Exhibit 10.16
EMPLOYMENT AGREEMENT
Agreement made as of the 4th day of November, 1998,
between Xxxxx Xxxxxx Corporation, a Delaware corporation
(the "Company"), and Xxxx X. Xxxxxxxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive,
and the Executive desires to accept employment with the
Company, but only on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual
covenants and agreements hereinafter set forth, the
Company and the Executive hereby agree as follows:
1.The Company shall employ the Executive, and the
Executive shall serve the Company, for the period
beginning on November 4, 1998 (the "Date of Hire") and
expiring on the date three (3) years from the Date of
Hire, unless sooner terminated pursuant to the provisions
of Section 4 hereof (the "Employment Period").
2.During the Employment Period, the Executive
shall serve the Company as its President and Chief
Executive Officer and the Executive shall serve as a
director on the Company's Board of Directors (the
"Board"). During the Employment Period, the Executive
shall, except during vacation or sick leave, devote the
whole of his time, attention and skill during usual
business hours (and outside those hours when reasonably
necessary to his duties hereunder) to his duties
hereunder; faithfully and diligently perform such duties
and exercise such powers as may be from time to time
assigned to or vested in him by the Board; and use his
best efforts to promote the interests of the Company. The
Executive may be required in pursuit of his duties
hereunder to perform services for any company controlling
(assuming the Executive declines to exercise any
resignation right pursuant to Section 4(d) hereof),
controlled by or under common control with the Company
(such companies hereinafter collectively called
"Affiliates") and to accept such offices in any Affiliates
as the Board may require. The Executive shall obey all
policies of the Company and applicable policies of its
Affiliates.
3.a.During the Employment Period, the Company
shall pay the Executive a salary at an annual rate of
three hundred thousand dollars ($300,000.00), which shall
be payable in accordance with the Company's then
prevailing payroll practices. The Board will review the
rate annually and make such increases as it may deem
appropriate but shall not be obligated to do so.
b.During the term of this Agreement, the
Executive shall be eligible to receive a bonus at the end
of each fiscal year based upon the Company's performance
for such fiscal year. Such bonus shall be determined in
accordance with the Company's bonus plan for the President
and Chief Executive Officer then in effect. For each of
the years the Executive is employed with the Company
pursuant to this Agreement, the target bonus rate will be
60% of the Executive's annual salary. A part of the bonus
for fiscal year 1999 equal to 30% of the Executive's
annual salary will be guaranteed. For fiscal year 1999,
this bonus will be prorated for the Executive's term of
employment. Additional bonus eligibility will be based on
reasonable criteria to be established by the Board.
c.Upon execution of this Agreement, the
Executive will be entitled to receive a signing bonus of
fifty thousand dollars ($50,000.00) which will be payable
within fifteen (15) days of the Date of Hire. The bonus
referred to in this Section will be in addition to any
annual bonus to which the Executive may be entitled to
receive pursuant to Section 3(b) of this Agreement.
d.The Executive will be entitled to an
additional bonus of fifty thousand dollars ($50,000.00)
180 days after he has established residency within a fifty
mile radius of the Company's headquarters or December 1,
1999, whichever is sooner.
e.Upon execution of this Agreement, the
Company will grant the Executive one hundred fifty
thousand (150,000) shares of common stock of the Company
which will vest on the one (1) year anniversary of the
Date of Hire provided that the Executive has been
continuously employed by the Company for such period.
f.For one year following the Date of Hire,
the Company will reimburse the Executive for (i)
reasonable expenses incurred for living accommodations
within proximity of the Company's corporate headquarters
and (ii) commuting costs incurred by the Executive
commuting to and from the Company's corporate headquarters
in accordance with the Company's standard policies and
practices.
g.During the term of this Agreement, the
Executive shall be entitled to be reimbursed up to fifteen
thousand dollars ($15,000.00) per year for car expenses.
h.The Executive shall be entitled to four (4)
weeks of vacation per calendar year with any unused
vacation time carried over to the next calendar year.
i.The Executive shall be entitled to such
expense accounts, sick leave, perquisites of office,
fringe benefits, insurance coverage (including the
Company's Executive Medical and Life Insurance Programs),
and other terms and conditions of employment as the
Company generally provides to its employees having rank
and seniority at the Company comparable to the Executive.
