EXHIBIT 10(r)
EMPLOYMENT AGREEMENT
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AGREEMENT made this 29th day of February, 1996, by and
between UNITED INDUSTRIAL CORPORATION, a Delaware corporation having
an address at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter called "Employer"), and XXXXX X. XXXXX (hereinafter called
"Employee").
W I T N E S S E T H :
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In consideration of the mutual covenants hereinafter
contained, the parties hereto agree as follows:
1. Employment. Employer agrees to employ Employee and
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Employee agrees to serve Employer upon the terms and conditions
hereinafter set forth.
2. Term. The employment of Employee hereunder shall be
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effective and shall commence on December 1, 1995 (the "Effective
Date") and shall terminate as of the close of business on the date two
(2) years after the Effective Date (the "Termination Date"). The
period from the Effective Date through the Termination Date is
referred to as the term of this Agreement.
3. Duties and Extent of Services. Employee agrees to serve
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Employer and its subsidiary companies faithfully and to the best of
his ability under the direction of the Board of Directors
and President of Employer, devoting his entire business time, energy
and skill to his duties hereunder. The principal place of employment
of Employee shall be at the offices of Employer which are currently
located in New York, New York. Employee understands and agrees,
however, that in connection with his employment hereunder, he may be
required from time to time to travel on behalf of Employer. If the
principal place of employment of the Employee shall change because of
a change in Employer's offices to a location which is more than 50
miles from the offices presently located in New York, New York, the
Employee shall have the option to terminate this Agreement by sending
written notice of termination to Employer, and thereupon his
employment pursuant to this Agreement shall terminate and Employee
shall be entitled to no further payments hereunder, other than (i) for
any compensation due pursuant to Section 4 hereof through the date of
such termination, (ii) the reimbursements pursuant to Section 9
hereof, of any expenses incurred prior to the date of such
termination, and (iii) the continuation of Employee's base salary and
employee benefits pursuant to Sections 4(a) and (b) hereof for a
period of six (6) months from the date of such termination, but not
beyond the Termination Date.
The principal duties of Employee shall be to serve as
Treasurer and Chief Financial Officer of Employer and, in such
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capacity, to render such managerial, administrative and other services
to Employer and its subsidiaries as normally are associated with and
incident to such positions as Employer from time to time may require
of him. If, during the term of this Agreement, the Board of Directors
of Employer so determines, in its absolute discretion, to elect
Employee to any additional office of Employer or its subsidiary
companies consistent with his position, or a director of its
subsidiary companies, Employee agrees to accept and serve in such
office or capacity, as well as a director of Employer, for no addi-
tional compensation or remuneration.
4. Compensation.
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(a) Salary. Employer agrees to pay to Employee, as
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compensation for all of the services to be rendered by Employee under
or pursuant to this Agreement, a salary at the rate of one hundred and
twenty-five thousand dollars ($125,000) per annum, commencing as of
the Effective Date, payable in accordance with Employer's normal
payroll practices. Such salary shall be subject to annual review by
Employer's Board of Directors and, at the discretion of the Board, may
be increased, but not decreased below such amount. Employee shall
also be eligible to receive annual discretionary bonuses as may be
granted by Employer's Board of Directors.
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(b) Employee Benefit Plans. During the term of this
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Agreement, Employee shall be eligible to participate in any life
insurance, medical, retirement, pension or profit-sharing, disability
or other benefit plans or arrangements now or hereafter generally made
available by Employer to executive employees of Employer to the extent
Employee qualifies under the provisions of any such plans. Subject to
the foregoing, Employer shall have the right to change insurance
companies and modify insurance policies covering employees of
Employer.
(c) Vacation. Employee shall be entitled to four (4)
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weeks vacation with pay per year.
(d) Taxes. Employee understands that any and all
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payments described in this Agreement will be subject to such tax
treatment as applies thereto, and to such withholding as may be
required under applicable tax laws.
5. No Competition. Employee agrees that during the term of
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this Agreement he will not, within the continental United States,
directly or indirectly, engage or participate or make any financial
investments in or become employed by or render advisory or other
services to or for any person, firm or corporation, or in connection
with any business activity, other than that of Employer and its
subsidiary companies, directly or indirectly in competition with any
of the business operations or activities of Employer and its
subsidiary companies. Nothing herein contained,
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however, shall restrict Employee from making any investments in any
company whose stock is listed on a national securities exchange or
actively traded in the over-the-counter market, so long as such
investment does not give him the right to control or influence the
policy decisions of any such business or enterprise which is or might
be directly or indirectly in competition with any of such business
operations or activities of Employer or any of its subsidiary
companies.
