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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into, at Irvine,
California, as of July 9, 1999, by and between XXXXXXXXX.XXX INC., a corporation
duly organized under the laws of the State of Delaware, with its principal
offices at 00000 XxxXxxxxx Xxxx., Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx, 00000-0000,
a Delaware Corporation, and its affiliated companies, including XxxxxxXxxxx.xxx
Corporation, a corporation duly organized under the laws of the State of
Delaware, with offices in Houston, Texas, (hereinafter, collectively referred to
as the "Company"), and XXXX XXXXXXXX, domiciled at 0000 Xxxxxxx Xxxxxx, Xxxx
000, Xxxxxxx, Xxxxxxxxxx 00000.
WHEREAS: Company desires to employ Xxxx Xxxxxxxx (hereinafter, sometimes
referred to herein as "Employee"), as Chief Marketing Officer for
the Company.
WHEREAS: Employee desires to be so employed by the Company, subject to the
following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and with reference to the above recitals, the parties hereby
agree as follows:
ARTICLE 1. TERM OF EMPLOYMENT
Section 1.1 The Company hereby employs Xxxx Xxxxxxxx as Chief Marketing
Officer of the Company, on an "at-will" basis and Employee hereby
accepts such employment by the Company, on such basis, commencing on
July 15, 1999.
ARTICLE 2. DUTIES AND OBLIGATIONS OF EMPLOYEE
Section 2.1 Employee shall be employed as a full time employee of the
Company. In such capacity, Employee shall do and perform all services,
acts, or things necessary or advisable as Chief Marketing Officer of
the Company, subject at all times to all present and future policies
and requirements of the Company in connection with Company's business.
Employee shall perform all services required hereunder to the best of
his/her ability.
ARTICLE 3. OBLIGATIONS OF THE COMPANY
Section 3.1 The Company shall provide Employee with the compensation,
incentives, benefits, and business expense reimbursement specified
elsewhere in this Agreement. Employee and the Company acknowledge that
such compensation, incentives, benefits, and business expense
reimbursement are commensurate with the duties and obligations required
of Employee hereunder.
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ARTICLE 4. COMPENSATION OF EMPLOYEE
Section 4.1 As compensation for services to be rendered by Employee
pursuant to this Agreement, the Company hereby agrees to pay Employee a
semi-monthly (twenty-four (24) pay periods per year) salary of
$8,333.33 payable at such times or on such dates that Employees of the
Company are regularly and customarily paid.
Section 4.2 In lieu of participating in any ABT bonus plans or
arrangements, Employee will receive an annual bonus of not less than
$75,000.00 unless terminated for Cause as defined below.
As used herein, the term "for Cause" shall refer to the termination of
your employment as a result of any one or more of the following: (i)
your conviction for a felony; (ii) your gross willful misconduct which
has a direct and material injurious effect on the business or
reputation of ABT; or (iii) your gross dishonesty which is directly and
materially injurious to the business and reputation of ABT.
Section 4.3 Upon commencement of employment with ABT, Employee will
receive a signing bonus of $50,000.00.
Section 4.4 The Company shall have the right to deduct or withhold from
the compensation due to Employee hereunder any and all sums required
for federal income and social security taxes and all state or local
taxes now applicable or that may be enacted and become applicable
during the Term.
Section 4.5 Additionally, Employee will be granted stock options under
ABT's 1999 Stock Option Plan to purchase 150,000 shares of ABT common
stock at an exercise price equal to the closing price of ABT's common
stock on the date approved by the compensation committee. One-fourth of
the option grant will vest on the first anniversary of the date of
grant and the remainder of the option grant will vest at a rate of
1/48th of the entire grant per month, with the entire grant also
vesting as otherwise provided in such plan.
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Section 4.6 Employee will be eligible to receive reimbursement of up to
$15,000.00 of valid expenses resulting from relocation to Orange County
California. Moving expenses are reimbursable, and should be submitted
and approved through the Company's standard expense reimbursement
process.
o Includes:
o Hotels
o Travel
o Home sale charges or charges resulting from breaking of lease *
o Moving Company *
* Expenses will be reflected on W-2 as earnings
ARTICLE 5. EMPLOYEE BENEFITS
Section 5.1 The Company agrees that Employee shall be eligible to
participate in the company's group benefits package. The company will
pay for all or part of the premium costs based upon plan selection and
dependents' covered. Medical, dental and life insurance benefits are
effective on the 1st of the month following 30 days of employment.
Section 5.2 Employee shall be eligible to participate in the Company's
401(k) retirement savings plan on the first enrollment period following
90 days of employment. Enrollment in the Plan takes place on January
1st and July 1st of each year.
Section 5.3 Paid vacation is provided to all regular full-time ABT
personnel. Vacation is accrued monthly at a rate equal to two (2) weeks
(80 hours) per year during the first five years of employment. After
completing five (5) years of employment, employees will begin to accrue
at a rate equal to three (3) weeks (120 hours) per year. Employees
begin accruing vacation in the first month in which they have completed
120 hours of service. However, paid vacation may not be taken until an
employee has completed six (6) months of service. Vacation taken prior
to six (6) months will be unpaid, and may only be taken with supervisor
approval. Only accrued, but unused vacation will be paid out to
employees in the event of termination.
Section 5.4 Regular full-time employees are eligible for up to six (6)
days of paid sick time off per year. Employees who have been employed
since January 1st will be eligible for the full six (6) days of paid
sick time off. Employees hired after the first of the year will receive
a pro-rated amount of time based upon their date of hire. Because sick
time does not accrue, balances are not paid out to an employee in the
event of termination.
