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Exhibit 3
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered as of the 14th day of April, 2000, by and
between Brunswick Technologies, Inc. (hereinafter referred to as the
"Corporation") [as to Xxxxxxx Xxx, his employment is with Brunswick Technologies
Europe, Ltd., but references to "the Corporation" include Brunswick
Technologies, Inc. relative to termination and change of control matters] and
[ name ] (hereafter referred to as the "Executive").
WHEREAS, the Executive has heretofore been employed as [______________
title]; and
WHEREAS, it is essential to the best interests of the Corporation to
xxxxxx the continuous employment of key management personnel. The Corporation,
through its Board of Directors, recognizes that the possibility of a change in
control of the Corporation exists and that such possibility, and the uncertainty
and questions which it may raise among senior management, may result in the
departure or distraction of senior management personnel to the detriment of the
Corporation and the Corporation's stockholders; and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Corporation and its stockholders that the Corporation execute
this Agreement, to induce Executive to remain in the employ of the Corporation
and devote his full time and efforts to the affairs of the Corporation; and
WHEREAS, the Executive is unwilling to continue in the employment of
the Corporation if this Agreement is not executed; and
WHEREAS, the parties therefore desire by this writing to set forth the
employment relationship of the Corporation and the Executive.
NOW, THEREFORE, it is AGREED as follows:
1. RECITATIONS ACCURATE; EMPLOYMENT.
(a) The above recitations are accurate.
(b) The Executive is employed as [_________________ title]. The
Executive shall render administrative and management services to the Corporation
such as have been historically performed by him. He shall also promote, to the
extent permitted by law, the business of the Corporation. The Executive's other
duties shall be such as the Board of Directors may from time to time reasonably
direct and which are customarily performed by persons situated in a similar
executive capacity, including normal duties as an officer of the Corporation.
2. BASE SALARY. The Corporation agrees to pay the Executive
during the term of this Agreement compensation in the amount of $_______ per
annum annual basis to be paid on a weekly basis ("Base Salary"); provided, that
the rate of such salary shall be
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reviewed by the Compensation Committee of the Board of Directors of the
Corporation not less often than annually and may be increased, but not
decreased.
3. DISCRETIONARY BONUSES. The Executive shall be entitled to
participate in an equitable manner with all other senior management personnel of
the Corporation or its subsidiaries in discretionary bonuses authorized and
declared by the Compensation Committee of the Board of Directors of the
Corporation to its senior management executives. No other compensation provided
for in this Agreement shall be deemed a substitute for the Executive's right to
participate in such discretionary bonuses when and as declared by the
Compensation Committee of the Board of Directors.
4. (a) PARTICIPATION IN RETIREMENT AND MEDICAL PLANS. The
Executive shall be entitled to participate in any employee benefit plan of the
Corporation relating to pension, profit sharing, retirement, health insurance,
medical reimbursement or other employee benefit plans that the Corporation may
adopt for the benefit of its executives and, at Executive's option, for other
employees, consistent with the terms and conditions of such employee benefit
plans.
(b) EXECUTIVE BENEFITS; EXPENSES. The Executive shall be
eligible to participate in any fringe benefits which may be or become applicable
to the Corporation's executive employees including without limitation
participation in any stock option or incentive plans adopted by the Boards of
Directors, life or disability insurance, a reasonable expense account, and any
other benefits which are commensurate with the responsibilities and functions to
be performed by the Executive under this Agreement and in any event, no less
than equivalent to such benefits as have historically been available to the
Executive. The Corporation shall promptly reimburse Executive for all reasonable
out-of-pocket expenses which Executive shall incur in connection with his
services for the Corporation or its subsidiaries. In addition, the Executive
shall have the right to avail himself of such vacation, sick leave and other
benefits provided by personnel policies or otherwise, from time to time in
effect for other senior management personnel of the Corporation, and in any
event no less than equivalent to such benefits as have historically been
available to Executive.
