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EXHIBIT 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT made as of the first day of December, 1999, by and
between the person whose name appears on the signature page of this agreement
("Executive") and Bacou USA, Inc., a corporation organized and existing under
the laws of Delaware ("Company").
W I T N E S S E T H:
WHEREAS, Company wishes to employ Executive as Vice President and Chief
Financial Officer of Company according to the terms of this Agreement; and
WHEREAS, Executive is willing to enter into this Agreement according to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, Company and Executive hereby agree as follows:
1. EMPLOYMENT; REPORTING AND DUTIES.
(a) Effective January 1, 2000, Company shall employ Executive,
and Executive shall serve as Vice President and Chief Financial Officer
of Company, located at its Smithfield, Rhode Island headquarters.
(b) Executive's reporting relationship will be according to
the organization chart of Company, as in effect from time to time.
Executive acknowledges that, effective January 1, 2000, he shall report
to the Chief Executive Officer of Company (the "Company CEO").
Executive's duties shall be those ordinarily assigned to a Vice
President and CFO, subject to specific written definition by the
Company at any time and subject to the description of duties and
responsibilities specifically assigned and reserved to the Co-Chairmen,
Company CEO and Chief Operating Officer of Company, as they may be
amended from time to time. Executive agrees to faithfully perform the
duties assigned to him to the best of his ability, to comply with all
applicable laws and the written policies and procedures of Bacou USA,
Inc. as in effect from time to time and as then applicable to its
subsidiaries and divisions (the "Policies and Procedures") and, except
for vacations, periods of temporary illness and activities permitted
herein, to devote his full time and attention to the business of
Company.
2.PERIOD OF EMPLOYMENT. The term of employment covered by this
Agreement shall commence January 1, 2000 and shall continue until December 31,
2002 (the "Initial Term"). This Agreement will be extended for successive two
year terms following the Initial Term (each a "renewal term"), unless either
party notifies the other at least six months prior to the end of the Initial
Term or any renewal term that such
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party elects not to renew the Agreement. If either party notifies the other that
he or it makes the foregoing election, Company may, at its option, decide that
Executive shall take a leave-of-absence for part or all of the remaining term,
continuing to receive all compensation (including but not limited to base
salary, incentive compensation, stock options and benefits) as if actively
working.
3.TERMINATION. Executive's employment under this Agreement shall be
terminated upon the first to occur of the following:
(a) Conclusion of the Initial Term or any renewal term following
notice given pursuant to Section 2 of this Agreement, or upon
any direct (Bacou S.A.) or indirect (Bacou family) change of
control of Company.
(b) Death of the Executive.
(c) Executive becoming permanently disabled. "Permanent
disability" shall mean physical or mental incapacity of a
nature which, in the reasonable judgment of Company, prevents
Executive from performing his duties under this Agreement for
a period of more than eighteen (18) cumulative months during
the Initial Term or more than twelve (12) cumulative months
during any renewal term.
(d) The Executive's employment being terminated by Company for
cause. Termination for cause shall mean termination by action
of the Board of Directors of Bacou USA, Inc. because of: (i)
the willful failure of Executive to perform his duties and
obligations under this Agreement; (ii) the failure of
Executive to execute in a reasonable and responsible manner
the written Policies and Procedures; (iii) gross negligence in
the performance of his duties under this Agreement; (iv) the
commission by Executive of a crime; (v) engaging in any
activity that is competitive with the business of the Company;
(vi) engaging in fraudulent, unethical, dishonest or other
similar activities which Company reasonably determines would
adversely affect Company or the conduct of its business; or
(vii) the voluntary or involuntary personal bankruptcy of
Executive.
4. COMPENSATION AND BENEFITS.
(a) Executive shall receive regular compensation (the "Base
Salary") at the initial rate per annum of Two Hundred Twenty-Five Thousand
Dollars ($225,000) for the period January 1, 2000 through December 31, 2000. The
Base Salary shall be payable in arrears less the usual payroll deductions at the
same times and in the same manner as salaries paid to other employees of
Company. The Base Salary shall be reviewed annually during the first quarter of
each year of Executive's period of employment for possible increase.
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(b) In addition to the Base Salary, Executive shall receive a
bonus payment for each year of this Agreement payable within ninety (90) days
following the end of the year to which the bonus relates. The amount of bonus to
be paid for the years 2000 through 2002 shall be determined pursuant to the plan
adopted by the Board of Directors at its meeting on October 16, 1999, a copy of
which is attached to this Agreement (the "Bonus and Option Plan"). Executive
acknowledges that, by participating in the Bonus and Option Plan, he thereby
waives any right to participate in any other incentive compensation plan of
Company during 2000 - 2002. The amount of bonus to be paid for any renewal term
shall be determined pursuant to a written plan adopted by the Board of Directors
or its Compensation Committee, which plan shall be distributed to Executive at
least seven months prior to the commencement of such renewal term.
