Exhibit 10
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), is made and entered as of the 28th
day of August, 1998 (the "Effective Date"), by and among Flour City
International, Inc., a Nevada corporation ("Company"), and Flour City
Architectural Metals, Inc., a Delaware corporation ("Employer"), on the one
hand, and Xxxxxx X. Xxxxx ("Executive") on the other, (Employer, Company and
Executive collectively, the "Parties" and individually, a "Party"), with
reference to the facts set forth in the Recitals below.
RECITALS
A. Company and Employer are companies engaged in the business of engineering,
management and construction of custom curtain wall projects; and
B. Executive has particular knowledge and a background in performing executive
level management services and related activities for a business of this nature;
and
C. The Parties desire to enter into this Agreement by which the Executive's
services will be made available to the Company and Employer.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter contained, the Parties hereby agree as follows:
1. EMPLOYMENT.
Company shall employ Executive as its Chief Financial Officer and Treasurer,
and Employer shall employ Executive as its Chief Financial Officer and
Treasurer, for a term of two (2) consecutive years (the "Term"), the Effective
Date. The employment relationship created by this Agreement may only be
terminated prior to the expiration of the Term in accordance with the provisions
of Sections 5 and 6 hereof and in accordance with the terms and conditions
contained therein.
2. TITLES AND DUTIES.
2.1 INITIAL APPOINTMENTS.
Subject at all times to the supervision and direction of the Company's and
Employer's Board of Directors, Executive shall be employed as the Chief
Financial Officer and Treasurer of Company, and Chief Financial Officer and
Treasurer of Employer, to perform such executive and other duties relating to
the business and operations of the Company and Employer, respectively, and any
present or future subsidiaries or affiliates thereof as are delegated or
assigned to the Executive from time to time by the Board of Directors of Company
and are consistent with the position of Chief Financial Officer and Treasurer.
Executive shall faithfully and diligently perform all duties and will promote
and advance the business and affairs of Company and Employer.
3. COMPENSATION.
3.1 BASE SALARY.
3.1.1 Executive will be paid an annual base salary of $105,000 ("Base Salary")
commencing as of the Effective Date. The Base Salary shall be payable in equal
bi-weekly installments by Company and Employer in equal amounts.
3.1.2 Executive's Base Salary shall be evaluated on an annual basis by the
Board of Directors of Company. Executive's Base Salary may be increased in the
sole discretion of the Board of Directors of Company, but never decreased during
the Term, without the consent of Executive.
3.2 BENEFITS.
In addition to the Base Salary, Executive shall receive the following benefits:
3.2.1 During the period for which Executive is employed by the Company and/or
Employer, Employer shall purchase medical health insurance for Executive (which
health insurance shall also cover Executive's spouse and certain children) of
the type and in such amounts as is available from time to time to other senior
executives of Employer;
3.2.2 During the period for which Executive is employed by Employer, Executive
shall be entitled to (a) a vacation period each year of fifteen (15) business
days
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and (b) additional holidays customarily observed by Company and/or Employer, and
during such time, Executive's compensation shall be paid in full.
3.2.3 During the period for which Executive is employed by Employer, and within
five (5) business days of the submission of the appropriate documentation by
Executive, Executive shall be reimbursed by Company and/or Employer for all
ordinary and necessary business expenses reasonably incurred by Executive in the
performance of Executive's duties, provided that:
3.2.3.1 Each such expenditure is of a nature qualifying it as a proper business
expense of Company and/or Employer; and
3.2.3.2 Executive furnishes to Company and/or Employer adequate records and
other documentation as may be reasonably required by Company and/or Employer for
the substantiation of such expenditures as a business expense of Company and/or
Employer.
3.2.4 Company and/or Employer agrees to pay Executive's annual certified public
accountant and association fees. Company and/or Employer shall also pay
Executive's reasonable costs and expenses incurred in connection with Employee's
annual educational requirements.
4. OTHER COMPENSATION.
Pursuant to the terms of the Underwriting Agreement between the Company and Xxx
Xxxxxx & Company ("Xxx Xxxxxx") dated May 21, 1998 (the "Underwriting
Agreement"), the Company is currently prohibited from issuing, selling,
offering, granting any option to purchase or otherwise dispose of any shares of
Common Stock without the prior consent of Xxx Xxxxxx. At the first anniversary
of the Effective Date, the Company will grant the Executive an option to
purchase ten thousand (10,000) shares of the Company's Common Stock at the
prevailing price on said anniversary date, pursuant to the Company's 1997 Stock
Incentive Plan.
