EXHIBIT 10(a)(i)
EMPLOYMENT AGREEMENT
This AGREEMENT, made as of March 12, 1999 by and between
ONEIDA LTD., a New York corporation (the "Employer") and XXXXX
XXXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, the Employer has entered into an Asset Purchase
Agreement with XXXXXX AND XXXXXX, INC., formerly known as THC
SYSTEMS, INC., (the "Seller"), Xxxxxx Xxxxxxxx and Xxxxxx
Xxxxxxxx (collectively, the "Shareholders"), dated as of August
__, 1996 (the "Asset Purchase Agreement");
WHEREAS, the Seller is engaged in the business of importing
and distributing chinaware, flatware, hollowware and related
products to a diversified base of customers, including hotels,
restaurants, distributors, airlines and institutions (the
"Business");
WHEREAS, subject to the terms and conditions contained in
the Asset Purchase Agreement, the Employer will buy and the
Seller and the Shareholders will sell the Business;
WHEREAS, the Executive and the Employer's wholly-owned
subsidiary, THC SYSTEMS, INC., formerly known as ONEIDA
COMMUNITY CHINA, INC., entered into an Employment Agreement with
dated as of August __, 1996 (the "Initial Employment Agreement")
whereby the Employer retained the Executive as the President of
THC SYSTEMS, INC., formerly known as ONEIDA COMMUNITY CHINA,
INC.; and
WHEREAS, the Employer and the Executive wish to replace the
Initial Employment Agreement with this Employment Agreement
effective as of the date first written above.
NOW, THEREFORE, in consideration of the foregoing, the
mutual promises herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Employer and the Executive agree as follows:
1. Employment and Duties.
(a) The Employer hereby employs the Executive as the
President of its THC Systems, Inc. subsidiary on the terms set
forth herein, and the Executive hereby accepts such employment.
The Executive shall have such duties as are set forth in the
Certificate of Incorporation and the By-Laws of the Employer and
THC Systems, Inc. and such additional duties as are commensurate
with the Executive's position. The Executive shall devote
substantially all his business time, attention, skill and
efforts to the faithful performance of his duties hereunder and
shall not accept employment elsewhere while employed hereunder
during the Term (as defined in Section 2). The Executive shall
report exclusively to the Employer's Chief Executive Officer
The Executive agrees to serve as (i) a member of the Board of
Directors of THC Systems, Inc. (the "Board") or of the board of
directors of any Affiliate (as defined in Section 6(f)) if asked
to do so by the Employer or the Board and if elected by the
shareholders of the Employer or such Affiliate, as the case may
be, and (ii) an officer of Oneida Ltd. or any other Affiliate if
directed to do so by the Employer. The Executive may (a) with
the prior approval of the Employer, serve on corporate, civic or
charitable boards or committees; (b) deliver lectures, fulfill
speaking engagements or teach at educational institutions; and
(c) manage personal investments, so long as such activities do
not significantly interfere with the performance of the
Executive's responsibilities hereunder. The Executive shall at
all times conduct himself in such a manner as not to prejudice
the reputation of the Employer in the fields of business in
which it is engaged or with the public at large.
(b) The Employer hereby agrees that it shall not require
the Executive (i) to relocate his principal place of business
more than twenty-five (25) miles from its present location in
Melville, New York, except if such relocation is made not
earlier than two years after the Effective Date to Oneida Ltd.'s
offices at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and (ii) to
make in excess of four (4) trips to the Far East annually during
the Term (as defined in Section 2).
2. Term.
The term of this Agreement shall commence as of the closing
of the acquisition of the Business pursuant to the Asset Purchase
Agreement (the "Effective Date") and shall continue in effect
through and including January 31, 2003. As used hereinafter,
"Term" shall mean the original and extended term of this
Agreement.
3. Compensation.
During the Term, the Executive shall be entitled to the
following compensation for his services to the Employer and any
Affiliate:
(a) Base Salary. The Executive's base salary (the "Base
Salary") shall be $364,000 per annum, payable in accordance with
Oneida Ltd.'s normal payroll practices. The Base Salary shall be
reviewed at least annually by the Board. The Base Salary level
and any increases thereon shall not be decreased during the
Term.
(b) Annual Bonus. In addition to the Base Salary, for
each fiscal year during the Term, the Executive shall be
eligible to receive an annual bonus (the "Annual Bonus").
During the Term, the minimum Annual Bonus payable to the
Executive under this Section shall be $150,000.00 per fiscal
year.
(c) Benefit Plans. In addition to the Base Salary and
Annual Bonus payable pursuant to this Agreement, the Executive
shall be entitled to participate in all incentive, savings and
retirement plans and welfare benefit plans of Oneida Ltd.
applicable to other key executives of Oneida Ltd. and its
subsidiaries, including, but not limited to, the Oneida Ltd.
401(k) Plan and the Oneida Ltd. defined benefit pension plan,
and shall be entitled to vacation and fringe benefits in
accordance with the policies of Oneida Ltd. applicable to other
key executives. In addition, the Executive shall be (i)
entitled to a monthly automobile allowance of $1,000; (ii)
recommended to the Compensation Committee of the Board of
Directors of Oneida Ltd. for awards under Oneida Ltd.'s 1987
Stock Option Plan, in accordance with its terms as in effect
from time to time; and (iii) eligible to participate in Oneida
Ltd.'s non-qualified deferred compensation plan for its
executives, in accordance with its terms as in effect from time
to time.
(d) Expenses. The Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses, including
travel and entertainment expenses, incurred by him in the
performance of his duties for the Employer, which expenses shall
be reimbursed to him in accordance with the policies and
procedures of Oneida Ltd. that are applicable to key executives
of Oneida Ltd. and its subsidiaries at the time such expenses
are incurred.
(e) Vacation. The Executive shall be entitled to annual
vacation in accordance with the policies periodically
established by Oneida Ltd. for similarly situated executives,
which vacation shall in no event be less that four (4) weeks per
year.
4. Termination of Employment.
(a) Termination for Cause; Resignation. The Employer may
terminate the Executive's employment hereunder for Cause (as
defined in Section 6(a)). If the Executive's employment is
terminated by the Employer for Cause, or by the Executive at any
time prior to the expiration of the Term, the Employer shall be
under no obligation to make any additional payments of Base
Salary, Annual Bonus or any other benefits specified in Section
3 for any periods after the Date of Termination (as defined in
Section 6(c)), except for payment of any Base Salary or Annual
Bonus earned prior to the Date of Termination but not yet paid
to the Executive or any payment from any employee benefit plan
or the continuation of coverage under any insurance program that
may be required by law. Furthermore, the Executive shall not be
entitled to the payment of any pro rata amount of any Annual
Bonus for the calendar year during which the Date of Termination
occurs.
(b) Termination without Cause. If the Executive's
employment is terminated by the Employer without Cause, prior to
the expiration of the Term, the Executive shall be entitled to a
severance benefit (the "Severance Benefit") equal to the Base
Salary he would have received during the remainder of the Term
(the "Severance Period"). The Severance Benefit shall be
payable in accordance with the normal payroll policy of the
Employer in effect as of the Date of Termination. The Executive
shall also be entitled to continue to receive coverage under
Oneida Ltd.'s medical and life insurance programs through the
end of the Severance Period at the same cost to the Executive as
applied prior to his termination of employment; provided,
however, that such entitlement shall cease as of the time that
the Executive obtains alternate full-time employment.
(c) Death Before End of Term. If the Executive dies prior
to the expiration of the Term, the Employer shall be under no
obligation to make additional payments to the Executive's estate
after the Date of Termination except for any compensation earned
prior to the Date of Termination but not yet paid and for the
pro rata portion of any Annual Bonus that would have been paid
to the Executive had he survived and been employed by the
Employer until the last day of the year of his death. Such
Annual Bonus payment shall be made at the time such bonus
payments would normally have been made for such year. The
Employer shall also continue to provide any benefits to the
Executive's survivors as required by law.
(d) Disability. The Employer may terminate the
Executive's employment because of Permanent Disability (as
defined in Section 6(d)) prior to the expiration of the Term.
If the Executive's employment is terminated because of Permanent
Disability, the Executive shall be entitled to continue to
receive payment of Base Salary through the end of the Term,
offset by any payment to the Executive on account of disability
from any employer or government-sponsored disability insurance
plan through the end of the Term. The Employer shall also
continue to provide any benefits to the Executive required by
law or the terms of any benefit plan.
