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EXHIBIT 10.30
EMPLOYMENT AGREEMENT
MAARTEN X. XXXXXXX & OAKHURST TECHNOLOGY, INC.
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective as of this 1st
day of December, 1998 by and between OAKHURST TECHNOLOGY, INC. (the "Company")
and MAARTEN X. XXXXXXX ("Xx. Xxxxxxx") upon the following terms and conditions:
1. BACKGROUND. Xx. Xxxxxxx is an employee of the Company's parent company. With
the anticipated acquisition by the Company of a substantial interest in New
Heights Recovery & Power, LLC the Company wishes to employ Xx. Xxxxxxx as
President, Chief Operating Officer and Chief Financial Officer of the
Company.
2. CONSIDERATION. The parties are entering into this Agreement for and in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
3. TERM. The term of this Agreement and of Xx. Xxxxxxx'x employment shall
commence as of the date hereof and shall continue through and including
February 28, 2001 (the "Term") unless sooner terminated as provided in
Section 8, below.
4. SERVICES.
(a) Xx. Xxxxxxx shall provide to the Company the services of a President,
Chief Operating Officer and Chief Financial Officer and shall if
elected, serve as a director of the Company.
(b) Xx. Xxxxxxx shall devote such time to the rendering of such services as
he and a majority of the Board of Directors consider to be appropriate
and commensurate with the responsibilities of those offices.
(c) No restrictions shall be placed on other activities of Xx. Xxxxxxx
provided that such activities (i) are not competitive with those of the
Company or any of its affiliates; (ii) do not create a conflict of
interest for Xx. Xxxxxxx; and (iii) do not interfere with the
fulfillment by Xx. Xxxxxxx of his obligations under this Agreement.
5. THE BOARD OF DIRECTORS. For purposes of this Agreement, an action or
determination by "a majority of the Board of Directors" shall mean an action
or determination taken in the good faith exercise of their discretion by
more than half of the directors of the Company then in office, but (i) with
Xx. Xxxxxxx abstaining from such vote and (ii) excluding Xx. Xxxxxxx from
the count of the total number of directors then in office.
6. SALARY. During the Term --
(a) The Company shall pay Xx. Xxxxxxx a salary of three thousand three
hundred thirty-four dollars ($3,334) per month with effect from December
1, 1998 notwithstanding that such date precedes the date of this
Agreement and the formation of the Company.
(b) Xx. Xxxxxxx'x salary shall be paid at the same time and in the same
installments as the salaries of other officers of the Company are paid.
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7. BUSINESS EXPENSES; USE OF COMPANY EQUIPMENT; CAR ALLOWANCE.
(a) Xx. Xxxxxxx shall be entitled to be reimbursed, or to the use of a
Company credit card, for reasonable business expenses incurred by him in
the performance of his duties and responsibilities hereunder, including,
but not limited to, travel from his office and/or residence to the
Company's facilities, all in accordance with policies established for
the Company by the Board of Directors from time to time. Xx. Xxxxxxx'x
Company credit card charges and expense reports will be subject to
review by the Board of Directors.
(b) The Company shall make available in its discretion to Xx. Xxxxxxx the
use of certain Company owned office equipment from time to time.
(c) In lieu of charging the Company for automobile travel expenses and to
avoid the attendant paper work resulting therefrom, the Company shall
pay Xx. Xxxxxxx a fixed automobile usage fee of two hundred fifty
dollars ($250) per month and shall reimburse to Xx. Xxxxxxx one-half
(1/2) the costs required to repair, maintain and operate one full-sized
automobile (other than the costs of gasoline consumed by the private use
of such automobile by Xx. Xxxxxxx), including excise taxes, and the
costs of collision, fire, theft and liability insurance in reasonable
amounts and with reasonable deductibles.
8. TERMINATION.
(a) Termination By the Company. Xx. Xxxxxxx'x employment may be terminated
only by a majority of the Board of Directors and only as follows:
(i) For Cause (as defined below), by written notice to Xx. Xxxxxxx, in
which event the Company shall pay to him so much of his salary as
was accrued, but not paid at the date of termination.
(ii) Without Cause, by written notice to Xx. Xxxxxxx, in which event,
all stock options then held by Xx. Xxxxxxx shall thereupon become
exercisable in full, and the Company shall pay to Xx. Xxxxxxx his
salary at the rate then in effect that was accrued, but not paid
at the date of termination, and within fifteen (15) days of such
termination, shall pay in a lump sum his salary at the rate then
in effect multiplied by the greater of (1) twenty-four (24); or
(2) the number of whole calendar months remaining in the Term at
the date the notice of termination is given to Xx. Xxxxxxx. After
receipt of such lump sum payment, upon the request of a majority
of the Board of Directors, Xx. Xxxxxxx shall resign as a director
and officer of the Company and of any of its subsidiaries.
