Prepared by XXXXXXX CORPORATION xxx.xxxxxxxxxxxxxx.xxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 27th day of September, 1999, by and
between Xxxxxxxxx.xxx Group, Inc. (the "Company") and Xxxxxx X. Xxxxxx (the
"Employee").
WHEREAS,
Company desires to avail itself of Employee's skills, talents, contacts, judgment and knowledge for the benefit of Company and accordingly has offered to employ Employee
pursuant to the terms and conditions set forth hereinafter; and
WHEREAS,
Employee desires duties and responsibilities commensurate with Employee's education, experience and background, and salary, bonus, and other benefits and perquisites at
levels that reflect Employee's past and anticipated future contributions to the Company;
NOW,
THEREFORE, in consideration of the premises and the terms and conditions hereinafter set forth, the parties hereto agree as follows:
1. Employment. Subject to the terms and conditions hereof, the Company shall employ Employee and
Employee agrees to be so employed in the capacity of Senior Vice President, General Counsel and Secretary for a term of three (3) years commencing on September 27, 1999 and terminating
September 26, 2002. This Agreement shall automatically renew for successive one year terms thereafter unless the Company shall have provided Employee with written notice of the Company's intent
not to renew by June 15, 2002 and by each June 15 thereafter.
2. Duties. Employee shall diligently and conscientiously devote Employee's full and exclusive time and
attention to the discharge of Employee's duties as Senior Vice President and General Counsel. Such duties shall be determined from time to time by the Chief Executive Officer, Executive Vice
President, or President of the Company (or other officer mutually acceptable to the Company and Employee). Employee shall be a member of the Company's Executive Committee.
3. Base Salary. Commencing at the effective date hereof and continuing through and including the last
day of the term of this Agreement, the Company shall pay to Employee for services rendered hereunder as base compensation the sum of One Hundred Eighty-Five Thousand Dollars ($185,000) per
annum, which shall be paid in equal monthly or other convenient installments. The Base Salary may be increased during the term hereof, but not decreased.
4. Expenses. The Company shall reimburse Employee for all reasonable and necessary expenses incurred by
Employee in carrying out Employee's duties under this Agreement. Employee shall present to the Company from time to time an itemized statement of account of such expenses in such form as may be
required by the Company.
5. Loans. On the date hereof, the Company shall loan Employee the sum of One Hundred Thousand Dollars
($100,000). Such loan shall be evidenced by a promissory note in the form attached hereto as Schedule A which shall, among other things, provide for the forgiveness of said loans in the manner
and pursuant to the terms and conditions specified therein. The Company shall have no obligation to make such loan unless and until Employee provides Company with a fully executed promissory note.
6. Grant of Stock Option. On September 27, 1999, Company shall grant to Employee an option to
purchase one hundred thousand (100,000) shares of common stock of Xxxxxxxxx.xxx Group, Inc. Said option shall expire ten (10) years from the date thereof and be immediately exercisable
as to all shares subject to the option and contain other normal and customary terms and conditions. The exercise price shall be determined by utilizing eighty-five percent (85%) of the
last reported sale price for said securities on the last business day prior to the date of this Agreement. Company may grant Employee additional stock options in its discretion based on Employee's
overall performance.
7. Benefits. Employee shall be entitled to participate in such fringe benefit programs maintained by
the Company as are available for other employees similarly situated.
8. Support Employees. Any support employees added shall be subject to the express approval of the
Company and subject to its normal and customary recruitment process and procedures.
9. Termination. Employee's employment hereunder shall be terminated upon the happening of any of the
following events: (i) expiration of the term of this Agreement, without renewal; (ii) death of the Employee; (iii) notice to Employee that Employee's employment is terminated due
to Employee's inability to perform Employee's usual and customary duties by reason of total physical or mental disability where such disability has continued continuously for a period in excess of six
(6) months; (iv) by Employee, on sixty (60) days' prior written notice, in the event of a Good Reason Resignation; or (v) at any time without notice by the Company for
cause. Employee shall be terminated "for cause" only if the Company determines Employee has committed an unlawful or dishonest act, any felony, any act of bad faith, fraud, embezzlement,
misappropriation, dishonesty or moral turpitude or the Employee's loss or suspension of any necessary licensure.
For
purposes of this Agreement, a Good Reason Resignation shall be defined as a resignation by the Employee for the following reasons:
A. There
is a significant change in the nature of the scope of Employee's duties or the staff support provided to Employee.
