee").
W I T N E S S E T H
WHEREAS, the Company is engaged in the business of the manufacture,
design and distribution of shoes; and
WHEREAS, the Company and Employee wish to enter into an employment
agreement in order to assure the employment of the Employee by the Company for
the period provided herein; and
WHEREAS, the Company is a wholly-owned subsidiary of BCAM
International, Inc., a New York corporation ("BCAM"); and
WHEREAS, the Employee is willing to serve in the employ of the
Company for said period, and upon such other terms and conditions hereinafter
provided.
NOW, THEREFORE, the Company and the Employee, intending to be
legally bound, agree as follows:
1. Position/Term. The Employee shall be employed to serve as Vice
President - Finance for the term commencing on the date hereof (the
"Commencement Date") and terminating two (2) years from the Commencement Date or
sooner as herein provided (the "Term"). The Company shall, ninety (90) days
prior to the expiration of the Term, provide written notice to Employee with
respect to renewal of Employee's employment by the Company, provided that, a
failure by the Company to provide such notice shall not in any way prejudice the
Company or prevent this Agreement from terminating in accordance with its terms.
2. Extent of Services. The Employee shall devote his full business
time, attention and energies to his position during the entire Term and shall
perform duties commensurate with his position as determined in the discretion of
the Board of Directors of the Company.
3. Compensation.
A. Base Salary. As full compensation for all services to be
rendered by the Employee to the Company hereunder, the Company will pay to
Employee an annual base salary of One Hundred Twenty Thousand ($120,000) Dollars
during the Term ("Base
Salary"). The Base Salary will be paid in equal monthly installments or such
other normal periodic payment schedule as the Company may establish for its
employees.
B. Bonus. The Company shall pay to Employee a bonus to be
determined by the Chairman and the President of the Company ("Bonus").
C. Stock Options. In addition to Base Salary and Bonus as
provided for herein, Employee shall be entitled to 100,000 "incentive" stock
option grants in accordance with the Option Agreement by and between the Company
and Employee of even date herewith.
D. Benefits; Vacation. The Employee will receive the benefits
of group life, health, accident, hospitalization, disability insurance and
retirement/pension at levels that are at a minimum equivalent to those benefits
received by Employee from the Company prior to the execution of this Agreement,
provided that, in the event that the Company alters any of its benefit plans
subsequent to the execution hereof, Employee shall only be entitled to receive
any benefits related to such plans that other senior executives of the Company
would then receive under the altered benefit plans. The Employee shall be
entitled to take four (4) weeks of paid vacation per year during the Term.
E. Reimbursement of Expenses. The Company shall reimburse or
cause to be reimbursed to the Employee, all reasonable out-of-pocket expenses
incurred by him in the performance of his duties hereunder or in furtherance of
the business and/or interests of the Company and BCAM; provided that Employee
shall furnish to the Company a satisfactory itemized account thereof.
4. Company Indemnification/Employee Release.
A. The Company shall, to the extent permitted by law,
indemnify and hold Employee harmless from and against all claims, damages,
losses and expenses, including reasonable attorneys' fees and disbursements
arising out of the performance by the Employee of his duties pursuant to this
Agreement, in furtherance of the Company's business and within the scope of his
employment.
B. Employee hereby (i) acknowledges that as of the date
hereof, he has no claims or causes of action (or potential claims or causes of
action) against the Company and each of its present and former directors,
officers, employees, stockholders, (and their successors and assigns) and (ii)
fully releases and discharges the Company and each of its present and former
directors, officers, employees, stockholders (and their successors and assigns),
from all actions, claims and demands whatsoever (whether in equity, tort,
contract or otherwise), which against any or all of them Employee has ever had
up to and including the date hereof (including any claims or actions discovered
or asserted in the future arising out of conduct occurring up to and including
the date hereof).
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5. Termination.
A. If the Employee becomes disabled during the Term, his Base
Salary and all other rights under this Agreement shall terminate at the end of
the Elimination Period (as such term is defined in the Company's Disability
Insurance Policy). For purposes of this Agreement, "disability" shall be
defined" in the same manner as defined in any disability insurance policy
carried by the Company concerning the Employee and naming the Employee as a
beneficiary at the time of disability.
B. If the Employee dies during the Term, the Corporation shall
pay to his estate, the Employee's then current Base Salary up until the date of
death.
