EMPLOYMENT AGREEMENT
This Employment Agreement is made on the 1st day of January, 1999 between
AmTec, Inc., a Delaware Corporation ("Employer"), and Xxxxxx X. Xxxxxx, Xx.
("Executive").
1. Term. Employer hereby employs Executive and Executive hereby
accepts employment on the terms and conditions hereinafter set forth.
Subject to the provisions of Section 7 hereof, the term of this Agreement
shall be effective commencing as of January 1, 1999 and shall terminate on
December 31, 2001.
2. Duties. Executive agrees to serve Employer as Chairman, Chief
Executive Officer and President of AmTec, Inc. and in such capacity
Executive agrees to render his services to the best of his ability.
Executive will report to the Board of Directors of the Company. During the
term of this Agreement, Executive will devote his full time (at least 35
hours per week) and attention to, and use his best efforts to advance the
business and welfare of Employer, subject to the directions and control of
the Board of Directors.
3. Confidential Information and Covenant Not to Compete.
(a) Executive hereby agrees that, during the term of this
Agreement and thereafter, he will not disclose to any person, or otherwise
use or exploit any of the proprietary or confidential information or
knowledge, including without limitation, trade secrets, processes, records
of research, proposals, reports, methods, processes, techniques, computer
software or programming, or budgets or other financial information,
regarding Employer, its business, properties or affairs obtained by him at
any time prior to or subsequent to the execution of this Agreement, except
in the furtherance of the interests of Employer in the execution of
Executive's duties hereunder or as may be required pursuant to a lawful
order of a judicial tribunal or legislative body of competent jurisdiction.
(b) Upon termination of employment, Executive will deliver
to Employer all processes, records of research, proposals, reports,
memoranda, computer software and programming, budgets and other financial
information, and other materials or records or writings of any other type
(including any copies thereof) made used or obtained by Executive in
connection with his employment by Employer.
(c) During the term of this Agreement, Executive agrees
that he will: (I) neither authorize his name to be used by, (ii) nor engage
in or carry on, directly or indirectly, for himself as a member of a
partnership or as a stockholder (other than as a stockholder of less than
five percent (5%) of the issued and outstanding stock of a publicly held
corporation having assets in excess of $10,000,000), investor, officer, or
director of a corporation (other than Employer, or any parent, subsidiary,
affiliate or successor of Employer), or as an employee, agent, associate,
or consultant of any person, partnership, corporation or other business
entity, in competition with any business carried on, directly or
indirectly, by Employer prior to the date hereof or hereafter conducted,
directly or indirectly, by Employer during the term of this Agreement, in
any county where business is then carried on or conducted by Employer.
(d) Executive agrees that the remedy at law for any breach
by him of any of the covenants and agreements set forth in this Section 3
will be inadequate and that in the event of any such breach, Employer may,
in addition to the other remedies which may be available to it at law,
obtain injunctive relief prohibiting him (together with all those persons
associated with him) from the breach of such covenants and agreements.
(e) The parties hereto intend that the covenants and
agreements contained in this Section 3 shall be deemed to include a series
of separate covenants and agreements. If, in any judicial proceeding, a
court shall refuse to enforce all of the separate covenants deemed included
in such action, then such unenforceable covenants shall be deemed
eliminated from the provisions hereof for the purposes of such proceeding
to the extent necessary to permit the remaining separate covenants to be
enforced in such proceeding.
4. Compensation.
4.1 Salary. For the services to be rendered by Executive
during the first year of the term of this Agreement, Employer shall pay
Executive an annual base salary of Four Hundred Fifty Thousand Dollars
($450,000), payable in cash in equal installments semi-monthly and subject
to income tax withholdings and other payroll deductions as customary in
respect of Employer's salaried employees in general. On the date of this
agreement, Executive shall receive ten year options to purchase 200,000
shares of common stock of the Employer at a price of $0.875 per share, said
options to vest 25% on June 30, 1999, December 31, 1999, June 30, 2000 and
December 31, 2000. While the amount of additional option awards will be
determined at the discretion of the Compensation Committee of the Board of
Directors, it is intended that Executive will receive stock options in each
year of this Agreement. The annual base salary of Executive for the second
and third years of the term of this Agreement will be determined by the
Compensation Committee of the Board of Directors.
4.2 Bonus. Executive shall be entitled to participate in such
bonus plans of Employer applicable to senior executives of Employer as
determined by the Board of Directors of Employer in its sole discretion,
however it is the goal of Employer to pay a bonus in the first year of the
Agreement between $50,000 to $500,000. All bonuses payable to Executive per
the Agreement and will be payable on December 31 of 1999, 2000 and 2001.
