EXHIBIT 10.16
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, made and entered into as of
the _____ day of ________________, 1995 by and between TRION, INC.
(hereinafter called the "Company"), a Pennsylvania corporation with principal
executive offices in Sanford, North Carolina,
a
n
d
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual residing in Sanford, North
Carolina (hereinafter called the "Executive");
WITNESSETH THAT:
WHEREAS, the Executive has been employed by the Company as its
President and Chief Executive Officer since May 24, 1993 under an Employment
Agreement dated March 31, 1993 (the "Employment Agreement"); and
WHEREAS, the Company desires to continue such employment and the
Executive desires to continue to serve in the aforesaid capacity under the
amended and restated terms and conditions provided in this Amended and
Restated Agreement; and
WHEREAS, the execution and delivery of this Amended and Restated
Agreement have been duly authorized by the Compensation Committee (the
"Committee") of the Company's Board of Directors (the "Board") and ratified by
the Board;
NOW, THEREFORE, the Company and the Executive, each intending to
be legally bound, hereby mutually covenant and agree as follows:
1. Term. The term of the Executive's employment, which commenced under the
Employment Agreement on May 24, 1993 (the "Commencement Date"), shall continue
through May 24, 1996 under this Amended and Restated Agreement, subject to the
further extension of such term as hereinafter provided and earlier expiration
of such term as provided in Paragraph 5. The term of this Amended and
Restated Agreement shall be extended automatically for one (1) year as of May
24, 1996 and each annual anniversary date thereof unless, no later than ninety
(90) days prior to any such date, either the Board, on behalf of the Company,
or the Executive, gives written notice to the other, in accordance with
Paragraph 12, that the term of this Amended and Restated Agreement shall not
be so extended.
2. Duties. During the period of employment as provided in Paragraph 1
hereof, the Executive shall serve as President and Chief Executive Officer of
the Company and perform all duties consistent with such positions at the
direction of the Board. In addition, the Executive shall serve as a member of
the Board (and of any committees thereof to which the Executive is appointed).
The Executive shall devote his entire time during reasonable business hours
(reasonable sick leave and vacations excepted) and best efforts to fulfill
faithfully, responsibly and satisfactorily his duties hereunder.
3. Base Salary. For services performed by the Executive for the
Company pursuant to this Amended and Restated Agreement during the period of
employment as provided in Paragraph 1 hereof, the Company shall pay the
Executive a base salary of at least $190,000 per year (the "Base Salary"),
subject to review and adjustment by the Board or the Committee and payable in
accordance with the Company's regular practices. Any compensation which may
be paid to the Executive under any additional compensation or incentive plan
of the Company or which may be otherwise authorized from time to time by the
Board (or an appropriate committee thereof) shall be in addition to the Base
Salary to which the Executive shall be entitled under this Amended and
Restated Agreement.
4. Other Benefits. In addition to the Base Salary to be paid to the
Executive pursuant to Paragraph 3 hereof, the Executive shall also be entitled
to the following:
(a) Participation in Plans. The Executive shall be eligible for
participation in any bonus, incentive, stock option or similar plan or program
now in effect or hereafter established by the Company in the same manner and
to the same extent as, and subject to the same criteria pertaining to, other
senior executives of the Company. To the extent he is otherwise qualified to
do so, the Executive shall also participate in the various retirement, benefit
and other plans maintained in force by the Company from time to time.
(b) Fringe Benefits. The Executive shall be entitled to
perquisites of office, fringe benefits and other similar benefits consistent
with the Company's present practices.
(c) Expense Reimbursement. The Company shall reimburse the
Executive, upon proper accounting, for reasonable business expenses and
disbursements incurred by him in the course of the performance of his duties
under this Amended and Restated Agreement.
(d) Vacation. The Executive shall be entitled to three (3) weeks
of vacation during each year of this Amended and Restated Agreement, or such
greater period as the Board shall approve, without reduction in salary or
other benefits.
(e) Automobile Allowance. The Executive shall receive an annual
automobile allowance of $8,000, payable in equal monthly installments.
5. Termination. Unless earlier terminated in accordance with the following
provisions of this Paragraph 5, the Company shall continue to employ the
Executive and the Executive shall remain employed by the Company during the
entire term of this Amended and Restated Agreement as set forth in Paragraph
1. Paragraph 6 hereof sets forth certain obligations of the Company in the
event that the Executive's employment hereunder is terminated. Certain
capitalized terms used in this Paragraph 5 and Paragraph 6 hereof are defined
in Paragraph 5(c) below.