(iii) "Cause" shall mean any act or acts by Xx. Xxxxxxx of dishonesty or
fraud or that constitute serious moral turpitude; misconduct of a
material nature or a material breach in connection with the
performance by him of his responsibilities hereunder; or the
failure by Xx. Xxxxxxx for a substantial period to devote adequate
time to rendering the services provided for hereunder (other than
by reason of his death or permanent disability.)
(iv) Upon a determination that because of a permanent disability, Xx.
Xxxxxxx is no longer able to carry out his duties and
responsibilities hereunder, in which event the Company shall give
notice of such termination to Xx. Xxxxxxx and shall thereafter
continue to
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pay him his salary at the rate then in effect for a period of
three (3) full calendar months.
(v) Upon the death of Xx. Xxxxxxx, in which event the Company shall
pay to his legal representative so much of Xx. Xxxxxxx'x salary as
was accrued, but not paid at the date of his death.
(b) Termination By Xx. Xxxxxxx.
(i) Xx. Xxxxxxx may resign his employment on sixty (60) days' prior
written notice to the Company, in which event the Company shall
continue to pay him his salary at the rate then in effect for such
sixty-day period; provided however, that in the event that Xx.
Xxxxxxx gives notice of his resignation within sixty (60) days
after a Change in Control of the Company (as defined below), all
stock options then held by Xx. Xxxxxxx shall thereupon become
exercisable in full, and the Company shall pay Xx. Xxxxxxx the
amount provided for under Section 8(a)(ii), above, as if his
employment had been terminated by the Company without Cause on the
date Xx. Xxxxxxx gave the Company notice of his resignation.
(ii) For purposes of this Section 8(b), a "Change in Control of the
Company" shall mean the acquisition after the date hereof by a
person, an entity or a group of persons or entities of 20% or more
of the voting securities of the Company's parent corporation.
(iii) The Company may deem any such notice given by Xx. Xxxxxxx as a
resignation by him, effective upon the giving of such notice, of
any one or more of the offices then held by him in the Company and
its subsidiaries.
9. CONFIDENTIAL INFORMATION.
(a) So long as Xx. Xxxxxxx is an employee and/or director of the Company and
after any or all of such relationships terminate for whatever reason,
Xx. Xxxxxxx shall (i) not disclose to any person or entity Confidential
Information (as defined below) except in the proper performance of his
duties and responsibilities or except as may be expressly authorized by
the Board of Directors of the Company; and (ii) shall not use
Confidential Information for his own benefit or for the benefit of any
person or entity other than the Company and its subsidiaries.
(b) For purposes of this Agreement, "Confidential Information" is defined as
including trade secrets, customer names and lists, vendor names and
lists, business plans, marketing plans, non-public financial data,
product specifications and designs, the existence, nature, substance,
progress and results of research and development projects, concepts,
inventions, discoveries, formulae, processes, drawings, documents,
records, software, or any other information of the Company, its parent
or of any of their subsidiaries that is not generally available, or any
such information of any third party that is held by the Company, its
parent or any of their subsidiaries under an obligation of
confidentiality.
(c) Xx. Xxxxxxx'x obligation of confidentiality shall not, however, relate
to any information --
(i) that is or becomes generally or widely known through no act or
fault of Xx. Xxxxxxx;
(ii) that is received by Xx. Xxxxxxx (without a breach of this or any
other agreement) from a third party (other than the Company's
parent or an affiliate thereof) with no restrictions as to its
disclosure; or
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(iii) that is required to be disclosed pursuant to applicable law, a
court order or a judicial proceeding, including a proceeding to
enforce this Agreement.
10. NON-COMPETE OBLIGATIONS.
(a) Xx. Xxxxxxx'x obligations with respect to competing with the Company and
soliciting its employees shall be as follows:
(i) Xx. Xxxxxxx shall not render services or advice, whether for
compensation or without compensation and whether as an employee,
officer, director, consultant, principal or otherwise, to any
person or organization that is competitive with the Company's
business or with any planned business of the Company as to which
Xx. Xxxxxxx was involved in the planning within a radius of 200
miles of any facility of the Company.
(ii) Xx. Xxxxxxx shall not either directly or indirectly as agent or
otherwise in any manner solicit, influence or encourage any
customer, client or associate of the Company to take away or to
divert or direct its business to Xx. Xxxxxxx or to any person or
entity by or with which Xx. Xxxxxxx is employed, associated,
affiliated or otherwise related (other than the Company).