The Company shall maintain for the benefit of the
Executive or his designee(s) (i) a term life insurance
policy for the benefit of the Executive in the amount
equal to two times his base salary and (ii) an accidental
life insurance policy in the amount of one million dollars
($1,000,000.00) provided the Executive is insurable at the
normal rate for his age and sex. In the event the
insurance is only obtainable at a higher rate, the
Executive will pay the differential between the higher
rate and the normal rate if he elects coverage. In
addition, the Executive shall have annual physical
examinations at the Company's expense.
4.Unless terminated in accordance with the
following provisions of this Section 4, the Company shall
continue to employ the Executive and the Executive shall
continue to work for the Company, during the Employment
Period.
a.This Agreement shall terminate
automatically upon the death of the Executive.
b.The Company may terminate the Executive's
employment if the Executive suffers from a physical or
mental disability to an extent that renders it
impracticable for the Executive to continue performing his
duties hereunder. The Executive shall be deemed to be so
disabled if a physician selected by the Company but
reasonably acceptable to the Executive (i) advises the
Company that the Executive's physical or mental condition
will render the Executive unable to perform his duties for
a period exceeding three consecutive months or (ii)
determines the Executive has not substantially performed
his duties hereunder for a period of three consecutive
months due to a physical or mental condition. The Company
will provide the Executive with long-term disability
insurance.
c.The Company may terminate the Executive's
employment at any time for cause; cause shall mean (i) a
material default or material breach by the Executive of
his obligations under Sections 1, 2, 5, 6, 8 and 18 of
this Agreement, (ii) misconduct, dishonesty,
insubordination or other act by the Executive materially
detrimental to the good will of the Company or materially
damaging to the Company's relationships with its
customers, suppliers or employees, or (iii) the conviction
of a felony.
d.The Company may terminate the Executive's
employment at any time without cause. The Executive may
resign from his employment at any time. In the event that
the Executive is terminated without cause or the Executive
is deemed terminated following a "Change of Control" (as
hereinafter defined), the Company shall (i) continue to
pay the Executive at a rate equivalent to his regular base
salary until the date one (1) year from the date of
termination, (ii) continue to provide medical insurance to
the Executive until the date one (1) year from the date of
termination, (iii) pay the Executive any accrued but
unused vacation time for the current year and any accrued
but unused vacation time carried over from any prior year
and (iv) cause any shares of common stock granted to the
Executive pursuant to Section 3(e) of this Agreement to
immediately vest if said shares have not already vested
but in no event shall the shares of common stock referred
to herein vest before March 1, 1999. Notwithstanding the
foregoing, in the event that the Executive receives
comparable health and welfare benefits from any other
employment (including, without limitation, self-
employment) then the Company shall no longer be obligated
to provide coverage under its plans. Such payments to the
Executive by the Company will be in full and complete
satisfaction (except as provided in subsection (e) below)
of any and all obligations owing to the Executive pursuant
to this Agreement. "Change of Control" shall mean (i) a
stock purchase by any "person" or a "group" (as such terms
are used in Sections 13(d) and 14(d)(2) of the Securities
and Exchange Act of 1934, as amended) who then owns or by
virtue of such purchase becomes the beneficial owner of,
directly or indirectly, voting securities of the Company
representing 51% or more of the combined voting power of
the Company's then outstanding voting securities, (ii) an
acquisition of at least fifty-one percent (51%) of the
Company's assets by any person(s), firm(s) or entity(ies)
whether or not affiliated with the Company (for cash or
property including, without limitation, stock in any
corporation, indebtedness or any combination thereof),
(iii) a merger or consolidation of the Company with
another corporation regardless of whether the Company is
the survivor, (iv) any substantial equivalent of any such
redemption, purchase, exchange, transaction or series of
transactions, acquisition, merger or consolidation or (v)
any change in the composition of the Company's Board of
Directors in any one year which involves a majority of
such directors and which is not recommended by the Board.