(c) Executive shall be entitled to be granted stock options for
the years 2000 through 2002 pursuant to the Bonus and Option Plan. For any
renewal term, the amount, exercise price and vesting period of stock options to
be granted to Executive shall be determined pursuant to a written plan adopted
by the Board of Directors or its Compensation Committee, which plan shall be
distributed to Executive at least seven months prior to the commencement of such
renewal term.
(d) Executive shall be entitled to participate in all savings,
thrift, retirement or pension, short-term and long-term disability, health,
accident, hospitalization, holiday, vacation, life insurance and other fringe
benefit programs generally available to executives of Company in accordance with
and subject to the terms and conditions of such programs. Company shall have the
right to purchase key man life insurance on the Executive's life at Company's
expense, and Executive agrees to submit to any necessary physical examination
and to sign such documents and releases as may be necessary for Company to
purchase such insurance.
(e) Company shall pay Twenty-Four Thousand Dollars ($24,000) per
annum for a supplemental retirement plan for Executive, the structure of which
shall be selected by Executive from generally recognized programs (e.g., split
dollar life insurance, "rabbi trust," guaranteed annuity, etc.). Such annual
Company contributions shall be made as soon as practicable after the beginning
of the year to which they apply and shall be fully vested upon payment.
(f) Executive shall undergo and (to the extent not paid or
reimbursed by applicable medical insurance) Company shall pay all costs
associated with an annual comprehensive physical examination of Executive to be
conducted by a physician or facility acceptable to both parties. Company shall
receive a full report directly from the examining physician, including all test
results.
(g) Company shall pay or reimburse the reasonable costs associated
with the preparation and filing of Executive's personal income tax returns for
the tax years included within the term of this Agreement. Within thirty days
following the filing of each such personal income tax return, Executive shall
provide written
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confirmation signed by his income tax preparer and himself that such return has
been filed. This provision shall apply to all income tax returns required by the
laws of the United States of America or any State thereof.
(h) Executive shall be entitled to the benefits accorded to him as
Vice President and Chief Financial Officer of Company pursuant to the Policies
and Procedures, including travel, expense reimbursement and leased vehicle
policies in effect from time to time; provided, however, that the maximum
monthly lease amount for Executive's vehicle shall be equal to 100% of the
amount applicable to division presidents under such policy.
(i) Executive shall be entitled to twenty (20) days of vacation
per annum pursuant to the applicable vacation policy of the Company. To the
extent the Executive does not take all vacation days, the remaining days will be
carried forward for an unlimited period or, at the election of the Executive, be
paid to the Executive at the level of his Base Salary in effect for the year in
which the days were not taken. Such election may be exercised at any time by
Executive.
(j) When traveling on Company business, Executive is entitled to
fly first-class on domestic trips when he determines in his reasonable judgement
that the enhanced productivity would outweigh the additional cost. Executive is
entitled to fly business class on international trips.
(k) Executive is entitled to attend at least eight days of
professional education classes annually at the expense of Company, the subject
matter of which shall relate to the business, financial and accounting matters
of Company. Company will reimburse the costs associated with Executive
maintaining his status as a Certified Public Accountant in good standing.
(l) In the event of any direct (Bacou S.A.) or indirect (Bacou
family) change of control of Company, this Agreement shall convert to a
guaranteed minimum payment to Executive, payable upon such change of control,
which shall be equal to the sum of (i) the total salary that would be payable to
him from such date until the end of the then current term of this Agreement at
the then current salary rate, plus (ii) the total maximum amount of bonus
potentially available to him from such date until the end of the then current
term of this Agreement pursuant to the bonus plan then in effect, plus (iii) the
total maximum number of options potentially available to him from such date
until the end of the then current term of this Agreement pursuant to the stock
option plan then in effect, such option grant to be effective prior to the
effective date of any such change in control at an exercise price equal to the
closing price for the Company's shares on October 16, 1999, plus (iv) the
present value of all other benefits under this Agreement from such date until
the end of the then current term of this Agreement.
5.LIMITATIONS ON AUTHORITY. The actions of Executive are subject to
limitations on his authority as specified in his job description and in the
Policies and Procedures (together, the "Limitations on Authority"). Except as
otherwise provided
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herein, Executive must obtain approval from the Company CEO prior to Executive
taking any action on behalf of Company or any of its affiliates which would
exceed his Limitations on Authority.
