1
Exhibit 10.20
3/5/98
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into this 18th
day of March, 1998 by and between Xionics Document Technologies, Inc.
("Xionics") and Xxxxx X. Xxxxxx ("Xxxxxx").
WHEREAS, Xionics engaged Simone as President as of April 1, 1997, and
additionally as Chief Executive Officer as of October 21, 1997; and
WHEREAS, Xionics' Board of Directors (the "Board") believes that it is in the
best interests of Xionics and its stockholders that Simone be provided with an
incentive to continue his employment with Xionics and to maximize the value of
Xionics for its stockholders;
NOW THEREFORE, the parties hereby agree as follows:
1. EMPLOYMENT. Xionics hereby ratifies and confirms its employment of Simone,
and Simone hereby ratifies and confirms his acceptance of such employment, upon
the terms and subject to the conditions hereinafter set forth.
2. DUTIES.
2.1 Simone shall be employed as President and/or Chief Executive Officer of
Xionics, as such position has been defined in terms of responsibilities as of
the effective date of this Agreement; provided, that the Board shall have the
right to revise such responsibilities in such manner as the Board in its
discretion may deem necessary or appropriate for the overall wellbeing of
Xionics, including without limitation the right to designate a second individual
as either President or Chief Executive Officer to serve in conjunction with
Simone.
2.2 Simone agrees to devote his full working time, attention and energies to
the performance of his duties and responsibilities to Xionics; to perform them
faithfully, diligently and competently; and to use his best efforts to further
the business of Xionics.
3. TERM. The initial term of this Agreement shall commence on the effective
date of this Agreement and shall continue until the third anniversary thereof
(the "Initial Term"), unless earlier terminated pursuant to the provisions of
Section 6. below. Thereafter Simone may remain employed by Xionics if both
parties so desire, but shall be considered an employee at will in accordance
with applicable state law.
4. COMPENSATION AND BENEFITS. For so long as this Agreement remains in effect,
and in consideration of the services to be supplied by Simone hereunder, Xionics
shall compensate Simone as follows:
4.1 BASE SALARY. Xionics shall pay Simone, in accordance with Xionics' payroll
practices in effect from time to time, a base salary (the "Base Salary").
The Base Salary will initially be paid at an annual rate of Two Hundred
Forty Thousand Dollars ($240,000.00 U.S.), and may be increased from time
to time in the discretion of the Compensation Committee of the Board. The
Base Salary will not be decreased at any time during the
2
Initial Term hereof unless the Board determines that a decrease is
necessitated by Xionics' financial condition.
4.2 MANAGEMENT INCENTIVE BONUS. Simone shall receive from Xionics, for each
fiscal year of Xionics ended after the date hereof, a management incentive
bonus in an amount that may be awarded by the Compensation Committee of the
Board in its sole discretion. Notwithstanding the foregoing, Simone's bonus
for Xionics' fiscal year ending June 30, 1998, assuming achievement of all
corporate and personal goals and objectives required for full payment of
such bonus, shall be Sixty Thousand Dollars ($60,000.00 U.S.). Payment of
each bonus for which Simone is eligible hereunder, or any part thereof,
shall be conditioned upon the achievement of corporate and personal goals
and objectives to the extent required by Xionics' Management Incentive
Bonus Plan (or any successor plan) for any given year, as determined by the
Compensation Committee of the Board in its sole discretion.
4.3 VACATION. Simone shall be entitled to paid vacation in accordance with
Xionics' vacation policy as such policy is in effect from time to time. Any
vacation shall be taken at the reasonable and mutual convenience of Xionics
and Simone.
4.4 INSURANCE, ETC. Accident, disability, life and health insurance for Simone
and his dependents shall be provided by Xionics under the group policies
maintained by Xionics for its full-time salaried employees, on the same
terms (including terms requiring reasonable employee contributions to the
costs of such coverage) on which such benefits are made available to
Xionics' other full-time salaried employees from time to time.