C. The Board shall, in the manner described in the last
paragraph of this Section 5.C, have the right to terminate the employment of the
Employee under this Agreement for "cause" and the Employee shall forfeit the
right to receive any and all further payments hereunder, other than the right to
receive any compensation then due and payable to the Employee pursuant to
Section 3 hereof through the date of termination. "Cause" shall be deemed to be
the commission of any of the following acts by the Employee:
(i) The Employee shall have committed any material
breach of any covenants of this Agreement and shall not have cured such breach
within thirty (30) days following written notice by the Company to Employee;
(ii) The Employee shall have committed any act of gross
negligence in the performance of his duties or obligations hereunder, or,
without proper cause, shall have wilfully refused or habitually neglected to
perform his duties or obligations under this Agreement;
(iii) The Employee shall have committed any material act
of willful misconduct, dishonesty or breach of trust which directly or
indirectly causes the Company or any of its subsidiaries to suffer any material
loss, fine, civil penalty, judgment, claim, damage or expense; or
(iv) The Employee shall have been convicted of, or shall
have plead guilty or nolo contendere to, a felony or indictable offense (unless
committed in the reasonable, good faith belief that the Employee's actions were
in the best interests of the Company and its stockholders and would not violate
criminal law).
If the Board elects to terminate the Employee's employment for cause as set
forth above, it shall deliver written notice (the "Termination Notice") thereof
to the Employee, describing with reasonable detail the "cause" giving rise to
termination, and thereupon no further payments of any type shall be made or
shall be due or payable to Employee hereunder, except
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as provided in the first sentence of this Section 5.C.
D. In the event that Employee's employment hereunder is
terminated for any reason other than death, disability, or termination for
"cause" as defined in Section 5.C. herein, the Company shall pay to Employee the
greater of (i) his then current Base Salary for the remainder of the Term or
(ii) his then current Base Salary for a period of six (6) months following the
date of termination. Under no circumstances shall a failure to renew Employee's
employment by the Company beyond the Term be deemed a termination without
"cause" as contemplated in this Section 5.D.
6. Restrictive Covenants.
A. Covenant not to Disclose; Confidential Information. The
Employee covenants and agrees that he will not at any time during or after the
termination of his employment hereunder reveal, divulge, or make known to any
person, firm, corporation or other business organization (other than the Company
or its subsidiaries), or use for his own account any customer lists, trade
secrets, any information whatsoever relating to patents, trademarks or other
intellectual property of the Company or any secret or confidential information
of any kind used by the Company during his employment, and made known (whether
or not with the knowledge and permission of the Company, whether or not
developed, devised, or otherwise created in whole or in part by the efforts of
the Employee, and whether or not a matter of public knowledge unless as a result
of authorized disclosure) to the Employee by reason of his employment by the
Company, provided that, while employed by the Company, Employee shall not be
deemed in violation of the covenants contained in this Section 6.A. in the event
of Employee's disclosure of customer lists of the Company in the ordinary course
of business, as determined in the sole discretion of the President of BCAM. The
Employee further covenants and agrees that the knowledge and information which
he has acquired or hereafter shall acquire during his employment respecting such
customer lists, trade secrets, and secret or confidential information shall be
held by him in trust for the sole benefit of the Company, its successors and
assigns.
B. Covenant Not to Compete. The Employee covenants and agrees
that, during the Term hereof and for one (1) year thereafter, he will not,
without the prior written consent of the Company, directly or indirectly, and
whether as principal, agent, officer, director, employee, consultant, or
otherwise, alone or in association with any other person, firm, corporation, or
other business organization, carry on, or be engaged, concerned, or take part
in, or render services to, or own, share in the earnings of, or invest in the
stock, bonds, or other securities of any person, firm, corporation, or other
business organization (other than the Company) engaged in a business in the
United States which is similar to or in competition with any of the businesses
carried on by the Company (a "Similar Business") except in the course of his
employment hereunder; provided, however, that the Employee may invest in stock,
bonds, or other securities of any Similar Business (but without otherwise
participating in the activities of such Similar Business) if (i) such stock,
bonds, or other
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securities are listed on any national or regional securities exchange or have
been registered under Section 12(g) of the Securities Exchange Act of 1934; and
(ii) his investment does not exceed, in the case of any class of the capital
stock of any one issuer, 5% of the issued and outstanding shares, or in the case
of bonds or other securities, 5% of the aggregate principal amount thereof
issued and outstanding.
