EMPLOYMENT AGREEMENT
dated as of November 3, 1997 by and between
Ty-Breakers Corp.
a New York Corporation, with its address at
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx-Xx-Xxxxxx
Xxx Xxxx 00000 (the "Company")
and Xxxxx Xxxxxxxx
whose residence address is
0 Xxxxxx Xxxxx, Xxxxx, X.X. 00000 (the "Employee")
(the "Agreement")
RECITAL:
The Company desires to secure the services of Employee,and Employee desires
to furnish services to the Company, on the terms and conditions set forth
in this Agreement.
AGREEMENT:
In consideration of the mutual promises contained in this
Agreement and other good and valuable consideration, the receipt
and sufficiency of which the parties acknowledge, the parties agree
as follows:
1. Employment Term. The Company agrees to employ Employee,
and Employee agrees to enter the Company's employment, for a period
of one year commencing on the third day of November, 1997 (the
"Employment Term").
2. Duties. During the Employment Term, the Company shall
employ Employee and Employee shall serve as the Company's National
Accounts Sales Manager. In such capacity, Employee shall be
responsible for the sales and marketing of the Company's Xxxxxx(r)
and Tyvek(r) jacket products to the retail stores identified in
Exhibit A hereto (the "Target Accounts"). Employee will be
responsible for direct selling to the Target Accounts and the
attendance at and management of the appropriate trade shows.
Employee also shall perform such other duties and exercise such
powers as the Company's President, Vice President of Sales or Board
of Directors may reasonably require.
3. Sole Employment. Employee agrees that his employment by the
Company as set forth herein shall be his sole employment and he
shall not perform any advisory, or in any other capacity, work for
any other individual, firm or company without the prior written
consent of the Company. The Company hereby consents to Xx.
Xxxxxxxx'x present and continued involvement in his personal
business project of selling a neon sign product to the Home
Shopping Network and other interested parties. Xx. Xxxxxxxx
warrants that his involvement in such project will not materially
detract from the time and attention he devotes to his duties under
this Employment Agreement. Other than the foregoing, Employee shall
devote all of his business time and attention to the Company's
business and affairs.
4. Compensation.
4.1 Salary. In consideration of the services to be
rendered by Employee, the Company agrees to pay Employee, and
Employee agrees to accept, an annual salary of $25,000 during the
Employment Term. In no year shall the Company decrease Employee's
salary prevailing at the end of the preceding year. The Company
shall pay Employee's salary in accordance with the Company's
regular payroll practices.
4.2 Bonus. In addition to the salary mentioned in
paragraph 4.1 above, for each of the Company's fiscal years that
fall, in whole or in part, within the Employment Term, the Company
shall, based upon the Company's net sales (i.e. exclusive of any
shipping and handling charges) to the Target Accounts for which
payment in full has been received by the Company as determined in
accordance with generally accepted accounting principles ("Net Paid
Target Sales"), pay Employee an annual bonus equal to a percentage
of $25,000 for such fiscal year, as follows:
the Company will pay Employee a bonus calculated by
multiplying $25,000 by a fraction rounded to the nearest
hundredth. The numerator of this fraction is the Company's Net
Paid Target Sales for such fiscal year rounded to the nearest
thousand dollars and the denominator is 1,000. For example; if
the Company had Net Paid Target Sales of $1,836,279 in its
1998 fiscal year, then the Employee's bonus for the 1998
fiscal year would be calculated as follows:
Bonus = 1,836 divided by 1,000 times $25,000
= 1.836 x $25,000
= 1.84 x $25,000
= $46,000
The Company shall pay each annual bonus on a quarterly
basis as such bonus accrues, within two months after the end of
each fiscal quarter. If the Employment Term begins on a day other
than the first day of the Company's fiscal year, the bonus for
fiscal years ending immediately after the beginning and the end of
the Employment Term shall be prorated. The Company and Employee
agree that the term Net Paid Target Sales means exclusively those
sales made to the prospective customers identified as Target
Accounts on Exhibit A attached to this Agreement and does not
include sales made to any other customer. Notwithstanding the
foregoing sentence, the Company and Employee recognize that, from
time to time, the Employee may sell a "custom" project to a
customer who may or may not be a Target Account and in such cases
the Company and Employee shall mutually agree upon Employee's
commission on such sale.
