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EXHIBIT 10.12
FORM OF EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of October 25, 1996
by and between K-TRON INTERNATIONAL, INC., a New Jersey corporation ("K-Tron"),
and __________________, a resident of _______________ (the "Employee").
WHEREAS, the Employee is presently employed by K-Tron or one of its
subsidiaries;
WHEREAS, K-Tron desires to have the continuing benefit of the
Employee's knowledge and experience in the affairs of K-Tron and its
subsidiaries (K-Tron and its subsidiaries as they may exist from time to time
are collectively referred to herein as the "K-Tron Group" and each is sometimes
individually referred to herein as a "member" of the K-Tron Group); and
WHEREAS, the Employee desires to be employed by K-Tron or another
member of the K-Tron Group upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Employment. K-Tron agrees that either K-Tron or another member of
the K-Tron Group will employ the Employee, and the Employee hereby accepts such
employment and agrees to perform his duties and responsibilities hereunder, in
accordance with the terms and conditions hereinafter set forth.
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1.1 Employment Term. The employment term of this Agreement (the
"Employment Term") shall commence as of the date hereof and shall continue until
terminated in accordance with Section 8 hereof.
1.2 Duties and Responsibilities. During the Employment Term, the
Employee shall be employed by K-Tron or another member of the K-Tron Group, as
determined by K-Tron, and he shall perform all duties and accept all
responsibilities incidental to any position in which he shall be so employed or
as may be assigned to him by the Board of Directors of K-Tron (the "K-Tron
Board") or its chief executive officer and shall cooperate fully with the K-Tron
Board and K-Tron's chief executive officer. If the Employee is employed by
another member of the K-Tron Group, the foregoing reference to the K-Tron Board
and to K-Tron's chief executive officer shall also be deemed to include the
board of directors and chief executive officer of such other member.
1.3 Extent of Service. During the Employment Term, the Employee
shall use his best efforts in the business of the member of the K-Tron Group by
which he is employed, and he shall devote substantially his full time, attention
and energy to the business of the member of the K-Tron Group by which he is
employed and to the performance of his services and the discharge of his duties
and responsibilities hereunder. Except as provided in Section 5 hereof, the
foregoing shall not be construed as preventing the Employee from making
investments in other businesses or enterprises provided that the Employee agrees
not to become engaged in any other business activity which may interfere with
his ability to discharge his duties and responsibilities hereunder to K-Tron or
another member of the K-Tron Group. The Employee further agrees not to work on
either a part time or independent contractual basis for any other
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business or enterprise during the Employment Term without the prior written
approval of the K-Tron Board.
1.4 Compensation. For all the services rendered during the
Employment Term by the Employee hereunder as an employee of a member of the
K-Tron Group, such member of the K-Tron Group by which he is employed shall pay
the Employee an annual base salary of _______________________________
(___________), less such withholding and other deductions as may be required by
law or any employee benefit plan in which the Employee participates or agreed to
by the Employee, payable in installments at such times as such member of the
K-Tron Group customarily pays its other officers (but in no event less often
than monthly). Such salary may be increased from time to time during the
Employment Term in the sole discretion of K-Tron, and any such increased salary
shall thereafter be the Employee's new base salary for purposes of this
Agreement. Notwithstanding the foregoing, either the K-Tron Board or K-Tron's
chief executive officer, or the board of directors or chief executive officer of
any other member of the K-Tron Group employing the Employee, shall have the
right at any time or times to reduce the Employee's base salary if such
reduction is generally being made for other officers of K-Tron or of other
members of the K-Tron Group holding comparable positions. The Employee shall
also be entitled to receive bonus payments in the sole discretion of the K-Tron
Board or its Compensation and Human Resources Committee. In addition to said
annual salary and bonus payments (if any), and except as may otherwise be agreed
with the Employee in writing, the Employee shall be entitled to annual paid
vacation and to participate in such employee benefit plans of the member of the
K-Tron Group employing the Employee as may exist from time to time on the same
basis as other persons holding comparable positions with
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such member of the K-Tron Group, except that the Employee shall have no right
solely by virtue of this Agreement to participate in any such plans that are not
generally available to all employees of K-Tron or of the other member of the
K-Tron Group by which he is employed.
2. Reimbursement of Expenses. The member of the K-Tron Group
employing the Employee shall reimburse the Employee for all ordinary and
necessary out-of-pocket business expenses incurred by him in connection with the
discharge of his duties and responsibilities hereunder during the Employment
Term in accordance with such company's expense approval procedures then in
effect and upon presentation to such company of an itemized account and written
proof of such expenses.