C. Covenant of Non-Interference. The Employee covenants and
agrees that during the Term hereof and for two (2) years thereafter he will not,
whether for his own account or for the account of any other person, firm,
corporation or other business organization, interfere with the Company's
relationship with, or endeavor to entice away from the Company, any person,
firm, corporation or other business organization who or which at any time during
the term of the Employee's employment with the Company or for three (3) years
preceding such employment, was an employee, consultant, agent, supplier, or a
customer of, or in the habit of dealing with, the Company.
D. Covenant Involving Inventions/Intellectual Property.
(i) The Employee agrees to disclose immediately to the Company
or any persons designated by it and to assign to the Company at its option, or
its successors or assigns, all inventions made, discovered, conceived or first
reduced to practice by the Employee, solely or jointly with others, at anytime
during the time (a) while employed by the Company, (b) within a period of three
(3) years prior to employment by the Company, or (c) within a period of five (5)
years from the date of termination of such employment, which inventions are
made, discovered or conceived either in the course of such employment, or with
the use of the Company's time, material, facilities or funds, or which relate to
or are suggested by any subject matter with which the Employee's employment by
the Company may bring the Employee into contact, or which relate to any
investigations or obligations undertaken by the Company; and the Employee hereby
grants and agrees to grant the right to the Company and its nominees to obtain,
for its own benefit and in its own name (entirely at its expense) patents and
patent applications including original, continuation, reissue, utility and
design patents, and applications, patents of addition, confirmation patents,
registration patents, xxxxx patents, utility models, etc., and all other types
of patents and the like, and all renewals and extensions of any of them for
those inventions in any and all countries; and the Employee shall assist the
Company, without further charge during the period of the Employee's employment,
and after termination of the Employee's employment, if the Employee is not
receiving Base Salary at the time of the request for assistance, at the same
Base Salary rate (excluding any deferred compensation or other benefits) as
during the Employee's employment (determined on an hourly basis for this
purpose), through counsel designated by the Company to execute, acknowledge, and
deliver all such further papers, including assignments, applications for Letters
Patent (of the United States or of any foreign country), oaths, disclaimers or
other instruments and to perform such other acts, including giving testimony or
furnishing evidence in the prosecution or defense of appeals, interferences,
suits and controversies relating to any of the aforesaid inventions,
applications and patents as may be deemed necessary by the
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Company or its nominees to effectuate the vesting or perfecting in the Company
or its nominees of all right, title and interest in and to said inventions,
applications and patents.
(ii) The Employee agrees to disclose immediately to the
Company or any persons designated by it and to assign to the Company, at its
option, or its successors or assigns, all works of authorship, including, but
not limited to, all writings, manuals, computer programs, software and hardware,
written or created by the Employee solely or jointly with others, at any time
(a) during the course of his employment by the Company, (b) within a period of
three (3) years prior to employment by the Company, or (c) within a period of
five (5) years from the date of termination of such employment, which works are
made or conceived either in the course of such employment, or with the use of
the Company's time, material, facilities or funds, or which relate to or are
suggested by any subject matter with which the Employee's employment by the
Company may bring the Employee into contact or which relate to any
investigations or obligations undertaken by the Company; and the Employee hereby
agrees that all such works are works made for hire, of which the Company is the
author and the beneficiary of all rights and protections afforded by the law of
copyright in any and all countries; and the Employee will assist the Company
without further charge during the term of his employment, and after termination
of his employment, if the Employee is not receiving Base Salary at the time of
the request for assistance, at the same Base Salary rate (excluding any bonuses,
deferred compensation or other benefits) as during his employment (determined on
an hourly basis for this purpose), through counsel designated by the Company, to
execute, acknowledge, and deliver all such further papers, including
assignments, applications for copyright registration (in the United States or in
any foreign country), oaths, disclaimers or other instruments, and to perform
such further acts, including giving testimony or furnishing evidence in the
prosecution or defense of appeals, interferences, suits and controversies
relating to any of the aforesaid works, as may be deemed necessary by the
Company or its nominees to effectuate the vesting or perfecting in the Company
or its nominees of all rights and interest in and to said works and copies
thereof, including the exclusive rights of copying and distribution.
(iii) The Employee shall keep complete, accurate and authentic
accounts, notes, data and records of all inventions made, discovered or
developed by the Employee as aforesaid in the manner and form requested by the
Company.