B. The
Employee is assigned duties materially inconsistent with Employee's duties, responsibilities, and status.
C. The
Company requires the Employee to relocate to any office or location which is greater than twenty-five (25) miles from the location where the
Employee is located on the commencement of this Agreement.
D. Employee
is removed as an executive officer of the Company or not re-elected to such position.
E. The
Company or any of its material subsidiaries are involved in a Change of Control transaction, which shall include but not be limited to a sale of substantially
all of the assets or business of the Company or the material subsidiary or a sale of fifty percent (50%) or more of the outstanding capital stock of the Company or a material subsidiary.
F. Any
of the following persons are no longer employed by the Company or any of its subsidiaries: Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx or Xxxx X. Xxxxxx.
In
the event of termination of this Agreement prior to September 26, 2002, the Company shall pay Employee or his estate in a lump sum in cash within thirty (30) days
after the date of termination an
amount equal to Employee's current annual base salary. To the extent not theretofore paid or provided, the Company shall timely pay or provide to Employee or his estate or beneficiaries any other
amounts or benefits required to be paid or provided or which the Employee is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated
companies through the Date of Termination and, to the extent not then vested, all stock options shall vest and remain exercisable for the remainder of their term and all restricted stock awards and
other awards shall vest and become immediately payable.
10. Confidentiality. Employee may have access to Confidential Information, as defined herein, which the
Company desires to protect at all times. Therefore:
A. Employee
understands, acknowledges, and agrees that:
(i) "Confidential
Information" means any information or compilation of information possessed by the Company that derives independent economic value, actual or
potential, from not being generally known to, and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, including but not limited
to: (1) any information not generally known in the industry of the business regarding the Company's pricing of services, research, development, marketing, products, customers, clients,
potential clients, servicing, business systems, and techniques; (2) financial information concerning the Company; and (3) any information that the Company may from time to time designate
as "confidential," "proprietary," or "trade secrets" which is not generally known in the industry of the Company;
(ii) The
Employee's duties may involve the use of the Confidential Information;
(iii) The
Company has expended substantial sums of money, time and effort in developing such Confidential Information; and
(iv) The
Company will be substantially harmed in the competitive marketplace if the Confidential Information is used to its detriment or to the benefit of others.
B. In
recognition of the foregoing, the Employee agrees that:
(i) The
Employee will not, during or after employment with the Company, directly or indirectly use or disclose any Confidential Information to any other person, firm or
company, or in any way use for his benefit, or to the detriment of the Company, any information or knowledge obtained during the course of his employment with the Company, except as required in the
conduct of the Company's business or as authorized in writing by the Company; and
(ii) All
memoranda, notes, records, papers and other documents and all copies thereof relating to the Company's operation and all objects related thereto are and remain
the property of the Company; including, but not limited to, those developed, investigated, or considered by the Company. Employee will not copy or duplicate any of the aforementioned documents or
objects nor use any information contained therewith, except for the Company's benefit, either during or after his employment.
11. Notices. All notices required or permitted to be given under this Agreement shall be given by
certified mail, return receipt requested, to the parties at the following addresses or to such other addresses as either may designate in writing to the other party:
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| If to Company:
| Xxxxxxxxx.xxx Group, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx XX 00000
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If to Employee:
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Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxxxx XX 00000
12. Severability. In the event any portion of this Agreement is found to be invalid or unenforceable by
any court of competent jurisdiction, the same will not affect in any respect whatsoever the validity of the remainder of this Agreement. Further, if any provision is held to be overbroad as written,
that provision should be considered to be amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and enforced as amended.
13. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the
State of Minnesota.
14. Entire Contract. This Agreement constitutes the entire understanding and agreement between the
Company and Employee with regard to the matters stated herein and replaces and supersedes any other agreements with the Company. There are no other agreements, conditions or representations, oral or
written, express or implied, with regard to the employment of Employee by the Company. This Agreement may be amended only in writing, signed by both parties hereto.
15. Binding Effect. This Agreement shall inure to the benefit of and be binding upon the Company, its
successors and assigns, and shall inure to the benefit of and be binding upon the Employee, Employee's heirs, distributees and personal representatives.
IN
WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
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| XXXXXXXXX.XXX GROUP, INC.
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| By:
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/s/ XXXXX X. XXXXXX
Xxxxx X. Xxxxxx
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| Its:
| Chairman and Chief Executive Officer
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By:
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/s/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
EMPLOYMENT AGREEMENT
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