4.5 STOCK OPTIONS. Simone acknowledges that Xionics has granted to him options
to purchase Two Hundred Fifty Thousand (250,000) shares of Xionics' common
stock, par value $0.01 per share, pursuant to Stock Option Agreements
between them dated April 1, 1997 (the "Stock Option Agreements"), and that
he has assented to the termination of the Stock Option Agreements pursuant
to Xionics' 1998 Employee Stock Option Exchange Program (the "Exchange
Program"). Subject to approval of the Board and to the terms of the
Exchange Program, Xionics agrees to grant to Simone new options to purchase
Two Hundred Twenty-Five Thousand (225,000) shares of Xionics' common stock,
at such time, and having such exercise price and vesting terms, as are
provided under the Exchange Program; provided, that the stock option
agreement evidencing such new options shall provide that such new options
shall become fully vested upon the closing of any merger, consolidation,
business combination or other reorganization involving Xionics, or an
acquisition (whether by stock transfer or asset purchase) of all or
substantially all of Xionics' business, in which Simone is not the chief
executive officer of the surviving entity, and/or the surviving entity is
not a publicly traded corporation.
5. INVENTION DISCLOSURE AND CONFIDENTIALITY; NONCOMPETITION. All of the
provisions of the Invention and Nondisclosure Agreement between Xionics and
Simone dated April 1, 1997 (the "Invention and Nondisclosure Agreement"), a
copy of which is attached hereto as Exhibit A, including without limitation
those relating to noncompetition, are hereby incorporated herein and by
reference made a part hereof.
2
3
6. TERMINATION. Notwithstanding Section 3. above, Simone's employment shall
terminate:
6.1 DEATH OR DISABILITY. Upon the death of Simone during the term of his
employment hereunder or, at the option of Xionics, upon thirty (30) days'
prior written notice from Xionics in the event of Simone's Disability. For
purposes of this Section 6.1, "Disability" shall mean any physical or
mental illness or condition which materially impairs Simone's ability to
perform his duties under this Agreement for ninety (90) days, consecutive
or non-consecutive, in any twelve (12)-month period, as determined by an
independent medical doctor selected by Xionics' health or disability
insurance carrier and acceptable to Simone or his legal representative.
6.2 FOR CAUSE. For Cause, immediately upon written notice given to Simone by
Xionics. For purposes of this Section 6.2, "Cause" shall mean any of the
following:
(a) An act of personal dishonesty, including without limitation fraud,
embezzlement, or misappropriation, connected with Xionics or with Simone's
employment with Xionics;
(b) A willful act by Simone which constitutes gross misconduct and which
is injurious to Xionics;
(c) A breach of fiduciary duty committed by Simone against Xionics,
including but not limited to the offer, payment, solicitation or acceptance
of any unlawful bribe or kickback with respect to Xionics' business;
(d) Simone's conviction by a court of competent jurisdiction of any
felony;
(e) Simone's breach of any of the covenants, terms or provisions of the
Invention and Nondisclosure Agreement incorporated herein under Section 5.
above, including without limitation its provisions relating to
noncompetition;
(f) Simone's substantial failure to perform (whether because of inability,
unwillingness, negligence or any other reason) the duties and
responsibilities reasonably assigned to him by Xionics, which failure
continues for sixty (60) days after notice of such failure from the Board;
or
(g) Simone's refusal to obey any lawful direction from the Board which is
consistent with his duties and responsibilities hereunder, which refusal
continues for five (5) days after written notice to Simone specifying such
refusal in reasonable detail.