4.3 Stock Options. The Company is a wholly owned
subsidiary of Alfa International Corp., a publicly held New Jersey
corporation ("Alfa"). Employee shall, in accordance with the terms
and conditions of the "Alfa International Corp. 1987 Stock Option
Plan (the "Plan"), have the option to purchase up to 10,000 shares
of Alfa's $0.01 par value common stock (the "Alfa Common Stock")
during each year of the Employment Term, at an exercise price equal
to $1.00. Employee's right to purchase the aforesaid Alfa Common
Stock shall be governed by the terms and conditions of the Plan,
all of which are incorporated herein by reference.
5. Employee Benefits.
5.1 Insurance. During the Employment Term, the Company
shall, in accordance with the then prevailing Company policy, offer
to provide Employee with health insurance coverage under its group
policy, provided such group policy remains in force. If Employee
elects not to participate in such group policy, he shall execute
and deliver to the Company a certificate to that effect.
5.2 Other Benefits. The Company shall provide Employee
with any pension plan that the Company offers any of its executives
at any time during the Employment Term. The Company shall offer
such pension plan to Employee on the most favorable terms and under
the most favorable conditions as such plan is offered to any other
Company executive.
6. Expenses. The Company agrees to pay, or reimburse
Employee for, all travel, entertainment and other business expenses
properly incurred or expended by Employee in performing his duties
and responsibilities on behalf of the Company under this Agreement.
Employee agrees to provide proof of the expenses for which he seeks
reimbursement in accordance with the Company's present expense
reporting policies.
6.1 Home Office. The Company and Employee agree that
Employee will maintain an office in his residence from which
the Employee will conduct a large portion of his business
activities on behalf of the Company. The Company and Employee
acknowledge that the business expenses to be reimbursed to
Employee in accordance with this paragraph 6 shall include the
actual cost of telephone calls made by the Employee from his
home on behalf of the Company but shall not include any costs
associated with maintaining telephone lines nor any costs
(other than the actual costs of telephone calls) associated
with maintaining such home office. The Company will arrange
and pay for the installation of Tele-Magic Enterprise software
on Employee's computer in his home office. Such software and
all data (including, but not limited to, databases of customer
and potential customer lists and associated information)
provided therewith or subsequently added thereto during the
Employment Term, whether by the Company or Employee, shall at
all times be and remain the exclusive and proprietary property
of the Company. Employee shall return all such software and
data to the Company at the end of the Employment Term and
shall not make or retain any copies thereof at any time during
or after the Employment Term without the express written
permission of the Company. Employee specifically acknowledges
that all such software and data that he receives from the
Company or creates during the Employment Term is a part of the
"Confidential Information" described more fully in paragraph 9
of this Agreement.
7. Vacations. Employee shall be entitled to and shall
accrue vacation time at the rate of two weeks per year of the
Employment Term.
8. Termination of Employment / Agreement.
8.1 Cause The Company may terminate Employee's
employment for cause upon thirty days written notice if (i)
Employee is convicted, by a court of competent and final
jurisdiction, of any crime which constitutes a felony in the
jurisdiction involved, (ii) Employee commits any act of fraud
against or breaches a fiduciary obligation to the Company, (iii)
Employee shall incur any liability on the Company's behalf not in
the ordinary course of the Company's business (iv) the
representation contained in paragraph 10 of this Agreement is false
or (v) in the sole determination of the Company, Employee fails or
refuses in any respect to perform his duties under this Agreement,
including but not limited to, the Company's determination that
sales to the Target Accounts are insufficient. If the Company
terminates Employee's employment without cause, Employee shall be
entitled to receive the salary provided for in Paragraph 4.1, the
Bonus described in Paragraph 4.2, the Stock Options described in
Paragraph 4.3 and the benefits (to the full extent not disallowed
by the terms of their contracts) described in Paragraph 5 until the
end of the Employment Term.
8.2 Death or Permanent Disability. If, during the Employment
Term, Employee shall die or become permanently disabled (as defined
in sub paragraph 8.3) his Employment under this Agreement shall
terminate. In the event of Employee's death during the Employment
Term, the Company shall pay the personal representative of
Employee's estate the salary and bonus provided for in Paragraphs
4.1 and 4.2 through the end of the month after the month in which
Employee's death occurs. Thereafter this Agreement will
automatically terminate.
8.3 Disability. If, during the Employment Term, Employee
shall become physically or mentally disabled so as to be unable to
perform any of his material duties hereunder, he shall nonetheless
continue to receive his full salary (but not his bonus) for a
period of three months or any part thereof for any continuous
disability, less any amounts received by him from any disability
insurance policy then in effect for his benefit. At any time
subsequent to the expiration of such three month period, the
Company may cancel this Agreement upon ten days written notice to
the Employee.