5. EMPLOYMENT TERM. The initial term of employment under this
Agreement shall be for the one year period commencing April 14, 2000 and ending
April 13, 2001 and on each annual anniversary date from the date of commencement
of this Agreement the term of employment shall automatically be extended for an
additional one year period beyond the then effective expiration date unless
written notice from the Corporation or the Executive is received not less than
90 days prior to an anniversary date advising the other party that this
Agreement shall not be further extended (the "Employment Term"); provided,
however, that if the Effective Date of a Change in Control, as defined in
Section 9(a), occurs after such written notice has been given by Corporation,
but before the end of the Employment Term, Executive shall be entitled to the
Extended Employment Term and other provisions of Section 9 without regard to
such notification.
6. LOYALTY; NONCOMPETITION.
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(a) The Executive shall devote his full business time to the
performance of his employment under this Agreement. During the Employment Term
the Executive shall not engage in any business or activity contrary to the
business affairs or interests of the Corporation or any of its subsidiaries.
(b) Nothing contained in this Paragraph 6 shall be deemed to
prevent or limit the right of Executive to invest in the capital stock or other
securities of any business dissimilar from that of Employer, or, solely as a
passive or minority investor, in any business.
(c) In the event the Executive elects to terminate this
Agreement during the Window Period after a Non-Hostile Change in Control
pursuant to Section 9(d)(ii)(B)(II), for a period of eighteen (18) months (the
"Non-Compete Period"), Executive will not directly or indirectly engage in
activities similar or reasonably related to those in which Executive shall have
engaged hereunder during the Employment Term for, nor render services similar or
reasonably related to those which Executive shall have rendered hereunder during
the Term to, any person or entity whether now existing or hereafter established
which competes with (or has proposed or has specific plans to compete with) the
Corporation (as determined in good faith by the Board, which determination shall
be conclusive, a "Direct Competitor") in any line of business engaged in or
under development by the Corporation; nor shall Executive entice, induce or
encourage any of the Corporation's other employees to engage in any activity
which, were it done by Executive would violate any provision hereof. As used in
this Section the term "any line of business engaged in or under development by
the Corporation" shall be applied as at the Termination Date (as hereinafter
defined). No provision hereof shall be construed to preclude Executive from
performing the same services which the Corporation hereby retains Executive to
perform for any person or entity which is not a Direct Competitor of the
Corporation so long as Executive does not thereby violate any of the terms
hereof.
(d) Executive acknowledges that the restrictions contained
in this Section 6 correctly set forth the understanding of the parties at the
time this Agreement is entered into, are reasonable and necessary to protect the
legitimate interests of the Corporation, and that any violation will cause
substantial injury to the Corporation. In the event of any such violation, the
Corporation shall be entitled, in addition to any other remedy, to preliminary
or permanent injunctive relief. If any court having jurisdiction shall find that
any part of the restrictions set forth in this Agreement are unreasonable in any
respect, it is the intent of the parties that the restrictions set forth herein
shall not be terminated, but that this Agreement shall remain in full force and
effect to the extent (as to time periods and other relevant factors) that the
court shall find reasonable.
7. STANDARDS. The Executive shall perform his duties under this
Agreement in accordance with such reasonable standards expected of executives
with comparable positions in comparable organizations as may be established from
time to time by the Corporation's Board of Directors. The Corporation will
provide Executive with the
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working facilities and staff customary for similar executives and necessary for
him to perform his duties.
8. TERMINATION AND TERMINATION PAY.
The Executive's employment under this Agreement shall be terminated
upon the following occurrences:
(a) The death or permanent disability of the Executive
during Employment Term, in which event the Executive or the Executive's estate
or his designated beneficiary shall be entitled to receive the compensation
payable to the Executive hereunder for a one year period following his date of
death or permanent disability. For the purposes of this Agreement, "permanent
disability" means a physical or mental infirmity which impairs the Executive's
ability to substantially perform his duties under this Agreement, with or
without reasonable accommodation, which continues for a period of at least one
hundred eighty (180) consecutive days ("Disability");
(b) The Corporation reserves the right to terminate this
Agreement at any time for Just Cause. Termination for "Just Cause" shall mean
termination for conviction of the Executive of a felony involving a crime of
moral turpitude, deliberate dishonesty to the Corporation involving substantial
material personal profit, or gross and willful failure to perform stated duties
after written notice from the Board of Directors detailing with specificity any
such failures and providing a reasonable opportunity to cure any such failures,
to the extent they are curable. Subject to the provisions of Section 9 hereof,
in the event this Agreement is terminated for Just Cause, the Corporation shall
only be obligated to continue to pay the Executive his Base Salary up to the
date of termination for Just Cause;
(c) Executive's employment under this Agreement may be
terminated at any time by a decision of the Board of Directors of the
Corporation, without Just Cause, upon ninety (90) days written notice to the
Executive. For the purposes of this Agreement, in the event the stockholders
approve a plan of complete liquidation of the Corporation or an agreement for
the sale or disposition by the Corporation of all or substantially all of its
assets, the Agreement shall be deemed terminated without Just Cause. In the
event Executive's employment under this Agreement is terminated by the Board of
Directors without Just Cause, as defined above, the Corporation shall be
obligated to continue to pay the Executive his Base Salary and "other
compensation" due under this Agreement up to the later of (i) the date of
termination of the Employment Term of this Agreement , (ii) 12 months from the
date of such termination. "Other compensation" as defined herein shall include
(i) the Executive's pro rata share of any discretionary bonuses that would have
been otherwise payable to the Executive had he remained employed through the
Employment Term, (ii) payment by the Corporation of the costs to continue any
medical insurance under COBRA for eighteen (18) months following termination or
to the maximum extent permissible under COBRA, and (iii) an amount equal to the
value of any benefits Executive would have received pursuant to
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Section 4(b) had he remained an employee during the one year period following
termination;
(d) The Executive may terminate his employment for "Good
Reason." For purposes of this Agreement, "Good Reason" shall mean (i) a change
in the Executive's status, title, position or responsibilities (including
reporting responsibilities) which, in the Executive's reasonable judgment,
represents an adverse change from his status, title, position or
responsibilities as in effect immediately prior thereto; (ii) the assignment to
the Executive of any duties or responsibilities which, in the Executive's
reasonable judgment, are inconsistent with his status, title, position or
responsibilities; (iii) any removal of the Executive from or failure to
reappoint or reelect him to any of such offices or positions as he currently
holds (including Director of the Corporation), except in connection with the
termination of his employment for death, disability, Just Cause, or by the
Executive other than for Good Reason; (iv) a reduction in the Executive's Base
Salary or any failure to pay the Executive any compensation or benefits to which
he is entitled within five days of the date due; (v) a failure to increase the
Executive's Base Salary at least annually at a percentage of Base Salary no less
than the average of the percentage increases (other than increases resulting
from the Executive's promotion) granted to the Executive during the three full
years ended prior to the year of termination (or such lesser number of full
years during which the Executive was employed); (vi) the Corporation's requiring
the Executive to be based at any place outside a 00-xxxx xxxxxx xxxx Xxxxxxxxx,
Xxxxx, except for reasonably required travel on the Corporation's business;
(vii) the failure by the Corporation to (A) continue in effect (without
reduction in benefit level, and/or reward opportunities) any material
compensation or employee benefit plan in which the Executive was participating
immediately prior thereto, unless a substitute or replacement plan has been
implemented which provides substantially identical compensation or benefits to
the Executive or (B) provide the Executive with compensation and benefits, in
the aggregate, at least equal (in terms of benefit levels and/or reward
opportunities) to those provided for under each other compensation or employee
benefit plan, program and practice as in effect at any time within ninety (90)
days preceding such failure; (viii) the insolvency or the filing (by any party,
including the Corporation) of a petition for bankruptcy of the Corporation; (ix)
any material breach by the Corporation of any provision of this Agreement; (x)
any purported termination of the Executive's employment for Just Cause by the
Corporation which does not comply with the terms of Section 8(c) hereof; or (xi)
the failure of the Corporation to obtain an agreement, satisfactory to the
Executive, from any successor or assign of the Corporation to assume and agree
to perform this Agreement, as contemplated in Section 10(a) hereof. In the event
the Executive terminates his employment under this Agreement for Good Reason, as
defined above, the Corporation shall be obligated to continue to pay the
Executive his Base Salary and "other compensation" due under this Agreement up
to the later of (i) the date of termination of the Employment Term of this
Agreement or, (ii) 12 months from the date of such termination. The Executive's
right to terminate his employment pursuant to this Section 8(d) shall not be
affected by his incapacity due to physical or mental illness.
