Exhibit 10.17
EMPLOYMENT AGREEMENT
Agreement made as of the first day of October, 1998, between
XXXXX XXXXXX CORPORATION, a Delaware corporation (the "Company"),
and Xxxxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company desires to continue to employ the
Executive, and the Executive desires to accept continued
employment with the Company, but only on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the Company and the Executive
hereby agree as follows:
1.The Company shall employ the Executive, and the
Executive shall serve the Company, for the period beginning on
October 1, 1998 and expiring on October 1, 2001, unless sooner
terminated pursuant to the provisions of Section 4 hereof (the
"Employment Period").
2.During the Employment Period, the Executive shall serve
the Company as its Senior Vice President and Chief Financial
Officer. During the Employment Period, the Executive shall,
except during vacation or sick leave, devote the whole of his
time, attention and skill during usual business hours (and
outside those hours when reasonably necessary to his duties
hereunder) to his duties hereunder; faithfully and diligently
perform such duties and exercise such powers as may be from time
to time assigned to or vested in him by the Company's Board of
Directors (the "Board"); obey the directions of the Board; and
use his best efforts to promote the interests of the Company.
The Executive may be required in pursuit of his duties hereunder
to perform services for any company controlling (assuming the
Executive declines to exercise any resignation right pursuant to
Section 4(d) hereof), controlled by or under common control with
the Company (such companies hereinafter collectively called
"Affiliates") and to accept such offices in any Affiliates as the
Board may require. The Executive shall obey all policies of the
Company and applicable policies of its Affiliates.
3.a.During the Employment Period, the Company shall pay
the Executive a salary at an annual rate of $150,000 subject to
increase by the Board in its sole discretion, which shall be
payable periodically in accordance with the Company's then
prevailing payroll practices.
b.The Company shall award the Executive NewSCC
Common Stock (as defined in the Third Amended Second Joint Plan
of Reorganization Under Chapter 11 of the United States
Bankruptcy Code, as modified by the Technical Amendments to the
Debtors' Third Amended Second Joint Plan of Reorganization (the
"Plan") pursuant to Section 6.3 of the Plan in an aggregate
amount which shall at all times constitute .5% of the total
shares of NewSCC Common Stock which are issued pursuant to the
Plan, determined on a fully-diluted basis, not including the
effect of the exercise of any of the NewSCC Warrants (as defined
in the Plan). The Executive's rights to such shares shall vest
50% on the first anniversary of this agreement and 50% on the
second anniversary of this agreement; provided, however, at the
Executive's option, that such shares may vest earlier at the time
of a Change in Control (as defined in Section 4(d) hereof). The
Executive shall be eligible to participate in the employee stock
incentive or other similar plan described in Section 6.2 of the
Plan in accordance with the provisions thereof. The Executive
also shall be eligible to participate in such other incentive
compensation programs as may be established by the Board that the
Company generally provides to its employees having rank and
seniority at the Company comparable to the Executive.
c.The Executive shall be entitled to four (4) weeks
of vacation per calendar year with any unused vacation time
carried over to the first quarter of the next calendar year. If
the prior year's vacation time is not used by the end of said
first quarter, the Company shall pay the Executive for the unused
time at his regular annual rate thereby discharging its
obligation with respect to the unused time.
d.The Executive shall be entitled to such expense
accounts, sick leave, perquisites of office, fringe benefits,
insurance coverage (including the Company's Executive Medical and
Life Insurance Programs), and other terms and conditions of
employment as the Company generally provides to its employees
having rank and seniority at the Company comparable to the
Executive. In addition, the Executive shall have annual physical
examinations at the Company's expense.
4.Unless terminated in accordance with the following
provisions of this Section 4, the Company shall continue to
employ the Executive and the Executive shall continue to work for
the Company, during the Employment Period.
a.This Agreement shall terminate automatically upon
the death of the Executive.
b.The Company may terminate the Executive's
employment if the Executive suffers from a physical or mental
disability to an extent that renders it impracticable for the
Executive to continue performing his duties hereunder. The
Executive shall be deemed to be so disabled if (i) a physician
selected by the Company advises the Company that the Executive's
physical or mental condition will render the Executive unable to
perform his duties for a period exceeding three consecutive
months, or (ii) due to a physical or mental condition, the
Executive has not substantially performed his duties hereunder
for a period of three consecutive months. The Company will
provide the Executive with long-term disability insurance.