(a) Death or Disability. Except to the extent otherwise
expressly stated herein, this Amended and Restated Agreement shall terminate
immediately as of the Date of Termination in the event of the Executive's
death or in the event that the Executive becomes disabled. The Executive will
be deemed to be disabled upon the earlier of (i) the end of a six (6)
consecutive month period during which, by reason of physical or mental injury
or disease, the Executive has been unable to perform substantially the
Executive's usual and customary duties under this Amended and Restated
Agreement and (ii) the date that the Board determines, on the basis of such
evidence as it may reasonably deem sufficient, that the Executive will, by
reason of physical or mental injury or disease, be unable to perform
substantially the Executive's usual and customary duties under this Amended
and Restated Agreement for a period of at least six (6) consecutive months.
The Board shall promptly give the Executive written notice of any such
determination of the Executive's disability and of its decision to terminate
the Executive's employment by reason thereof. In the event of disability,
until the Date of Termination the Base Salary payable to the Executive under
Paragraph 3 hereof shall be reduced dollar-for-dollar by the amount of
disability benefits, if any, paid to the Executive in accordance with any
disability policy or program of the Company.
(b) Discharge for Cause. The Board may discharge the Executive
from his employment hereunder for Cause. Any discharge of the Executive by
the Board for Cause shall be communicated in writing to the Executive in
accordance with Paragraph 12 of this Agreement.
(c) Definitions. For purposes of this Paragraph 5 and Paragraph
6 hereof, the following capitalized terms shall have the meanings set forth
below:
(i) "Accrued Obligations" shall mean, as of the Date of
Termination, the sum of (A) the Executive's Base Salary under Paragraph
3 through the Date of Termination to the extent not theretofore paid, (B)
the amount of any bonus, incentive compensation, deferred compensation and
other cash compensation accrued by the Executive as of the Date of
Termination to the extent not theretofore paid and (C) any vacation pay,
expense reimbursements and other cash entitlements accrued by the Executive
as of the Date of Termination to the extent not theretofore paid.
(ii) "Cause" shall mean conviction of the Executive of
(or a plea of no contest with respect to) a felony or a misdemeanor involving
moral turpitude or a determination by the Board or the Committee that the
Executive has engaged in serious misconduct (such as dishonesty,
insubordination, willful failure to perform a material or significant portion
of his duties or other act or omission materially detrimental to the business
or reputation of the Company or materially damaging to the relationships of
the Company with its customers, suppliers or employees).
(iii) "Date of Termination" shall mean (A) in the event of a
discharge of the Executive by the Board or a resignation by the Executive,
the date the Executive (in the case of discharge) or the Company (in the case
of resignation) receives written notice of such termination of employment or any
later date specified therein (which date shall be not more than fifteen (15)
days after the giving of such notice), (B) in the event of the Executive's
death, the date of the Executive's death, and (C) in the event of termination
of the Executive's employment by reason of disability pursuant to Paragraph
5(a), the date the Executive receives written notice of such termination.
(iv) "Discharge For Cause" shall mean a termination by the
Company of the Executive's employment for Cause pursuant to Paragraph 5(b).
(v) "Termination Without Cause" shall mean (x) a discharge by
the Company of the Executive from his employment without Cause or (y) any
voluntary or involuntary termination of the Executive's employment, other than
a Discharge for Cause, within one (1) year after the occurrence of any of the
following:
(A) A substantial reduction in the Base Salary under
Paragraph 3, benefits or perquisites provided the Executive;
(B) A substantial reduction in the Executive's
responsibilities, authorities or functions; or
(C) Any failure by the Company to comply with and satisfy
Paragraph 11(c) of this Amended and Restated Agreement.
(D) The giving of notice to the Executive
by the Company, pursuant to Paragraph 1, that the term of this
Amended and Restated Agreement shall not be extended in
accordance with Paragraph 1.
6. Obligations of the Company Upon Termination.
(a) Death, Disability, Resignation (Other Than a Resignation
Constituting a Termination Without Cause) or Discharge For Cause. If the
Executive's employment with the Company terminates because of death,
disability, resignation (other than a resignation constituting a Termination
Without Cause) or a Discharge For Cause:
(i) the Company shall pay to the Executive all Accrued
Obligations in a lump sum in cash within thirty (30) days after the Date of
Termination; and
(ii) the Executive shall be entitled to receive all benefits
accrued by him as of the Date of Termination under the Company's retirement,
incentive, or other benefit plans in which the Executive was participating as
of the Date of Termination, including accrued benefits payable by reason of
the Executive's death or disability, if applicable (but only to the extent not
previously paid or distributed to the Executive) in such manner and at such
time as are provided under the terms of such plans and arrangements; and
(iii) except as otherwise provided in Paragraph 16 hereof,
all other obligations of the Company hereunder shall cease forthwith.
(b) Termination Without Cause. In the event of a Termination
Without Cause (other than in the case of disability):
(i) the Company shall pay all Accrued Obligations to the
Executive in a lump sum in cash within thirty (30) days after the Date of
Termination; and
(ii) the product of two (2) times the highest Base Salary
during the term of this Amended and Restated Agreement, shall be paid to the
Executive in a lump sum in cash within thirty (30) days after the Date of
Termination; and
(iii) an incentive bonus equal to the full "Target Award"
fixed for the Executive for the then current fiscal year multiplied by a
fraction, the numerator of which is the number of days in the then current
fiscal year through the Date of Termination and the denominator of which is 365,
shall be paid to the Executive in a lump sum in cash within thirty (30) days
after the Date of Termination; and
(iv) for a period of two (2) years, the Company shall arrange
to provide the Executive, at the Company's cost, with life, disability and
health-and-accident insurance coverage providing substantially similar
benefits to those which the Executive was receiving immediately prior to the
Date of Termination, to the extent the Company continues to maintain benefit
plans providing for such benefits for executives generally; provided, however,
that the Company may cease providing such benefits at such time as the
Executive is provided with substantially equivalent benefits by another
employer; and
(v) the Executive shall be entitled to receive all benefits
accrued by him as of the Date of Termination under the Company's retirement,
incentive or other benefit plans in which the Executive was participating as of
the Date of Termination (but only to the extent not previously paid or
distributed to the Executive) in such manner and at such time as are provided
under the terms of such plans; and
(vi) except as otherwise provided in Paragraph 16 hereof, all
other obligations of the Company hereunder shall cease forthwith.
(d) Limitation on Payments. Notwithstanding the foregoing or any
other provision of this Amended and Restated Agreement to the contrary, if tax
counsel selected by the Company and acceptable to the Executive determines
that any portion of any payment under this Amended and Restated Agreement
would constitute an "excess parachute payment," then the payments to be made
to the Executive under this Amended and Restated Agreement shall be reduced
(but not below zero) such that the value of the aggregate payments that the
Executive is entitled to receive under this Amended and Restated Agreement and
any other agreement or plan or program of the Company shall be one dollar ($1)
less than the maximum amount of payments which the Executive may receive
without becoming subject to the tax imposed by Section 4999 of the Internal
Revenue Code; provided, however, that the foregoing limitation shall not apply
in the event that such tax counsel determines that the benefits to the
Executive under this Amended and Restated Agreement on an after-tax basis
(i.e., after federal, state and local income and excise taxes) if such
limitation is not applied would exceed the after-tax benefits to the Executive
if such limitation is applied.
7. Indemnification. The Company shall defend and hold the Executive harmless
to the fullest extent permitted by applicable law in connection with any
claim, action, suit, investigation or proceeding arising out of or relating to
performance by the Executive of services for, or action of the Executive as a
Director, officer or employee of the Company, or of any other person or
enterprise for which the Executive serves or acts in such capacity at the
request of the Company. Expenses incurred by the Executive in defending a
claim, action, suit or investigation or criminal proceeding shall be paid by
the Company in advance of the final disposition thereof upon the receipt by
the Company of an undertaking by or on behalf of the Executive to repay said
amount if it shall ultimately be determined that the Executive is not entitled
to be indemnified hereunder. The foregoing shall be in addition to any
indemnification rights the Executive may have by law, contract, charter, by-
law or otherwise.
8. Restriction on Competition. While the Executive is employed by the
Company, and for a period of two years following the termination of the
Executive's employment by reason of (a) his resignation (other than a
resignation constituting a Termination Without Cause) or (b) a Discharge For
Cause, the Executive will not, directly or indirectly, whether as an owner of
10% or more of the equity interests, officer, director, employee, consultant,
or agent, work for or participate in the activities of any firm or person
engaged in the sale or manufacture of products competing with those of the
Company.
9. Confidential Information. The Executive will not, during or after
the term of this Amended and Restated Agreement, disclose to any firm or
person any information, except as otherwise required by law, including but not
limited to information about the Company, its affiliates and its customers,
that is treated as confidential by the Company or an affiliate, to which the
Executive has gained or gains access by reason of his position as an employee
of the Company or of an affiliate of the Company. Except as otherwise
required by law, the Company will not, without the Executive's written
consent, disclose to any person any personal or confidential information about
the Executive.