6. Confidentiality; etc.
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(a) Employee will not divulge, furnish or make
accessible to anyone (other than in the regular course of business of
Employer or any of its subsidiary companies) any knowledge or
information with respect to confidential or secret methods, processes,
plans or materials of Employer or any of its subsidiary companies, or
with respect to any other confidential or secret aspects of the
business of Employer or any of its subsidiary companies.
(b) Employee agrees to communicate and to make known
to Employer all knowledge possessed by him relating to any methods,
developments, inventions and/or improvements, whether patented,
patentable or unpatentable which concerns in any way the business of
Employer or any of its subsidiary companies or the general industry of
which they are a part, from the time of entering upon employment until
the termination thereof, and
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whether acquired by Employee before or during the term of his
employment; provided, however, that nothing herein shall be construed
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as requiring any such communication where the method, development,
invention and/or improvement is lawfully protected from disclosure as
the trade secret of a third party, including, without limitation, any
former employer of Employee or by any other lawful bar to such
communication.
(c) Any methods, developments, inventions and/or
improvements, whether patentable or unpatentable, along the lines of
the business of Employer or any of its subsidiary companies, which
Employee may conceive of or make while in the employ of Employer,
shall be and remain the property of Employer. Employee agrees
promptly to communicate and disclose all such methods, developments,
inventions and/or improvements to Employer and to execute and deliver
to Employer any instruments deemed necessary by Employer to effect
disclosure and assignment thereof to it. Employee further agrees, on
request of Employer, to execute patent applications based on such
methods, developments, inventions and/or improvements, including any
other instruments deemed necessary by Employer for the prosecution of
such patent applications or the acquisition of Letters Patent in the
United States and/or any foreign countries.
(d) Employee agrees that for a period of three (3)
years from and after the termination or expiration of his
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employment by Employer, whether pursuant to the terms of this
Agreement or otherwise, he will not:
(i) directly or indirectly solicit, raid, entice
or induce any employee of Employer or of any of its subsidiary
companies to be employed by any person, firm or corporation which is,
directly or indirectly, in competition with the business or activities
of Employer or any of its subsidiary companies; or
(ii) directly or indirectly approach any such
employee for these purposes; or
(iii) authorize or knowingly approve the taking of
such actions by other persons on behalf of any such person, firm or
corporation, or assist any such person, firm or corporation in taking
such action; or
(iv) directly or indirectly solicit, raid, entice
or induce any person, firm or corporation (other than the U.S.
Government or its agencies) who or which on the date hereof is, or at
any time during the period of employment hereunder shall be, a
customer of Employer or of any of its subsidiary companies to become a
customer for the same or similar products which it purchased from
Employer or any of its subsidiary companies, of any other person, firm
or corporation, and Employee shall not approach any such customer for
such purpose or autho-
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rize or knowingly approve the taking of such actions by any other
person.
(e) Employee agrees that during the term of his
employment by Employer, whether under this Agreement or otherwise, he
will not at any time enter into, on behalf of Employer or any of its
subsidiary companies, or cause Employer or any of its subsidiary com-
panies to enter into, directly or indirectly, any transactions with
any business organization in which he or any member of his immediate
family may be interested as a partner, trustee, director, officer,
employee, shareholder, lender of money or guarantor.
7. Injunctive Relief. Employee acknowledges that the
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services to be rendered by him hereunder are of a special, unique and
extraordinary character and that it would be very difficult or
impossible to replace such services and further that irreparable
injury would be sustained by Employer and its subsidiary companies in
the event of a violation by Employee of any of the provisions of this
Agreement, and by reason thereof Employee consents and agrees that if
he violates any of the provisions of this Agreement, Employer shall be
entitled to an injunction to be issued by any court of competent
jurisdiction restraining him from committing or continuing any
violation of this Agreement.
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8. Survival of Provisions. The provisions of Sections 5, 6
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and 7 hereof shall survive the termination or expiration of this
Agreement, irrespective of the reason therefor.
9. Expenses. Employer shall reimburse Employee for all
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reasonable expenses properly incurred by him on behalf of Employer in
the performance of his duties hereunder, provided that proper vouchers
are submitted to Employer by Employee evidencing such expenses and the
purposes for which the same were incurred.
