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EXHIBIT 10.18
ANNEX VIII
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this
day of , 1995 by and between Wedco Technology, Inc. ("the Employer"),
a wholly owned subsidiary of Xxxxxxxxxx International, and Xxxxxx Xxxx, an
individual ("the Employee"), who agree as follows:
1. Employment. The Employer agrees to continue to employ the
Employee, and the Employee agrees to continue to be employed by the Employer,
on the terms and conditions set forth in this Agreement.
2. Position and Duties. The Employee shall serve in the position
of Vice President of Finance, and shall have such responsibilities and
authority in accordance with that position, including being in charge of the
administration of the Employer's accounting and financial activities (including
Treasurer functions); Human Resources Department (including payroll); direct
internal audit functions; all operating and capital budgets; and all domestic
and foreign financial and internal controls.
3. Term. This Agreement shall commence on the date first written
above and its initial term shall end on December 31, 1996. Unless the Employer
shall deliver notice to the Employee sixty (60) days prior to the expiration of
such initial term or any subsequent term of a desire not to renew this
Agreement, this Agreement shall be renewed for successive renewal terms of one
year each commencing January 1 and ending December 31 of the succeeding year.
4. During the period of the Employee's employment, the Employer
shall provide him with the following compensation and other benefits:
(a) Salary. The Employer shall pay to the Employee a
salary at the rate of not less than $100,000.00 per annum, payable
in accordance
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with the standard payroll practices of the Employer. This salary may
be increased (but not decreased) from time to time by the Employer and,
if so increased, shall not thereafter be decreased.
(b) Other Benefits. The Employee shall participate in all
employee benefit, health, welfare, bonus, stock option and all other
compensation plans available to executive employees and officers of the
Employer. This includes all such plans and benefits currently in
effect and all which are made available by the Employer in the future
to its executives. Nothing paid to the Employee under any plan or
program presently in effect or made available in the future shall be
deemed to be in lieu of the salary payable pursuant to Section 4(a)
above.
(c) Expenses. The Employee shall be entitled to prompt
reimbursement of all reasonable expenses incident to his employment,
provided that the Employee incurs and properly accounts for such
expenses in accordance with the Employer's policies.
(d) Vacation. The Employee shall be entitled to receive
five (5) weeks of vacation during calendar year 1996 and thereafter
shall be entitled to the number of weeks of vacation per year in
accordance with the Employer's policies, but in no event less than five
(5) weeks per year.
5. Proprietary Information.
(a) The Employee acknowledges that in the course of his
employment by the Employer, he has, is or may be making use of, acquiring or
adding to confidential information of a special and unique nature and value
relating to such matters as the Employer's trade secrets, know-how, systems,
programs, developments, designs, procedures, manuals, confidential
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reports and communications, and lists of customers and clients. The Employee
understands that any information and materials received by the Employer at any
time from third parties in confidence (or subject to nondisclosure or similar
covenants) shall also be deemed to be and shall be confidential information.
The Employee hereby confirms that he has not and shall not, except with the
prior written consent of the Employer, or except as he is acting as an employee
of the Employer solely for the benefit of the Employer in connection with the
Employer's business practices and employee practices, at any time during or
following the termination of this Agreement, directly or indirectly, disclose,
divulge, reveal, report, publish, transfer or use, for any purposes whatsoever,
any of such confidential information which has been obtained by or disclosed to
him as a result of his employment with the Employer.
(b) The Employee will immediately notify the Employer about
and assign, transfer and set over to the exclusive benefit of the Employer any
patent, trademark, copyright, invention, product design, works of authorship,
product improvement, or technological innovation which the Employee conceives,
develops, creates, obtains, or learns in whole or in part while employed by the
Employer and relating, directly or indirectly, to any of such confidential
information; and the Employee agrees upon request to, without additional
compensation but at no expense to the Employee, execute and assent to any
application, assignment, license, or other legal documents necessary for the
Employer to enjoy fully all rights assigned under this Agreement.
6. Covenant Not to Compete. During the term of the Employee's
employment with the Employer hereunder, and for a period of one (1) year after
the termination of such employment for any reason or for no reason, or
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after the expiration of the term of this Agreement, the Employee shall not,
directly or indirectly, as an owner, partner, stockholder, proprietor, officer,
director, manager, consultant, employee or in any other capacity or capacities,
(a) engage in any business activity in which Employer engaged immediately prior
to the termination of the Employee's employment; or (b) solicit, sell, service,
accept, manage or otherwise seek to acquire the custom or patronage in any
business activity in which Employer engaged of any person or entity who is a
client, customer or active prospective client or customer of Employer; or (c)
without the prior written consent of Employer, solicit the employment,
consulting or other services of any other employee Employer or otherwise induce
any of such employees to leave such employment or to breach an employment
agreement therewith. Each of the above clauses (a) through (c) shall
constitute a separate and severable covenant of the Employee.
The geographic scope of the foregoing restrictive covenants
shall be the territory comprised of the United States of America and its
territories and possessions, Canada, Mexico and (without duplication) all other
countries in which Employer was engaged in business at the time of the
termination of Employee's employment. Nothing in the foregoing restrictive
covenants shall be deemed to prohibit the Employee from obtaining or
maintaining beneficial ownership (as defined in Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as amended) of securities of any publicly
traded corporation or other entity if the Employee's beneficial ownership is
less than 5% of the issued and outstanding securities of that class of that
issuer.
