Exhibit 10(aa)
EMPLOYMENT AGREEMENT
by
and
between
XXXXXXX OUTDOOR CORPORATION
and
XXXXX X. XXXXXXXX
dated
March 1, 1996
This EMPLOYMENT AGREEMENT (the "Agreement") made as of
March 1, 1996, by and between XXXXXXX OUTDOOR CORPORATION, a
Delaware corporation (the "Company"), located at 0000 Xxxxxxxxxx
Xxx, Xxxxxxxxxxx, Xxxxxxx 00000, and XXXXX X. XXXXXXXX
("Employee").
ARTICLE I
TERMINATION AND WAIVER
The parties hereto hereby acknowledge and agree that,
upon the execution and delivery of this Agreement, any and all
previous agreements between the Company and Employee relating to
Employee's employment with the Company (the "Prior Agreements"),
shall be and hereby are terminated and superseded, and this
Agreement supersedes and replaces all prior Agreements in all
respects. Each of the parties hereto releases the other party from
any and all liabilities or obligations arising under or relating to
the Prior Agreements, and each of the parties hereto waives any
breach or default by the other party under the Prior Agreements
occurring prior to the date hereof.
ARTICLE II
EMPLOYMENT
Section 2.1 Employment. The Company shall employ
Employee, and Employee shall serve at the Company's direction,
initially as President of the Company, subject to the right of the
Company to change the position and duties of Employee, during the
Employment Term (as defined in Section 2.2). The Employee shall
perform such services primarily at the Company's principal place of
business.
Section 2.2 Term. The initial term of Employee's
employment under Section 2.1 of this Agreement (the "Employment
Term") shall commence on March 1, 1996 and shall be a period of one
(1) year, unless sooner terminated pursuant to the provisions of
Article V, and will automatically be extended one day for each day
worked until the Employee's 64th birthday.
Section 2.3 Employee Responsibilities. Employee agrees
to perform the responsibilities of his position to the best of his
ability. In the discharge of his duties on behalf of the Company,
Employee shall be subject to the direction of the Chief Executive
Officer of Xxxxxx International, Inc. or his designee. Any change
in Employee's position, duties or place of employment shall not
affect the provisions of this Agreement unless the Employee and
Company mutually agree in writing to modify the Agreement.
ARTICLE III
COMPENSATION
Section 3.1 Base Salary. During the Employment Term,
the Company shall pay to Employee, in installments in accordance
with the Company's regular payroll practices, a salary of not less
than $161,250.00 per annum (the "Salary").
Section 3.2 Incentive Compensation. Employee will
participate in the company's Management Incentive Plan with an
annual target bonus of 45% of base salary. Participation in any
long term incentive plan, including stock options, will be provided
on the same basis as other similarly situated employees reporting
to the Chief Executive Officer of Xxxxxx International, Inc.
ARTICLE IV
ADDITIONAL BENEFITS
Section 4.1 Vacation. During the Employment Term,
Employee will be entitled to paid vacation and sick leave in
accordance with the Company's regular policies as applicable to
management personnel.
Section 4.2 Benefit Plans. During the Employment Term,
Employee will be entitled to participate, on a basis comparable to
that on which other management personnel of the Company
participate, in any insurance, medical, disability or similar plan
and in any pension plan, savings plan or other benefit plan
provided by the Company, or established hereafter for the benefit
generally of the employees of the Company, including management
employees. In addition, Employee shall be entitled to participate
in the Exec-U-Care Plan.
The Company will provide membership dues reimbursement
for the Golden Eagle Country Club. Employee will be provided an
automobile and the Company will pay all covered insurance,
maintenance, fuel, oil and related operational expenses for such
automobile all in accordance with Company policy. Employee will be
provided an annual physical examination and a financial/tax
consultant for personal financial and tax planning.
ARTICLE V
TERMINATION OF EMPLOYMENT
Section 5.1 Termination Date. The "Termination Date"
for Employee's employment with the Company shall be the earliest
of:
(a) the date upon which the Company has given notice
pursuant to Section 5.2 of this Agreement if Employee's employment
with the Company is terminated by the Company for cause;
(b) the last day of the month in which Employee has
died;
(c) the date selected by Employee pursuant to Section
5.3 of this Agreement; or
(d) the date upon which the Company has given notice
pursuant to Section 5.5 of this Agreement if Employee's employment
with the Company is terminated by the Company for disability;
(e) the date upon which the Company has given notice to
Employee if Employee's employment is terminated for any reason not
specified in subsection (a) through (d) of this section.