No disability shall be deemed to exist until after the
Employee shall have been unable to perform any of his duties
hereunder for a period of thirty consecutive days, but if such
disability continues for sixty consecutive days, then the same
shall be deemed to have existed from the first day of such
disability.
If the Employee shall have been disabled and shall have
returned to work after the end of such disability, any new
disability commencing within ninety days of the termination of the
prior disability shall be deemed a continuation of the prior
disability, and the period of all such disabilities shall be added
together to determine the rights of the Employee and the Company
hereunder.
At the end of any temporary disability, Employee shall return
to work and this Agreement shall continue as though such disability
had not occurred, except where specifically provided to the
contrary herein. During any period of disability, Employee shall
not receive any allowance for expenses.
9. Non-Competition Covenant / Non-Disclosure. For a
period of one year after the termination (for any reason
whatsoever) or expiration of this Agreement, Employee shall not,
directly or indirectly, solicit or service any accounts, customers,
vendors, suppliers or other persons or entities with which Employee
or the Company has done business, negotiated or otherwise had
business dealings at any time during the three years prior to such
termination or expiration date. In the event of Employee's actual
or threatened breach of provisions of this paragraph, the Company
shall be entitled to any injunction restraining Employee therefrom.
Nothing contained herein shall be construed as prohibiting the
Company from pursuing any other available remedies for such breach
or threatened breach, including recovery of damages from Employee.
Employee's work for the Company will give Employee access to
"Confidential Information" about the Company and its products and
business affairs. For the purpose of this Agreement, "Confidential
Information" means all confidential or proprietary information
owned by the Company whether now existing or created by the
Employee or the Company during the Employment Term, including
without limitation all customer lists and pricing information, all
sales and marketing strategies, all inventions and discoveries, all
designs, techniques, methods, processes, know how, ideas and
concepts, all computer programs, records and files, all
manufacturing and cost data, and all other confidential or
proprietary information in any form, whether copyrighted,
copyrightable, or uncopyrightable, patented or unpatented,
patentable or unpatentable, and all patents, copyrights,
trademarks, trade secrets and other intellectual property rights.
Employee agrees that during the Employment Term and after the
termination or expiration of this Agreement, he will not use any
Confidential Information or disclose any Confidential Information
to anyone else except to the extent necessary to perform his duties
to the Company and Employee will take all measures reasonably
necessary to preserve and protect the confidentiality of, and to
avoid any violation of the Company's proprietary rights with
respect to, all Confidential Information. Employee hereby
acknowledges that the Company will be the sole owner of all
Confidential Information that Employee may create, develop, acquire
or learn after the commencement date of this Agreement and Employee
hereby assigns to the Company all right, title and interest that
Employee may acquire with respect to any Confidential Information
at any time after that date. Employee agrees not to make or
maintain any duplicate or back-up copies of any Confidential
Information and agrees to return all Confidential Information to
the Company within ten (10) days after the expiration or
termination of the Employment Term. Upon request, Employee will
execute any instrument or assignment that the Company reasonably
deems necessary to assign to the Company any rights that Employee
may acquire to any Confidential Information.
10. Representation.
Employee, in order to induce the Company to enter into and
perform this Agreement, hereby represents and
warrants to the Company that he is not a party to any contract,
agreement or understanding which prevents or prohibits, or with
notice or the passage of time or both, would prevent or prohibit
Employee from entering into this Agreement or fully performing all
of his obligations hereunder or which would be breached thereby.
11. Miscellaneous.
11.1 Assignment. This Agreement shall inure to the
benefit of and shall be binding upon the heirs and personal
representative of Employee and shall inure to the benefit of and be
binding upon the Company and its successors and assigns. However,
other than the fact that the Company may, in its sole discretion,
assign this Agreement in its entirety to Alfa, neither party may
assign, transfer, pledge, encumber, hypothecate or otherwise
dispose of this Agreement or any of its or his rights hereunder
without the prior written consent of the other party, and any such
attempt to assign (other than the Company assigning this Agreement
to Alfa), transfer, pledge, encumber or hypothecate without such
consent shall be null and void.
11.2 Governing Law; Jurisdiction; Venue. This Agreement
shall be governed by, and construed and enforced in accordance
with, the laws of the State of New York applicable to contracts
made and to be entirely performed therein and without regard to
principles of conflict of laws. Any litigation based hereon, or
arising out of, under or in connection with this Agreement shall be
brought and maintained exclusively in the courts of the State of
New York in Westchester County New York or in the United States
District Court for the Southern District of New York. Each of
Employee, the Company and Alfa hereby expressly and irrevocably
submit to the jurisdiction of the courts of the State of New York
in Westchester County New York and of the United States District
Court for the Southern District of New York for the purpose of any
such litigation set forth above. Each of the Employee, the Company
and Alfa hereby expressly and irrevocably waives, to the fullest
extent permitted by law, any objection which they have or hereafter
may have to the laying of venue of any such litigation brought in
any such court referred to above and any claim that any such
litigation has been brought in an inconvenient forum.