For purposes of this Section, the Executive shall be
deemed terminated from employment with the Company if he
resigns within the one (1) year period following the
Change of Control as a result of (i) any reduction in the
Executive's compensation package, (ii) any assignment of
new duties that requires the Executive to relocate his
business location more than fifty (50) miles away from the
Executive's then current place of business or (iii) any
significant reduction or diminution in the duties,
responsibilities or position of the Executive from that in
effect immediately prior to the Change of Control other
than the change in the Company's status as a result of the
transaction itself such as, but not limited to, the
Company's becoming a division of a privately held
corporation.
e.Upon termination pursuant to (a), (b), (c)
or (d), above, the Company shall pay the Executive or his
estate any salary earned and unpaid to the date of
termination, and any outstanding funds advanced by the
Company to or on behalf of the Executive shall become
immediately due and payable.
5.The Executive shall not divulge or communicate
to any person (except in performing his duties under this
Agreement) or use for his own purposes trade secrets,
confidential commercial information, or any other
information, knowledge or data of the Company or of any of
its Affiliates which is not generally known to the public
and shall use his best efforts to prevent the publication
or disclosure by any other person of any such secret,
information, knowledge or data. All documents and objects
made, compiled, received, held or used by the Executive
while employed by the Company in connection with the
business of the Company shall be and remain the Company's
property and shall be delivered by the Executive to the
Company upon the termination of the Employment Period or
at any earlier time requested by the Company.
6.The Executive agrees that during the Employment
Period and for a period of one year after the termination
of the Employment Period (except for a termination without
cause or resignation upon a Change of Control pursuant to
Section 4(d) above), he will not directly or indirectly,
whether or not for compensation and whether or not as an
employee, be engaged in or have any financial interest in
any business competing with the business of the Company
(or with any business of any Affiliate for which the
Executive performed services hereunder) within any state,
region or locality in which the Company or such Affiliate
is then doing business or marketing its products, as the
business of the Company or such Affiliate may then be
constituted. For purposes of this Agreement, the
Executive shall be deemed to be engaged in or to have a
financial interest in such a business if he is an
employee, officer, director, or partner, of any person,
partnership, corporation, trust or other entity which is
engaged in such a business, or if he directly or
indirectly performs services for such entity or if he or
any member of his immediate family beneficially owns an
equity interest, or interest convertible into equity, in
any such entity, unless the Board otherwise approves. The
foregoing shall not prohibit the Executive or a member of
his immediate family from owning, for the purpose of
passive investment, less than 5% of any class of
securities of a publicly held corporation.
7.The Executive agrees that he shall not, for a
period of two years after the Employment Period, employ
any person who was employed by the Company in the six
months prior to the Executive's date of termination or
induce such person to accept employment other than with
the Company and its Affiliates.
8.The Executive hereby agrees that any and all
improvements, inventions, discoveries, formulae,
processes, methods, know-how, confidential data, trade
secrets and other proprietary information (collectively,
"Work Product") within the scope of any business of the
Company or any Affiliate which the Executive may conceive
or make or have conceived or made during his employment
with the Company shall be and are the sole and exclusive
property of the Company, and that the Executive shall,
whenever requested to do so by the Company, at its
expense, execute and sign any and all applications,
assignments or other instruments and do all other things
which the Company may deem necessary or appropriate (i) in
order to apply for, obtain, maintain, enforce, or defend
letters patent of the United States or any foreign country
for any Work Product or (ii) in order to assign, transfer,
convey or otherwise make available to the Company the sole
and exclusive right, title and interest in and to any Work
Product.