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(e) The Executive may voluntarily terminate his employment
hereunder at any time without Good Reason, upon ten (10) days written notice.
9. CHANGE IN CONTROL.
(a) Notwithstanding anything herein to the contrary, an
"Extended Employment Term" shall commence on the first date on which a Change in
Control occurs (the "Effective Date"). The Extended Employment Term shall be for
a period of three years in the event of a Hostile Change in Control and two
years in the event of a Non-Hostile Change in Control. The Extended Employment
Term shall automatically be extended for a one year period beyond the expiration
date unless written notice from the Corporation or the Executive is received not
less than ninety (90) days prior to the expiration date of the Extended Term,
advising the other party that this Agreement shall not be further extended.
(b) Notwithstanding anything contained herein to the
contrary, if the Executive's employment is terminated prior to the Effective
Date and the Executive reasonably demonstrates that such termination occurred in
connection with, or in anticipation of, a Change in Control, then for all
purposes the Effective Date shall mean the date immediately prior to the date of
such termination.
(c) The Extended Employment Term shall:
(i) In the event of a Hostile Change in Control (as
defined in Section 10(b) below) commence on the Effective Date and continue for
a period of three (3) years from the Effective Date and for such additional
annual periods as it is automatically extended as provided in Section 9(a); or
(ii) In the event of a Non-Hostile Change in Control
(as defined in Section 10(c) below) commence on the Effective Date and continue
for a period of two (2) years from the Effective Date and for such additional
annual periods as it is automatically extended as provided in Section 9(a).
(d) During the Extended Employment Term:
(i) In the event of a Hostile Change in Control:
A. In addition to other amounts payable hereunder, if
the Executive remains employed with the Corporation through the first
anniversary of the Effective Date, the Corporation shall pay to the Executive a
Special Bonus (the "Special Bonus") in recognition of Executive's services
during the crucial one-year transition period following the Change in Control,
in cash equal to the sum of (i) Executive's base salary at the highest rate in
effect at any time subsequent to the 90th day prior to the Effective Date, and
(ii) the annual bonus paid or payable to the Executive for the most recently
completed fiscal year during the Extended Employment Term. The Special
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Bonus shall be paid in cash within thirty (30) days from the date of expiration
of the first anniversary of the Effective Date.
B. If the Executive's employment with the
Corporation shall be terminated (other than by reason of death), (x) by the
Corporation other than for Just Cause or Disability, or (y) by the Executive for
Good Reason, the Executive shall be entitled to the following:
I. the Corporation shall pay the Executive
all accrued compensation;
II. the Corporation shall pay the Executive
as severance pay in a single payment an
amount in cash equal to three times the
sum of the Executive's "base amount" as
defined in Section 280G(b)(3) of the
Internal Revenue Code of 1986, as
amended (the "Code"), less one dollar,
provided, however, that if the Special
Bonus has been paid to the Executive
pursuant to Section 9(d)(i)(A) above,
the multiplier of "three" above shall
be decreased to "two."
(ii) In the event of a Non-Hostile Change in
Control:
A. The Executive
may within a period commencing on
the Effective Date and ending six
(6) months thereafter (the "Window
Period"), elect to terminate this
Agreement by written notice to the
Corporation given within five (5)
days prior to the last day of the
Window Period.
B. If the
Executive's employment with the
Corporation shall be terminated
(other than by reason of death), (1)
by the Corporation other than for
Just Cause or Disability, (2) by the
Executive for Good Reason or (3) by
the Executive within the Window
Period, the Executive shall be
entitled to the following:
I. The Corporation shall pay the Executive
all accrued compensation and
II. The Corporation shall pay the Executive
as severance pay in a single payment an
amount in cash equal to the greater of
(x) the total compensation payable
under this Agreement from
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the date of termination through the
date of expiration of the Extended Term
(including any extensions thereof) or
(y) the total compensation that would
be payable under this Agreement
assuming the Extended Employment Term
expired eighteen (18) months after the
date of termination. However, and only
in the event the Executive elects to
terminate this Agreement during the
Window Period other than for Good
Reason the compensation payable to
Executive under this Section 9(d)(ii)B
shall be payable ratably for an 18
month period in consideration of
Executive's agreement not to compete
with the Corporation during said period
as provided in Section 6(c) above.