5. DISABILITY OR DEATH.
Company and/or Employer shall have the right to terminate this Agreement in the
event of Executive's death or if Executive becomes permanently disabled. In the
event of Executive's permanent disability, Company and/or Employer shall
continue to pay the Base Salary that would have otherwise been earned by
Executive for a period of six (6) months from the date of certification of
disability by an attending physician; provided, however, that Employer's
obligation hereunder shall be reduced to the extent of any disability insurance
payments received by Executive. In the event of the death of Executive,
Executive's estate will receive the Base Salary that would have otherwise been
earned by Executive for a period of six (6) months. For purposes of this
Agreement, the phrase "permanently disabled" shall mean the inability of
Executive to perform Executive's duties hereunder for a continuous period of
more than three (3) consecutive months during any twelve (12) month period, as
determined by Executive's attending physician.
6. TERMINATION.
6.1 TERMINATION BY EMPLOYER.
6.1.1 Except as expressly provided in Section 5 hereof, Company and/or Employer
may terminate Executive's employment hereunder for "cause" only in accordance
with the provisions of this Section 6.1.1, or "without cause" only in accordance
with the provisions of Section 6.1.2 hereinbelow. For purposes of this
Agreement, the term "cause" shall mean a material breach of this Agreement by
Executive or the willful and continued failure by Executive to substantially
perform Executive's duties hereunder. In the event termination is for cause,
Company and/or Employer is not required to give advance notice to Executive.
Employer will continue the payment of Base Salary and all benefits provided for
herein for a thirty (30) day period following notice of termination.
6.1.2 In the event Executive is terminated for any reason other than for cause
("Without Cause") excluding disability or death pursuant to Section 5, Executive
shall be entitled to the Base Salary he would have been paid had Company and/or
Employer not terminated the Executive and the Executive had continued to provide
services hereunder for as long as the Company's Board of Directors shall deem
proper, which in no event shall be less than three (3) months from the date of
termination. Executive shall continue to be bound by Sections 9 and 10 hereof.
6.2 TERMINATION BY EXECUTIVE.
6.2.1 Executive may terminate Executive's employment hereunder for "cause" only
in accordance with the provisions of this Section 6.2.1, or "without cause" only
in
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accordance with the provisions of Section 6.2.2 hereinbelow. For purposes of
this Agreement, the term "cause" shall mean a material breach of this Agreement
by Company and/or Employer which breach has not been cured within thirty (30)
days after a written demand for such performance is delivered to Company and/or
Employer, as the case may be, by Executive that specifically identifies the
manner in which Executive believes that Company and/or Employer has breached
this Agreement. In the event of such termination, Company and/or Employer will
continue the payment of the Base Salary provided for in Section 3 hereof until
the expiration of three (3) months from the date of termination.
6.2.2 Executive may terminate Executive's employment hereunder without cause
only upon giving not less than three (3) months prior written notice to Company
and/or Employer, as the case may be. In the event of such termination, Company
and/or Employer will continue the payment of the Executive's Base Salary
provided for in Section 3 hereof through the date of termination. In the event
Executive provides less than three months notice to Employer and/or Company
prior to termination, then Executive shall pay to Company and/or Employer an
amount equal to $550 multiplied by the number of days for which adequate written
notice was not received, which number may not exceed 90. For example, if 15 day
written notice is given, then the amount to be paid to Company would equal
$41,250, or $550 multiplied by 75.
7. ARBITRATION.
In the event any disagreement or controversy between Executive and Company
and/or Employer arises out of or in connection with this Agreement, including
without limitation, the performance of the Parties hereunder, the same shall be
submitted to arbitration in accordance with the rules of the American
Arbitration Association and the Parties agree that a decision of the arbitrator
shall be binding on the Parties and each Party shall comply with any such
decision; provided, however, that Company and/or Employer shall be entitled to
seek injunctive or equitable relief in any court of competent jurisdiction for a
breach or alleged breach by Executive of any provision contained in Sections 9
or 10 of this Agreement.