3. Developments. The Employee shall disclose fully, promptly and in
writing to K-Tron or to any other member of the K-Tron Group by which he is
employed any and all inventions, discoveries, improvements, modifications and
the like, whether patentable or not, which he conceives, makes or develops,
solely or jointly with others, while employed by K-Tron or another member of the
K-Tron Group and which (i) relate to the business, work or activities of any
member of the K-Tron Group or (ii) result from or are suggested by the carrying
out of his duties hereunder, or from or by any information which he may receive
while employed by K-Tron or another member of the K-Tron Group. The Employee
hereby assigns, transfers and conveys to K-Tron or its designee all of his
right, title and interest in and to any and all such inventions, discoveries,
improvements, modifications and the like and agrees to take all such actions as
may be requested by K-Tron at any time and with respect to any such invention,
discovery, improvement, modification or the like to confirm or evidence such
assignment, transfer and conveyance. Furthermore, at any time and from time to
time, upon the request of
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K-Tron, the Employee shall execute and deliver to K-Tron, or to another member
of the K-Tron Group designated by K-Tron, any and all instruments, documents and
papers, give evidence and do any and all other acts which, in the opinion of
counsel for K-Tron, are or may be necessary or desirable to document such
assignment, transfer and conveyance or to enable K-Tron or such other member of
the K-Tron Group to file and prosecute applications for and to acquire, maintain
and enforce any and all patents, trademark registrations or copyrights under
United States or foreign law with respect to any such inventions, discoveries,
improvements, modifications or the like or to obtain any extension, validation,
reissue, continuance or renewal of any such patent, trademark or copyright.
K-Tron or such other member of the K-Tron Group shall be responsible for the
preparation of any such instruments, documents and papers and for the
prosecution of any such proceedings and shall reimburse the Employee for all
reasonable expenses incurred by him in compliance with the provisions of this
Section 3.
4. Confidential Information. The Employee acknowledges that, by
reason of his employment by K-Tron or another member of the K-Tron Group, he
will have access to confidential information of the K-Tron Group, including,
without limitation, information and knowledge pertaining to products,
inventions, discoveries, improvements, innovations, designs, ideas, trade
secrets, proprietary information, manufacturing, packaging, advertising,
distribution and sales methods, sales and profit figures, customer and client
lists and relationships between members of the K-Tron Group and dealers,
distributors, sales representatives, wholesalers, customers, clients, suppliers
and others who have business dealings with them ("Confidential Information").
The Employee acknowledges that such Confidential Information is a valuable and
unique asset of K-Tron and the other members of the K-Tron Group and covenants
that, both
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during and after the Employment Term, he will not disclose any Confidential
Information to any person (except as his duties as an employee of K-Tron or
another member of the K-Tron Group may require) without the prior written
authorization of the K-Tron Board. The obligation of confidentiality imposed by
this Section 4 shall not apply to information which appears in issued patents or
printed publications, which otherwise becomes generally known in the industry
through no act of the Employee in breach of this Agreement or which is required
to be disclosed by court order or applicable law.
5. Non-Competition. During (i) the term of the Employment Term and
(ii) for one year thereafter only in the event that (A) such Employment Term is
terminated under Section 8.2 or 8.4 (but only if it is terminated by a member of
the K-Tron Group) hereof or (B) the Employee terminates employment with the
member of the K-Tron Group employing him without giving the notice required by
Section 8.1 hereof, the Employee shall not, unless acting as an employee
pursuant hereto or with the prior written consent of the K-Tron Board, directly
or indirectly, own, manage, operate, finance, join, control or participate in
the ownership, management, operation, financing or control of, or be connected
as an officer, director, employee, partner, principal, agent, representative,
consultant or otherwise with, or use or permit his name to be used in connection
with, any business or enterprise engaged in the business of designing,
engineering, manufacturing, marketing or distributing feeding or blending
equipment, or in any other business then engaged in by K-Tron or any other
member of the K-Tron Group, within (i) any state of the United States or the
District of Columbia or (ii) any other country in which K-Tron or any member of
the K-Tron Group has engaged in any such business within the prior year or is
about to engage in any such business; provided, however, that notwithstanding
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the foregoing, this provision shall not be construed to prohibit the passive
ownership by the Employee of not more than 1% of the capital stock of any
corporation which is engaged in any of the foregoing businesses having a class
of securities registered pursuant to the Securities Exchange Act of 1934. In the
event that the provisions of this Section 5 should ever be adjudicated to exceed
the time, geographic, product or other limitations permitted by applicable law
in any jurisdiction, then such provisions shall be deemed reformed in such
jurisdiction to the maximum time, geographic, product or other limitations
permitted by applicable law.
6. No Solicitation. During (i) the term of the Employment Term and
(ii) for one year thereafter only in the event that (A) such Employment Term is
terminated under Section 8.2 or 8.4 (but only if it is terminated by a member of
the K-Tron Group) hereof or (B) the Employee terminates employment with the
member of the K-Tron Group employing him without giving the notice required by
Section 8.1 hereof, the Employee shall not, unless acting as an employee
pursuant hereto or with the prior written consent of the K-Tron Board, call on
or solicit, either directly or indirectly, any person, firm, corporation or
other entity who or which is, or within two years prior thereto had been, a
customer of any member of the K-Tron Group, with respect to any matters
involving the designing, engineering, manufacturing, marketing or distributing
of feeding or blending equipment or involving any other businesses then engaged
in by any member of the K-Tron Group.
7. Equitable Relief.
(a) The Employee acknowledges that the restrictions contained
in Sections 3, 4, 5 and 6 hereof are, in view of the nature of the business of
K-Tron and the other members of the
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K-Tron Group, reasonable and necessary to protect the legitimate interests of
the K-Tron Group, that K-Tron would not have entered into this Agreement in the
absence of such restrictions, that the business of the K-Tron Group is
international in scope and that any violation of any provision of those Sections
will result in irreparable injury to K-Tron and the other members of the K-Tron
Group.
(b) The Employee agrees that in the event of any violation of
the restrictions referred to in Section 7(a) above, K-Tron and any other member
of the K-Tron Group shall be entitled to preliminary and permanent injunctive
relief, without the necessity of posting a bond or proving actual damages, and
to an equitable accounting of all earnings, profits and other benefits arising
from any such violation, which rights shall be cumulative and in addition to any
other rights or remedies to which K-Tron or any other member of the K-Tron Group
may be entitled.
(c) The Employee irrevocably and unconditionally agrees that
in the event of any violation of the restrictions referred to in Section 7(a)
above, an action may be commenced for preliminary and permanent injunctive
relief and other equitable relief in any federal or state court of competent
jurisdiction sitting in Gloucester or Camden County, New Jersey or in any other
court of competent jurisdiction. The Employee hereby waives, to the fullest
extent permitted by law, any objection that he may now or hereafter have to such
jurisdiction or to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that such suit, action or
proceeding has been brought in an inconvenient forum. The Employee agrees that
effective service of process may be made upon him by mail under the notice
provisions contained in Section 10 hereof and that all pleadings, notices and
other papers may be served upon him in the same manner.
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(d) The Employee agrees that he will provide, and that any
member of the K-Tron Group may similarly provide, a copy of Sections 3, 4, 5 and
6 of this Agreement to any business or enterprise (i) which he may directly or
indirectly own, manage, operate, finance, join, control or participate in the
ownership, management, operation, financing or control of, or (ii) with which he
may be connected with as an officer, director, employee, partner, principal,
agent, representative, consultant or otherwise, or in connection with which he
may use or permit his name to be used; provided, however, that this provision
shall not apply in respect of Sections 5 and 6 of this Agreement after
expiration of the time periods set forth therein.
(e) The Employee represents and acknowledges that (i) he has
been advised by K-Tron to consult his own legal counsel in respect of this
Agreement and (ii) he has had full opportunity to do so.
8. Termination.
8.1 Generally. Either party may terminate the Employment Term
upon not less than one year's prior notice to the other party. Should either
party elect to terminate the Employment Term on this basis, neither K-Tron nor
any member of the K-Tron Group shall have any liability or obligation to the
Employee after the date on which the Employment Term ends except for unpaid
salary and benefits accrued to such date and any additional benefits or payments
(excluding any other severance benefits or payments) payable to the Employee
under any applicable formal policy or plan of any member of the K-Tron Group
which covers the Employee at the time of his termination.