(e) In addition to payment of amounts due to Executive
pursuant to Sections (9)(d)(i)(A) or 9(d)(ii)(B) above, if the Executive's
employment with the Corporation shall be terminated (other than by reason of
death), (1) by the Corporation other than for Just Cause or Disability, (2) by
the Executive for Good Reason or (3) by the Executive within the Window Period,
(as provided in Section 9(d)(ii)(A) above):
(i) The Corporation shall (x) pay to the Executive the costs
to continue any medical insurance under COBRA for
eighteen (18) months following termination, or to the
maximum extent permissible under COBRA, and (y) an
amount equal to the value of any benefits Executive
would have received pursuant to Section 4(b) had he
remained an employee during the two year period
following termination. This Section shall not be
interpreted so as to limit any benefits to which the
Executive, his dependents or beneficiaries may be
entitled under any of the Corporation's employee benefit
plans, programs or practices following the Executive's
termination of employment, including without limitation,
retiree medical and life insurance benefits;
(f) The amounts provided for in Sections 9(a) through (e)
shall be paid within five (5) days after the Executive's Termination Date.
(g) The Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Executive in any subsequent employment.
(h) In the event that any payments or benefit (within the
meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended
(the "Code")), to the Executive or for his benefit paid or payable or
distributed or distributable pursuant to
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the terms of this Agreement or otherwise in connection with, or arising out of,
his employment with the Company or of a substantial portion of its assets (a
"Payment" or "Payments"), would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are incurred by the Executive with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
the Executive will be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of all taxes
(including any interest or penalties, other than interest and penalties imposed
by reason of the Executive's failure to file timely a tax return or pay taxes
shown due on his return, imposed with respect to such taxes and the Excise Tax),
including any Excise Tax imposed upon the Gross-Up Payment equal to the Excise
Tax imposed upon the Payments.
(i) An initial determination as to whether a Gross-Up
Payment is required pursuant to this Agreement and the amount of such Gross-Up
Payment shall be made at the Corporation's expense by an accounting firm
selected by the Corporation and reasonably acceptable to the Executive which is
designated as one of the five largest accounting firms in the United States (the
"Accounting Firm"). The Accounting Firm shall provide its determination (the
"Determination"), together with detailed supporting calculations and
documentation to the Corporation and the Executive within five days of the
Termination Date if applicable, or such other time as requested by the
Corporation or by the Executive (provided the Executive reasonably believes that
any of the Payments may be subject to the Excise Tax) and if the Accounting Firm
determines that no Excise Tax is payable by the Executive with respect to a
Payment or Payments, it shall furnish the Executive with an opinion reasonably
acceptable to the Executive that no Excise Tax will be imposed with respect to
any such Payment or Payments. Within ten days of the delivery of the
Determination to the Executive, the Executive shall have the right to dispute
the Determination (the "Dispute"). The Gross-Up Payment, if any, as determined
pursuant to this Section 9(i) shall be paid by the Corporation to the Executive
within five (5) days of the receipt of the Accounting Firm's Determination. Upon
the final resolution of a Dispute, the Corporation shall promptly pay to the
Executive, any additional amount required by such resolution. If there is no
Dispute, the Determination shall be binding, final and conclusive upon the
Corporation and the Executive subject to the application of Sections 9(h) above
and 9(j) below. Nothing in this Section alters or impairs the rights of the
Executive under Sections 9(h) and 9(j), which shall control over this
Subsection.
(j) Notwithstanding anything contained in this Agreement to
the contrary, in the event that, according to the Determination, an Excise Tax
will be imposed on any Payment or Payments, the Corporation shall pay to the
applicable government taxing authorities as Excise Tax withholding, the amount
of the Excise Tax that the Corporation has actually withheld from the Payment or
Payments.