10. Right to Injunctive Relief. The Executive acknowledges that the
Company will suffer irreparable injury, not readily susceptible of valuation
in monetary damages, if the Executive breaches any of his obligations under
Paragraph 8 or 9 above. Accordingly, the Executive agrees that the Company
will be entitled to seek injunctive relief against any breach or prospective
breach by the Executive of the Executive's obligations under Paragraph 8 or 9
in any Federal or State court of competent jurisdiction sitting in the the
State of North Carolina. The Executive hereby submits to the jurisdiction of
such courts for the purposes of any actions or proceedings instituted by the
Company to obtain such injunctive relief, and agrees that process may be
served on the Executive by registered mail, addressed to the last address of
the Executive known to the Company, or in any manner authorized by law.
11. Successors. (a) This Amended and Restated Agreement is personal to
the Executive and without the prior written consent of the Company shall not
be assignable by the Executive otherwise than by will or the laws of descent
and distribution. This Amended and Restated Agreement shall inure to the
benefit of and be enforceable by the Executive's legal representatives.
(b) This Amended and Restated Agreement shall inure to the benefit of
and be binding upon the Company and its successors and assigns.
(c) The Company shall require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Amended and Restated Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Amended and Restated
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees
to perform this Amended and Restated Agreement by operation of law, or
otherwise.
12. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered by hand or mailed within the continental United States by first
class certified mail, return receipt requested, postage prepaid, addressed as
follows:
(a) to the Company or the Board, to:
Trion Inc.
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Attention: Trion Inc.
Board of Directors
c/o Corporate Secretary
(b) to the Executive, to:
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Addresses may be changed by written notice sent to the other party at the last
recorded address of that party.
13. Execution in Counterparts. This Amended and Restated Agreement may be
executed by the parties hereto in two or more counterparts, each of which
shall be deemed to be an original, but all such counterparts shall constitute
one and the same instrument, and all signatures need not appear on any one
counterpart.
14. Unconditional Obligations; Dispute Resolution. The Company's obligation
to make the payments provided for under this Amended and Restated Agreement
and otherwise to perform its obligations hereunder shall not be affected by
any set-off, counterclaim, recoupment, defense or other claim, right or action
which the Company may have against the Executive or others. Any controversy
or claim arising out of or relating to this Amended and Restated Agreement or
the breach thereof (including the arbitrability of any controversy or claim),
shall be settled by arbitration in accordance with the internal laws of the
State of North Carolina by three arbitrators, one of whom shall be appointed
by the Board, one by the Executive and the third of whom shall be appointed by
the first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be
appointed by the American Arbitration Association. The arbitration shall be
conducted in accordance with the rules of the American Arbitration
Association, except with respect to the selection of arbitrators which shall
be as provided in this Paragraph 14. The cost of any arbitration proceeding
hereunder shall be borne equally by the Company and the Executive. The award
of the arbitrators shall be binding upon the parties. Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.
15. Jurisdiction and Governing Law. Jurisdiction over disputes with regard
to this Amended and Restated Agreement shall be exclusively in the courts of
the State of North Carolina, and this Amended and Restated Agreement shall be
construed and interpreted in accordance with and governed by the laws of the
State of North Carolina, other than the conflict of laws provisions of such
laws.
16. Survival. The provisions of this Paragraph 18 and Paragraphs 6 through
11, 14, 15, 17, and 18 shall survive the termination of this Amended and
Restated Agreement to the extent necessary to effectuate the respective
purposes of such provisions.
17. Severability. If any provision of this Amended and Restated Agreement
shall be adjudged by any court of competent jurisdiction to be invalid or
unenforceable for any reason, such judgment shall not affect, impair or
invalidate the remainder of this Amended and Restated Agreement.
18. Miscellaneous. This Amended and Restated Agreement and the Stock Option
Agreement between the parties hereto dated March 31, 1993, and amended of even
date herewith, embody the entire understanding of the parties hereto, and
supersede all other oral or written agreements or understandings between them
regarding the subject matter hereof. No change, alteration or modification
hereof may be made except in a writing, signed by each of the parties hereto.
The headings in this Amended and Restated Agreement are for convenience of
reference only and shall not be construed as part of this Amended and Restated
Agreement or to limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amended and Restated Agreement as of the day and year first above written.
Attest: TRION INC.
___________________________ By_____________________________
WITNESS: EXECUTIVE
_____________________________ _______________________________
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