8.2 Partial or Total Disability. If in the judgment of the K-Tron
Board, the Employee is unable to perform his duties and responsibilities
hereunder by reason of illness,
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injury or incapacity for six consecutive months, or for more than six months in
the aggregate during any period of 12 calendar months, during which time K-Tron
or the member of the K-Tron Group actually employing the Employee at the time of
his disability shall continue to compensate the Employee hereunder (with such
compensation to be reduced by the amount of any payments due the Employee for
this time period under any applicable disability benefit programs, including
Social Security disability, worker's compensation and disability retirement
benefits), the Employment Term may be terminated by K-Tron in which event
neither K-Tron nor any other member of the K-Tron Group shall have any further
liability or obligation to the Employee except for unpaid salary and benefits
accrued to the date of his termination and for any additional disability or
other benefits or payments (excluding any other severance benefits or payments)
payable to the Employee under any applicable formal policy or plan of any member
of the K-Tron Group which covers the Employee at the time of his termination.
The Employee agrees, in the event of any dispute under this Section 8.2 and if
requested by K-Tron, to submit to a physical examination by a licensed physician
selected by K-Tron, the cost of such examination to be paid by K-Tron.
8.3 Death. In the event that the Employee dies during the
Employment Term, the member of the K-Tron Group actually employing the Employee
at the time of his death shall pay to his executors, administrators or personal
representatives, as appropriate, an amount equal to the installment of his
salary payable for the month in which he dies. Thereafter, neither K-Tron nor
any other member of the K-Tron Group shall have any further liability or
obligation hereunder to the Employee's executors, administrators, personal
representatives, heirs, assigns or any other person claiming under or through
him, except for any benefits or other payments
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(excluding any severance benefits or payments) payable to the Employee under any
applicable formal policy or plan of any member of the K-Tron Group which covered
the Employee at the time of his death.
8.4 For Cause. Nothing in this Agreement shall be construed to
prevent the termination of the Employment Term at any time either (i) by the
Employee for the failure of K-Tron or any other member of the K-Tron Group
actually employing the Employee at the time to observe or perform any of the
material terms or provisions hereof provided that the Employee has given written
notice of such failure to K-Tron and any other member of the K-Tron Group
employing the Employee and such failure has continued for 30 days thereafter, or
(ii) by K-Tron, by action of the K-Tron Board, for "cause." For purposes of this
Agreement, "cause" shall mean the failure of the Employee to observe or perform
(other than by reason of illness, injury or incapacity) any of the material
terms or provisions of this Agreement provided that the Employee has been given
written notice of such failure and such failure has continued for 30 days
thereafter, dishonesty, disloyalty, willful misconduct, conviction of a felony
or other crime involving moral turpitude, misappropriation of funds, habitual
insobriety, substance abuse, similar like cause, any action on the part of the
Employee involving willful and deliberate malfeasance or gross negligence in the
performance of his duties and responsibilities hereunder, any other action on
the part of the Employee that is damaging or detrimental in a significant way to
any member of the K-Tron Group or any willful violation by the Employee of a
written directive from the K-Tron Board or K-Tron's chief executive officer.
8.5 Without Cause. K-Tron, by action of the K-Tron Board, may
terminate the Employment Term at any time without cause upon notice to the
Employee accompanied by
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payment to the Employee of a lump sum amount equal to 100% of the Employee's
then-annual base salary hereunder, in which event neither K-Tron nor any other
member of the K-Tron Group shall have any further liability or obligation to the
Employee after the date of termination of the Employment Term except for any
unpaid salary and benefits accrued to such date and for any additional or other
benefits or payments (excluding any other severance benefits or payments)
payable to the Employee under any applicable formal policy or plan of any member
of the K-Tron Group which covers the Employee at the time of his termination.
Notwithstanding the foregoing, if notice of termination shall have previously
been given to the Employee under Section 8.1 hereof and be in effect, the amount
to be paid to the Employee shall be reduced to 100% of the base salary hereunder
to which the Employee would otherwise have been entitled for the remaining
balance of his Employment Term.
9. Survival. Notwithstanding the termination of the Employment Term
for any reason whatsoever, the obligations of the Employee under Sections 3, 4,
5 and 6 hereof shall survive and remain in full force and effect for the periods
therein provided, and the provisions for equitable relief found in Section 7
hereof shall continue in force.
10. Notices. All notices and other communications hereunder shall be
in writing and deemed to have been given when hand delivered, in person or by a
recognized courier or delivery service, when telefaxed to the recipient's
correct telefax number (with receipt confirmed) or when mailed by registered or
certified mail, return receipt requested, or by air mail to any addressee
located outside the United States, as follows (provided that notice of change of
address shall be deemed given only when received):
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If to K-Tron, to:
K-Tron International, Inc.
Xxxxxx 00 xxx 000
Xxxxxx, XX 00000
Attention: Chief Executive Officer
With a required copy to:
Xxxxxx, Xxxxx & Bockius LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, XX, Esquire
If to the Employee, to:
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or to such other name or address as any designated recipient shall specify by
notice to the other designated recipients in the manner specified in this
Section 10. Any communication delivered in another manner shall be deemed given
when actually received.