10. DEFINITIONS.
(a) CHANGE IN CONTROL. A "Change in Control" shall mean
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an acquisition (other than directly from the Corporation) of any voting
securities of the Corporation (the "Voting Securities") by any "Person" (as the
term person is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), immediately after which
such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of twenty-five percent (25%) or more of the
combined voting power of the Corporation's then outstanding Voting Securities;
provided, however, in determining whether a Change in Control has occurred,
Voting Securities which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an acquisition which would cause a
Change in Control; and provided further that an acquisition for these purposes
shall be deemed to include a merger or consolidation of the Corporation with any
other corporation, other than a merger or consolidation which would result in
the Voting Securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 60% of the number of
outstanding securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation. A "Non-Control Acquisition"
shall mean an acquisition by (i) an employee benefit plan (or a trust forming a
part thereof) maintained by (A) the Company or (B) any corporation or other
Person of which a majority of its voting power or its voting equity securities
or equity interest is owned, directly or indirectly, by the Corporation (for
purposes of this definition, a "Subsidiary") (ii) the Corporation or its
Subsidiaries, or (iii) any Person in connection with a "NonHostile Change in
Control" (as hereinafter defined).
(b) HOSTILE CHANGE IN CONTROL. A "Hostile Change in Control"
shall mean a Change in Control which has not been approved by at least two
thirds of the Incumbent Board at or before the earlier of (i) a public
announcement by any Person, whether before or after execution of this Agreement,
of the intention to obtain a sufficient number of Voting Securities as would
upon their acquisition constitute a Change in Control or (ii) upon a Change in
Control.
(c) NON-HOSTILE CHANGE IN CONTROL. A Change in Control
which has been approved by at least two-thirds of the Incumbent Board and is not
a Hostile Change in Control.
(d) INCUMBENT BOARD. Those individuals who, as of April 17,
2000, are members of the Board, shall be considered members of the "Incumbent
Board";
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provided, however, that if the election, or nomination for election by the
Corporation's common stockholders, of any new director was approved by a vote of
at least two-thirds of the Incumbent Board, such new director shall, for
purposes of this Plan, be considered as a member of the Incumbent Board;
provided further, however, that no individual shall be considered a member of
the Incumbent Board if such individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest.
(e) TERMINATE OR TERMINATION DATE. The date upon which
employment of the Executive is effective for any reason under this Agreement,
whether such termination is voluntary or involuntary, for Just Cause or Good
Reason, or effected by death or Disability.
11. SUCCESSORS AND ASSIGNS.
(a) This Employment Agreement shall inure to the benefit of
and be binding upon any corporate or other successor of the Corporation which
shall acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets of the Corporation, and the
Corporation shall require any successor or assign to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Corporation would be required to perform it if no such succession or assignment
had taken place. The term "Corporation" as used herein shall include such
successors and assigns.
(b) Since the Corporation is contracting for the unique and
personal skills of the Executive, the Executive shall be precluded from
assigning or delegating his rights or duties hereunder without first obtaining
the written consent of the Corporation.
12. APPLICABLE LAW. This Agreement and the rights and obligations
of the parties hereunder shall be governed by the laws of the State of Maine
without giving effect to the conflict of law principles thereof. Any action
brought by any party to this Agreement shall be brought and maintained in a
court of competent jurisdiction in the State of Maine.
13. SEVERABILITY. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.
14. FEES AND EXPENSES; INDEMNIFICATION. The Corporation shall pay
all legal fees and related expenses (including the costs of experts, evidence
and counsel) incurred by the Executive as they become due as a result of (a) the
Executive's termination of employment (including all such fees and expenses, if
any, incurred in contesting or disputing in good faith any such termination of
employment) or; (b) the Executive's
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seeking to obtain or enforce any right or benefit provided by this Agreement or
by any other plan or arrangement maintained by the Corporation under which the
Executive is or may be entitled to receive benefits; or (c) otherwise under or
relating to this Agreement, or relating to Executive's employment by the
Corporation. The Corporation shall also, to the greatest extent possible under
applicable law and not prohibited by the Corporation's bylaws, indemnify and
hold Executive harmless from all loss, liability and expense from all claims, of
whatever kind or nature, that arise in connection with or otherwise relate to
his employment by the Corporation, excluding only claims arising from
Executive's gross negligence or knowing and intentional malfeasance. Executive's
rights and remedies under this Section are in addition to, and shall not limit,
any other rights or remedies Executive may have against the Corporation,
including without limitation rights or remedies under the Corporation's bylaws
or applicable law.