E. Covenant Modification. If any provision of this Section 6
is held by any court of competent jurisdiction to be unenforceable because of
the scope, duration or area of applicability, such provision shall be deemed
modified to the extent such court modifies the scope, duration or area of
applicability of such provision to make it enforceable.
F. Documents and Records. All written materials, records and
documents made by the Employee or coming into his possession during the Term
concerning the business or affairs of the Company shall be the sole property of
the Company and, upon expiration of the Term or upon the request of the Company
during the Term, the Employee
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shall promptly deliver the same to the Company. The Employee agrees to render in
a timely manner to the Company such reports of the activities undertaken by the
Employee or conducted under the Employee's direction pursuant hereto during the
Term as the Company may reasonably request.
G. Applicability of Covenants. All references to the "Company"
contained in this Section 6 shall be deemed to include BCAM.
H. Survivability of Covenants. All covenants contained in this
Section 6 shall survive indefinitely the termination of this Agreement for any
reason whatsoever.
7. Injunction. It is recognized and hereby acknowledged by the
Employee that a breach or violation by the Employee of any of the covenants or
agreements contained in this Agreement may cause irreparable harm and damage to
the Company, the monetary amount of which may be virtually impossible to
ascertain. As a result, the Employee recognizes and acknowledges that the
Company shall be entitled to an injunction, without posting any bond or security
in connection therewith, from any court of competent jurisdiction enjoining and
restraining any breach or violation of any of the restrictive covenants
contained in Section 6 hereof by the Employee or his associates, partners or
agents, either directly or indirectly, and that such right to injunction shall
be cumulative and in addition to whatever other rights or remedies the Company
may possess. Nothing contained in this Section 7 shall be construed to prevent
the Company from seeking and recovering from the Employee damages sustained as a
result of any breach or violation by the Employee of any of the covenants or
agreements contained in this Agreement, and that in the event of any such
breach, the Company shall avail itself of all remedies available both at law and
in equity. The Company agrees that if the Employee is not liable to the Company
for any breach of his obligations, the same court which makes such finding shall
also be entitled to assess the Company for reimbursement of the Employee's
reasonable legal fees and expenses incurred in such action.
8. Employee's Representations. Employee represents to the Company
that to the best of his knowledge he is under no obligation to any employer or
third party which would preclude the full, complete and unfettered discharge of
his duties under this Agreement.
9. Notices. Any and all notices or other communications required or
permitted to be given under any of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given when personally delivered or
mailed by first class certified or registered mail, return receipt requested,
addressed to the parties at the following addresses (or at such other address as
any such person may specify by notice to all other such persons given as
aforesaid):
If to the Company:
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BCAM International, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
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With a copy to:
Ruskin, Moscou, Xxxxx & Faltischek, P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to Employee:
Xx. Xxxxx X. Xxxxxx
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esq.
Vorys, Xxxxx, Xxxxxxx and Xxxxx
00 Xxxx Xxx Xxxxxx
Xxxxxxxx, Xxxx 00000
10. Amendment. This Agreement may be amended only in writing signed
by both parties hereto.
11. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the Company, its successors and assigns. Employee
may not assign, transfer, pledge or hypothecate any of his rights or obligations
hereunder, or money to which he may be entitled hereunder.
12. Waiver of Breach. The failure of a party to insist on strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver or deprive that party of the right thereafter to insist upon strict
adherence to that term or any term of this Agreement. Any waiver hereto must be
in a writing signed by both parties.
13. Severability. The invalidity or unenforceability of any other
provision hereof shall in no way affect the validity or enforceability of any
other provision hereof.
14. Entire Agreement. This Agreement constitutes the entire
Agreement between the parties, and supersedes all existing agreements between
them with respect to the subject matter hereof. It may only be changed or
terminated by an instrument in writing signed by both parties.
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15. Governing Law. This Agreement shall be governed by, construed
and interpreted in accordance with the laws of the State of Ohio without taking
into account conflict-of-law provisions.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Paragraph Headings. Paragraph headings are inserted herein for
convenience only and are not intended to modify, limit or alter the meaning of
any provision of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
DREW SHOE CORPORATION
By:
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Xxxxxxx Xxxxxxx,
Chairman, Board of Directors
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Xxxxx X. Xxxxxx
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