[LETTERHEAD OF XXXXX MFG. & ELECTRONICS CORP.]
SECOND AMENDED AND RESTATED XXXXXX XXXXXXX AGREEMENT
AGREEMENT dated as of February 20, 2009, by and between Xxxxx Mfg. & Electronics
Corp., a New York corporation having its principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, Xxx Xxxx 00000 (the "Company") and Xxxxxx
Xxxxxxx, an individual residing at 0 Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxx Xxxx,
00000 (the "Employee").
WHEREAS, the Employee has been a valued employee of the Company for many years,
and is now President and Chief Executive Officer of the Company;
WHEREAS, the Board of Directors of the Company wish to amend and restate again
the terms of an agreement originally dated as of May 25, 2006 and amended and
restated as of August 17, 2007, providing for transitional services by the
Employee incidental to his succession as Chief Executive Officer of the Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the parties agree as follows:
1. RESIGNATION OR TERMINATION. Upon the Employee's resignation or
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termination as Chief Executive Officer during the Term (as hereinafter
defined) of this Agreement, the Employee shall become a non-executive
officer of the Company for a period of thirty-six (36) months from the
date of such resignation or termination.
2. COMPENSATION AND DUTIES. In consideration of the Employee's services
for a period equivalent to ten (10) days a month, based upon a regular
work week of four (4) days, after his resignation or termination as
Chief Executive Officer, his agreement to perform duties as reasonably
requested by the Company and his compliance with paragraph 5 herein, it
is agreed as follows:
(A) The Employee shall receive $16,000 a month, and, to the
extent permissible, all benefits being received at the time of his
resignation or termination as Chief Executive Officer for a period of
three months, after the date of resignation or termination.
(B) At the end of the above three months, the Employee's
compensation will change to $6,666.67 per month for the next
consecutive 33 months, and he shall receive all current benefits as
above. The Employee shall be eligible to participate, to the extent
permissible, in new benefits should they occur during this period of
time. For ESOP and all other benefit purposes, the Employee shall
continue to be treated as a full-time employee for the duration of the
Agreement to the extent permissible and consistent with the terms of
the ESOP and all applicable laws.
(C) It is agreed that the Employee shall be reasonably
available by telephone or otherwise to render advice and counsel, but
need not be physically present at the Company's offices, unless his
physical presence is reasonably requested by the Company. Should the
employee be required to engage in any activity not within the scope of
this agreement, he shall be reimbursed, in addition to his monthly
salary, at an hourly rate to be mutually agreed upon between an
authorized representative of the Company and himself.
(D) If the Employee dies either during the Term, before his
resignation or termination as Chief Executive Officer, or during the 36
month period after his transitional services become effective following
such resignation or termination, the compensation payments provided for
in Sections 2 (A) and
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(B) will be paid, as scheduled, to the Employee's estate. In the event
of the Employee's death, all other benefits shall cease at death.
(E) The compensation and benefits payable hereunder shall be
the Employee's sole and exclusive entitlement following his resignation
or termination as Chief Executive Officer.
3. EXPENSES. If the Employee is requested by the Company, at any point
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while he is receiving payments under paragraphs (A) or (B) of Section 2
of this Agreement, to return to Saratoga Springs, and the Employee is
then not in the Saratoga Springs area, the Company shall pay the
reasonable transportation costs for the Employee to return. The
Employee shall not be reimbursed for any other expenses hereunder
unless the Employee and the Company so agree with respect to a specific
expense.
4. TERM. This Agreement shall continue in effect until December 31,
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2011 at which time this Agreement shall terminate (the "Term"). If
during the Term, the Employee resigns or is terminated as Chief
Executive Officer of the Company, then the provisions of this Agreement
shall continue in effect during the 36 month period following such
resignation or termination and as provided in Section 5 below.