Should the Company CEO be unavailable, if an emergency arises which
requires Executive to take immediate action in which approval as set forth in
his Limitations on Authority would otherwise be required, Executive should first
seek approval from Xxxxxx Xxxxxx in his capacity as Co-Chairman of Bacou USA,
Inc., or if he also is unavailable, from the Chief Operating Officer of Company.
If they also are unavailable, then Executive is hereby authorized to make a
decision in the best interests of Company. Executive will immediately inform the
Company CEO in writing of any such decision made by him.
6. NON-DISCLOSURE OF INFORMATION. It is understood that the business of
Company and its affiliates is of a confidential nature. During the period of
Executive's employment with Company, Executive may have received and he may
receive Confidential Information (as hereinafter defined) concerning Bacou USA,
Inc., Company or any of Company's affiliates, subsidiaries or third party
contractors which, if disclosed, would damage such entities. Executive agrees
that during the period that this Agreement is in effect and thereafter he will
not (except as authorized by Company or in the proper performance of his duties
hereunder or except as ordered by a court or other body of competent
jurisdiction or as otherwise required by law), directly or indirectly, divulge,
disclose or appropriate to his own use, or to the use of any third party, any
secret, proprietary or Confidential Information or knowledge obtained by him
during the term hereof. For purposes of this Agreement, "Confidential
Information" shall include, but shall not be limited to, information pertaining
to trade secrets, systems, manuals, confidential reports, methods, processes,
designs, equipment lists, operating procedures, business records (e.g.
financial, vendor, customer and employee records) and customer lists. Upon
termination of his employment, Executive shall promptly deliver to Company all
materials owned by Company and all Confidential Information which is, directly
or indirectly, in the possession or under the control of Executive. The
provisions of this paragraph shall continue to apply for an unlimited period of
time (or, if shorter, the maximum period permissible under applicable law) after
the Executive ceases to be employed by Company.
7. PROPERTY. All letters, memoranda, documents, business notes
(including all copies thereof) and any information contained on any other media
including computer disks and hard drives of the Executive in any manner relating
to the duties of Executive under this Agreement are the property of Company and
shall be delivered to Company immediately upon its request.
8. TRADE SECRETS. Executive covenants that he shall, while employed by
Company, assign, transfer, and set over to Company or its designee all right,
title and interest in and to all trade secrets, secret processes, inventions,
improvements, patents, patent applications, trademarks, trademark applications,
copyrights, copyright registrations, discoveries and/or other developments
(hereinafter "Inventions") which he may, alone or in
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conjunction with others, during or outside normal working hours, conceive, make,
acquire or suggest at any time which relate to the products, processes, work,
research, or other activities of Bacou USA, Inc., Company or any of its
subsidiaries or affiliates. Any and all Inventions which are of a proprietary
nature and which Executive may conceive, acquire or suggest, either alone or in
conjunction with others, during his employment with Company (whether during or
outside normal working hours) shall be the sole and exclusive property of
Company or its designee and Executive, whenever requested to do so by Company,
shall, without further compensation or consideration, properly execute any and
all applications, assignments or other documents which Company or its designee
shall deem necessary in order to apply for and obtain Letters Patent of the
United States and/or comparable rights afforded by foreign countries for the
Inventions, or in order to assign and convey to Company or its designee the sole
and exclusive right, title and interest in and to the Inventions. This
obligation shall continue beyond the termination of this Agreement with respect
to Inventions conceived or made by Executive during his employment by Company,
and shall be binding upon his assigns, executors, administrators, and other
legal representatives.
9. NON-COMPETITION. (a) During the period of Executive's employment by
the Company and, at Company's option, for a period of one year after the
termination of Executive's term of employment or any direct or indirect change
in control, Executive agrees that he will not within the geographical area of
the United States, engage, either directly or indirectly, individually or as an
owner, partner, joint venturer, employee, officer, director, stockholder,
consultant, independent contractor or lender of or to any corporation, holding
Company or other business entity which is in a business similar to that of
Company or any of its affiliates. In the event that Company chooses to exercise
its option to prevent Executive from competing with Company following
termination of his employment or change in control, Company shall notify
Executive in writing within ten (10) business days following the later of his
last day of employment or his notification to Company of the identity of his new
employer. Such notice shall specify the period of one year following termination
of the Agreement, during which competitive activity shall be prohibited. In the
event Company exercises its option, Company shall continue to pay Executive his
Base Salary at the rate applicable at the time of termination for the period
during which Executive is prohibited from competing with Company and a bonus
payment equal to his most recent annual bonus; provided, however, that Company
shall not be obligated to make any such payments (and shall be entitled to a
refund of any payments actually made) to the extent that Executive violates his
obligation of non-competition or invalidates such obligation through legal
action.
(b) Executive shall not during the time that this Agreement is in
effect, and for a period of three (3) years thereafter, employ, solicit for
employment or arrange to have any other person or entity employ or solicit for
employment any person who is or was employed by Company or any of its affiliated
companies for other employment or induce any employee or former employee to
terminate his or her employment with Company or such affiliate.
(c) Executive will not hold other employment or engage in any
other business activities without the prior written approval of the Company CEO.
Executive may
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only serve as an officer, director, trustee or committee member, or in any
similar position, of up to two (2) trade associations and religious, charitable,
educational, civic or other non-business organizations. Such service shall not
be undertaken unless and until Executive obtains the prior written approval of
the Company CEO, which will not be unreasonably withheld. Executive also may
fulfill obligations as trustee or executor of trusts and estates of his family.
The Executive represents and warrants to Company that he is now under no
contract or agreement, nor will he execute any contract or agreement, that will
in any manner interfere, conflict with or prevent him from performing his duties
under this Agreement, recognizing that his performance hereunder will require
the devotion of his full time and attention during and beyond regular business
hours, including extensive travel.
(d) If any provision of this Section is held to be unenforceable
because of the scope, duration or area of its applicability or otherwise, the
parties agree that this provision will be amended automatically to the maximum
scope, duration or area, or all of them, allowable under applicable law.
10. NOTICES. Any notices or other communications required to be given
pursuant to this Agreement shall be in writing and shall be deemed given: (i)
upon delivery, if by hand; (ii) three (3) business days after mailing, if sent
by registered or certified mail, postage prepaid, return receipt requested;
(iii) one (1) business day after mailing, if sent via overnight courier; or (iv)
upon transmission, if sent by telex or facsimile except that if such notice or
other communication is received by telex or facsimile after 5:00 p.m. on a
business day at the place of receipt, it shall be effective as of the following
business day. All notices and other communications hereunder intended for
Company shall be sent to 00 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxx, XX 00000 XXX,
Attention: President, with a copy at the same address to General Counsel (both
having facsimile telephone numbers of 000-000-0000), and for Executive to the
address shown on his weekly payroll check; provided, however, that either party
may change his or its address for receiving notices or may add persons to
receive copies of notices by providing written notice to the other party in the
manner provided in this section.
11. FULL AND COMPLETE AGREEMENT; AMENDMENT. This Agreement supersedes
any other understandings or agreements, whether written or oral, express or
implied, pertaining in any manner to the employment of Executive. This Agreement
may be modified only by a written instrument executed by both parties.
12. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the laws of the State of Rhode Island without reference to its
conflicts of laws provisions.
13. ARBITRATION. Notwithstanding the fact that the parties shall be
entitled to equitable relief in order to enforce certain provisions hereunder
(e.g., temporary restraining orders or injunctive relief), any dispute,
controversy or claim arising out of or relating to this Agreement, or the breach
hereof, shall be settled by arbitration in accordance with the "Commercial
Arbitration Rules" of the American Arbitration Association in effect on the
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date of this Agreement, except as varied below. The site of any such arbitration
shall be Providence, RI and any award shall be deemed to be a Providence, RI
award. There shall be a single arbitrator who shall be admitted to practice law
in Rhode Island, with no less than ten (10) years experience in the handling of
commercial or corporate matters or disputes. The arbitrator shall render a
written decision stating his reasons therefor, and shall render an award within
six (6) months of the request for arbitration, and such award shall be final and
binding upon both parties. Judgment upon the award rendered by the arbitrator
may be entered in any court of competent jurisdiction in any state of the United
States or application may be made to such court for a judicial acceptance of the
award and an enforcement, as the law of such jurisdiction may require or allow.
The substantive law to be applied to any case determined pursuant to this
Section 13 is that of the State of Rhode Island. The expense of arbitration
shall be borne by the respective parties except to the extent that the
arbitrator shall determine that the entire expense shall be borne by a single
party.
14. BINDING NATURE. This Agreement shall be binding upon and shall
inure to the benefit of the parties and their respective heirs, personal
representatives, successors and assigns.
IN WITNESS WHEREOF, Company and Executive have duly executed this
Agreement as of the day and year first written above.
BACOU USA, INC. EXECUTIVE
By: /s/ Xxxxxx Xxxxxx /s/ Philippe Bacou /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx Xxxxxx Philippe Bacou Xxxxxx X. Xxxxxx
Title: Co-Chairman, Co-Chairman
President and CEO
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