EMPLOYMENT AGREEMENT
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AGREEMENT made as of the 1st day of December, 1996 by and between
XXXXXX X. PRESS, an individual residing at 0000 Xxxxxx Xxxx. #0000, Xxxxx,
Xxxxxxx 00000 (the "Employee"), and MEDLEY REFRIGERATION, INC., a Delaware
corporation (the "Company").
W I T N E S S E T H
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WHEREAS, prior to the execution of this Agreement, the Employee
served as the President of the Company and the Company desires to continue
such employment arrangement (the "Existing Employment Arrangement") with
the Employee effective on the date hereof.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto intending to be legally bound hereby agree
as follows:
1. Employment. Subject to the terms and conditions hereinafter
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set forth, the Company hereby agrees to employ the Employee, and the
Employee hereby agrees to serve as President of the Company, effective as
of the date first written above (such date being referred to herein as the
"Effective Date"). The Employee agrees to perform such services customary
to such office as shall from time to time be assigned to him in the sole
reasonable discretion of the Company's Board of Directors. The Employee
further agrees to use his best efforts, energies and skill to promote the
interests of the Company and to devote a minimum of forty (40) hours per
week during normal weekday business hours during the first six (6) months
of the Initial Term (as defined herein) and thereafter, a minimum of thirty
(30) hours per week during normal weekday business hours (or as otherwise
agreed to by the Company's Chief Executive Officer), on a consistent basis,
to the business and affairs of the Company in accordance with the
directions and orders of the Board of Directors of the Company.
2. Term of Employment. The term of employment of the Employee
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pursuant to this Agreement (including any renewal periods hereof, the
"Employment Term") shall commence on the Effective Date and shall terminate
upon the earlier of (a) December 31, 1997 (such period being referred to as
the "Initial Term"), unless this Agreement is automatically renewed as
provided below in this Section 2, or (b) the date on which the employment
of the Employee is terminated pursuant to Section 4 hereof. Commencing on
the thirty-first of December, 1997, and on each subsequent anniversary date
thereafter, the Employment Term hereunder shall be renewed for successive
periods of one (1) year (each such period being referred to herein as a
"Renewal Term"), unless either the Company or the Employee elects not to
renew such term by giving written notice thereof at least sixty (60) days
prior to the Expiration Date (as herein defined). For purposes hereof, the
last day of the Initial Term or of each Renewal Term, if any, shall be
deemed the "Expiration Date".
3. Compensation and Other Related Matters.
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3.1. Annual Salary. As compensation for the services
rendered by the Employee hereunder, the Company shall pay, or shall cause
to be paid, to the Employee, and the Employee shall accept, compensation at
the rate of Sixty Thousand Dollars ($60,000.00) per annum (the "Annual
Salary"). The Company's obligation to pay the Annual Salary shall not
accrue or be payable until the Company consummates its public offering of
securities. The Annual Salary shall be paid in accordance with the
Company's customary payroll practices which are in effect from time to time
during the Employment Term. The Employee's Annual Salary shall be subject
to all applicable withholding and other taxes. The Company, by action of
the Board of Directors, may, in its sole discretion, increase the Annual
Salary at any time during the Employment Term.
3.2. Other Employment Benefits. During the Employment Term,
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the Employee shall be entitled to the following employment benefits:
(a) two (2) weeks of paid vacation in each fiscal year of
the Company while the Employee is employed hereunder and sick leave in
accordance with the Company's policies from time to time in effect for
executive officers of the Company; provided, that vacation and/or sick
leave time not used in any year may not be carried over or transferred from
one year to another or converted to cash;
(b) participation, subject to qualification requirements,
in medical, life or other insurance or hospitalization plans and long-term
disability policies which are presently in effect or hereinafter instituted
by the Company and applicable to its employees generally; and
(c) participation, subject to classification requirements
and continued maintenance thereof by the Company in other employee benefit
plans, such as stock option, pension and profit sharing plans, which are
from time to time applicable to the Company's employees generally.