5. RESTRICTIVE COVENANT: CONFIDENTIAL INFORMATION.
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(A) The Employee agrees that during the Term of this Agreement
and for a period of five (5) years thereafter, he shall not directly or
indirectly, on behalf of himself or on behalf of any other corporation,
person or entity other than the Company, compete or interfere with the
Company, render any services to, consult for, contract with or become
an employee, officer, director, partner, member, or (except as a five
percent (5%) or less shareholder of any publicly traded company) owner
or shareholder of, any individual or entity which engages in the
Company's business or which otherwise competes with the Company.
(B) The Employee recognizes and acknowledges that there has
been made available to him confidential information concerning matters
affecting or relating to the products, services or business of the
Company, its subsidiaries, or affiliates, including, but not limited
to, intellectual property, technology, proprietary information,
customer lists and other financial information, contractual
relationships, past or contemplated actions, personnel matters,
marketing or sales data and written or oral communications or
understandings of any sort of the Company or of any of its customers in
either tangible or intangible form ("Confidential Information"). The
Employee further recognizes and acknowledges that this Confidential
Information as it may exist from time to time belongs to the Company
and is a valuable, special and unique asset of the Company's business.
The Employee will not, during or after the Term of this Agreement, at
any time, directly or indirectly, divulge, disclose or communicate any
Confidential Information to any person, firm, corporations, association
or other entity for any reason or purpose whatsoever.
The Employee will promptly deliver to the Company all copies of all
Confidential Information and all material of any nature belonging to
the Company, and the Employee will not take with him any such
Confidential Information, materials or reproductions thereof or any
proprietary information of the Company in tangible or intangible form.
6. MISCELLANEOUS. Not withstanding any provision in this Agreement to
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the contrary, if during the Term of this Agreement the Employee is
terminated from the Company for good and sufficient cause then all
payments and benefits provided herein shall immediately cease unless
the Employee seeks Arbitration pursuant to Section 14. Arbitration
herein in which case such payments and benefits shall continue until
the arbitrator has made an award or decision. Good and sufficient cause
shall mean: (a) willful misconduct with respect to the reasonable
directions of the Board; (b) conviction of a crime or indecent
exposure; or (c) gross negligence or malfeasance in the performance of
his obligations hereunder.
7. SUCCESSOR AND ASSIGNS. This Agreement shall be binding upon and
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insure to the benefit of the parties hereto, and their respective legal
representatives, heirs, successors and assigns.
8. NOTICES. Any notices, consents or information required or requested
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or permitted by this Agreement shall be sent to the parties at the
addresses shown above, unless such address is changed by written notice
hereunder.
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9. SEVERABILITY. In the event any provision of this Agreement or any
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portion thereof shall be deemed invalid or unenforceable for any
reason, that portion or provision shall be deemed excised from this
Agreement and this Agreement shall be governed, interpreted and
enforced in all respects as if such invalid or unenforceable provision
were originally omitted from this Agreement.
10. WAIVER. The waiver of any party of a breach of any provision of
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this Agreement shall not operate as or be construed as a waiver of any
subsequent breach.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York.
12. HEADINGS. The descriptive headings used in this Agreement are for
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purposes of convenience only and do not constitute a part of this
Agreement.
13. ENTIRE AGREEMENT. This Agreement is the entire Agreement among the
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parties regarding the subject matter hereof, and supersedes any prior
agreements or discussions.
14. ARBITRATION. Any claim, controversy or dispute arising out of or
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relating to this Agreement, or the breach thereof, shall be settled by
final and binding arbitration before a single arbitrator in accordance
with the rules of the American arbitration Association, and judgment
upon the award or decision rendered by the arbitrator may be entered in
a Court. Any such arbitration shall be held in New York and the parties
to this Agreement shall be equally the costs of the arbitrator.
This AGREEMENT may not be altered or amended except in writing signed
by both parties. In the event of any conflict between this Agreement
and the terms of any of the Company's employment policies, manuals, or
other statements regarding employment generally, now existing or
hereafter promulgated, the terms of the Agreement shall control.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
XXXXX MFG. & ELECTRONICS CORP.
By:
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Name: Xxxxx X'Xxxx
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Title: Treasurer
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Employee:
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Xxxxxx Xxxxxxx
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