8. PLACE OF PERFORMANCE.
It is contemplated that Executive shall perform a majority of Executive's
principal duties at Company's principal place of business located at 000
Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxx 00000, or at such other location within
the continental U.S. as Company may decide.
9. NON-DISCLOSURE.
Executive understands that certain information regarding Company's and
Employer's business may be disclosed to Executive during the course of
Executive's association with Company and Employer. Such information may
include, but is not limited to client and potential client names, addresses,
telephone numbers and project information; mailing labels; project report forms;
actual or potential bidding data for current or potential projects; information
regarding pending projects or proposals; methods of quotation, production or
engineering, including quality control and project management; business plans
and projections; new product, facility and expansion plans; pricing information,
including price lists, quotation guides, previous or outstanding quotations,
equipment prices and billing information; estimating programs and methodology;
techniques used in, approaches or results of any market research; advertising
sources; employee salaries, contract, project and wage information; financial
information regarding Company and Employer and their business; customer
information reports; and marketing plans and programs; whether written, verbal
or contained on computer hardware or software, diskette, tape microfiche or
other media (the "Information"). The Information is of substantial value and
highly confidential, is not known to the general public, is the subject of
reasonable efforts to maintain its secrecy, constitutes the professional and
trade secrets of Company and Employer and is being provided and disclosed to
Executive solely for use in connection with Executive's employment with Company
and Employer.
In consideration of such employment and receipt of the Information, Executive
agrees that Executive: (i) will regard and preserve the Information as highly
confidential and as the trade secrets of Company and Employer; (ii) will not
disclose, nor permit to be disclosed, any of the Information to any person or
entity, absent consent and approval from Company and/or Employer; (iii) will not
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make any use of the Information for Executive's own benefit or for the benefit
of any person or entity other than Company and/or Employer; (iv) will return all
of the Information, including but not limited to formulations, customer lists,
books maintained by Employee, source lists, to Company and/or Employer within
twenty-four (24) hours after request for same; and (v) will comply with all of
the provisions contained in this Section 9 during the Term of this Agreement and
at all times following the termination of this Agreement.
10. NON-COMPETITION AND NON-SOLICITATION.
Executive agrees and represents to Company and Employer that for so long as
Executive is an employee or director of Company and/or Employer and for a period
of one (1) year thereafter, Executive will not, as principal, employer,
stockholder, co-partner, employee or in any other individual or representative
capacity whatsoever, enter into or engage, directly or indirectly, anywhere
within the world, in any business which is in any way directly competitive with
the business of Company and/or Employer, and Executive will not acquire or own
or become a partner, employer, stockholder, officer or director of any company
engaged in the business of engineering, management or construction of curtain
wall projects; provided, however, that the preceding provision shall not be
construed to prevent Executive from owning less than five percent (5%) of the
equity of any public entity engaged in the curtain wall industry, whether or not
such entity is engaged in a business in competition with the business conducted
by Company and/or Employer.
Executive further agrees that during Executive's association with Company and/or
Employer and for a period of one (1) year thereafter, Executive will not
directly or indirectly, solicit, communicate with or otherwise contact any of
Company's and/or Employer's customers or potential customers for the purpose of
conducting any engineering, management or construction of curtain wall business
which business is not the Company's and/or Employer's business. Executive
agrees that Executive will not directly or indirectly, employ, solicit for
employment or advise or recommend to any other person that they employ or
solicit for employment, any person employed by Company and/or Employer during
the Term of this Agreement or at any time following the termination of this
Agreement.
11. ASSIGNMENT OF WORK PRODUCT.
Executive agrees that the fruits of Executive's labor and efforts as an employee
of Company and Employer shall belong solely to Company and/or Employer and
Executive shall have no proprietary or other rights relating to such work
product.
12. GENERAL PROVISIONS.
12.1 GOVERNING LAW AND JURISDICTION.
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Tennessee.
12.2 NOTICES.
All notices and other communications provided for or permitted hereunder shall
be made by hand delivery, first class mail, telex or telecopier, addressed as
follows:
PARTY ADDRESS
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Company: Flour City International, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Employer: Flour City Architectural Metals, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Executive: Xxxxxx X. Xxxxx
000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; five (5) business days after
deposit in any United States Post Office in the continental United States,
postage prepaid if mailed or if sent via professional carrier service provided
all fees are prepaid;
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when answered back, if telexed, and when receipt is acknowledged or confirmed,
if telecopied.