11. Governing Law. This Agreement shall be governed by and
interpreted under the laws of the State of New Jersey, United States of America
without giving effect to any conflict of laws provisions.
12. Contents of Agreement, Amendment and Assignment.
(a) This Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof, supersedes any prior
employment agreement between the
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parties and shall not be changed, modified or terminated except upon written
amendment executed by a duly authorized officer of K-Tron and the Employee;
provided, however, that notwithstanding anything herein to the contrary, this
Agreement shall not be deemed to modify or otherwise limit (i) (except as to
salary) any pre-existing written agreements between the Employee and members of
the K-Tron Group involving the relocation of the Employee, or (ii) any
requirement of, or protection provided to the Employee under, any applicable law
governing his employment by any member of the K-Tron Group. Furthermore and
without limitation, nothing in this Agreement shall be construed as giving the
Employee any right to be retained in the employ of any member of the K-Tron
Group beyond the expiration of the Employment Term, and if employed thereafter
the Employee specifically acknowledges that he shall be an employee-at-will and
thus subject to discharge with or without cause and without further compensation
of any nature.
(b) Employee acknowledges that from time to time, K-Tron and
other members of the K-Tron Group may establish, maintain and distribute
employee manuals or handbooks or personnel policy manuals, and officers or other
representatives of K-Tron or other members of the K-Tron Group may make written
or oral statements relating to personnel policies and procedures. Such manuals,
handbooks and statements are intended only for general guidance. No policies,
procedures or statements of any nature by or on behalf of any member of the
K-Tron Group (whether written or oral, and whether or not contained in any
employee manual or handbook or personnel policy manual), and no acts or
practices of any nature, shall be construed to modify this Agreement or to
create express or implied obligations of employment or continued employment by
K-Tron or any other member of the K-Tron Group.
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(c) All of the provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective heirs,
executors, administrators, personal representatives, successors and assigns of
the parties hereto, except that the duties and responsibilities of the Employee
hereunder are of a personal nature and shall not be assignable or delegable in
whole or in part by the Employee.
(d) In the event that the Employee is employed by a member
("such other member") of the K-Tron Group other than K-Tron, and in the further
event that either (i) K-Tron or another member of the K-Tron Group shall sell
50% or more of the voting stock of such other member to a third party after such
other member shall have assumed all of K-Tron's obligations hereunder or (ii)
such other member shall sell substantially all of its operating assets to a
third party which agrees in writing to assume all of K-Tron's obligations
hereunder, then K-Tron shall, upon the closing of any such transaction, have no
further duties or obligations hereunder.
(e) All references in this Agreement to the "K-Tron Board" shall
also be deemed to include the Executive Committee of the K-Tron Board.
13. Severability. If any provision of this Agreement or the
application thereof to anyone or any circumstance is held invalid or
unenforceable in any jurisdiction, the remainder of this Agreement, and the
application of such provision to such person or entity or such circumstance in
any other jurisdiction or to other persons, entities or circumstances in any
jurisdiction, shall not be affected thereby, and to this end the provisions of
this Agreement are severable.
14. Remedies Cumulative; No Waiver. No remedy conferred upon any
party by this Agreement is intended to be exclusive of any other remedy, and
each and every such
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remedy shall be cumulative and in addition to any other remedy given hereunder
or now or hereafter existing at law or in equity. No delay or omission by any
party in exercising any right, remedy or power hereunder or existing at law or
in equity shall be construed as a waiver thereof, and any such right, remedy or
power may be exercised by such party from time to time and as often as may be
deemed expedient or necessary by such party in its or his sole discretion.
15. Miscellaneous. The masculine pronoun whenever used shall include
the feminine and the singular shall be construed as the plural, where
applicable. All section headings are for convenience only. This Agreement may be
executed in several counterparts, each of which shall be an original. It shall
not be necessary in making proof of this Agreement or any counterpart hereof to
produce or account for any of the other counterparts.
IN WITNESS WHEREOF, K-Tron and the Employee have executed this
Agreement as of the date first above written.
[Corporate Seal] K-TRON INTERNATIONAL, INC.
Attest:
By:
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Secretary As its Chairman and
Chief Executive Officer
EMPLOYEE
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Witness
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SCHEDULE 10.12
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Xxxxx X. Xxxxx
Xxxxx Xxxxxxxxx
Xxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxx
