EMPLOYMENT AGREEMENT
XXXXXX XXXXXXX AND ERGOVISION, INC.
AGREEMENT, dated as of the 7th day of May, 1999 by and between
ERGOVISION, INC., having a place of business at Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxx Xxxx 00000 (hereinafter designated and referred to as "Company"), and Xxxxxx
Xxxxxxx residing at 0000 Xxxx 0xx Xxxxxx, Xxxxxxxxx #0, Xxxxxx, XX 00000
(hereinafter designated and referred to as "Employee", "his" or "him").
WHEREAS, the Company desires to employ the Employee as Vice
President of Operations and serve as a director in accordance with the
provisions hereinafter set forth;
WHEREAS, the Employee is willing to be employed by the Company, all
in accordance with provisions hereinafter set forth; and
NOW THEREFORE, in consideration of the promises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Term: The term of this Agreement shall be for a period of three
(3) years commencing May __, 1999 and automatically terminating on May __, 2002,
subject to earlier termination as provided herein or unless extended by mutual
consent of both parties in writing ninety (90) days prior to the end of the term
of this Agreement or any extension thereof, but nothing herein shall require the
Company or Employee to agree to any specific term or condition or to any
continuation of Employee's employment beyond the end of the term of this
Agreement.
2. Employment: Subject to the terms and conditions and for the
compensation hereinafter set forth, the Company employs the Employee for and
during the term of this Agreement as Vice President of Operations. The Employee
further agrees to serve as a director of the Company's Board of Directors. The
Employee does hereby accept such employment and agrees to use his best efforts
and to devote all business time, during the term of this Agreement, to the
performance of his duties faithfully, diligently and to the best of his
abilities upon the conditions hereinafter set forth. Employee shall report to
the Chief Executive Officer and Board of Directors of the Company. The Company
agrees an acknowledges that the Employee's agreement to be employed by the
Company is expressly conditioned upon the Company's agreement and covenant that
it shall not, during the term hereof, require that the Employee relocate his
primary residence or the primary location where he is employed by the Company to
a location outside of the Duluth, Minnesota region.
3. Compensation: During the term of this Agreement, the Company
agrees to pay Employee, and Employee agrees to accept a salary at an annual rate
of One Hundred Thousand ($100,000) Dollars, payable at least every two weeks,
less all applicable taxes, for all services rendered by Employee hereunder.
Employee's annual salary and other benefits provided for hereunder are subject
to periodic increases (but not decreases) at the discretion of the Board of
Directors. As additional compensation, the Company may pay the Employee periodic
bonuses as determined by the Board of Directors.
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4. Expenses: The Company shall reimburse Employee, not less often
than monthly, for all actual and reasonable business expenses incurred in
connection with his service to the Company, upon submission of appropriate
vouchers and expense account reports.
5. Benefits: The Company shall provide medical insurance and such
other benefits, including, without limitation, bonuses to be awarded upon the
achievement of such milestones and events and the Company and Employee may
agree, and participation in the Company's stock option plan(s) in accordance
with the applicable Company benefit plans, as such plans may exist from time to
time and are made available to other shareholder employees of the Company with
similar ownership interests and job responsibilities. The Employee shall be
entitled to annual vacation in accordance with the Company's policy.
6. Automobile: The Company shall be responsible or reimburse
Employee for lease and/or loan payments, insurance and registration expenses,
all maintenance and gasoline costs of a car approved by the Company.
7. Restrictive Covenant: The Employee acknowledges that he has
entered into that certain Noncompetition and Nondisclosure Agreement, dated of
even date herewith, between the Employee and the Company (the "Noncompetition
Agreement") a copy of which is attached hereto as Exhibit A. Notwithstanding the
terms and conditions thereof, the Employee agrees that the "Restricted Period"
as defined therein shall be extended, if applicable, through the first
anniversary of the end of the Employee's employment, whether full-time or
part-time, exclusive or nonexclusive, and in any capacity, by the Company.
8. Proprietary Rights and Information: Concurrently with the
execution of this Agreement, the Employee and the Company have entered into that
certain Proprietary Rights and Information Agreement (the "Proprietary Rights
and Information Agreement"), attached as Exhibit B hereto.
9. Irreparable Harm: Employee agrees that any breach or threatened
breach by Employee of provisions set forth in Sections 7 and 8 of this
Agreement, would cause the Company irreparable harm and the Company may obtain
injunctive relief against such actual or threatened conduct and without the
necessity of a bond.
10. Return of Company Property: Employee agrees that following the
termination of his employment for any reason, he shall return all property of
the Company which is then in or thereafter comes into his possession, including,
but not limited to, documents, contracts, agreements, plans, photographs,
customer lists, books, notes, electronically stored data and all copies of the
foregoing as well as any other materials or equipment supplied by the Company to
the Employee.
11. Termination:
(A) Death: In the event of the Employee's death during the
term of his employment, this Agreement shall automatically terminate on the date
of death, and Employee's estate shall be entitled to payment of Employee's
salary until date of death and three (3) months
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thereafter. All other benefits and compensation described herein shall terminate
on the date of death unless otherwise stipulated in the applicable Company plan.
(B) Disability: In the event the Employee, by reason of
physical or mental incapacity, shall be disabled for a period of at least four
(4) consecutive months or six (6) months in the aggregate in any twelve (12)
month period of this Agreement or any extension hereof, the Company shall have
the option to terminate Employee's employment and to terminate this Agreement.
Such termination to be effective ten (10) days after the Company gives written
notice of such termination to the Employee, and all obligations of the Company
hereunder shall cease upon the date of such termination unless Employee shall
have returned to the performance of his duties prior to the effective date of
the notice. "Incapacity" as used herein shall mean the inability of the Employee
to substantially perform his normal duties. Employee's salary as provided for
hereunder shall continue to be paid during any period of incapacity prior to and
including the date on which Employee's employment is terminated for disability
and for three (3) months following the termination date.
(C) Company's Rights To Terminate This Agreement:
(a) The Company shall have the right, before the
expiration of the term of this Agreement, to terminate this Agreement and to
discharge Employee for cause (hereinafter "Cause"), and all compensation to
Employee shall cease to accrue upon discharge of the Employee for Cause. For the
purposes of this Agreement, the term "Cause" shall mean (i) the Employee's
violation of the Company's written policy or specific written directions of the
Board of Directors, which directions are consistent with normally acceptable
business practices, or the failure to observe, or the failure or refusal to
perform, any obligations required to be performed in accordance with this
Agreement, (ii) if the Board of Directors determines that Employee has committed
a demonstrable act (or omission) of malfeasance seriously detrimental to the
Company (which shall not include any exercise of business judgment in good
faith) or (iii) breach by the Employee in any material respect of (x) any
covenant or agreement contained herein, in the Proprietary Rights and
Information Agreement or in the Noncompetition Agreement or (y) any
representation, warranty, covenant or agreement contained in that certain
Agreement and Plan of Merger, dated as of May __, 1999, by and among the
Company, Peeper's Sunglasses and Accessories, Inc., Peeper's, Inc. and the
Employee.
(b) If the Company elects to terminate Employee's
employment for Cause, if such Cause shall be capable of cure (it being
understood and agreed that a breach of fiduciary duty, including dishonesty, is
not subject to cure) the Company shall first give Employee written notice and a
period of twenty (20) days to cure such Cause, and if such Cause is not cured in
said twenty (20) days or if such Cause is not capable of cure, such termination
shall be effective ten (10) days after the Company gives written notice of such
failure to cure to the Employee. In the event of a termination of the Employee's
employment for Cause in accordance with the provisions of Section 11 (C) (b),
the Company shall have no further obligation to the Employee, except for the
payment of salary and for any other compensation and/or expenses through the
date of such termination from employment.
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12. Waiver: Any waiver by either party of a breach of any provision
of this Agreement shall not operate as or be construed as a waiver of any other
breach or default hereof.
13. Governing Law: The validity of this Agreement or of any of the
provisions hereof shall be determined under and according to the laws of the
State of New York, and this Agreement and its provisions shall be construed
according to the laws of the State of New York, without reference to its choice
of law rules.
14. Notices: Any notice required to be given pursuant to the
provisions of this Agreement shall be in writing and shall be delivered in
person or by registered or certified mail to the respective parties at their
addresses set forth on the first page of this Agreement (or such other address
as the party to receive notices has given by notice hereunder to the other
party). Any such notice by personal delivery shall become effective upon receipt
and any notice by registered or certified mail shall become effective five
business days after mailed.
15. Assignment: The Employee's assignment of this Agreement or any
interest herein, or any monies due or to become due by reason of the terms
hereof, without the prior written consent of the Company shall be void. This
Agreement shall be assignable and binding to a corporation or other business
entity that succeeds to all or substantially all of the business of the Company
through merger, consolidation, corporate reorganization or by acquisition of all
or substantially all of the assets of the Company and which assumes Company's
obligations under this Agreement.
16. Miscellaneous: This Agreement contains the entire understanding
between the parties hereto and supersedes all other oral and written agreements
or understandings between them. No modification or addition hereto or waiver or
cancellation of any provision shall be valid except by a writing signed by the
party to be charged therewith.
17. Obligations of a Continuing Nature: It is expressly understood
and agreed that the covenants, agreements and restrictions undertaken by or
imposed on either party hereunder, which are stated to exist or continue after
termination of Employee's employment with the Company, shall exist and continue
on both parties irrespective of the method or circumstances of such termination
from employment or termination of this Agreement.
18. Severability: Employee agrees that if any of the covenants,
agreements or restrictions on the part of Employee are held to be invalid by any
court of competent jurisdiction, such holding will not invalidate any of the
other covenants, agreements and/or restrictions herein contained and such
invalid provisions shall be severable so that the invalidity of any such
provision shall not invalidate any others. Moreover, if any one or more of the
provisions contained in this Agreement shall be held to be excessively broad as
to duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
19. Representation: Employee represents and warrants that he has the
legal right to enter into this Agreement and to perform all of the duties and
obligations on his part to be performed hereunder in accordance with its terms
and that he is not a party to any
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agreement or understanding, written or oral, which prevents Employee from
entering into this Agreement or performing all of his duties and obligations
hereunder. In the event of a breach of such representation or warranty on his
part or if there is any other legal impediment which prevents him from entering
into this Agreement or performing all of his duties and obligations hereunder,
the Company shall have the right to terminate this Agreement in accordance with
Section 11(C) (a); in which event the "Cause" shall not be deemed curable under
Section 11(C) (b). Without limiting the foregoing, Employee represents and
warrants that he is not a party to any agreement which prohibits or limits his
ability to fulfill his duties and responsibilities contemplated herein.
20. Descriptive Headings: The paragraph headings contained herein
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
ERGOVISION, INC.
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
President
/s/ Xxxxxx Xxxxxxx
-----------------------------------------
Xxxxxx Xxxxxxx
Employee
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