12.3 ATTORNEYS' FEES.
In the event a dispute arises with respect to this Agreement, the party
prevailing in such dispute shall be entitled to recover all expenses, including,
without limitation, reasonable attorneys' fees and expenses incurred in
ascertaining such party's rights and in preparing to enforce or in enforcing
such party's rights under this Agreement.
12.4 COMPLETE AGREEMENT.
This Agreement supersedes any and all other agreements, either oral or in
writing, between the Parties with respect to the subject matter hereof and
contains all of the covenants and agreements between the Parties with respect to
such subject matter in any manner whatsoever. Each Party acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any Party, or anyone herein, and that no other agreement, statement
or promise not contained in this Agreement shall be valid or binding. This
Agreement may be changed or amended only by an Amendment in writing signed by
each Party or his or its respective successors-in-interest.
12.5 BINDING.
The Agreement shall be binding upon and inure to the benefit of the
successors-in-interest, assigns and personal representatives of the respective
Parties. If Executive should die while any amount would still be payable to
Executive hereunder if Executive had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to Executive's devisee, legatee or other designee.
12.6 AUTHORITY.
Each Party hereby represents and warrants to the others that: (a) he or it has
the power and authority to enter into this Agreement, and (b) the execution,
delivery and performance of this Agreement do not and will not violate the terms
of any agreement or other instrument to which he or it is a party or by which he
or it is bound. Company and Employer further represent and warrant to Executive
that this Agreement has been duly authorized by all necessary corporate action
and has been duly and validly executed and delivered by Company and Employer and
constitutes the valid and binding obligation of Company and Employer,
enforceable against Company and Employer in accordance with its terms.
12.7 NUMBER AND GENDER.
Whenever the singular number is used in this Agreement and when required by the
context, the same shall include the plural, and the masculine gender shall
include the feminine and neuter genders and the word "person" shall include
corporation, firm, partnership or other form of association.
12.8 FAILURE TO OBJECT NOT A WAIVER.
The failure of any Party to this Agreement to object to or to take affirmative
action with respect to any conduct of another Party which is in violation of the
terms of this Agreement, shall not be construed as a waiver or continuing waiver
of the violation or breach or of any future violation, breach or wrongful
conduct.
12.9 UNENFORCEABLE TERMS.
Any provision hereof prohibited by law or unenforceable under the law of any
jurisdiction in which such provision is applicable shall as to such jurisdiction
only be ineffective without affecting any other provision of this Agreement. To
the full extent, however, that such applicable law may be waived to the effect
that this Agreement be deemed to be a valid and binding agreement enforceable in
accordance with its terms, the Parties hereby waive such applicable law
knowingly and understanding the effect of such waiver.
12.10 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in several counterparts and when so executed
shall constitute one agreement binding on all the Parties, notwithstanding that
all the Parties may not be signatories to the original and same counterpart.
12.11 FURTHER ASSURANCES.
From time to time each Party shall execute and deliver such further instruments
and shall take such other actions as any other Party may reasonably request in
order to discharge and perform
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their obligations and agreements hereunder and to give effect to the intentions
expressed in this Agreement.
12.12 CROSS-REFERENCES.
All cross-references in this Agreement, unless specifically directed to another
agreement or document, refer to provisions in this Agreement, and shall not
be deemed to be referenced to the overall transaction or to any other
agreements or documents.
12.13 MISCELLANEOUS PROVISIONS.
The various headings and numbers herein and the grouping of provisions of this
Agreement into separate Sections and paragraphs are for the purpose of
convenience only and shall not be considered a part hereof. The language in all
parts of this Agreement shall in all cases be construed in accordance with its
fair meaning as if prepared by all Parties to the Agreement and not strictly for
or against any of the Parties.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
"Employer"
FLOUR CITY ARCHITECTURAL METALS, INC.,
a Delaware corporation
By: /s/
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Name: Xxxxxxx X. Xxxxx
Title: President / CEO
"Company"
FLOUR CITY INTERNATIONAL, INC.,
a Nevada corporation
By: /s/
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Name: Xxxx X. Xxxx
Title: Chairman / Secretary
"Executive"
/s/
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Xxxxxx X. Xxxxx
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