120
EXHIBIT 10(g)
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement"), including the attached
Exhibit A, is entered into between Xxxxx Bros. Corporation ("Employer"),
and Xxxxxx X. Xxxx ("Employee"), to be effective as of August 18, 1997 (the
"Effective Date").
WITNESSETH:
WHEREAS, Employer desires to employ Employee, effective as of the
Effective Date, pursuant to the terms and conditions and for the
consideration set forth in this Agreement, and Employee desires to enter
into such employment relationship pursuant to such terms and conditions and
for such consideration.
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants, and obligations contained herein, Employer and Employee agree as
follows:
ARTICLE 1.
EMPLOYMENT AND DUTIES
1.1 Employer agrees to employ Employee, and Employee agrees to be
employed by Employer, beginning as of the Effective Date and continuing
until the date set forth on Exhibit A (the "Term"), subject to the terms
and conditions of this Agreement.
1.2 Employee initially shall be employed in the position set forth on
Exhibit A. Employee agrees to serve in the assigned position and to
perform diligently and to the best of Employee"s abilities the duties and
services appertaining to such position as determined by Employer, as well
as such additional or different duties and services appropriate to such
position which Employee from time to time may be reasonably directed to
perform by Employer. Employee shall at all times comply with and be
subject to such policies and procedures as Employer may establish from time
to time.
1.3 Employee shall, during the period of Employee's employment by
Employer, devote Employee's full business time, energy, and best efforts to
the business and affairs of Employer. Employee may not engage, directly or
indirectly, in any other business, investment, or activity that interferes
with Employee's performance of Employee's duties hereunder, is contrary to
the interests of Employer, or requires any significant portion of
Employee's business time.
1.4 Employee acknowledges and agrees that Employee owes a fiduciary
duty of loyalty, fidelity and allegiance to act at all times in the best
interests of the Employer. Employee shall not, during the Term of this
Agreement or any extension or renewal thereof, engage, directly or
indirectly, in any activity which constitutes a Conflict of Interest (as
defined below). For purposes of this Agreement: (a) "Conflict of Interest"
121
EXHIBIT 10(g) (continued)
means, without limitation, any act or activity, or any interest in
connection with, or benefit from any act or activity, which is adverse to
the interests of or would in any way injure Employer or any of its
affiliates, provided that a passive investment of not more than 5% of the
outstanding equity securities of an entity whose securities are then being
regularly traded in open-market brokerage transactions (either on a stock
exchange or over-the-counter) shall not constitute a Conflict of Interest;
and (b) "directly or indirectly" means, without limitation, participation
for Employee's own account or as an owner, shareholder, partner, director,
officer, member, manager, employee, associate, creditor or agent of any
other person or organization or through Employee's spouse or other family
relation. In keeping with Employee's duties to Employer, Employee agrees
that Employee shall not knowingly become involved in a Conflict of Interest
with Employer or its affiliates, or upon discovery thereof, allow such a
conflict to continue. Moreover, Employee agrees that Employee shall
disclose to the reporting relationship person identified on Exhibit A any
facts that might involve such a Conflict of Interest that has not been
approved by Employer's Board of Directors.
ARTICLE 2.
COMPENSATION AND BENEFITS
2.1 Employee's base salary during the Term shall be not less than the
amount set forth under the heading "Monthly Base Salary" on Exhibit A,
which shall be paid in equal or nearly equal installments in accordance
with Employer's standard payroll practice and not less frequently than
monthly. Employee's base salary shall be reviewed not less often than
annually and shall be subject to such upward adjustments as Employer may
deem appropriate in its discretion.
2.2 In addition to Employee's base salary, Employee shall be eligible
to participate in the Employer's Incentive Compensation Plan for Division
and Subsidiary Executives (the "Incentive Plan"). The summary of such
Incentive Plan is attached hereto as Exhibit B. In addition, Employee may
be awarded discretionary incentive stock options under the Employer's 1995
Incentive Stock Option Plan. The 1995 Plan and the form of Option
Agreement is attached hereto as Exhibit C.
2.3 While employed by Employer (both during the Term and thereafter),
Employee shall be allowed to participate, on the same basis generally as
other employees of Employer, in all general employee benefit plans and
programs, including improvements or modifications of the same, which on the
Effective Date or thereafter are made available by Employer to all or
substantially all of Employer's employees. Such benefits, plans, and
programs may include, without limitation, medical, health, and dental care,
life insurance, disability protection, vacation, 401(k) and pension plans.