15. NOTICE. For the purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when personally delivered or sent by certified
mail, return receipt requested, postage prepaid, addressed to the respective
addresses last given by each party to the other, provided that all notices to
the Corporation shall be directed to the attention of the Board with a copy to
the Secretary of the Corporation. All notices and communications shall be deemed
to have been received on the date of delivery thereof or on the third business
day after the mailing thereof, except that notice of change of address shall be
effective only upon receipt.
16. NON-EXCLUSIVITY OF RIGHTS.Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Corporation
or any of its subsidiaries and for which the Executive may qualify, nor shall
anything herein limit or reduce such rights as the Executive may have under any
other agreements with the Corporation or any of its subsidiaries. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any plan or program of the Corporation or any of its subsidiaries shall be
payable in accordance with such plan or program, except as explicitly modified
by this Agreement.
17. SETTLEMENT OF CLAIMS. The Corporation's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, defense, recoupment, or other right which
the Corporation may have against the Executive or others.
18. MISCELLANEOUS. No provision of this Agreement may be amended,
modified, waived or discharged unless such amendment, waiver, modification or
discharge is agreed to in writing and signed by the Executive and the
Corporation. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreement or representations, oral or
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otherwise, express or implied, with respect to the subject matter hereof has
been made by either party which is not expressly set forth in this Agreement.
19. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto and supersedes all prior agreements, if
any, understandings and arrangements, oral or written, between the parties
hereto with respect to the subject matter hereof.
20. INDEPENDENT ADVICE. Executive hereby acknowledges that he has
been advised of the opportunity available to him to seek and obtain advice of
legal counsel and financial advisors of his own choosing prior to and in
connection with Executive's execution of this Agreement. In addition Executive
hereby affirms that he has either obtained such advice or knowingly and
willingly decided to forego the opportunity to avail himself of such advice.
21. ARBITRATION.
(a) To the fullest extent permitted by law, all contractual
disputes between Executive, his attorneys, personal representatives and assigns,
and the Corporation, its shareholders, directors, officers, employees, agents,
successors, attorneys and assigns, arising under this Agreement (the "Arbitrable
Claims") shall be resolved by arbitration, with the exception of any action for
equitable relief to enforce the non-competition restrictions pursuant to Section
6 hereof.
(b) Arbitration of Arbitrable Claims shall be in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association, as amended ("AAA Rules"), as augmented by this
Agreement. Any demand for arbitration shall specify the claims asserted and the
facts upon which the claims are based. Arbitration shall be final and binding on
the parties and shall be the exclusive remedy for all Arbitrable Claims. All
arbitration hearings under this Agreement shall be conducted in Portland, Maine.
All parties shall have the rights of discovery permitted under the AAA Rules.
THE PARTIES WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY WITH REGARD TO
ARBITRABLE CLAIMS, INCLUDING THE EXISTENCE OF AN AGREEMENT TO ARBITRATE.
(c) All disputes involving Arbitrable Claims shall be
decided by a single arbitrator. The arbitrator shall apply the terms of this
Agreement, without modifying them in any respect.
(d) All proceedings and all documents prepared in connection
with any Arbitrable Claim shall be confidential and, unless otherwise required
by law, the subject matter thereof shall not be disclosed to any person other
than the parties, their counsel, witnesses and experts, the arbitrator, and, to
the extent involved, a court and court staff. The parties consent to all
arbitration and court orders necessary to implement this provision.
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(e) This Section and Sections 6 and 15 shall survive
termination of the Executive's employment and the expiration of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first herein above written.
BRUNSWICK TECHNOLOGIES, INC.
By:
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Xxxxx X. Xxxxxxxx, Chairman of the
Independent Committee of the Board of
Directors
WITNESS:
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Executive
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