(e) Retirement. The Executive's employment may be
terminated by the Executive or by the Employer on account of
Retirement (as defined in Section 6(e)). The Executive shall
not be entitled to any further payments of compensation or other
benefits provided under Section 3 after the Date of Termination,
except for any retirement benefit payments due to the Executive
from any retirement plan sponsored by Oneida Ltd.
(f) Change of Control. The Executive may terminate this
Agreement and his employment with the Employer on account of a
Change of Control of the Employer (as defined in Section 6(g)).
A termination by the Executive under this Section 4(f) shall be
effective thirty (30) days after the Employer receives a Notice
of Termination and shall relieve both the Employer and the
Executive of all rights and duties under this Agreement as of
the effective date of the termination, except that on or before
the effective date of the termination the Employer shall pay to
the Executive all amounts that are otherwise due under this
Agreement through the effective date of the termination,
including but not limited to all Base Salary, the value of all
accrued but unused vacation, the pro-rata amount of the Annual
Bonus and the auto allowance.
In the event that the Employer or a successor-in-interest
to the Employer terminates this Agreement following a Change of
Control, the Employer shall pay to the Executive a lump sum
equal to all amounts that the Executive would otherwise have
been entitled to under this Agreement through January 31, 2003,
including but not limited to all Base Salary, Annual Bonuses and
auto allowance. This paragraph shall be in addition to and not
in lieu of any other rights or remedies the Executive might have
against the Employer or any successor-in-interest to the
Employer at law or in equity.
(g) Notice of Termination Required. No termination of
employment by the Executive or by the Employer pursuant to this
Section 4 shall be effective unless the terminating party shall
have delivered a Notice of Termination (as defined in Section
6(b)) to the other party.
5. Non-Competition and Trade Secrets.
(a) No Competing Employment. While employed by the
Employer and for so long as the Executive shall be receiving
payments of Base Salary hereunder, or, if longer, during the
twelve-month period following the Date of Termination (the
"Restricted Period"), the Executive shall not, without the prior
written consent of the Employer, directly or indirectly, own an
interest in, manage, operate, join, control, lend money or
render financial or other assistance to or participate in or be
connected with, as an officer, employee, partner, stockholder,
consultant or otherwise, any individual, partnership, firm,
corporation or other business organization or entity that, at
such time, is engaged in the business of manufacturing,
producing or supplying Tabletop Products or related services to
customers in the foodservice or consumer products industry
worldwide. Notwithstanding the foregoing, this Section 5(a)
shall not apply to the Executive in the event that (i.) he
properly exercises his option to terminate this Agreement under
Section 6(f), above, or (ii.) the Executive's employment is
terminated following a Change in Control.
(b) No Interference. During the Restricted Period, the
Executive shall not, whether for his own account or for the
account of any other individual, partnership, firm, corporation
or other business organization (other than the Employer or an
Affiliate), intentionally solicit, endeavor to entice away from
the Employer or an Affiliate, or otherwise interfere with the
relationship of the Employer or an Affiliate with, any person
who is employed by the Employer or an Affiliate or any person or
entity who is, or was within the then most recent twenty-four-
month period, a customer or client of the Employer's or an
Affiliate's products.
(c) Secrecy. The Executive recognizes that the services
to be performed by him hereunder are special, unique and
extraordinary in that, by reason of his employment with the
Employer, he may acquire confidential information and trade
secrets concerning the operation of the Employer or an
Affiliate, the use or disclosure of which could cause the
Employer or an Affiliate substantial loss and damages which
could not be readily calculated and for which no remedy at law
would be adequate. Accordingly, the Executive covenants and
agrees with the Employer that he will not at any time (whether
during or after the Term), except in the performance of his
obligations to the Employer hereunder or with the prior written
consent of the Board, directly or indirectly, disclose any
secret or confidential information that he may learn or has
learned by reason of his association with the Employer, or any
predecessors to its business, or use any such information to the
detriment of the Employer. The term "confidential information"
includes, without limitation, information not previously
disclosed to the public or to the trade by the Employer's
management with respect to the Employer's products,
manufacturing processes, facilities and methods, research and
development, trade secrets and other intellectual property,
systems, patents and patent applications, procedures, manuals,
confidential reports, product price lists, customer lists,
financial information (including the revenues, costs or profits
associated with any of the Employer's products), business plans,
prospects or opportunities.