To the extent, but only to the extent, that any such plan or program
generally permits the participation or coverage of dependents of employees
of the Employer, the Employee's dependents may participate in or be covered
under any such plan or program. Nothing in this Agreement is to be
construed or interpreted to provide greater rights, participation,
coverage, or benefits under such benefit plans or programs than provided to
similarly situated employees pursuant to the terms and conditions of such
benefit plans and programs.
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EXHIBIT 10(g) (continued)
2.4 Employer shall not by reason of this Article 2 be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing,
any employee benefit program or plan, so long as such actions are similarly
applicable to covered employees generally. Moreover, unless specifically
provided for in a written plan document adopted by the Board of Directors
of Employer, none of the benefits or arrangements described in this Article
2 shall be secured or funded in any way, and each shall instead constitute
an unfunded and unsecured promise to pay money in the future exclusively
from the general assets of Employer.
2.5 Employer may withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as
may be required pursuant to any law or governmental regulation or ruling.
ARTICLE 3.
TERMINATION PRIOR TO EXPIRATION OF TERM AND
EFFECTS OF SUCH TERMINATION
3.1 Notwithstanding any other provisions of this Agreement, Employer
shall have the right to terminate Employee's employment under
this Agreement at any time prior to the expiration of the Term
for any of the following reasons:
(i) For "cause" upon the good faith determination by the
Employer that "cause" exists for the termination of the employment
relationship. As used in this Section 3.1(i), the term cause shall
mean (a) Employee's gross negligence or willful misconduct in the
performance of the duties and services required of Employee pursuant
to this Agreement; (b) Employee's final conviction of a felony or of a
misdemeanor involving moral turpitude; (c) a reasonable determination
by Employer that Employee has violated the Conflict of Interest
provisions of Section 1.4 of this Agreement and failure by Employee to
eliminate such Conflict of Interest within ten days after receipt of
written notice from Employer to do so, or, if it is impossible to
eliminate such Conflict of Interest within such ten days, failure to
commence within such ten days any action necessary to eliminate such
Conflict of Interest and thereafter to continue diligently to pursue
such action until elimination of such Conflict of Interest, within no
more than 30 days after such notice; or (d) Employee's material breach
of any material provision of this Agreement (other than Section 1.4)
that remains uncorrected for thirty (30) days following written notice
to Employee by Employer of such breach;
(ii) for any other reason whatsoever in the sole discretion of
Employer;
(iii) upon Employee's death; or
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EXHIBIT 10(g) (continued)
(iv) upon Employee's long-term disability. For purposes of this
Agreement, "long-term disability" shall have the same meaning as the
term "long-term disability" or "permanent disability" or similar term
in Employee's long-term or permanent disability policy provided by
Employer and covering Employee; provided that if there is no such
policy in effect covering Employee, "long-term disability" shall mean
that Employee has become incapacitated by accident, sickness, or other
circumstance which renders him mentally or physically incapable of
performing the duties and services required of Employee for a period
of more than 90 days out of any 180 day period.
The termination of Employee's employment by Employer prior to the
expiration of the Term shall constitute a "Termination for Cause" if made
pursuant to Section 3.1(i); the effect of such termination is specified in
Section 3.4. The termination of Employee's employment by Employer prior to
the expiration of the Term shall constitute an "Involuntary Termination" if
made pursuant to Section 3.1(ii); the effect of such termination is
specified in Section 3.5. The effect of the employment relationship being
terminated pursuant to Section 3.l (iii) as a result of Employee's death is
specified in Section 3.6. The effect of the employment relationship being
terminated pursuant to Section 3.1(iv) as a result of the Employee's long-
term disability is specified in Section 3.7.
3.2 Notwithstanding any other provisions of this Agreement except
Section 6.5, Employee shall have the right to terminate the employment
relationship under this Agreement at any time prior to the expiration of
the Term of employment for any of the following reasons:
(i) a material breach by Employer of any material provision of
this Agreement that remains uncorrected for 30 days following written
notice of such breach by Employee to Employer; or
(ii) for any other reason whatsoever, in the sole discretion of
Employee.
The termination of Employee's employment by Employee prior to the
expiration of the Term shall constitute an "Involuntary Termination" if
made pursuant to Section 3.2(i); the effect of such termination is
specified in Section 3.5. The termination of Employee's employment by
Employee prior to the expiration of the Term shall constitute a "Voluntary
Termination" if made pursuant to Section 3.2(ii); the effect of such
termination is specified in Section 3.3.
3.3 Upon a "Voluntary Termination" of the employment relationship by
Employee prior to expiration of the Term, all future compensation to which
Employee is entitled and all future benefits for which Employee is eligible
shall cease and terminate as of the date of termination; provided that this
Section 3.3 shall not constitute a waiver by Employee of any statutory
right or rights Employee may have to continue to receive benefits after
termination of employment. Employee shall be entitled to pro rata salary
through the date of such termination plus any other payments generally
available to other departing employees of Employer (such as unused personal
vacation, bonus and other similar items).
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EXHIBIT 10(g) (continued)
3.4 If Employee's employment hereunder shall be terminated by
Employer for Cause prior to expiration of the Term, all future compensation
to which Employee is entitled and all future benefits for which Employee is
eligible shall cease and terminate as of the date of termination; provided
that this Section 3.4 shall not constitute a waiver by Employee of any
statutory right or rights Employee may have to continue to receive benefits
after termination of employment. Employee shall be entitled to pro rata
salary through the date of such termination plus any other payments
generally available to other departing employees of Employer (such as
unused personal vacation, bonus and other similar items).
3.5 Upon an Involuntary Termination of the employment relationship by
either Employer or Employee prior to expiration of the Term, Employee shall
be entitled, in consideration of Employee's continuing obligations
hereunder after such termination, to receive the compensation specified in
Section 2.l as if Employee's employment (which shall cease as of the date
of such Involuntary Termination) had continued for the full Term of this
Agreement. Furthermore, Employee shall be entitled to other payments
generally available to other departing employees of Greif (such as unused
personal vacation, bonus and other similar items). Employee may, but shall
have no duty or obligation to, seek or accept other employment following
Involuntary Termination, and if Employee accepts employment, the amounts
due Employee hereunder shall be offset and reduced by the amount of
compensation received by Employee for services rendered during the
remainder of the Term from Employee's subsequent employer(s). Employee's
rights under this Section 3.5 are Employee's sole and exclusive rights
against Employer or its affiliates, and Employer's sole and exclusive
liability to Employee under this Agreement for any Involuntary Termination
of the employment relationship. Employee covenants not to xxx or lodge any
claim, demand or cause of action against Employer for any sums for
Involuntary Termination other than those sums specified in this Section
3.5. If Employee breaches this covenant, Employer shall be entitled to
recover from Employee all sums expended by Employer (including costs and
attorneys fees) in connection with such suit, claim, demand or cause of
action.
3.6 Upon termination of the employment relationship as a result of
Employee's death, Employee's heirs, administrators, or legatees shall be
entitled to Employee's pro rata salary through the date of such termination
plus any other payments generally available to other departing employees of
Employer (such as unused personal vacation, bonus and other similar items).
3.7 Upon termination of the employment relationship as a result of
Employee's long-term disability, Employee shall be entitled to his or her
pro rata salary through the date of such termination plus any other
payments generally available to other departing employees of Employer
(e.g., unused personal vacation, bonus and other similar items).
3.8 In all cases, the compensation and benefits payable to Employee
under this Agreement upon termination of the employment relationship shall
be offset against any amounts to which Employee may otherwise be entitled
under any and all severance plans and policies of Employer or its
affiliates; provided that compensation for any accrued but unused vacation
shall not constitute a severance plan or policy of Employer under this
Agreement.
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EXHIBIT 10(g) (continued)
3.9 Termination of the employment relationship does not terminate
those obligations imposed by this Agreement that are continuing
obligations, including, without limitation, Employee's
obligations under Article 5.
ARTICLE 4.
CONTINUATION OF EMPLOYMENT BEYOND TERM;
TERMINATION AND EFFECTS OF TERMINATION
4.1 Should Employee remain employed by Employer beyond the expiration
of the Term specified on Exhibit A, such employment shall convert to a
month-to-month relationship terminable at any time by either Employer or
Employee for any reason whatsoever, with or without cause. Upon such
termination of the employment relationship by either Employer or Employee
for any reason whatsoever, all future compensation to which Employee is
entitled and all future benefits for which Employee is eligible shall cease
and terminate. Employee shall be entitled to pro rata salary through the
date of such termination plus any other payments generally available to
other departing employees of Employer (e.g., unused personal vacation,
bonus and other similar items).
ARTICLE 5.