3.3. Expenses. During the Employment Term, the Employee
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shall be entitled to receive prompt reimbursement from the Company of all
travel, entertainment and out-of-pocket expenses which are reasonably and
necessarily incurred by the Employee in the performance of his duties
hereunder; provided, that, the Employee properly accounts therefor in
accordance with the Company's policies as in effect from time to time and
that such expenses are approved by the Company's Board of Directors.
4. Termination.
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4.1. Disability. (a) In the event that at any time during
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the Employment Term, the Employee, due to physical or mental injury,
illness, disability or incapacity, including "disability" within the
meaning of the disability plan which the Company then has in effect
entitling the Employee to benefits thereunder, shall fail to perform
satisfactorily and continuously the duties assigned to him and the services
to be performed by him hereunder for a period of three (3) consecutive
months or for a non-consecutive period of five (5) months within any twelve
(12) month period, the Company may terminate his employment for
"Disability" upon not less than thirty (30) days prior written notice (such
notice referred to herein as a "Termination Notice") to the Employee.
(b) During any period (the "Disability Period") that the
Employee, due to physical or mental injury, illness, disability or
incapacity, including "disability" within the meaning of the disability
plan which the Company then has in effect entitling the Employee to
benefits thereunder, fails to perform satisfactorily and continuously the
duties assigned to him and the services to be performed by him hereunder,
the Company shall continue to pay to the Employee (i) the Annual Salary (as
in effect at such time) in accordance with the provisions of Section 3.1
hereof, less any compensation payable to the Employee under the applicable
disability insurance plan of the Company during such Disability Period, and
(ii) the Commission Payment during the remainder of the Commission Period,
if any, payable in accordance with the provisions of Section 3.2 hereof.
Thereafter, if the Employee's employment hereunder is terminated pursuant
to Section 4.1(a) above, the Company shall have no further obligations
hereunder after the Termination Date other than the Commission Payment for
the remainder of the Commission Period, if any, payable to the Employee in
accordance with the provisions of Section 3.2 hereof, and the compensation
payable to the Employee under the applicable disability insurance plan of
the Company.
4.2. Death. The Employee's employment shall terminate
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immediately upon the death of the Employee. Upon termination of the
Employee's employment pursuant to this Section 4.2 as a result of the
Employee's death.
4.3. Cause. (a) The Company may, at any time and in its
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sole discretion, terminate the Employee's employment for Cause (as herein
defined) by delivery to the Employee of a Termination Notice specifying the
nature of such Cause, effective as of the date (such effective date
referred to herein as a "Termination Date") of such Termination Notice.
For purposes hereof, termination for "Cause" shall mean a termination based
upon (i) a conviction of, a plea of nolo contendere, a guilty plea or
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confession by the Employee to an act of fraud, misappropriation or
embezzlement or to a felony; (ii) the commission of a fraudulent act or
practice by the Employee affecting the Company; (iii) the failure by the
Employee to follow the directions of the Board of Directors or the failure
to follow the policies of the Company applicable to employees and/or
executive officers generally; (iv) the engaging by the Employee in conduct
which is materially injurious to the Company, monetarily or otherwise;
(v) the Employee's habitual drunkenness as determined in the reasonable
discretion of the Board of Directors of the Company or use of illegal
substances; or (vi) the material breach by the Employee of this Agreement.
(b) If the Employee's employment is terminated by the
Company for Cause pursuant to Section 4.3(a) above, the Company shall have
no further obligations hereunder after the Termination Date other than the
payment to the Employee of the Annual Salary accrued and unpaid through the
Termination Date. The Company shall not be obligated to provide any of the
benefits set forth in Section 3.3 of this Agreement after the Termination
Date, except as may be required by applicable law.