The Employee acknowledges that the Employer would be injured
irreparably in a manner not adequately compensated by money damages in the
event of a breach or threatened breach by the Employee of this
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non-competition covenant, and therefore agrees that, in the event of such
breach or threatened breach, the Employer shall be entitled, without limiting
or other prejudice to its other rights and remedies, to a temporary restraining
order, a preliminary injunction and other equitable relief, all without the
need to post bond or other security.
The parties hereby instruct any court or other tribunal of
competent jurisdiction that may find any provision of this non-competition
covenant to be unenforceable as written: (a) to sever the unenforceable
provision from the other enforceable provisions of this instrument; (b) to
reform the unenforceable provision to the extent necessary (but no more) to
make it enforceable and to give effect to the mutual intentions of the parties
that the good will of the Employer should be protected; and (c) to enforce the
non-competition covenant as reformed. The prevailing party in any legal action
initiated to interpret or to enforce this non-competition covenant shall be
entitled to recover from the non-prevailing party its or his reasonable
attorneys' fees and disbursements as well as all costs of suit.
7. Termination.
(a) By Employer for Cause. The Employer may terminate the
Employee's employment for "cause" as defined in paragraph 3 of the Separation
Agreement between Wedco Technology, Inc. and the Employee dated September 23,
1994, a copy of which is attached hereto as Exhibit A. The Employer shall
exercise its right to terminate the Employee's employment for cause by giving
him a written notice of termination specifying in reasonable detail the
circumstances constituting such cause, and specifying such date of termination
as the Employer shall determine. The Employee shall not be entitled to receive
any separation or severance pay or benefits if terminated for "cause" as so
defined.
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(b) By Employer Other than for Cause. The Employer may
terminate this Agreement without cause by giving the Employee at least sixty
(60) days written notice prior to the expiration of the initial or any
subsequent term of a desire not to renew this Agreement. If the Agreement is
so terminated by the Employer, the Employee shall receive (without duplication)
the eight months of separation pay and benefits specified in paragraph 2 of the
attached Exhibit A, except that the last sentence of paragraph 2 hereby is
deleted and the following substituted in its place: "however, all Company
benefits shall discontinue upon the commencement of similar benefits for the
Employee in connection with other full time employment obtained by the Employee
subsequent to termination."
(c) By the Employee. Notwithstanding anything set forth in
this Agreement which may be construed to the contrary, the Employee may
terminate his employment at any time and for any reason by giving the Employer
thirty (30) days prior written notice. Notwithstanding anything in the
Agreement attached as Exhibit A which may be construed to the contrary, the
Employee shall be entitled to receive the eight months of separation pay and
benefits specified in paragraph 2 of the attached Exhibit A, with the last
clause of the last sentence modified as specified in Section 7(b) above.
8. Indemnification. The Employer will pay all costs of suits
(including reasonable attorneys' fees) and any damages incurred by the Employee
on matters relating to the Employer, to the extent set forth in the Employer's
Articles, By-Laws and/or Corporate Resolutions.
9. Binding Agreement. This Agreement shall be binding upon any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Employer, in the same manner and to the same extent that the Employer
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would be required to perform it if no such succession had taken place. This
Agreement and all rights of the Employee under it shall inure to the benefit
of, and shall be enforceable by, the Employee's legal representatives. If the
Employee should die while any amounts remain payable to him, then all such
amounts shall be paid to his designated beneficiaries or, if there be no such
beneficiaries, to his Estate.
10. Notice. Any written notice required by this Agreement shall be
properly given if by personal delivery or registered or certified mail, return
receipt requested, to the Employee's immediate supervisor (if to the Employer)
or to the Employee's last known address (if to the Employee).
11. Governing Law and Venue. This Agreement shall be construed and
governed by the laws of the State of New Jersey, irrespective of whether either
party now or in the future is located or resides in another jurisdiction. Any
litigation with respect to this Agreement shall be venued in a Court of
competent jurisdiction in New Jersey.
12. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision.
13. Entire Agreement. This Agreement and the attached Exhibit A
(as modified herein) set forth the entire agreement and understanding of the
parties with respect to the subject matter contained in it, and supersede all
previous negotiations, agreements or representations, whether oral or written.
To the extent that any provision of the attached Exhibit A conflicts with the
provisions of this Agreement, the provisions of this Agreement shall govern and
control. This Agreement may not be released, discharged or changed in any
manner, except in a writing signed by the parties. No waiver
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of any breach of this Agreement shall be held to be a waiver of any other or
subsequent breach.
14. Employee's Right to Convert to Consulting Agreement.
(a) The Employee shall have the option to convert to an
independent outside consultant under the same terms and conditions set forth in
this Agreement except that the Employee shall not then receive the "other
benefits" specified in Section 4.
(b) The Employee also shall have the option, whether as an
employee or consultant, to work less than 5 days per week at a proportionately
reduced salary.
IN WITNESS WHEREOF, the parties have executed this Agreement of the
date first written above.
WEDCO TECHNOLOGY, INC.
BY:______________________________
/s/ XXXXXX XXXX
______________________________
Xxxxxx Xxxx Employee
