Exhibit 10.1
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (the “Agreement”),
dated as of May 30, 2001, among P&F INDUSTRIES, INC., a
Delaware corporation (the “Company”), having its
principal place of business at 300 Smith Street, Farmingdale, New
York 11735, and RICHARD A. HOROWITZ, residing at 5 Fir Drive, Kings
Point, New York 11024 (the “Executive”).
W I T N E S S E T
H:
WHEREAS, the Company and the Executive wish to
amend and restate the Employment Agreement between the parties,
dated as of May 28, 1997 (the “Prior Agreement”), as
set forth in this Agreement;
NOW, THEREFORE, it is hereby agreed by and
between the parties as follows:
1.
EMPLOYMENT, DUTIES AND ACCEPTANCE
Subject to the provisions of Article 4, the
Executive hereby agrees to continue his employment with the
Company, and the Company hereby agrees to continue its employment
of the Executive, for the term of this Agreement, as defined in
Article 2 hereof. The Executive shall render services as Chairman,
President and Chief Executive Officer of the Company and shall
perform such executive duties which are consistent with his
position as he may be reasonably directed to perform by the Board
of Directors of the Company.
2.
TERM OF EMPLOYMENT
The
term of the Executive’s employment pursuant to this Agreement
(the “Term”) will commence on the date hereof (the
“Effective Date”) and will continue until the seventh
anniversary of the Effective Date, unless sooner terminated
pursuant to the provisions of Article 4. Such employment will,
unless sooner terminated pursuant to the provisions of Article 4,
continue from year to year thereafter (each such year, an
“Additional Term”) until one party gives the other
notice of its intention to terminate the Executive’s
employment at the end of the Term or an Additional Term, as the
case may be, which notice may not be given more than ninety or less
than thirty days prior to the last day of such Additional
Term.
3.
COMPENSATION
3.1. The minimum base compensation of the Executive will be
$675,000 per annum. All compensation will be paid in installments
as determined by the Company, but not less frequently than
monthly.
3.2. The Company will pay or reimburse the Executive for all
reasonable expenses actually incurred or paid by him during the
Term and each Additional Term in connection with the performance of
his services under this Agreement, upon presentation of expense
statements or vouchers or such other supporting information as it
may reasonably require, it being understood that the character of
and amount available for such expenses will be in accordance with
applicable policies of the Company and may be fixed in advance by
the Board of Directors of the Company. In addition, the Company
shall provide the Executive, at the Company’s expense, with a
current model automobile similar to the automobile
furnished to the
Executive at the date hereof.
3.3. The Executive will also be eligible to receive such
increases in base compensation as the Board of Directors of the
Company may from time to time grant to him (which shall not
thereafter be reduced) and to receive such bonuses as the Board of
Directors of the Company, in its discretion, may allocate to him.
In addition, so long as the Company continues to provide pension,
group insurance, medical insurance and vacation benefits for its
senior management generally, the Executive will be entitled to
participate therein as well as in any other employee benefit plan
hereafter established for senior management.
3.4. Throughout the Term, the Company shall maintain in effect at
current levels the split-dollar life insurance policy currently
maintained for the Executive, and shall continue to pay premiums on
the supplemental disability insurance policies currently maintained
by the Executive (or reimburse the Executive for premiums paid by
him).
4.
EVENTS OF TERMINATION
4.1. In the event of the Executive’s death, this Agreement
will terminate. In that event, the Executive’s estate will be
entitled to his (i) full salary through the date of death together
with any bonus under the then current executive bonus plan accrued
through the date of death; and (ii) an additional payment equal to
his then current salary for an additional twelve months.
4.2. If during the Term or an Additional Term, the Executive
becomes physically or mentally disabled, whether totally or
partially, so that he is prevented from performing his usual duties
for a period of 270 consecutive business days or for 360 business
days during any period of 450 business days, the Company may
terminate his employment under this Agreement by 60 days’
advance written notice to the Executive. In that event, the
Executive will be entitled to (i) his full salary through the date
of termination, less any amount received by the Executive under any
group policy of disability insurance carried by the Company in
which Executive participates; (ii) an additional payment equal to
his then current salary for an additional twelve months, without
regard to any amount received by the Executive under any policy of
disability insurance; and (iii) during such additional twelve month
period, continued use of his Company car and other perquisites
being provided to the Executive prior to such termination,
including continuation of the split-dollar life insurance policy
referenced in Section 3.4 hereof. In addition, during the period of
disability and until (x) the death of the Executive or (y) the
re-employment of the Executive, the Company shall provide the
Executive with medical benefits similar to those provided for other
executive officers of the Company, taking into account medical
benefits provided to the Executive by other sources.
5.
PROTECTION OF INFORMATION: NONCOMPETITION
5.1. In view of the fact that the Executive’s work with the
Company will bring him into close contact with many confidential
affairs of the Company, including matters of a business nature such
as information about costs, profits, markets, sales, plans for
future development and other information not readily available to
the public, the Executive will:
5.1.1. keep secret all confidential information relating to the
Company and not disclose the same to anyone outside of the Company
either during or after his employment with the Company, except with
the Company’s written consent;
5.1.2. deliver promptly to the Company on termination of his
services hereunder, or at any time the Company may so request, all
memoranda, notes, records, lists, reports and other documents (and
all copies thereof) relating to the business of the Company which
he may then possess or have under his control; and
5.1.3. during his employment and, provided that a “change in
control” (as hereinafter defined) has not occurred, for a
period of three years following the termination of his employment,
not, directly or indirectly, (i) enter the employ of, or render any
services to, any person, firm or corporation engaged in any
business competitive with the business of the Company, (ii) engage
in such a business for his own account, or (iii) become interested
in such a business as an individual, partner, shareholder,
director, officer, principal, agent, employee, trustee, consultant
or in any other relationship or capacity. The provisions of this
Section 5.1.3 shall not apply to the Executive following any
termination of employment which occurs in connection with or
following a “change in control” (as hereinafter
defined).
5.2. “Business competitive with the business of the
Company” means, as of any date, any business then being
conducted by the Company in which Executive has been actively
engaged.
6.
CHANGE IN CONTROL
6.1. The term “change in
control” of the Company shall mean:
6.1.1. an occurrence of a nature that would be required to be
reported in response to (i) Item 6(e) of Schedule 14A of
Regu
