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EXHIBIT 10 (b)
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") has
been made as of April 1, 1998 by and between TRANSMATION, INC., an Ohio
corporation (the "Corporation"), and XXXXXX X. XXXXXXXXXXX (the "Employee").
WHEREAS, the parties have previously entered into a certain Employment
Agreement dated as of April 1, 1995, as extended and amended as of April 1, 1996
(the "Original Agreement"), and they now desire to extend the term of the
Original Agreement, to amend its provisions in certain respects and to restate
the Original Agreement in its entirety;
NOW, THEREFORE, the Original Agreement is hereby extended, amended and
restated in its entirety, effective this date, to provide as follows:
1. MUTUAL AGREEMENT OF THE PARTIES. The Corporation hereby agrees to
continue to employ the Employee, and the Employee hereby agrees to accept such
continued employment, for the period and on the terms and conditions set forth
in this Agreement.
2. TERM OF EMPLOYMENT.
(a) TERM. The term of this Agreement and of the Employee's
employment hereunder (the "Term") shall commence on the date hereof and shall
expire on March 31, 1999, subject to the further provisions of Section 2(b)
hereof and in all cases subject to earlier termination as provided by Section 9
hereof. As used herein, the term "Year" shall mean any period during the Term
commencing on April 1 and ending on the next succeeding March 31.
(b) RENEWAL. On April 1, 1999, the Term shall renew for one Year and
expire on March 31, 2000 if each party shall have given the other, on or before
February 1, 1999, written notice that the Term shall renew. If such notice is
not given by each party, then the Term shall expire on March 31, 1999.
3. AUTHORITY AND DUTIES. During the Term the Employee shall be the
Chairman of the Board of Directors of the Corporation (the "Board of
Directors"). As such, he shall: (i) report and be responsible to the Board of
Directors; (ii) work in an advisory and consultative capacity with the President
and Chief Executive Officer; (iii) perform the duties set forth in the letter
annexed hereto as Exhibit A (which is incorporated herein by reference as if set
forth herein in full); and (iv) have and exercise such powers and authority as
are customarily enjoyed by a chairman of the board of directors of a
corporation, subject to direction by the Board of Directors. The Employee shall
devote such time to the affairs of the Corporation as is necessary for the
performance of his duties hereunder, and shall use his best efforts to promote
its best interests.
4. COMPENSATION. During the Term the Corporation shall pay to the
Employee, and the Employee shall accept, as compensation for all services
rendered under this Agreement, a cash salary at the rate of $175,000 per Year.
Such salary shall be payable at such intervals (but not less often than
bi-weekly or semi-monthly) as the Corporation pays the salaries of other senior
executives during the Term.
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5. BENEFITS. During the Term:
(a) VACATION. The Employee shall be entitled to the same amount of
paid vacation time per annum as the Corporation provides its other senior
executives.
(b) AUTOMOBILE ALLOWANCE. The Corporation shall provide the Employee
with an automobile allowance in the amount of $750 per month.
(c) CLUB MEMBERSHIP. The Corporation shall, at its expense, provide
the Employee with membership in one country club of his choosing.
(d) OTHER BENEFITS. The Corporation shall, at its expense, provide
in the name and for the benefit of the Employee and his designated beneficiaries
all fringe benefit plans and programs which the Corporation then provides for
its senior executives, except if and to the extent that the Employee shall waive
his rights thereto. Nothing contained herein shall be deemed to restrict or
limit the right of the Corporation at any time to modify, amend or terminate any
or all such fringe benefit plans and programs.
6. BUSINESS EXPENSES. The Corporation shall pay or reimburse the
Employee for all reasonable travel and other expenses incurred or paid by him in
connection with the performance of his duties under this Agreement, upon
presentation to the Corporation of expense statements or vouchers and such other
supporting documentation as it may, from time to time, reasonably require;
provided, however, that the amount available for such expenses may, at any time
or from time to time, be fixed in advance by the Board of Directors.
7. NON-COMPETITION. The Employee agrees that during the Term he shall
not, without the express written consent of the Corporation, engage directly or
indirectly (whether by means of stock ownership or otherwise) in any business
which is in competition, directly or indirectly, with the business of the
Corporation. A direct or indirect investment by the Employee in less than 5
percent of the total capital of any such competitive enterprise or business
whose stock is publicly traded shall not be deemed a violation of this Section
7.