Section 5.2 Termination For Cause. For the purposes of
this Agreement, "cause" shall be defined as any of the following
acts by Employee: (a) embezzlement or misappropriation of Company
funds; (b) fraud against, or disloyalty to, the Company; (c)
intentional or reckless misconduct resulting in material injury or
damage to the Company; (d) competition with the Company; (e)
willful disclosure of trade secrets; (f) a breach or threatened
breach of this Agreement for a period of thirty (30) days after
written notice by the Company to the Employee of such breach and
the failure of the Employee to cure such breach within such period;
or (g) willful refusal to carry out the policies and directives of
the Chief Executive Officer of Xxxxxx International, Inc. or his
designee if said refusal persists for one (1) month after the Chief
Executive Officer gives written notice to Employee requesting him
to end such refusal. Upon termination for cause, the Company shall
pay to Employee only that portion of Employee's Salary which has
accrued to Employee to the date of termination but which has not
been paid.
Section 5.3 Termination By Employee. Employee shall
have the right to terminate his employment with the Company at any
time upon providing written notice to the Company sixty (60) days
prior to the Termination Date selected by Employee, who shall be
entitled to all benefits available to employees who are not
terminated for cause; provided, however, that Employee shall not be
entitled to such benefits, except for those provided by law, if any
fact or circumstance exists which would allow the Company to
terminate Employee for cause on the Notice Date (as defined in
Section 8.1 of this Agreement).
Section 5.4 Termination by Employer. The Employer shall
have the right to terminate Employee's employment under this
Agreement at any time during the Term (i) by giving a written
Notice of Termination for cause, (ii) if Employee becomes Disabled,
(iii) upon Employee's death, or (iv) for any reason not set out in
clauses (i) through (iii). If the Company terminates Employee's
employment under this Agreement pursuant to any of clauses (i)
through (iii) of this Section, the Company's obligations under this
Agreement shall cease as of the date of termination; provided,
however, that if Employee's employment terminates as a result of
death or Disability, the benefits payable under this Agreement and
the other benefit plans of the Company upon Employee's death or
Disability shall be provided by the Company. If the Company
terminates Employee during the Term of this Agreement pursuant to
clause (iv) of this Section, Employee shall be entitled to receive
severance payments, including benefits plus earned but unpaid
incentive compensation, for the twelve consecutive months following
termination. Each of the twelve payments will be equal to the
monthly base salary Employee earned during the month immediately
preceding termination.
Section 5.5 Disability. The Company may terminate
Employee's employment by giving notice of termination to Employee
during a period of disability, but such termination shall not
affect the right, if any, of Employee to payments under any long or
short term disability plan in which Employee is a participant;
provided, however, that the Company may offset any salary amounts
payable to Employee by the amount of any long or short term
benefits provided pursuant to a Company-sponsored plan or from
Company that Employee receives before the Termination Date.
Notwithstanding the foregoing, if the Company seeks to terminate
Employee because he is disabled, it shall first secure, and
Employee shall cooperate in securing, a competent medical opinion
regarding such termination. For purposes of this Agreement,
Employee shall be considered "disabled" if, due to physical or
mental impairment, he is unable to perform his duties hereunder for
a continuous period of sixty (60) days.
ARTICLE VI
COVENANTS OF EMPLOYEE
Section 6.1. Non-Competition. During the term of this
Agreement and for a period of two (2) years following termination
of Employee's employment with the Company, Employee shall not,
anywhere in the United States of America, Canada or Mexico, engage
in any business that is competitive to the Company (the
"Business"), for his own account, or enter the employ of, or render
any services to, any individual, corporation, partnership, firm,
joint venture, association, joint stock company, trust,
unincorporated organization, governmental or regulatory body or
other entity (a "Person"), engaged in the Business (other than the
Company), or become affiliated with any Person engaged in the
Business (other than the Company) in any capacity, including,
without limitation, as an individual, partner, shareholder,
officer, director, principal, agent, trustee, lender or a
consultant; provided, however, that Employee may own, directly or
indirectly, solely as an investment, securities of any Person
(other than the Company) engaged in the Business traded on any
national securities exchange or over-the- counter exchange if
Employee is not a controlling person of or a member of a group
which controls, such Person, and Employee does not, directly or
indirectly, own five percent (5%) or more of any class of
securities of such Person.