OWNERSHIP AND PROTECTION OF INFORMATION; COPYRIGHTS
5.1 All information, ideas, concepts, improvements, discoveries, and
inventions, subject to or capable of patent or other forms of intellectual
property protection, which are conceived, made, developed or acquired by
Employee, individually or in conjunction with others, during the period of
and within the scope of Employee's employment by Employer (whether during
business hours or otherwise and whether on Employer's premises or
otherwise) and that relate to Employer's business, products or services
(including, without limitation, all such information relating to corporate
opportunities, research, financial and sales data, pricing and trading
terms, evaluations, opinions, interpretations, acquisition prospects, the
identity of customers or their requirements, the identity of key contacts
within the customer's organizations or within the organization of
acquisition prospects, or marketing and merchandising techniques,
prospective names, and marks) shall be disclosed to Employer and are and
shall be the sole and exclusive property of Employer. Moreover, all
drawings, memoranda, notes, records, files, correspondence, drawings,
manuals, models, specifications, computer programs, maps and all other
writings or materials of any type embodying any of such information, ideas,
concepts, improvements, discoveries, and inventions are and shall be the
sole and exclusive property of Employer.
126
EXHIBIT 10(g) (continued)
5.2 Employee acknowledges that the business of Employer and its
affiliates is highly competitive and that their strategies, methods, books,
records, and documents, their technical information concerning their
products, equipment, services, and processes, procurement procedures and
pricing techniques, the names of and other information (such as credit and
financial data) concerning their customers and business affiliates, all
comprise confidential business information and trade secrets which are
valuable, special, and unique assets which Employer or its affiliates use
in their business to obtain a competitive advantage over their competitors.
Employee further acknowledges that protection of such confidential business
information and trade secrets against unauthorized disclosure and use is of
critical importance to Employer or its affiliates in maintaining their
competitive position. Employee hereby agrees that Employee will not, at
any time during or after his or her employment by Employer, make any
unauthorized disclosure of any confidential business information or trade
secrets of Employer or its affiliates, or make any use thereof, except in
the carrying out of his or her employment responsibilities hereunder. As a
result of Employee's employment by Employer, Employee may also from time to
time have access to, or knowledge of, confidential business information or
trade secrets of third parties, such as customers, suppliers, partners,
joint venturers, and the like, of Employer and its affiliates. Employee
also agrees to preserve and protect the confidentiality of such third party
confidential information and trade secrets to the same extent, and on the
same basis, as Employer's confidential business information and trade
secrets. Employee acknowledges that money damages would not be sufficient
remedy for any breach of this Article 5 by Employee, and Employer shall be
entitled to enforce the provisions of this Article 5 by terminating any
payments then owing to Employee under this Agreement and/or to specific
performance and injunctive relief as remedies for such breach or any
threatened breach. Such remedies shall not be deemed the exclusive
remedies for a breach of this Article 5, but shall be in addition to all
remedies available at law or in equity to Employer, including the recovery
of damages from Employee and his or her agents involved in such breach.
5.3 All written materials, records, and other documents made by, or
coming into the possession of, Employee during the period of Employee's
employment by Employer which contain or disclose confidential business
information or trade secrets of Employer or its affiliates shall be and
remain the property of Employer or its affiliates, as the case may be.
Upon termination of Employee's employment by Employer, for any reason,
Employee promptly shall deliver the same, and all copies thereof, to
Employer.
5.4 If, during Employee's employment by Employer, Employee creates
any original work of authorship fixed in any tangible medium of expression
which is the subject matter of copyright (such as videotapes, written
presentations on acquisitions, computer programs, drawings, maps,
architectural renditions, models, manuals, brochures, or the like) relating
to Employer's business, products, or services, whether such work is created
solely by Employee or jointly with others (whether during business hours or
otherwise and whether on Employer's premises or otherwise), Employee shall
disclose such work to Employer. Employer shall be deemed the author of
such work if the work is prepared by Employee in the scope of his or her
employment; or, if the work is not prepared by Employee within the scope of
his or her employment but is specially ordered by Employer as a
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EXHIBIT 10(g) (continued)
contribution to a collective work, as a part of a motion picture or other
audiovisual work, as a translation, as a supplementary work, as a
compilation, or as an instructional text, then the work shall be considered
to be work made for hire and Employer shall be the author of the work. If
such work is neither prepared by the Employee within the scope of his or
her employment nor a work specially ordered and then not deemed to be a
work made for hire, then Employee hereby agrees to assign, and by these
presents does assign, to Employer all of Employee's worldwide right, title,
and interest in and to such work and all rights of copyright therein.