c.The Company may terminate the Executive's
employment at any time for cause; cause shall mean (i) a default
or other breach by the Executive of his obligations under
Sections 1, 2, 5, 6, 8 and 17 of this Agreement, (ii) misconduct,
dishonesty, insubordination or other act by the Executive
detrimental to the good will of the Company or damaging to the
Company's relationships with its customers, suppliers or
employees, (iii) the conviction of a felony, or (iv) any act of
disloyalty or breach of trust by the Executive.
d.The Company may terminate the Executive's
employment at any time without cause. The Executive may resign
from his employment at any time. In the event that the Executive
is terminated without cause, or resigns within thirty (30) days
following a Change of Control (as hereinafter defined), (i) the
Company shall continue to pay the Executive at a rate equivalent
to his regular base salary until the date one (1) year from the
date of termination or resignation; (ii) the Company shall
continue to provide medical insurance to the Executive until the
date one (1) year from the date of termination or resignation;
and (iii) the Company shall pay the Executive any accrued but
unused vacation time for the current year and any accrued but
unused vacation time carried over from any prior year. Such
payments to the Executive by the Company will be in full and
complete satisfaction (except as provided in subsection (e)
below) of any and all obligations owing to the Executive pursuant
to this Agreement. "Change of Control" shall mean (i) a stock
purchase by any "person" (as such term is used in Sections 13(d)
and 14(d)(2) of the Securities and Exchange Act of 1934, as
amended) who then owns or by virtue of such purchase becomes the
beneficial owner of, directly or indirectly, voting securities of
the Company representing 51% or more of the combined voting power
of the Company's then outstanding voting securities or (ii) any
change in the composition of the Company's Board in any one year
which involves a majority of such directors and which is not
recommended by the Board.
e.Upon termination pursuant to (a), (b), (c) or (d),
above, the Company shall pay the Executive or his estate any
salary earned and unpaid to the date of termination, and any
outstanding funds advanced by the Company to or on behalf of the
Executive shall become immediately due and payable.
5.The Executive shall not divulge or communicate to any
person (except in performing his duties under this Agreement) or
use for his own purposes trade secrets, confidential commercial
information, or any other information, knowledge or data of the
Company or of any of its Affiliates which is not
generally known to the public and shall use his best efforts to
prevent the publication or disclosure by any other person of any
such secret, information, knowledge or data. All documents and
objects made, compiled, received, held or used by the Executive
while employed by the Company in connection with the business of
the Company shall be and remain the Company's property and shall
be delivered by the Executive to the Company upon the termination
of the Employment Period or at any earlier time requested by the
Company.
6.The Executive agrees that during the Employment Period
and for a period of two years after the termination of the
Employment Period (except for a termination without cause or
resignation upon a Change of Control pursuant to Section 4(d)
above), he will not directly or indirectly, whether or not for
compensation and whether or not as an employee, be engaged in or
have any financial interest in any of the entities set forth on
Exhibit A hereto or in any business competing with or which may
compete with the business of the Company (or with any business of
any Affiliate for which the Executive performed services
hereunder) within any state, region or locality in which the
Company or such Affiliate is then doing business or marketing its
products, as the business of the Company or such Affiliate may
then be constituted. For purposes of this Agreement, the
Executive shall be deemed to be engaged in or to have a financial
interest in such a business if he is an employee, officer,
director, or partner, of any person, partnership, corporation,
trust or other entity which is engaged in such a business, or if
he directly or indirectly performs services for such entity or if
he or any member of his immediate family beneficially owns an
equity interest, or interest convertible into equity, in any such
entity; provided, however, that the foregoing shall not prohibit
the Executive or a member of his immediate family from owning,
for the purpose of passive investment, less than 5% of any class
of securities of a publicly held corporation.
7.The Executive agrees that he shall not, for a period of
two years after the Employment Period, employ any person who was
employed by the Company or any of its Affiliates or induce such
person to accept employment other than with the Company and its
Affiliates.
8.The Executive hereby agrees that any and all
improvements, inventions, discoveries, formulae, processes,
methods, know-how, confidential data, trade secrets and other
proprietary information (collectively, "Work Product") within the
scope of any business of the Company or any Affiliate which the
Executive may conceive or make or have conceived or made during
his employment with the Company shall be and are the sole and
exclusive property of the Company, and that the Executive shall,
whenever requested to do so by the Company, at its expense,
execute and sign any and all applications, assignments or other
instruments and do all other things which the Company may deem
necessary or appropriate (i) in order to apply for, obtain,
maintain, enforce, or defend letters patent of the United States
or any foreign country for any Work Product, or (ii) in order to
assign, transfer, convey or otherwise make available to the
Company the sole and exclusive right, title and interest in and
to any Work Product.
9.The Company and the Executive each agree to waive trial
by jury in any action arising under or in connection with this
Agreement or the employment relationship between the Company and
the Executive.
10.Any notice or other communication required or permitted
under this Agreement shall be effective only if it is in writing
and delivered personally or sent by registered or certified mail,
postage prepaid, addressed as follows:
If to the Company:
Xxxxx Xxxxxx Corporation
P.O. Box 2090
000 Xxxxx 00
Xxxxxxxx, XX 00000-0000
Attention: President
If to the Executive:
Xx. Xxxxxx X. Xxxxxx
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
or to such other address as either party may designate by notice
to the other, and shall be deemed to have been given upon
receipt.
11.This Agreement constitutes the entire agreement between
the parties hereto with respect to the Executive's employment by
the Company, and supersedes and is in full substitution for any
and all prior understandings or agreements with respect to the
Executive's employment with the Company.
12.This Agreement may be amended only by an instrument in
writing signed by the parties hereto, and any provision hereof
may be waived only by an instrument in writing signed by the
party or parties against whom or which enforcement of such waiver
is sought. The failure of either party hereto at any time to
require the performance by the other party hereto of any
provision hereof shall in no way affect the full right to require
such performance at any time thereafter, nor shall the waiver by
either party hereto of a breach of any provision hereof be taken
or held to be a waiver of any succeeding breach of such provision
or a waiver of the provision itself or a waiver of any other
provision of this Agreement.
13.This Agreement is binding on and is for the benefit of
the parties hereto and their respective successors, heirs,
executors, administrators and other legal representatives.
Neither this Agreement nor any right or obligation hereunder may
be assigned by the Company (except to an Affiliate) or by the
Executive.
14.If any provision of this Agreement, or portion thereof,
is so broad, in scope or duration, so as to be unenforceable,
such provision or portion thereof shall be interpreted to be only
so broad as is enforceable.
15.a.This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
b. Any judicial proceeding brought with respect to
this Agreement must be brought in any state or federal court of
competent jurisdiction located in the State of New York, and, by
execution and delivery of this Agreement, each party (i) accepts,
generally and unconditionally, the exclusive jurisdiction of such
courts and any related appellate courts, and irrevocably agrees
to be bound by any judgment rendered thereby in connection with
this Agreement and (ii) irrevocably waives any objection it may
now or hereafter have as to the venue of any such suit, action or
proceeding brought in such a court or that such court is an
inconvenient forum. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN
ANY JUDICIAL PROCEEDING TO WHICH THEY ARE BOTH PARTIES INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT.
16. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
17. The Executive represents and warrants that he is not a
party to any agreement which would prohibit him from entering
into this Agreement or performing fully his obligations
hereunder.
18.The obligations of the Executive set forth in
paragraphs 5, 6, 7, 8 and 9 represent independent covenants by
which the Executive is and will remain bound notwithstanding any
breach by the Company, and shall survive the termination of this
Agreement.
19.The Executive recognizes that a breach or threatened
breach by him of his obligations under Sections 5, 6, 7 or 8
would cause irreparable injury to the Company, and the Company
shall be entitled to preliminary and permanent injunctions
enjoining him from violating Sections 5, 6, 7 or 8 in addition to
any other remedies which may be available.
IN WITNESS WHEREOF, the Company and the Executive have
executed this Agreement as of the date first written above.
XXXXX XXXXXX CORPORATION
By:/s/ Xxxxx Parts
Name:Xxxxx Parts
Title:Chairman of the Board
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
EXHIBIT A
Brother
V. Tech
Uniden
Sony
Panasonic
Cobra
Platronics
NuKote
AT&T
