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Exhibit 10.1(k)
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT has been entered into this 19th day of September, 1996
between XXXXX INC., a Delaware Corporation (the "Company"), and Xx. Xxxxx
Xxxxxxx (the "Executive"). Executive is employed as Chairman and Chief Executive
Officer of the Company, the Company desires to assure the benefit of Executive's
future services, and Executive is willing to commit to render such services,
upon the terms and conditions set forth below.
It is therefore mutually agreed as follows:
1. Employment. The Company agrees to employ Executive in an executive
capacity, and Executive agrees to serve the Company, upon the terms and
conditions and for the period of employment hereinafter set forth.
Throughout the Employment Period (as hereinafter defined), unless
otherwise agreed in writing by Executive and the Company, the Company
shall neither demote Executive nor assign to Executive any duties or
responsibilities that are inconsistent with his present position, duties,
responsibilities and status, provided that a removal of Executive by the
Board of Directors of the Company shall entitle the Company to renounce
Executive's services to be rendered, the position, duties,
responsibilities and status, but not any obligation of the Company
resulting from this Agreement which otherwise will remain in force.
Executive agrees, subject to meeting his responsibilities as Chairman of
the German Employers' Association (Prasident der Bundesvereinigung der
deutschen Arbeitgeberverbande) or his responsibilities in a comparable
office as permitted under Section 12 of this Agreement, that during the
Employment Period (as hereinafter defined) he will devote substantially
all of each regularly scheduled work day of the Company and substantially
all of his efforts to the business of the Company.
2. Employment Period. The term of Executive's employment under this Agreement
shall commence as of January 1, 1997, and shall expire, subject to the
earlier termination of Executive's employment as hereinafter provided, on
December 31, 2001 (the "Employment Period").
3. Compensation. Throughout the Employment Period, the Company shall pay or
provide Executive with the following, and Executive shall accept the same,
as compensation for the performance of his undertakings and the services
to be rendered by him under this Agreement:
(a) A salary at a rate of not less than US-Dollar 450,000 per year
payable not less often than monthly.
(b) Participation in the Company's 1990 Bonus Plan as long as such plan
remains in effect, and participation in any future incentive
compensation or other bonus plan covering the Company's executive
officers.
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(c) Participation in the Company's employee benefit plans, policies,
practices and arrangements in which Executive is presently eligible
to participate or plans and arrangements substituted therefore or in
addition thereto, including the individual retirement benefit as
restated in Appendix A attached to this agreement, and savings plan,
health and dental plan, disability plan, survivor income and life
insurance plan or other arrangement (collectively, the "Benefit
Plans"). In the event Executive at any time during the Employment
Period is not eligible to participate in any Benefit Plan for which
Executive was previously eligible or the Company terminates or
materially amends any Benefit Plan, the Company shall provide to
Executive benefits comparable with those benefits that would have
been received by Executive if Executive continued to participate in
such Plans.
(d) Paid vacations in accordance with the Company's vacation policy as
in effect from time to time, and all paid holidays given by the
Company to its executive officers.
(e) All fringe benefits and perquisites including without limitation the
use of an automobile and the payment by the Company of initiation
fees and dues for country clubs, luncheon clubs, or similar
facilities in accordance with the Company's policy presently in
effect.
4. Expenses. During the Employment Period, the Company shall promptly pay or
reimburse Executive for all reasonable expenses incurred by Executive in
the performance of duties hereunder.
5. Conditions of Employment. Throughout the Employment Period,
(a) the Company shall provide an office to Executive the location and
furnishings of which shall be equivalent to or better than the
office Executive occupies on the date of this Agreement, and
(b) the Company shall provide secretarial services and other
administrative services to Executive which shall be equivalent to or
better than the secretarial services and other administrative
services provided to Executive on the date of this Agreement.
Throughout the Employment Period the Company shall only require or assign
duties to Executive to be performed within the United States of America
during those periods of time for which Executive has obtained a valid work
permit from the Immigration Service of the United States of America.
During those times when the Executive has not obtained a valid work
permit, payments with respect to the compensation in accordance with
section 3 of this Agreement will be made by Xxxxx-Sundstrand GmbH & Co., a
partnership established under the laws of the Federal Republic of Germany.
6. Continuation of Compensation and Benefits. If the Company shall fail to
observe or perform any covenant or agreement contained in this Agreement
to be observed or performed by the Company or if the Company renounces
Executive's services pursuant to section 1 of this Agreement, then
Executive shall until such time as Executive's Employment Period hereunder
would otherwise terminate pursuant to the provisions of section 2 or
section 7 of this Agreement, continue to receive all compensation and
benefits which the Company has hereinabove in section 3 of this Agreement
agreed
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to pay to and provide for Executive, in each case in the amounts and at
the times provided for in section 3 of this Agreement. The parties agree
that, in such event, such payments and benefit shall be deemed to
constitute liquidated damages for the Company's breach of this Agreement,
and the Company agrees that Executive shall not be required to mitigate
his damages by seeking other employment or otherwise.