Section 6.2 Non-Solicitation. During the term of this
Agreement and for a period of three (3) years following termination
of Employee's employment with the Company, Employee shall not hire
or solicit any employees of the Company or any Person that
controls, is controlled by, or is under common control with the
Company (an "Affiliate"), to work for any other Person then in
competition with the Company or Xxxxxx International, Inc.'s
manufacturing companies, or, directly or indirectly, solicit or
attempt in any manner to persuade or influence any present, future
or prospective customer or client of the Company or Xxxxxx
International, Inc. or to divert his or its purchases of products
from the Company or Xxxxxx International, Inc. or to any Person
then in competition with the Company or Xxxxxx International, Inc.
Section 6.3 Confidentiality. During the Employment
Term, and for all times thereafter, Employee shall not, directly or
indirectly, make known, divulge, furnish or reveal to any Person
any documents or information concerning trade secrets and other
proprietary and confidential business information, including, but
not limited to, formulae, patterns, devices, secret inventions,
processes, unique business methods, sales, pricing techniques,
operating and production costs, distribution networks and contacts,
operating techniques and practices, corporate financial
information, customer requirements, customer and supplier lists,
customer locations and purchase histories, and financial data and
other confidential matters relating to the Company, any Affiliate
of the Company, or any customer of the Company (the "Confidential
Information"), or any knowledge of Confidential Information, except
to the extent that the disclosure of such information can be shown
to have been: (i) necessary to carry out Employee's employment
responsibilities under this Agreement; (ii) previously known by the
party to which it was furnished; (iii) in the public domain or
otherwise available or known to the general public through no fault
of Employee; (iv) lawfully acquired by the party to which it was
furnished from other sources not bound by a confidentiality
obligation with respect to such information; or (v) furnished to
other persons by the Company, its agents or employees on a non-
confidential basis; or (vi) independently developed by Employee's
employees or agents who did not have access to such information; or
(vii) compelled by law or judicial or administrative process to be
disclosed.
Section 6.4 Acknowledgment and Agreement. Employee
acknowledges and agrees that the geographical and temporal
restrictions contained in this Agreement are reasonable and valid
in all respects. Employee further acknowledges and agrees that the
Confidential Information is secret and not known in the industry,
has been developed by the Company through substantial expenditures
of time, effort, and money, gives the Company an opportunity to
obtain an advantage over competitors who do not know or use the
Confidential Information, is a valuable, special and unique asset
as to make it reasonable and necessary for the Company to protect
and preserve its confidentiality and secrecy, and the disclosure of
which would cause substantial injury and loss of profits and
goodwill to the Company and the Company will be deprived of the
benefit of its bargain unless the Confidential Information is
protected. Employee warrants and represents that he has reviewed
the covenants herein contained and will use his best efforts to
honor them in every respect.
ARTICLE VII
RIGHTS AND REMEDIES UPON BREACH
If Employee breaches or threatens to commit a breach of
any of the provisions of this Agreement, the Company shall have the
following rights and remedies, each of which rights and remedies
shall be independent of the others and severally enforceable, and
each of which is an addition to, and not in lieu of, any other
rights and remedies available to the Company at law or in equity
(including the right to recover damages):
(a) the right and remedy to have this Agreement
specifically enforced by any court of competent jurisdiction, it
being agreed that any breach or threatened breach of this Agreement
would cause irreparable harm to the Company and that money damages
would not provide an adequate remedy to the Company;
(b) the right and remedy to require Employee to
account for and pay over to the Company all compensation, profits
or other benefits derived or received by Employee or lost to the
Company as a result of any actions constituting a breach of this
Agreement;
(c) the right to terminate Employee's employment
for cause under Section 5.2 of this Agreement; and
(d) the right to recover from Employee all costs of
enforcing this Agreement, including, but not limited to, reasonable
attorneys' and expert witness' fees and expenses, court or
arbitration costs, and reporting fees.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Notices. All notices, requests, demands,
consents, and other communications, required or permitted
hereunder, shall be in writing and shall be delivered personally or
mailed by certified or registered mail (return receipt requested),
postage prepaid, provided that any notice delivered by certified or
registered mail shall also be delivered by facsimile at the time of
such delivery. When such facsimile is sent, notices shall be
deemed given upon dispatch of such facsimile. If the notice is
delivered personally, it shall be deemed given when delivered. The
date upon which notice is deemed given is herein referred to as the
"Notice Date." All communications hereunder shall be delivered to
the respective parties at the following addresses (or to such other
person or at such other address for a party as shall be specified
by like notice, provided that notices of a change of address shall
be effective only upon receipt thereof):
(a) If to the Company, Employee shall send notice
in the manner specified above to Xxxxxxx Outdoor Corporation, c/x
Xxxxxx International, Inc., 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxx 00000 (Facsimile 334-271-8177) Attention: Chief Executive
Officer.
(b) If to Employee, the Company shall send notice
in the manner outlined above to the home address set forth for
Employee on the personnel records of the Company. (Facsimile 918-234-3455)
Section 8.2 Assignment. This Agreement shall be binding
upon and shall inure to the benefit of, and be enforceable by, all
successors and assigns; provided, however, that this Agreement may
not be assigned by either party, without the prior written consent
of the other. In the event that the Company shall (with the
consent of the Employee) assign or otherwise transfer or convey
this Agreement, Employee shall continue to perform, on behalf of
such successor transferee or assignee, the services required of
Employee hereunder.
Section 8.3 Dispute Resolution Procedure. Subject to
the Company's rights under Article VII, if a dispute arises under
this Agreement which cannot be resolved by the personnel directly
involved, either party may invoke the dispute resolution procedure
set forth in this Section 8.3 by giving written notice to the other
party. The Company shall designate an executive officer or agent
with appropriate authority to be its representative in negotiations
relating to the dispute in any notice which it delivers to Employee
and which invokes this dispute resolution procedure. Upon the
receipt by the Company of notice from the Employee which invokes
this dispute resolution procedure, the Company shall, within five
(5) business days, designate an executive officer with appropriate
authority to be its representative. Employee and the executive
officer designated by the Company shall, following whatever
investigation each deems appropriate, promptly enter into
discussions concerning the dispute. If the dispute is not resolved
as a result of such discussions, then the parties agree that an
attempt will be made to resolve the matter by a formal nonbinding
mediation with an independent neutral mediator agreed to by the
parties. If the parties cannot agree on the mediator within a
period of thirty (30) days, then the Center for Public Resources in
New York, New York shall be asked to select a mediator and the
parties agree to be bound by this choice and to enter into a
mediation procedure with that mediator. Upon commencement of the
mediation process, the parties shall promptly through counsel
communicate with respect to procedure and schedule for the conduct
of the proceeding and for the exchange of documents and other
information related to the dispute. The place of mediation shall
be Atlanta, Georgia.
Section 8.4 Arbitration. Inasmuch as Employee is a
senior Executive of the Company whose responsibilities entail
matters in interstate commerce, any and all disputes between the
parties arising under this Agreement which are not resolved in
accordance with the provisions of Section 8.3 above (subject to the
Company's rights under Article VII), shall be conclusively
determined by final and binding arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association then obtaining by one or more arbitrators selected in
accordance with such rules. Judgment upon the award rendered by
the arbitrator(s) may be entered in any court having jurisdiction
thereof. The place of arbitration shall be Atlanta, Georgia.
Section 8.5 Applicable Law. This Agreement shall be
construed under and governed by the laws of the State of Florida.
Section 8.6 Severability. In case any one or more of
the provisions of this Agreement shall be found to be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
Section 8.7 Entire Agreement. This Agreement represents
the entire agreement between the parties and may be amended,
modified, or superseded only by a written agreement signed by both
of the parties.
Section 8.8 Counterparts. This Agreement may be
executed simultaneously and in any number of counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 8.9 Board Authority. All matters hereunder are
committed to the discretion of the Board of Directors, which shall
have final authority on the interpretation and application of this
Agreement. In exercising its discretion, however, the Board of
Directors will give every consideration to the interests of
Employee as well as to those of the Company.
Section 8.10. Inventions. Employee shall disclose fully
to the Company any and all inventions which he shall conceive or
make during his period of employment by the Company and all
inventions which he shall conceive or make during the period of six
months after the term of his employment with the Company that are
in whole or in part the result of his work with the Company. Such
disclosure is to be made promptly after the conception of each
invention, and the inventions are to become and remain the property
of the Company, whether or not patent applications are filed
thereon. Upon request and at the expense of the Company, Employee
is to make application through the patent lawyers of the Company
for letters patent of the United States and any and all other
countries at the discretion of the Company on such inventions and
to assign all such applications to the Company or its order
forthwith, all without additional payment during his period
employment by the Company and for reasonable compensation for time
actually spent by the employee at such work at the request of the
Company after the termination of the employment. Employee is to
give the Company and its lawyers all reasonable assistance in
preparing and prosecuting such applications and, on request of the
Company, to execute all papers and do all things that may be
reasonably necessary to protect the right of the Company and vest
in it or its assigns the inventions, applications, and letters
patent herein contemplated.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
XXXXXXX OUTDOOR CORPORATION
By__________________________________
Its Chairman of the Board
__________________________________
XXXXX X. XXXXXXXX
