AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of the 10
th day of October, 2006 by and between Hudson
Technologies, Inc., 275 North Middletown Road, Pearl River, New
York 10965, Hudson Technologies of Tennessee, dba Hudson
Technologies Company, 275 North Middletown Road, Pearl River, New
York 10965 (hereinafter Hudson Technologies, Inc. and Hudson
Technologies of Tennessee, dba Hudson Technologies Company are
collectively referred to herein as "Hudson") and Kevin J. Zugibe,
residing at PO Box 754, Pearl River, New York 10965
("Executive").
WHEREAS, the Executive is a named executive officer of Hudson and
currently holds the title of Chief Executive Officer and Chairman
of Hudson; and
WHEREAS, the Hudson Technologies of Tennessee, dba Hudson
Technologies Company is a separate, wholly owned subsidiary of
Hudson Technologies, Inc. and is made a party to this agreement for
the purpose of implementing the terms of this agreement; and
WHEREAS, the Executive and Hudson previously entered into an
Employment Agreement, made as of May 23, 1994 (the "May 1994
Agreement"), as amended by Addendum to Employment Agreement, made
as of January 1, 1995 (the "Addendum") and further supplemented by
letter dated January 20, 1998 (the "Letter") (hereinafter the May
1994 Agreement, the Addendum and the Letter are collectively
referred to as the "Employment Agreement"); and
WHEREAS, Hudson and the Executive acknowledge that the Executive is
one of the founders of Hudson and is a key Executive of Hudson, and
that the Executive's talents, knowledge and services to Hudson are
of a special, unique, and extraordinary character and are of
particular and peculiar benefit and importance to Hudson; and
WHEREAS, Hudson and the Executive acknowledge that, because the
Executive's duties and responsibilities will bring the Executive
into contact with Hudson's confidential information, Hudson must
ensure that its valuable confidential information, as well as its
customer relationships, are protected and can be entrusted to the
Executive; and
WHEREAS, Hudson desires to ensure that it will receive the
continued dedication, loyalty and service of, and the availability
of objective advice and counsel, from the Executive , as well as
assurances that the Executive will continue to devote his best
efforts to his employment with Hudson and that he will not solicit
other executives or employees of Hudson; and
WHEREAS, Hudson and the Executive desire to amend and restate the
Employment Agreement on the terms contained herein.
NOW, THEREFORE, in consideration of the continuation of the
employment by Hudson of the Executive and the mutual covenants and
conditions contained herein, and for other good and valuable
consideration, receipt of which is hereby acknowledged, it is
agreed that the Employment Agreement is hereby amended and
supplemented as follows:
1.
AMENDMENT AND RESTATEMENT:
This agreement hereby amends, restates and supercedes in its
entirety the Employment Agreement and each and every provision
contained therein.
2.
EMPLOYMENT:
Hudson agrees to employ Executive in an executive capacity, and
Executive accepts employment upon the terms and conditions set
forth herein. Executive expressly acknowledges that he was advised
that a condition to Executive's entering into this agreement was
the Executive's agreement to restrictions regarding Confidential
Information, Intellectual Property, Non-Solicitation of Executives,
and Covenants Not To Compete (all as set out in more detail below),
and that the additional rights and benefits contained herein
constitute new and adequate consideration for this Agreement.
Executive understands that, subject to the provisions contained
herein, from time to time he may be promoted, reassigned, or given
different job titles and responsibilities at the sole discretion of
Hudson, and that unless and until such time as a new agreement or
amendment to this agreement is executed in writing by Hudson and
Executive, this Agreement shall remain binding upon Executive
regardless of the job title or position held by Executive.
3.
TERM: Subject to the provisions for termination as provided
herein, the term of this agreement shall be two (2) years. This
agreement shall be automatically renewed for successive two (2)
year terms unless either party gives notice of its intention not to
renew no less than ninety (90) days prior to the expiration of the
existing term.
4.
COMPENSATION: As compensation for the
services to be rendered by Executive, Hudson agrees to provide
Executive with a base salary at the annual rate of One Hundred
Seventy Nine Thousand, Nine Hundred and 00/100 ($179,900.00)
dollars. The Board of Directors shall meet at least annually for
the purpose of determining Executive's annual base salary based
upon the apparent value of his services. The payment of the above
amounts shall constitute full satisfaction and discharge of
Hudson's obligations under this agreement, but are without
prejudice to Executive's rights under any Executive benefit plan
heretofore or hereafter provided by Hudson.
Hudson may, but shall not be obligated to, pay to the Executive, in
addition to his base salary, a cash bonus. Payment of any such
bonus, and the amount of any such bonus shall be at the sole
discretion of the Board of Directors.
5.
DUTIES:
Executive shall serve as Chief Executive Officer of Hudson, and
shall assume such other duties as the Board of Directors may
assign. The services to be performed by the Executive may be
extended or curtailed from time to time at the direction of the
board of directors.