8. CONFIDENTIALITY. The Employee acknowledges that in the course of his
employment by the Corporation he has had and will have access to confidential
information relating to the business and affairs of the Corporation, including
without limitation information relating to business ideas, trade secrets,
product development, secret processes, plans and/or materials, statistical
information and customer lists. The Employee agrees that he will not, either
during the Term or after its expiration, without the prior express written
consent of the Corporation, disclose, divulge, furnish, release or otherwise
make available to any person or entity any of such confidential information,
except for: (a) disclosures made, in furtherance of the Corporation's interests,
with the approval or at the direction of investment bankers retained by the
Corporation, and (b) disclosures of information which, through no breach of the
Employee's obligations under this Section 8, is no longer confidential.
9. TERMINATION; SEVERANCE.
(a) TERMINATION. This Agreement and the Employee's employment
hereunder shall terminate at the close of business on the earliest of the
following dates:
(i) the applicable date of expiration of the Term provided by
Section 2 hereof; or
(ii) the date of the Employee's death; or
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(iii) the thirtieth day following the date on which the
Corporation receives written notice of the Employee's termination of
this Agreement; or
(iv) the thirtieth day following the date on which the Employee
receives written notice of the Board of Directors' termination of this
Agreement with or without "Cause" (as defined in Section 9(b) hereof).
(b) CAUSE FOR TERMINATION. For purposes of this Agreement, the term
"Cause" shall mean a reasonable determination by vote of a majority of the
members of the Board of Directors then holding office (other than the Employee
if he shall then be a director) that one of the following conditions exists or
one of the following events has occurred:
(i) the willful misconduct or gross negligence of the Employee
in connection with the performance of his duties hereunder; or
(ii) the Employee's conviction of any crime or offense involving
money, property or personnel of the Corporation, or of any other crime
which constitutes a felony; or
(iii) the Employee's use, possession or being under the
influence of any narcotic or controlled substance while at work, or his
being under the influence of any alcoholic beverage while at work.
(c) SEVERANCE PAYMENT IF TERMINATION WITHOUT CAUSE. In the event
that the Board of Directors shall terminate this Agreement without Cause, the
Corporation shall pay to the Employee as severance an amount equal to the total
compensation (including without limitation salary, bonuses (if any), benefits
(if any) and compensation (if any) in the form of stock or options to purchase
stock) payable to the Employee by the Corporation during the 12 months
immediately preceding the date of termination specified in Section 9(a)(iv)
hereof (the "Termination Date"). Such severance amount shall be paid to the
Employee in cash within 30 days following the Termination Date unless and to the
extent that the Employee determines otherwise. For purposes of calculating the
cash amount of such severance payment, any such compensation that had been
payable to the Employee other than in cash shall be valued at its fair market
value on the date it was payable.
10. IN GENERAL.
(a) BINDING OBLIGATION. This Agreement shall be binding upon and
shall inure to the benefit of the Employee and his personal representatives, and
the Corporation and its successors and assigns, including without limitation any
successor to the business of the Corporation, whether by way of merger,
reorganization, transfer of assets or otherwise. The term "Corporation" as used
herein shall include such successors and assigns.
(b) NOTICES. Any notice required or permitted by this Agreement
shall be given by hand or by certified mail, return receipt requested, addressed
to the Corporation at its then principal office, or to the Employee at his then
residence address, or to either party at such other address as it or he may from
time to time specify for the purpose in a notice similarly given to the other
party.
(c) APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
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(d) ENTIRE AGREEMENT, ETC. This Agreement contains the entire
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, between the parties with respect to the subject matter hereof, including
the Original Agreement. No modification of this Agreement shall be valid unless
it is in writing and signed by the Corporation and by the Employee. A waiver of
the breach of any term or condition of this Agreement shall not be deemed to
constitute a waiver of any subsequent breach of the same or any other term or
condition.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the day and year first above written.
TRANSMATION, INC.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx
Chairman of the Executive Committee
of the Board of Directors
/s/ Xxxxxx X. Xxxxxxxxxxx
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XXXXXX X. XXXXXXXXXXX
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EXHIBIT A
TRANSMATION, INC.
00 XXXXXXX XXXXX XXXXX
XXXXXXXXX, XXX XXXX 00000
April 1, 1998
Xxxxxx X. Xxxxxxxxxxx
Chairman of the Board
Transmation, Inc.
00 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Dear Xxx:
In your capacity as Chairman of the Board of the Company, I would like
you to be responsible for the following matters during the 1998-99 fiscal year
of the Company:
(i) acquisitions
(ii) banking and other financial relationships
(iii) investor relations
(iv) mentoring me
(v) mentoring Xxxx Xxxxxxxxx
(vi) strategic planning with respect to employee benefits, and
(vii) special projects as may be assigned to you by the Board of
Directors on my recommendation.
I look forward to working with you.
Very truly yours,
TRANSMATION, INC.
Xxxx X. XxXxxxx
President and Chief Executive Officer
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