(d) Exclusive Property. The Executive confirms that all
confidential information is the exclusive property of the
Employer. All business records, papers and documents kept or
made by the Executive relating to the business of the Employer
or an Affiliate shall be and remain the property of the Employer
or the Affiliate, respectively, during the Term and at all times
thereafter. Upon the termination of his employment with the
Employer or upon the request of the Employer at any time, the
Executive shall promptly deliver to the Employer, and shall
retain no copies of, any written materials, records and
documents made by the Executive or coming into his possession
concerning the business or affairs of the Employer or an
Affiliate other than personal notes or correspondence of the
Executive not containing proprietary information relating to
such business or affairs.
(e) Stock Ownership. Nothing in this Agreement shall
prohibit the Executive from acquiring or holding any issue of
stock or securities of any company that has any securities
listed on a national securities exchange or quoted on the
automated quotation system of the National Association of
Securities Dealers, Inc., provided that, at any time during the
Restricted Period, the Executive and members of his immediate
family do not own more than five (5) percent of any voting
securities of any such company engaging in the type of business
described in Section 5(a) above.
(f) Injunctive Relief. The Executive acknowledges that a
breach of any of the covenants contained in this Section 5 may
result in material irreparable injury to the Employer for which
there is no adequate remedy at law, that it will not be possible
to measure damages for such injuries precisely and that, in the
event of such a breach, any payments remaining under the terms
of this Agreement shall cease and the Employer shall be entitled
to obtain a temporary restraining order and/or a preliminary or
permanent injunction restraining the Executive from engaging in
activities prohibited by this Section 5 or such other relief as
may be required to specifically enforce any of the covenants in
this Section 5. The Executive agrees to and hereby does submit
to in personam jurisdiction before each and every such court for
that purpose.
6. Definitions.
As used in this Agreement, the following terms shall have
the following meanings:
(a) Cause. Each of the following shall constitute Cause:
(i) the willful and continued failure by the
Executive to perform his duties or to comply with the policies
of the Employer or Oneida Ltd. (other than any such failure
resulting from the termination of the Executive's employment for
death, Retirement, Permanent Disability or Good Reason), after
written notice of such failure has been given to the Executive
and the Executive has had a reasonable period of time to correct
such failure;
(ii) the willful commission by the Executive of acts
that are dishonest and demonstrably or materially injurious to
the Employer, monetarily or otherwise;
(iii) the conviction of the Executive for a
felony; or
(iv) a material breach of any of the covenants set
forth in this Agreement, after written notice of such breach has
been given to the Executive and the Executive has had a
reasonable period of time to cure such breach.
(b) Notice of Termination. A "Notice of Termination"
shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
(c) Date of Termination. "Date of Termination" shall mean
(A) if the Executive's employment is terminated for Permanent
Disability, thirty (30) days after a Notice of Termination is
given (provided that the Executive shall not have returned to
the full-time performance of the Executive's duties during such
thirty (30) day period), and (B) for any other reason, the date
specified in the Notice of Termination (which, in the case of a
termination without Cause shall not be less than thirty (30)
days, and in the case of a termination by the Executive shall
not be less than thirty (30) nor more than sixty (60) days,
respectively, from the date such Notice of Termination is
given).
(d) Permanent Disability. "Permanent Disability" shall
have the meaning attributable thereto in the applicable
disability plans of the Employer.
(e) Retirement. "Retirement" shall have the meaning
attributable thereto in the applicable retirement plans of the
Employer.
(f) Affiliate. "Affiliate" shall include any company
controlling, controlled by or under common control with the
Employer.