10. Disability. If Employee shall be incapacitated by
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reason of mental or physical disability or otherwise during the term
of this Agreement so that he is prevented from performing his
principal duties and services hereunder for a period of three (3)
consecutive months or one or more periods aggregating three (3) months
during any twelve (12) month period, Employer shall have the right to
terminate this Agreement by sending written notice of termination to
Employee, and thereupon his employment pursuant to this Agreement
shall terminate and Employee shall be entitled to no further payments
hereunder, other than (i) for any compensation due pursuant to Section
4 hereof through the date of such termination, (ii) the reimbursement,
pursuant to Section 9 hereof, of any expenses incurred prior to the
date of such termination, and (iii) the continuation of Employee's
base salary and employee benefits pursuant to Sections 4(a) and (b)
hereof
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for a period of six (6) months from the date of such termination, but
not beyond the Termination Date or the date on which Employee shall
commence to receive benefits pursuant to Employer's long term
disability plan, as then in effect.
11. Death. In the event of the death of Employee during
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the term hereof, this Agreement shall automatically terminate and
Employer shall have no further obligations hereunder, other than to
pay to Employee's estate any compensation due pursuant to Section 4
hereof through the date of such termination and to reimburse, pursuant
to Section 9 hereof, any expenses incurred by Employee through the
date of such termination.
12. Termination by Employer for Cause. Employer shall have
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the right to terminate the employment of Employee under this Agreement
as well as any and all payments to be made hereunder, other than for
any compensation due pursuant to Section 4 hereof through the date of
such termination and any reimbursement, pursuant to Section 9 hereof,
of expenses incurred by Employee through the date of such termination,
if Employee shall commit any of the following acts of default:
(i) Employee shall have committed any material
breach of any of the provisions or covenants set forth herein; or
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(ii) Employee shall have committed any act of
gross negligence in the performance of his duties or obligations
hereunder; or
(iii) Employee shall have committed any material
act of dishonesty or breach of trust against Employer or any of its
subsidiary companies; or
(iv) Employee's conviction of, or plea of nolo
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contendere to, a felony.
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If Employer elects to terminate this Agreement as set forth
above, Employer shall send written notice to Employee terminating this
Agreement and describing the action of Employee constituting the act
of default, and thereupon no further payments of any type shall be
made or shall be payable to Employee hereunder notwithstanding any
other provisions of this Agreement, except as set forth in the first
sentence of this Section 12.
13. No Conflicting Agreements. Employee represents and
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warrants that he is not a party to any agreement, contract or
understanding, whether employment or otherwise, which would in any way
restrict or prohibit him from undertaking or performing employment in
accordance with the terms and conditions of this Agreement.
14. Entire Agreement. This Agreement sets forth the entire
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understanding of the parties with respect to the subject matter
hereof, and no statement, representation, warranty or
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covenant has been made by either party except as expressly set forth
herein. This Agreement shall not be changed or terminated orally.
This Agreement supersedes and cancels all prior agreements between the
parties, whether written or oral, relating to the employment of
Employee.
15. Applicable Law. This Agreement shall be governed by,
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construed and enforced in accordance with the laws of the State of New
York, without regard to its conflict of laws principles.
16. Notices. All notices, requests, demands and other
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communications hereunder shall be in writing and shall be deemed to
have been duly given if personally delivered, telecopied or mailed,
first class, postage prepaid, certified mail, return receipt
requested, to each of the parties at its or his address above written
or as set forth beneath their signatures below or at such other
address or telecopy number as either of the parties may designate in
conformity with the foregoing.
17. Section Headings. The section headings set forth in
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this Agreement are for convenience only and shall not be considered as
part of this Agreement in any respect nor shall they in any way affect
the substance of any provisions contained in this Agreement.
18. Successors and Assigns. This Agreement shall not be
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assignable by Employee. All of the terms and provisions of
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this Agreement shall be binding upon and inure to the benefit of and
be enforceable by the respective heirs and personal representatives of
Employee and the successors and assigns of Employer.
19. Severability. If, at any time subsequent to the date
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hereof, any provision of this Agreement shall be held by any court of
competent jurisdiction to be illegal, void or unenforceable, such
provision shall be of no force and effect, but the illegality or
unenforceability of such provision shall have no effect upon and shall
not impair the enforceability of any other provisions of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement as of the day and year first above written.
UNITED INDUSTRIAL CORPORATION
By: /s/XXXXXXX X. XXXXXXXX
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Name: XXXXXXX X. XXXXXXXX
Title: PRESIDENT
/s/ XXXXX X. XXXXX
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XXXXX X. XXXXX
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