Executive agrees that he will at all times faithfully,
industriously and to the best of his ability, experience and
talents, perform all of the duties that may be required of and from
him pursuant to the express and implicit terms of this agreement,
to the reasonable satisfaction of Hudson. Such duties shall be
rendered at Hudson's headquarters currently located at Pearl River,
New York and, except as otherwise provided herein, at such other
place or places within or without the State of New York as Hudson
shall in good faith require or as the interest, needs, business, or
opportunities of Hudson shall require.
Executive shall devote full, normal and regular business time,
attention, knowledge and skill to the business and interest of
Hudson, and Hudson shall be entitled to all of the benefits,
profits or other issue arising from or incident to all work,
services and advice of Executive performed for Hudson. Executive
agrees that while Executive is employed by Hudson, Executive shall
not directly or indirectly in any capacity engage in any business
other than Hudson's Business without Hudson's prior written
consent, which consent will not be unreasonably withheld provided
that such other business is (a) unrelated to the Business of
Hudson, (b) will in no way interfere with the performance of
Executive's duties to Hudson, (c) will not utilize Confidential
Information or Intellectual Property of Hudson or of any Client of
Hudson, (d) will be conducted at times other than when Executive is
required to work for Hudson, and at places other than Hudson's
business locations or those of Hudson's customers, and (e) will not
involve Hudson, other Executives of Hudson, any Client of Hudson,
or any supplier of Hudson, in the conduct or the financing of
Executive's business, or as customers, suppliers, investors,
partners, joint venturers, or otherwise. Under no circumstances
shall Executive render any services that are competitive with any
of Hudson's business, or that are for any other person, corporation
or other entity that is engaged in any business competitive with or
in the same business as any of Hudson's business. Notwithstanding
the foregoing, Executive shall have the right to make investments
in businesses which in engage in activities other than those
engaged in by Hudson or its subsidiaries.
6.
EXPENSES: Executive is authorized
to incur reasonable expenses on behalf of Hudson in performing his
duties, including expenses for general administration of Hudson's
office, travel, transportation, entertainment, gifts and similar
items, which expenses shall be paid, or reimbursed to Executive, by
Hudson, provided that the Executive furnishes to Hudson appropriate
supporting documentation of such expenses. In addition Hudson will
reimburse the Executive for all professional fees and expenses for
professional organizations and continued education reasonably
incurred by the Executive and reasonably related to the continued
performance of his duties.
7.
VACATIONS: Executive shall be entitled the number of paid
vacation, sick days, personal days and holidays as are specified,
established and set forth in Hudson's standard policies, provided,
however, that Executive shall be entitled each calendar year to a
vacation of no less than twenty (20) weekdays, no two of which need
be consecutive. Hudson shall not be required to compensate
Executive for vacation days, sick days or personal days not taken
by the Executive in any given year, and the Executive cannot accrue
and accumulate unused vacation days, sick days or personal days in
subsequent years.
8.
TERMINATION:
The following payments and benefits (hereinafter "Severance
Benefits") will be provided to the Executive by Hudson in the event
of a Termination of Employment (as hereinafter defined) of the
Executive:
A.
Executive will continue to receive his annual base salary, based
upon his annual base salary as of the date of his Termination of
Employment (as hereinafter defined), for a period of twenty-four
(24) months (the "Severance Period"), with payroll to be made every
two weeks, or at such other frequency based upon Hudson's normal
payroll practice. Hudson shall deduct from Executive's continuing
payroll all normal tax withholdings and deductions which Hudson is
required by law to make.
B.
On or before the Executive's last day of employment with Hudson,
Hudson will pay to the Executive a lump sum payment in an amount
equal to a pro rata bonus through the date of Termination of
Employment (the "Pro-Rata Bonus"). For purposes of this paragraph
"8.B.", the Pro-Rata Bonus shall be an amount equal to the highest
bonus earned by the Executive in any calendar year within the three
(3) calendar years immediately preceeding the date of Termination
of Employment, pro rated for the period served during the year in
which the Termination of Employment occurs. Hudson shall deduct
from this bonus payment all normal tax withholdings and deductions
which Hudson is required by law to make.
Notwithstanding the foregoing, Hudson shall not be obligated to pay
the Pro-Rata Bonus to the Executive if as of the date of
Termination of Employment (i) Hudson is operating at a level of
performance, on a year to date basis, below Hudson's net profit
goals as established by Hudson's Budget (as hereinafter defined),
or (ii) the Executive is acting at a level of performance,
on a year to date basis, such that he has not achieved all of the
performance criteria established by the Executive's Budget (as
hereinafter defined). For purposes of this paragraph "8.B.", Hudson
shall prepare a profit and loss statement showing Hudson's total
year to date net profit as of the close of business the day prior
to the date of Termination of Employment, and as compared to the
net profit under Hudson's Budget (the "Interim P&L").
C.