(iii) Xx. Xxxxxxx shall not recruit or otherwise solicit or induce any
person to terminate his or her employment or other relationship
with the Company.
(b) Xx. Xxxxxxx'x obligations under Section 10(a), above, shall continue so
long as he is an employee of the Company. Such obligations also shall
continue after the termination of his employment as follows:
(i) in the event of the termination of his employment for any reason
other than his voluntary resignation, for a period of one (1) year
after the date of such termination;
(ii) in the event of his voluntary resignation from the Company's
employ, until the later of (1) the expiration of one (1) year
after the date of such termination, or (2) February 28, 2002.
(c) For purposes of this Section 10, only, the word "Company" shall include
the Company, the Company's parent, any subsidiary of the Company, and
any entity in which the Company has a substantial investment.
11. PRORATION. To the extent that Xx. Xxxxxxx'x salary at the rate in effect
from time to time needs to be prorated for a period of less than a full
month, such salary shall be deemed earned on a daily basis and shall be pro
rated based on a 365-day year.
12. NOTICES. All notices required or permitted under this Agreement shall be in
writing and shall be deemed given to a party either (a) when hand delivered
to such party; (b) when deposited with a courier service with instructions
to provide next-business-day delivery and proof of delivery to such party;
or (c) when sent by facsimile transmission to such party as follows:
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If to the Company, at: Oakhurst Technology, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy other
than by facsimile to Xxxx X. Lever, Esq.
Xxxxxxx & Xxxxxxxxx
Xxx Xxxxx Xxxxxxxx
Xxxxx Xxxxxx, XX 00000
If to Xx. Xxxxxxx at: Maarten X. Xxxxxxx
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
or to such other address of a party as that party shall notify the other
party in the manner provided herein.
13. ENTIRE AGREEMENT ETC.
(a) This Agreement contains the entire understanding of the parties; shall
not be amended except by written agreement of the parties signed by each
of them; and shall be binding upon and inure to the benefit of the
parties and their successors, personal representatives and permitted
assigns. Because the obligations of Xx. Xxxxxxx hereunder are personal,
this Agreement shall not be assignable by him.
(b) Each provision of this Agreement shall be interpreted and enforced
without the aid of any canon, custom or rule of law requiring or
suggestion construction against the party drafting or causing the
drafting of such provision.
(c) No representation, affirmation of fact, course of prior dealings,
promise or condition in connection herewith or usage of the trade not
expressly incorporated herein shall be binding on the parties.
(d) The words "herein," "hereof," "hereunder," "hereby," "herewith" and
words of similar import when used in this Agreement shall be construed
to refer to this Agreement as a whole.
(e) The failure by a party to insist upon strict compliance with any term,
covenant or condition, or to exercise any right, contained herein shall
not be deemed a waiver of such term, covenant, condition or right; and
no waiver or relinquishment of any term, covenant, condition or right at
any one or more times shall be deemed a waiver or relinquishment thereof
at any other time or times.
(f) The captions of the paragraphs herein are for convenience only and shall
not be used to construe or interpret this Agreement.
14. SEVERABILITY. If any provision or part of a provision of this Agreement is
finally declared to be invalid by any tribunal of competent jurisdiction,
such part shall be deemed automatically adjusted, if possible, to conform to
the requirements for validity, but, if such adjustment is not
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possible, it shall be deemed deleted from this Agreement as though it had
never been included herein. In either case, the balance of any such
provision and of this Agreement shall remain in full force and effect.
Notwithstanding the foregoing, however, no provision shall be severed if it
is clearly apparent under the circumstances that either or both of the
parties would not have entered into this Agreement without such provision.
15. SURVIVAL. The termination of Xx. Xxxxxxx'x employment and/or this Agreement
shall not relieve Xx. Xxxxxxx of his obligations under Section 9
("Confidential Information") or Section 10 ("Non-Compete Obligations")
hereof. In addition, any other obligations of the parties that by their
terms are to be performed or are to have continued effect after the
termination of Xx. Xxxxxxx'x employment or of this Agreement shall survive
such expiration or termination.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving
effect to any choice of law or conflict of law provision or rule (whether of
the State of Delaware or of any other jurisdiction) that would cause the
application hereto of the laws of any jurisdiction other than the State of
Delaware.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first set forth above.
OAKHURST TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxxx /s/ Maarten X. Xxxxxxx
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Xxxx Xxxxxxxx MAARTEN X. XXXXXXX
For the Board of Directors
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