The Compensation Committee may consider a bonus to be paid to Executive on
March 31, 1999 for the fiscal year then ended. Criteria for the
determination of the discretionary amount of bonus will be as agreed upon
by the Executive and the Chairman of the Compensation Committee of the
Board within forty-five days of the date of this Agreement and within
forty-five days of the commencement of each succeeding year of employment
hereunder.
4.2 (a) Stock Options. The Executive shall receive
stock options as described in section 4.1. It is expected that the
Executive will receive additional option awards in the second and third
years of the term of this Agreement as determined by the Compensation
Committee of the Board of Directors.
4.2 (b) Stock Grants. The Executive will be entitled
to receive a stock grant of 100,000 shares of the Employer's Common Stock
upon the commencement of this Agreement.
4.2 (c) Long Term Compensation Plan. Executive shall
be entitled to participate in a long-term compensation plan which will be
multi-year performance based over a number of years starting with the first
contract year. It is the intention of the Employer to pay the Executive on
an incentive basis to be determined by the Compensation Committee of the
Board of Directors under a performance based plan after a number of years
stipulated by the Board of Directors.
4.3 Vacation. Executive shall be entitled to four weeks'
paid vacation for each year during the term of this Agreement.
4.4 Medical Insurance. During the term of this Agreement
Employer shall furnish Executive with the same medical and hospital
insurance furnished to other employees of Employer.
4.5 Disability Insurance. During the term of this
Agreement, Employer shall furnish Executive with Long Term Disability
insurance on the same terms available to all senior executives of Employer.
4.6 Pension and Profit Sharing. Executive shall participate
in such pension and profit sharing plans as are established for senior
executives of Employer.
4.7 Other Benefits, Rights and Options. In addition to the
foregoing, Executive shall be entitled to such additional rights and
options as may be granted or established for the benefit of senior
executive officers of the Company, including, without limitation, in
connection with, any recapitalization, reorganization, consolidation or
merger of the Company. Not withstanding, Executive will be entitled to:
(a) The Company shall reimburse the Executive
promptly for all reasonable club membership dues incurred by him for
membership in two clubs in the New York City area;
(b) Executive shall be entitled to be paid an
allowance of $35,000 per year (subject to required withholding) for
financial planning and tax preparation expenses.
(c) The Company shall provide a car and driver for
the Executive's use in New York City.
5. Expenses. Employer will pay or reimburse Executive for such
reasonable travel (including first class air tarvel), entertainment, or
other expenses as he may incur at the request of Employer during the term
of this agreement in connection with the performance of his duties
hereunder. Executive shall furnish Employer with such evidence that such
expenses were incurred as Employer may from time to time require or
request.
6. Death or Total Disability of Executive. If Executive dies, or
becomes totally disabled (for a period of more than six(6) consecutive
weeks), during the term of this Agreement, Executive's employment under
this Agreement shall automatically terminate; provided that, in such event
of death or total disability, Executive's stock options under paragraph 4.1
hereof, to the extent not already vested, shall vest immediately.
7. Termination for Cause. Executive's employment under this
Agreement may be terminated by Employer for "good cause." The term "good
cause" is defined as any one or more of the following occurrences:
(a) Executive's breach of any of the covenants contained in
Section 3 of this Agreement;
(b) Executive's conviction by, or entry of a plea of guilty
or nolo contendere to a felony;
(c) Executive's commission of an act of fraud, whether
prior to or subsequent to the date hereof, upon Employer;
(d) Executive's continuing failure or refusal to perform
his duties as required by this Agreement;
(e) Executive's gross negligence, insubordination, material
violation of any duty or loyalty to Employer or any other material
misconduct relating to the business or good will of Employer.
8. Miscellaneous.
8.1 Modification and Waiver of Breach. No waiver or
modification of this Agreement shall be binding unless it is in writing
signed by the parties hereto. No waiver of a breach hereof shall be deemed
to constitute a waiver of a future breach, whether of a similar or
dissimilar nature.
8.2 Complete Agreement. The Agreement contains the entire
agreement between the parties hereto with respect to the transactions
contemplated by this Agreement and supersedes all previous oral and written
and all contemporaneous negotiations, commitment, writings, and
understandings and is and shall be binding upon the inure to the benefit of
Employer, its successors and permitted assigns and Executive, his heirs,
executors and administrators.
8.3 Legal Fees. If any legal action, arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of
any alleged dispute, breach, default or misrepresentation in connection
with this Agreement, the successful or prevailing party shall be entitled
to recover reasonable attorneys' fees and other costs it incurred in that
action or preceding, in addition to any other relief to which it may be
entitled.
8.4 Assignment. This Agreement may not be assigned in any
manner whatsoever.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
EXECUTIVE: EMPLOYER:
AMTEC, INC.
_______________________ ___________________________
XXXXXX X. XXXXXX, XX. XXXXXXX X. XXXXXXXX
CHAIRMAN, COMPENSATION COMMITTEE