On or before the Executive's last day of employment with Hudson,
Hudson will pay to the Executive a lump sum payment for the
Executive's unused vacation for the year in which the Termination
of Employment occurs, equal to the number of prorata unused
vacation days on the date of Termination of Employment, as
determined in accordance with Hudson's standard vacation policy,
multiplied by the Executive's daily base salary on the date of
Termination of Employment. Hudson shall deduct from this bonus
payment all normal tax withholdings and deductions which Hudson is
required by law to make.
D.
The Executive's participation in life, health and dental insurance,
disability insurance, and any other benefits (the "Benefits")
provided by Hudson to the Executive as of the date of the
Termination of Employment shall be continued, or essentially
equivalent benefits provided by Hudson, for the entire Severance
Period or until otherwise terminated by the Executive, on the same
terms, conditions and costs as if the Executive continued in the
employ of Hudson. If for any reason Hudson is unable to continue
any or all of the Benefits as required herein, Hudson shall pay to
the Executive a lump sum cash payment equal to the value of the
Benefits that cannot be provided.
E.
All stock options, stock appreciation rights, and any similar
rights which the Executive holds on the date of Termination of
Employment shall become fully vested and be exerciseable on the
date of Termination of Employment, and shall remain exerciseable
following the Termination of Employment until (i) expiration of the
Severance Period, (ii) termination of Severance Benefits pursuant
to paragraph "13" below, or (iii) expiration of the original term
of the stock option, stock appreciation right or similar right,
whichever first occurs.
F.
In the event the Executive is terminated pursuant to paragraph
"10.B." below, within ten (10) days after such termination, Hudson
will pay to the Executive a lump sum payment in an amount equal to
the the amount that Executive's base salary was reduced during the
period of the Executive's Disability (as hereinafter defined)
pursuant to the provisions of paragraph "10" below.
G.
For purposes of this agreement, the following definitions will
apply:
(i)
A "Termination of Employment" shall take place in the event that
the Executive's employment is terminated (a) by Hudson without
Cause (as hereinafter defined) or (b) by the Executive within
thirty (30) days of the occurrence of an event constituting Good
Reason (as hereinafter defined).
(ii)
"Cause" shall exist if the act(s) or conduct of the Executive make
it unreasonable to require Hudson to continue to retain Executive
in its employment, such as, but not limited to, (a) the Executive's
willful and continued refusal to perform, or the Executive's
willful and continued neglect of, the substantive duties of his
position, (b) any willful act or omission by the Executive
constituting dishonesty, fraud or other malfeasance, (c) material
nonconformance with Hudson's standard business practices and
policies, including but not limited to violation of Hudson's Code
of Business Conduct and Ethics or Hudson's Substance Abuse Policy,
(d) any act or omission by the Executive which has a material
adverse affect upon the financial condition or business reputation
of Hudson, (e) the Executive's conviction of a felony, or any crime
involving moral turpitude, dishonesty or theft, under the laws of
the United States or any state thereof or any other jurisdiction in
which Hudson conducts business, (f) breach of the provisions of
paragraphs "11" or "12" of this agreement, (g) the resignation of
Executive other than pursuant to the occurrence of an event
constituting Good Reason (as hereinafter defined).
(iii) "Good
Reason" shall mean (a) the Executive is assigned any duties or
responsibilities, without his consent, that are materially
inconsistent with his position, duties, responsibilities or status,
(b) Hudson requires the Executive, without his consent, to be based
at a location which is more than fifty (50) miles from Hudson's
corporate headquarters, currently located at 275 North Middletown
Road, Pearl River, New York 10965, (c) except as provided in
paragraph "8.J." below, the Executive's annual base salary is
reduced, except to the extent that the annual base salaries of all
Named Executives (as defined below) are reduced due to the adverse
financial condition of Hudson and further providing that the
Executive's annual base salary may not be reduced to a level that
is less than ninety (90%) percent of the Executive's annual base
salary as of the date herein, (d) the Executive's benefits are
reduced, except to the extent that such reductions are made by
Hudson on a company-wide basis and affect all Named Executives that
participate in such benefits, (e) except as provided in paragraph
"8.J." below, the Executive experiences in any year a reduction in
bonus compensation or other incentive compensation, or a reduction
in the ratio of the Executive's incentive compensation, bonus or
other such payments to his base compensation, or a reduction in the
method of calculation of the Executive's incentive compensation,
bonus or other such payments if these benefits or payments are
calculated other than as a percentage of base salary, except to the
extent such reduction applies equally or proportionally, as the
case may be, to all Named Executives of Hudson. An isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by Hudson within ten (10) days after Hudson's
receipt of notice thereof given by the Executive shall not
constitute Good Reason.
(iv)
"Budget" shall mean (a) as to Hudson, the projected annual and
monthly revenues, expenses and net profit goals approved and
accepted by Hudson's board of directors for the applicable fiscal
year, and for each month in