5.5 Both during the period of Employee's employment by Employer and
thereafter, Employee shall assist Employer and its nominee, at any time, in
the protection of Employer's worldwide right, title, and interest in and to
information, ideas, concepts, improvements, discoveries, and inventions,
and its copyrighted works, including without limitation, the execution of
all formal assignment documents requested by Employer or its nominee and
the execution of all lawful oaths and applications for applications for
patents and registration of copyright in the United States and foreign
countries.
ARTICLE 6.
MISCELLANEOUS
6.1 For purposes of this Agreement the terms "affiliates" or
"affiliated" means an entity who directly, or indirectly through one or
more intermediaries, is controlled by, or is under common control with
Employer.
6.2 For purposes of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed
to have been duly given when personally delivered or when mailed by United
States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to Employer, to:
Xxxxx Bros. Corporation
000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Chairman and
Chief Executive Officer
128
EXHIBIT 10(g) (continued)
If to Employee, to:
Xxxxxx X. Xxxx
0 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
Either Employer or Employee may furnish a change of address to the
other in writing in accordance herewith, except that notices of changes of
address shall be effective only upon receipt.
6.3 This Agreement shall be governed in all respects by the laws of
the State of Ohio, excluding any conflict-of-law rule or principle that
might refer the construction of this Agreement to the laws of another State
or country.
6.4 No failure by either party hereto at any time to give notice of
any breach by the other party of, or to require compliance with, any
condition or provision of this Agreement shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time.
6.5 If a dispute arises out of or related to this Agreement, other
than a dispute regarding Employee's obligations under Article 5, and if the
dispute cannot be settled through direct discussions, then Employer and
Employee agree first to endeavor to settle the dispute in an amicable
manner by mediation, before having recourse to any other proceeding or
forum. Thereafter, if either party to this Agreement brings legal action
to enforce the terms of this Agreement, the party who prevails in such
legal action, whether plaintiff or defendant, in addition to the remedy or
relief obtained in such legal action shall be entitled to recover its, his,
or her expenses incurred in connection with such legal action, including,
without limitation, costs of Court and attorneys fees.
6.6 It is a desire and intent of the parties that the terms,
provisions, covenants, and remedies contained in this Agreement shall be
enforceable to the fullest extent permitted by law. If any such term,
provision, covenant, or remedy of this Agreement or the application thereof
to any person, association, or entity or circumstances shall, to any
extent, be construed to be invalid or unenforceable in whole or in part,
then such term, provision, covenant, or remedy shall be construed in a
manner so as to permit its enforceability under the applicable law to the
fullest extent permitted by law. In any case, the remaining provisions of
this Agreement or the application thereof to any person, association, or
entity or circumstances other than those to which they have been held
invalid or unenforceable, shall remain in full force and effect.
6.7 This Agreement shall be binding upon and inure to the benefit of
Employer and any other person, association, or entity which may hereafter
acquire or succeed to all or substantially all of the business or assets of
Employer by any means whether direct or indirect, by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations under
Agreement hereof are personal and such rights, benefits, and obligations of
Employee shall not be voluntarily or involuntarily assigned, alienated, or
transferred, whether by operation of law or otherwise, without the prior
written consent of Employer.
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EXHIBIT 10(g) (continued)
6.8 This Agreement replaces and merges previous agreements and
discussions pertaining to the following subject matters covered
herein: the nature of Employee's employment relationship with
Employer and the term and termination of such relationship. This
Agreement constitutes the entire agreement of the parties with
regard to such subject matters, and contains all of the
covenants, promises, representations, warranties, and agreements
between the parties with respect such subject matters. Each
party to this Agreement acknowledges that no representation,
inducement, promise, or agreement, oral or written, has been made
by either party with respect to such subject matters, which is
not embodied herein, and that no agreement, statement, or promise
relating to the employment of Employee by Employer that is not
contained in this Agreement shall be valid or binding. Any
modification of this Agreement will be effective only if it is in
writing and signed by each party whose rights hereunder are
affected thereby.
IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement in multiple originals to be effective on the date first stated
above.
XXXXX BROS. CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
This 18th day of August, 1997
EMPLOYEE
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
This 18th day of August, 1997
130
EXHIBIT 10(g) (concluded)
EXHIBIT "A"
TO
EMPLOYMENT AGREEMENT
Employee Name: Xxxxxx X. Xxxx
Term: Three (3) years after the Effective Date.
Position: Chief Financial Officer and Secretary
Reporting Relationship: Xxxxxxx X. Xxxxxx
Monthly Base Salary: $18,333.34
XXXXX BROS. CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chairman and Chief Executive Officer
This 18th day of August, 1997
EMPLOYEE
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
This 18th day of August, 1997