6.3 RIGHTS AND REMEDIES ON TERMINATION.
(a) If Xionics shall terminate Simone's employment hereunder other than as
provided in Sections 6.1 and 6.2 above, then Simone shall be entitled to
receive, as severance pay and in consideration of his ongoing obligations
under the Invention and Nondisclosure Agreement, in accordance with
Xionics' then-current payroll practices, payment of his Base Salary in
effect at the date of termination for a period of six (6) months after such
date, together with reimbursement of the cost of his group health and
dental plan coverage in effect at the date of termination for the same
six-month period; provided, however, that if Simone accepts other
employment during such six-month period, Xionics shall be entitled to
reduce the amount payable under this Section 6.3 by
3
4
an amount equal to the income received by Simone pursuant to such new
employment during such period, and to cease reimbursing him for health and
dental coverage to the extent that comparable benefits are available
through his new employment. Simone shall not accept any new employment
during such six-month period in breach of the Invention and Nondisclosure
Agreement.
(b) For purposes of this Section 6.3, Simone's employment shall be deemed
terminated if, INTER ALIA, any one of the following occurs upon or within
eighteen (18) months after the closing or other completion of a merger,
consolidation, business combination or other reorganization involving
Xionics, an acquisition (whether by stock transfer or asset purchase) of
all or substantially all of Xionics' business, or a change of control
whereby more than fifty percent (50%) of the voting equity in Xionics
becomes beneficially owned by a single person, entity, or affiliated group
of persons or entities: (i) Simone's employment is actually terminated
(other than as provided in Sections 6.1 and 6.2); (ii) Simone is not, or he
ceases to be, the chief executive officer of the surviving entity, and/or
the surviving entity is not, or it ceases to be a publicly traded
corporation; or (iii) Simone's responsibilities, compensation or benefits
are materially reduced without his express consent. In addition, Simone's
employment may at his option be deemed terminated hereunder in the event
that Xionics fails to obtain the agreement of any acquiring entity to
assume its obligations under this Agreement. Xionics agrees to promptly
notify Simone of such failure.
(c) If Simone shall voluntarily terminate his employment hereunder after
June 30, 1998 but prior to the expiration of the Initial Term, he shall be
entitled to receive up to six (6) months' severance pay and benefits in the
amount and subject to the limitations set forth in subsection (a) above,
but only if Simone remains employed with Xionics and continues to devote
his full time, attention and energies to Xionics' affairs until such time
as a suitable successor, as determined by the Board in its sole discretion,
has been hired and has actually commenced work at Xionics.
7. LIMITATION ON PAYMENTS.
7.1 In the event that the severance and other benefits provided for in this
Agreement or otherwise payable to Simone (a) constitute "parachute
payments" within the meaning of Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code") and (b) but for this Section 7. would be
subject to the excise tax imposed by Section 4999 of the Code, then
Simone's severance benefits under Section 6. shall be payable either (1) in
full, or (2) as to such lesser amount which would result in no portion of
such severance benefits being subject to excise tax under Section 4999 of
the Code, whichever of the foregoing amounts, taking into account the
applicable federal, state and local income taxes and the excise tax imposed
by Section 4999, results in the receipt by Simone on an after-tax basis of
the greatest amount of severance benefits under this Agreement,
notwithstanding that all or some portion of such severance benefits may be
taxable under Section 4999 of the Code.
7.2 If a reduction in the payments and benefits that would otherwise be paid or
provided to Simone under the terms of this Agreement is necessary to comply
with the provisions of Section 7.1 above, Simone shall be entitled to
select which payments or benefits will be reduced and the manner and method
of any such reduction of payments or benefits. Within thirty (30) days
after the amount of any required reduction in payments and benefits is
finally determined in accordance with Section 7.3 below, Simone shall
notify
4
5
Xionics in writing regarding which payments or benefits are to be reduced.
If no notification is given by Simone, Xionics will determine which amounts
to reduce. If, as a result of any reduction required by Section 7.1,
amounts previously paid to Simone exceed the amount to which Simone is
entitled, Simone will promptly return the excess amount to Xionics.
7.3 Unless Xionics and Simone otherwise agree in writing, any determination
required under this Section 7. shall be made in writing by Xionics'
independent public accountants (the "Accountants"), whose determination
shall be conclusive and binding upon Simone and Xionics for all purposes.