(g.) Change of Control. "Change of Control" shall be
deemed to have occurred if any of the following have occurred:
(i) any individual, partnership, firm,
corporation, association, trust, unincorporated
organization or other entity or person, or any
syndicate or group deemed to be a person under Section
14(d)(2) of the Exchange Act, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 of the
General Rules and Regulations under the Exchange Act),
directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power
of the Company's then outstanding securities entitled
to vote in the election of directors of the Company;
(ii) during any period of two consecutive years
(not including any period prior to the execution of
this Agreement), individuals who at the beginning of
such period constituted the Board and any new
directors, whose election by the Board or nomination
for election by the Company's stockholders was approved
by a vote of at least three-fourths (3/4ths) of the
directors then still in office who either were
directors at the beginning of the period or whose
election or nomination for election was previously so
approved (the "Incumbent Directors"), cease for any
reason to constitute a majority thereof;
(iii) there occurs a reorganization, merger,
consolidation or other corporate transaction involving
the Company (a "Transaction"), in each case with
respect to which the stockholders of the Company
immediately prior to such Transaction do not,
immediately after the Transaction, own more than 50% of
the combined voting power of the Company or other
corporation resulting from such Transaction;
(iv) all or substantially all of the assets of the
Company are sold, liquidated or distributed; or
(v) there is a "change in control" or a "change in
the effective control" of the Company within the meaning
of Section 280G of the Code and the Regulations.
7. Binding Agreement.
This Agreement shall be binding on, and inure to the
benefit of, the Employer and its successors and assigns. This
Agreement shall be binding on the Executive. This Agreement
shall also inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amount would
still be payable hereunder if the Executive had continued to
live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to the
Executive's devisee, legatee or other designee or, if there is
no such designee, to the Executive's estate.
8. Notice.
Any notice hereunder by either party to the other shall be
given in writing by personal delivery, telex, telecopy or
certified mail, return receipt requested, to the applicable
address first set forth below (or such other address as may from
time to time be designated by notice by any party hereto for
such purpose):
To the Employer: Oneida Ltd.
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
With a copy to: Oneida Ltd.
Xxxxx Xxxxxxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxxxx
To the Executive: Xx. Xxxxx Xxxxxxx
0 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Notice shall be deemed given, if by personal delivery, on
the date of such delivery or, if by telex or telecopy, on the
business day following receipt of answer back or telecopy
confirmation or, if by certified mail, on the date shown on the
applicable return receipt.
9. Amendment and Waiver.
No provision of this Agreement may be amended, modified,
waived or discharged unless such amendment, modification, waiver
or discharge is agreed to in writing and signed by the Executive
and such officer as may be specifically designated by the
Employer. 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.
10. Merger of Prior Negotiations.
This Agreement sets forth all of the promises, agreements,
conditions and understandings between the parties hereto
respecting the subject matter hereof and supersedes all prior
negotiations, conversations, discussions, correspondence,
memoranda and agreements between the parties concerning such
subject matter.
11. Partial Invalidity.
If the final determination of a court of competent
jurisdiction declares, after the expiration of the time within
which judicial review (if permitted) of such determination may
be perfected, that any term or provision hereof is invalid or
unenforceable, (a) the remaining terms and provisions hereof
shall be unimpaired and (b) the invalid or unenforceable term or
provision shall be deemed replaced by a term or provision that
is valid and enforceable and that comes closest to expressing
the intention of the invalid or unenforceable term or provision.
12. Governing Law.
This Agreement is to be governed by and interpreted in
accordance with the laws of the State of New York.
13. Counterparts.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. Statements.
During the Restricted Period, the Executive and the
Employer agree to refrain from making any comments or statements
to the press, the employees of the Employer or any Affiliate or
any individual or entity with whom the Employer or any Affiliate
has a business relationship which would be likely to adversely
affect (a) the conduct of the business of the Employer or any
Affiliate or the business reputation of the Employer or any
Affiliate or any of their employees, representatives or members
of their boards of directors, in the case of comments made by
the Executive or (b) the Executive's future employment or
personal or professional reputation, in the case of comments
made by the Employer.
15. Arbitration.
Any dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration
in New York in accordance with the commercial rules of the
American Arbitration Association then in effect. Judgment may
be entered on the arbitrator's award in any court having
jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the Effective Date.
ONEIDA LTD.
By: /s/ XXXXX X. XXXXXX
Name: Xxxxx X. Xxxxxx
Title: President & Chief Executive Officer
Date:
XXXXX XXXXXXX
By: /s/ XXXXX X. CONSUER
Date:
