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EXHIBIT 10.28
EMPLOYMENT AGREEMENT
XXXXXX X. XXXXXX & OAKHURST TECHNOLOGY, INC.
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made effective as of this
29th day of December, 1998 by and between OAKHURST TECHNOLOGY, INC. (the
"Company") and XXXXXX X. XXXXXX ("Xx. Xxxxxx") upon the following terms and
conditions:
1. BACKGROUND. Xx. Xxxxxx 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. Xxxxxx as Chief Executive 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. Xxxxxx' 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. Xxxxxx shall provide to the Company the services of a Chief
Executive Officer, shall if elected, serve as a director of the
Company, and if appointed, shall serve as Chairman of the Board of
Directors.
(b) Xx. Xxxxxx 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 and he shall perform such services subject to the general
direction of the Board of Directors.
(c) No restrictions shall be placed on other activities of Xx. Xxxxxx
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. Xxxxxx; 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. Xxxxxx abstaining from such vote and (ii)
excluding Xx. Xxxxxx from the count of the total number of directors then
in office.
6. SALARY. During the Term --
(a) The Company shall pay Xx. Xxxxxx a salary of five thousand dollars
($5,000) 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. Xxxxxx' 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. Xxxxxx 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. Xxxxxx' 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. Xxxxxx 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. Xxxxxx a fixed automobile usage fee of two hundred fifty
dollars ($250) per month and shall reimburse to Xx. Xxxxxx 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. Xxxxxx), 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. Xxxxxx' 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. Xxxxxx,
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. Xxxxxx, in which
event, all stock options then held by Xx. Xxxxxx shall
thereupon become exercisable in full, and the Company shall
pay to Xx. Xxxxxx 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. Xxxxxx. After receipt of
such lump sum payment, upon the request of a majority of the
Board of Directors, Xx. Xxxxxx 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. Xxxxxx 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. Xxxxxx 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. Xxxxxx 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. Xxxxxx and shall
thereafter continue to pay him his salary at the rate then in
effect for a period of three (3) full calendar months.
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(v) Upon the death of Xx. Xxxxxx, in which event the Company shall
pay to his legal representative so much of Xx. Xxxxxx' salary
as was accrued, but not paid at the date of his death.
(b) Termination By Xx. Xxxxxx.
(i) Xx. Xxxxxx 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. Xxxxxx 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.
Xxxxxx shall thereupon become exercisable in full, and the
Company shall pay Xx. Xxxxxx 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. Xxxxxx
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. Xxxxxx as a
resignation by him, effective upon the giving of such notice,
of any one or more of the offices (including Chairmanship of
the Board of Directors) then held by him in the Company and
its subsidiaries.
9. CONFIDENTIAL INFORMATION.
(a) So long as Xx. Xxxxxx is an employee and/or director of the Company
and after any or all of such relationships terminate for whatever
reason, Xx. Xxxxxx 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. Xxxxxx'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. Xxxxxx;
(ii) that is received by Xx. Xxxxxx (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. Xxxxxx'x obligations with respect to competing with the Company
and soliciting its employees shall be as follows:
(i) Xx. Xxxxxx 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. Xxxxxx was involved in the
planning within a radius of 200 miles of any facility of the
Company.
(ii) Xx. Xxxxxx 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. Xxxxxx or to any
person or entity by or with which Xx. Xxxxxx is employed,
associated, affiliated or otherwise related (other than the
Company).
(iii) Xx. Xxxxxx shall not recruit or otherwise solicit or induce
any person to terminate his or her employment or other
relationship with the Company.
(b) Xx. Xxxxxx'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. Xxxxxx' 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:
If to the Company, at: Oakhurst Technology, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
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with a copy other
than by facsimile to Xxxx X. Lever, Esq.
Xxxxxxx & Xxxxxxxxx
Xxx Xxxxx Xxxxxxxx
Xxxxx Xxxxxx, XX 00000
If to Xx. Xxxxxx at: Xxxxxx X. Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile No.: (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. Xxxxxx
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 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.
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15. SURVIVAL. The termination of Xx. Xxxxxx' employment and/or this Agreement
shall not relieve Xx. Xxxxxx 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. Xxxxxx' 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/ Xxxxxx X. Xxxxxx
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Xxxx Xxxxxxxx XXXXXX X. XXXXXX
For the Board of Directors
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