7. Termination. This Agreement shall terminate upon the following
circumstances:
(a) The date of death of Executive during the Employment Period;
provided, however that Executive's estate, heirs and beneficiaries
shall be entitled to receive the full amount of his salary for the
month in which death occurs and all other benefits available to them
under the Company's Benefit Plans as in effect on the date of death
of Executive;
(b) the date as of which the Executive elects to terminate this
Agreement and to start receiving his individual retirement benefit
provided for in section 3(c);
(c) following conviction of Executive of a felony, the date as of which
Executive's right to file an appeal after conviction has expired,
or, if Executive files an appeal after conviction, the date as of
which the appellate court fails to reverse the conviction, and the
Company shall pay Executive his full salary through such date of
termination and the Company shall have no further obligations to
Executive under this Agreement except with respect to any rights
Executive might otherwise have under the Company's Benefit Plans as
in effect on the date of termination of Executive; or
(d) the date as of which the Company elects to terminate this Agreement
in accordance with section 10 of this Agreement.
8. Covenant Not to Compete. Without the consent of the Company, Executive
shall not at any time during the Employment Period undertake employment as
an owner, director, officer, employee or consultant with any business
entity directly engaged in the manufacture and/or sale of products
competitive with any material product or product lines of the Company or
any of its subsidiaries; provided, however, that Executive shall not be
deemed to have breached this undertaking if his sole relation with such
entity consists of his holding, directly or indirectly, an equity interest
in such entity not greater than two percent (2%) of such entity's
outstanding equity interest. For purposes hereof the term "material
product or product line of the Company" shall mean any product or product
line of the Company or any of its subsidiaries the gross sales of which
during any calendar year during the five (5) year period preceding the
Executive's undertaking such employment were at least $10 million.
9. Disclosure of Confidential Information. Without the consent of the
Company, Executive shall not at any time during the Employment Period
disclose to any other business entity confidential information concerning
the Company or any of its subsidiaries or the Company's or any of its
subsidiaries' trade secrets of which Executive has gained knowledge during
his employment with the Company.
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10. Breach of Section 8 or Section 9. In the event of a breach by Executive of
the provisions of section 8 or section 9 of this Agreement, the Company
may terminate this Agreement under section 7(c), but only if the Company
complies with the following provisions:
(a) The Company shall provide Executive with written notice of its
belief that a breach of section 8 or section 9 of this Agreement has
occurred and shall afford Executive sixty (60) days or such longer
period as the Company may determine to cure the alleged breach.
(b) In the event Executive does not cure the breach, the Company shall
be required to institute a judicial proceeding to determine whether
a breach of section 8 or section 9 of this Agreement has occurred
and Executive has not cured such breach.
(c) This agreement may then be terminated only upon a judicial
determination that Executive has breached the provisions of section
8 or section 9 of this Agreement and has failed to cure such breach;
provided, however, that this Agreement may not be terminated until
either all appellate proceedings have been exhausted or the time
within which Executive may appeal an adverse ruling has expired.
11. Litigation Expenses. The Company shall pay to Executive all out-of-pocket
expenses, including attorney's fees incurred by Executive in connection
with any claim or legal action or proceeding brought under or involving
this Agreement, whether brought by Executive or by or on behalf of the
Company or by another party; provided, however, the Company shall not be
obligated to pay to Executive out-of-pocket expenses, including attorney's
fees, incurred by Executive in any claim or legal Agreement if the Company
prevails in such litigation.
12. Office at the German Employers' Association. Executive holds the office as
chairman of the German Employers' Association (Prasident der
Bundesvereinigung der deutschen Arbeitgeberverbande) since December 1986.
The Company approves that Executive continues to hold this office or any
other office comparable to this office during the Employment Period. The
decision to continue the existing office or to enter a comparable new
office is at the sole discretion of Executive.
13. Notices. Notices given pursuant to this Agreement shall be in writing and
shall be deemed given when received and if mailed shall be mailed by
United States registered or certified mail, return receipt requested,
addressee only, postage prepaid if to the Company, to the Board of
Directors of Xxxxx Inc., Attention President and Chief Operating Officer,
0000 Xxxx 00xx Xxxxxx, Xxxx, Xxxx 00000, U.S.A., or if to Executive, at
Xxxxxxxxxxxxx 00, 00000 Xxxx, Xxxxxxx Xxxxxxxx of Germany or to such other
address as either party may have previously designated by notice to the
other party given in the foregoing manner.
14. Successors. This Agreement may not be assigned by the Company, and the
obligations of the Company provided for in this Agreement shall be binding
legal obligations of any successor to the Company by purchase, merger,
consolidation, or otherwise. This Agreement may not be assigned by
Executive during his life, and upon his death will be binding upon and
inure to the benefit of his heirs, legatees and the legal representatives
of his estate.
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15. Waiver, Modification and Interpretation. No provision of this Agreement
may be modified, waived or discharged unless such waiver, modification or
discharge is agreed to in a writing signed by Executive and an appropriate
officer of the Company empowered to sign same by the Board. No waiver by
either party at any time of any breach by the other party of, or
compliance with, any condition or provision of this Agreement to be
performed by the other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same time or at any prior or
subsequent time. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State
of Iowa. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
16. Headings. The headings contained herein are for reference purposes only
and shall not in any way affect the meaning or interpretation of any
provision of this Agreement.
IN WITNESS WHEREFORE, the parties hereto have executed this agreement on the day
and year first written above.
XXXXX INC
By: /s/ Xxxxx Xxxxxxx
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By: /s/ X X Xxxxxxx
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