For purposes of making the calculations required by this Section 7., the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. Xionics
and Simone shall furnish to the Accountants such information and documents
as the Accountants may reasonably request in order to make a determination
under this Section. Xionics shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this
Section 7.
7.4 In the event it is determined by the Board, upon receipt of a written
opinion of the Accountants, that the enforcement of any provision of this
Agreement, including but not limited to Section 4.5, would preclude
accounting for any proposed business combination of Xionics with another
entity as a pooling of interests, and the Board otherwise desires to
approve such a proposed business combination which requires as a condition
to the closing of such transaction that it be accounted for as a pooling of
interests, then any such provision of this Agreement shall be null and
void, but only if the absence of such provision would preserve the pooling
treatment.
8. SUCCESSORS. Any successor, whether direct or indirect and whether by
purchase, lease, merger, consolidation, liquidation or otherwise, to all or
substantially all of Xionics' business and assets shall assume the
obligations of Xionics under this Agreement in the same manner and to the
same extent that Xionics would be required to perform such obligations in
the absence of a succession. For all purposes under this Agreement,
"Xionics" shall include any successor to Xionics' business and assets which
executes and delivers an assumption agreement as described in this Section
8. or which becomes bound by the terms of this Agreement by operation of
law.
9. GENERAL.
9.1 ENTIRE AGREEMENT. This Agreement and its Exhibit, which is incorporated
herein by reference, set forth the entire agreement and understanding of
the parties as to the subject matter hereof and supersede all prior and
contemporaneous written and/or oral agreements, arrangements,
communications and understandings relating to the subject matter hereof.
Neither party has entered into this Agreement by reason of or in reliance
on any representations of fact or opinion which are not expressly set forth
herein.
9.2 GOVERNING LAW. This Agreement shall be construed and governed in accordance
with the laws of the Commonwealth of Massachusetts, without giving effect
to principles of choice of laws.
9.3 ASSIGNMENT. This Agreement shall not be assignable by Simone, it being
understood and agreed that this is a contract for Simone's personal
services. This Agreement shall not
5
6
be assignable by Xionics except to a subsidiary or affiliate of Xionics, or
in connection with a merger, acquisition, other business combination or
reorganization involving, or a sale or transfer of all or substantially all
of the assets and business of, Xionics.
9.4 NOTICE. Notices and all other communications contemplated by this Agreement
shall be in writing and shall be deemed given when personally delivered or
when mailed by U.S. registered or certified mail, return receipt requested.
Notices to Simone shall be addressed to his home address most recently
communicated to Xionics, and notices to Xionics shall be addressed to its
corporate headquarters, to the attention of the Secretary.
9.5 HEADINGS. Headings are inserted for convenience of reference only and do
not form a part of this Agreement.
9.6 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and all of which are one
instrument. Any facsimile or other similar deliveries of signed copies of
this Agreement will be operative.
9.7 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, unlawful, or invalid by any court of competent jurisdiction,
it shall be deemed modified to eliminate the invalid portion(s) and, as so
modified, shall be deemed a part of this Agreement as though originally
included. The remaining provisions of this Agreement shall not be affected
by such modification(s) and shall remain in full force and effect.
9.8 AMENDMENT AND WAIVER. This Agreement may be amended only by a written
instrument executed by both parties hereto. Any delay or failure of a party
to require performance of any requirement hereof shall in no way affect its
rights at a later time to enforce the same or any other provision of this
Agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto
have caused this Agreement to be duly executed as of the date first written
above.
EMPLOYER: EMPLOYEE:
XIONICS DOCUMENT TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXX /s/ XXXXX X. XXXXXX
-------------------------------------- ------------------------------
Title: Secretary Xxxxx X. Xxxxxx
By: /s/ XXXX X. LOW
--------------------------------------
Title: Chairman of the Board of Directors
6