5. Noncompetition and Nondisclosure. At all times during the
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pendency of this Agreement and for a period of two years following the
termination of this agreement, neither the Employee nor any persons
affiliated with the Employee shall directly or indirectly be engaged in or
employed by or otherwise have an interest in a business which competes
directly or indirectly with the business of the Company. The Employee
agrees to keep confidential all information obtained by him in his capacity
as employee including customer lists, financial data, business plans,
strategies, records and other information.
6. Breach by the Employee. Both parties recognize that the
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services to be rendered under this Agreement by the Employee are special,
unique and extraordinary in character, and that in the event of a breach by
Employee of the material terms and conditions of the obligations to be
performed by him hereunder, the Company shall be entitled, if it so elects,
to institute and prosecute proceedings in any court of competent
jurisdiction, either in law or in equity, to obtain damages for any breach
of this Agreement, or to enforce the specific performance thereof by the
Employee. Without limiting the generality of the foregoing, the parties
acknowledge that a breach by the Employee of his material obligations under
Section 5 could cause the Company irreparable harm for which no adequate
remedy at law would be available in respect thereof and that therefore upon
proof of the same the Company would be entitled to seek injunctive relief
with respect thereto.
7. Insurance. The Employee acknowledges and agrees that the
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Company may obtain a life insurance policy on the life of the Employee with
the Company named as the beneficiary. If the Company so elects, the
Employee covenants and agrees to cooperate fully with the Company's efforts
to obtain such insurance policy.
8. Conflicting Agreements. The Employee hereby represents and
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warrants to the Company that (a) neither the execution of this Agreement by
the Employee nor the performance by the Employee of any of his obligations
or duties hereunder will conflict with or violate or constitute a breach of
the terms of any employment or other agreement to which the Employee is a
party or by which the Employee is bound, and (b) the Employee is not
required to obtain the consent of any person, firm, corporation or other
entity in order to enter into this Agreement or to perform any of his
obligations or duties hereunder.
9. Further Assurances. The Employee hereby agrees to execute
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and deliver such agreements, certificates or other documents as may be
reasonably requested by the Company which may be necessary or are required
hereunder, including, the execution and delivery on the Closing Date of the
Purchase Agreement.
10. Miscellaneous.
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10.1. Successors; Binding Agreement. This Agreement and
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all rights of the Employee hereunder shall inure to the benefit of the
parties hereto and their respective heirs, personal representatives,
successors and assigns; provided, that the duties of the Employee hereunder
are personal to the Employee and may not be delegated or assigned by him.
10.2. Governing Law. This Agreement shall be governed
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by and in accordance with the laws of the State of Florida without regard
to conflict of law rules thereof.
10.3. Waivers. The waiver of either party hereto of any
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right hereunder or of any failure to perform or breach by the other party
hereto shall not be deemed a waiver of any other right hereunder or of any
other failure or breach by the other party hereto, whether of the same or a
similar nature or otherwise. No waiver shall be deemed to have occurred
unless set forth in a writing executed by or on behalf of the waiving
party. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to
the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future or as to any act other than that
specifically waived.
10.4. Validity. The invalidity or unenforceability of
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any provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall
otherwise remain in full force and effect. Moreover, if any one or more of
the provisions contained in this Agreement is held to be excessively broad
as to duration or scope, such provisions shall be construed by limiting and
reducing them so as to be enforceable to the maximum extent compatible with
applicable law.
10.5. Entire Agreement. This Agreement sets forth the
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entire agreement and understanding of the parties in respect of the subject
matter contained herein, and supersedes all prior agreements, promises,
covenants, arrangements, communications, representations or warranties,
whether oral or written, by any officer, employee or representative of
either party in respect of said subject matter.
10.6 Headings Descriptive. The headings of the several
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paragraphs of this Agreement are inserted for convenience only and shall
not in any way affect the meaning or construction of any provision of this
Agreement.
10.7 Counterparts. This Agreement may be executed in
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one or more counterparts, each of which shall be deemed to be an original
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
EMPLOYEE:
/s/Xxxxxx X. Press
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Xxxxxx X. Press
MEDLEY REFRIGERATION, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Chairman