11.3 Attorney's Fees. If a dispute arises from this
Agreement, the prevailing party shall be entitled to collect its
reasonable costs and expenses, including reasonable attorneys'
fees, from the losing party.
11.4 Complete Agreement. This Agreement supersedes any
and all prior agreements and understandings between the parties,
whether written or oral, with respect to the Company's employment
of Employee and constitutes the complete understanding between the
parties with respect to the Company's employment of Employee. No
statement, representation, warranty or covenant made by either
party with respect to Employee's employment will be binding unless
expressly set forth in this Agreement. This Agreement may not be
altered, modified or amended except by written instrument signed by
each of the parties. Exhibit A attached hereto is incorporated
herein as if set forth in the body of this Agreement.
11.5 Counterparts. The parties may execute this
Agreement in counterparts, each of which shall constitute an
original, but all of which together shall constitute one and the
same instrument.
11.6 Headings. The paragraph headings of this Agreement
are for convenience of reference only and shall not expand, modify,
limit or define the text of this Agreement.
11.7 Notices. Unless otherwise specifically provided in
this Agreement, all notices, requests, consents, approvals,
agreements or other communications required or permitted to be
given under this Agreement shall be in writing and shall be
delivered in of the following means: (a) by hand; (b) by facsimile
transmission to those parties with fax numbers indicated below
(with subsequent written confirmation by another means in
compliance with this Section 11.7); (c) by registered or certified
mail, first class postage prepaid, return receipt requested; or (d)
by nationally recognized overnight courier, addressed to the
respective addresses of the parties as follows:
If to the Company:
Ty-Breakers Corp.
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx-xx-Xxxxxx, XX 00000
Fax: (000) 000-0000
ATT: President
If to Employee:
Xxxxx Xxxxxxxx
4 Hearth Court
Coram, N.Y. 11727
or to such other address as any party shall designate for himself
or itself by notice to the other parties given in accordance
herewith. Any such notice or other communication shall be deemed
to have been given or made (i) upon delivery, if delivered
personally, (ii) one (1) business day after transmission, if
delivered by facsimile transmission during normal business hours,
(iii) three (3) business days after mailing, if mailed, or (iv) one
(1) business day after delivery to the courier, if delivered by
overnight courier service.
11.8 Severability. In the event that any one or more of
the provisions of this Agreement shall be deemed to be invalid,
illegal or unenforceable in any respect, in whole or in part, the
validity, legality and enforceability of the remainder of the
provisions of this Agreement shall not in any way be affected.
11.9 Waivers. A written waiver, or successive written
waivers, by either party of any breach or default by the other
party of any of the terms and provisions of this Agreement, shall
not operate as a waiver, or custom of waiver, of any other breach
or default, whether similar to or different from the breach or
default waived. No waiver shall be effective unless in writing and
signed by the party to be charged.
Ty-Breakers Corp., Employee
a New York corporation
By By
Xxxxx X. Xxxxxx Xxxxx Xxxxxxxx
President
As to Paragraph 4.3 only,
Alfa International Corp.,
a New Jersey corporation
By
Xxxxx X. Xxxxxx
President
Exhibit A
List of Target Accounts
The Target Accounts consist of the 3,750 potential customers
named on those two certain listings ("Listings") of 1,402
Department Stores and 2,348 Specialty Stores which the Company
purchased from The Salesman's Guide and are identified thereon as
Job # 19364.
The Company has delivered the Listings to Employee concurrent
with the execution of this Employment Agreement by the parties
hereto.
The cover sheets of the Listings are attached hereto for
identification purposes.
Xxxxx Xxxxxxxx
0 Xxxxxx Xxxxx
Xxxxx, Xxx Xxxx 00000
November 3, 1997
Xx. Xxxxx X. Xxxxxx
Ty-Breakers Corp.
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X 00000
Dear Xxxxx,
This is to confirm to you that I have been made aware of and been
offered participation in the company's group medical insurance
plan.
At the present time I have my own coverage and therefore decline
to participate in such group coverage offered by the Company.
Should circumstances change and I wish to participate in the
future I will so inform you.
Best regards,
Xxxxx Xxxxxxxx