9.After one year from the Date of Hire, the
Company shall consider granting additional shares of stock
or options to the Executive consistent with its stock
program. Also, within 90 days of the Date of Hire, the
Company and the Executive shall enter into an agreement
providing the Executive with an incentive bonus in the
event of a Change in Control or a similar transaction
occurring after one (1) year form the Date of Hire.
10.The Company and the Executive each agree to
waive trial by jury in any action arising under or in
connection with this Agreement or the employment
relationship between the Company and the Executive.
11.Any notice or other communication required or
permitted under this Agreement shall be effective only if
it is in writing and delivered personally or sent by
registered or certified mail, postage prepaid, addressed
as follows:
If to the Company:
Xxxxx Xxxxxx Corporation
P.O. Box 2090
000 Xxxxx 00
Xxxxxxxx, XX 00000-0000
If to the Executive:
Xx. Xxxx X. Xxxxxxxxxx
0 Xxxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
or to such other address as either party may designate by
notice to the other, and shall be deemed to have been
given upon receipt.
12.This Agreement constitutes the entire agreement
between the parties hereto with respect to the Executive's
employment by the Company, and supersedes and is in full
substitution for any and all prior understandings or
agreements with respect to the Executive's employment with
the Company.
13.This Agreement may be amended only by an
instrument in writing signed by the parties hereto, and
any provision hereof may be waived only by an instrument
in writing signed by the party or parties against whom or
which enforcement of such waiver is sought. The failure
of either party hereto at any time to require the
performance by the other party hereto of any provision
hereof shall in no way affect the full right to require
such performance at any time thereafter, nor shall the
waiver by either party hereto of a breach of any provision
hereof be taken or held to be a waiver of any succeeding
breach of such provision or a waiver of the provision
itself or a waiver of any other provision of this
Agreement.
14.This Agreement is binding on and is for the
benefit of the parties hereto and their respective
successors, heirs, executors, administrators and other
legal representatives. Neither this Agreement nor any
right or obligation hereunder may be assigned by the
Company (except to an Affiliate) or by the Executive.
15.If any provision of this Agreement, or portion
thereof, is so broad, in scope or duration, so as to be
unenforceable, such provision or portion thereof shall be
interpreted to be only so broad as is enforceable.
16.a.This Agreement shall be governed by and
construed in accordance with the laws of the State of New
York.
b.Any judicial proceeding brought with
respect to this Agreement must be brought in any state or
federal court of competent jurisdiction located in the
State of New York, and, by execution and delivery of this
Agreement, each party (i) accepts, generally and
unconditionally, the exclusive jurisdiction of such courts
and any related appellate courts, and irrevocably agrees
to be bound by any judgment rendered thereby in connection
with this Agreement and (ii) irrevocably waives any
objection it may now or hereafter have as to the venue of
any such suit, action or proceeding brought in such a
court or that such court is an inconvenient forum. THE
PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH THEY ARE BOTH PARTIES INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.
17.This Agreement may be executed in several
counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same
instrument.
18.The Executive represents and warrants that he is
not a party to any agreement which would prohibit him from
entering into this Agreement or performing fully his
obligations hereunder.
19.The obligations of the Executive set forth in
Sections 5, 6, 7, 8 and 10 of this Agreement represent
independent covenants by which the Executive is and will
remain bound notwithstanding any breach by the Company,
and shall survive the termination of this Agreement.
20.The Executive recognizes that a breach or
threatened breach by him of his obligations under Sections
5, 6, 7 or 8 of this Agreement would cause irreparable
injury to the Company, and the Company shall be entitled
to preliminary and permanent injunctions enjoining him
from violating Sections 5, 6, 7 or 8 of this Agreement in
addition to any other remedies which may be available.
IN WITNESS WHEREOF, the Company and the
Executive have executed this Agreement as of the date
first written above.
XXXXX XXXXXX CORPORATION
By:/s/ Xxxxx Parts ____
Name:Xxxxx Parts
Title:Chairman of the Board
/s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx