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ARTICLE 6. BUSINESS EXPENSES
Section 6.1 The Company shall pay or reimburse Employee for all
reasonable and authorized business expenses incurred by Employee during
the Term; such payment or reimbursement shall not be unreasonably
withheld so long as said business expenses have been incurred for and
promote the business of the Company and are normally and customarily
incurred by employees in comparable positions at other comparable
businesses in the same or similar market. Notwithstanding the above,
the Company shall not pay or reimburse Employee for the costs of any
membership fees or dues for private clubs, civic organizations, and
similar organizations or entities, unless and until such organizations
and the fees and costs associated therewith have been approved in
writing by the Board of Directors of the Company.
Section 6.2 The Company shall reimburse Employee for business-related
mileage at the reimbursement rate approved by the United States
Internal Revenue Service, as such rate may change from time to time.
Notwithstanding the foregoing, the Company shall not reimburse Employee
for mileage traveled to the Company's office from Employee's residence,
or from the Company's office to Employee's residence. Nothing contained
in this Section 6.2 shall be construed as requiring the Company to
reimburse Employee for the cost of gasoline for his/her motor vehicle.
Section 6.3 As a condition to reimbursement, Employee shall furnish to
the Company adequate records and other documentary evidence required by
federal and state statutes and regulations for the substantiation of
each expenditure as an income tax deduction. Employee acknowledges and
agrees that failure to furnish the required documentation may result in
the Company denying all or part of the expense for which reimbursement
is sought.
ARTICLE 7. TERMINATION OF EMPLOYMENT
ABT is an "At-Will" employer. You are free to terminate your employment
with ABT at any time, with or without reason, and ABT has the right to
terminate your employment at any time with or without reason. Although
ABT may choose to terminate employment for cause, cause is not
required.
If employment is terminated without Cause, Employee will receive six
months base salary plus the greater of (i) six month's bonus and (ii)
accrued portion of Employee's annual bonus, in each case, payable
monthly over the first six months following such termination.
Termination without cause shall include termination by Employee due to
material diminution of Employee's status, duties or reporting
structure.
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ARTICLE 8. RESTRICTIVE COVENANTS
Section 8.1 Employee shall devote all or substantially all of his/her
entire productive time, ability and attention to the business of the
Company during the Term. Employee shall not engage in any other
business duties or pursuits whatsoever, or directly or indirectly
render any services of a business, commercial, or professional nature
to any other person or organization, including, but not limited to,
providing services to any business that is in competition with or
similar in nature to the Company, whether for compensation or
otherwise, without the prior written consent of the Company's Board of
Directors. However, the expenditure of reasonable amounts of time for
educational, charitable, or professional activities shall not be deemed
a breach of the Agreement, if those activities do not materially
interfere with the services required under this Agreement, and shall
not require the prior written consent of the Company's Board of
Directors. Notwithstanding anything herein contained to the contrary,
this Agreement shall not be construed to prohibit Employee from making
passive personal investments or conducting private business affairs if
those activities do not materially interfere with the services required
hereunder.
Section 8.2 During the Term and following termination of this
Agreement, Employee agrees that, without the Company's prior written
consent, he will not disclose to any person, firm, association,
partnership, entity or corporation, any information concerning: (a) the
business operations or internal structure of the Company; (b) the
customers of the Company; (c) the financial condition of the Company;
and (d) other confidential information pertaining to the Company,
including without limitation, trade secrets, technical data, marketing
analyses and studies, operating procedures, customer and/or inventor
lists, or the existence or nature of any of the Company's agreements;
provided, however, that Employee shall be entitled to disclose such
information: (i) to the extent the same shall have otherwise become
publicly available (unless made publicly available by Employee); or
(ii) during the course of or in connection with any litigation,
arbitration, or other proceeding based upon or in connection with the
subject matter of this Agreement.
Section 8.3 Employee acknowledges that a breach or violation of the
covenants contained in Section 8.2 will cause severe and irreparable
harm to the Company and that recovery by the Company of monetary
damages will not constitute an adequate remedy. Accordingly, in the
event of any breach or violation of such covenants by Employee, and
with the Company not having an adequate remedy at law, the Company will
have the right to have Section 8.2 of this Agreement specifically
enforced by any court having equity jurisdiction, without requirement
of bond or showing of actual damages, provided that nothing contained
herein shall limit or restrict any other rights or remedies that the
Company may have. Each of the rights and remedies of the Company
enumerated in this Section shall be independent of the other, and shall
be in addition
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to, and not in lieu of, any other rights and remedies available to the
Company under law or in equity.
ARTICLE 9. GENERAL PROVISIONS
Section 9.1 This document contains the entire agreement between the
parties with respect to the subject matter hereof.
Section 9.2 No waiver, by conduct or otherwise, by any party of any
term, provision, or condition of this Agreement, shall be deemed or
construed as a further or continuing waiver of any such term,
provision, or condition.
Section 9.3 No modification, waiver, amendment, discharge or change of
this Agreement, shall be valid unless the same is in writing and signed
by the party against whom enforcement of such modification, waiver,
amendment, discharge, or change is sought.
Section 9.4 Except as hereinafter provided, all claims, disputes and
other matters in question between the parties hereto arising out of, or
relating to this Agreement or the breach thereof, shall be resolved
solely by mediation and arbitration in accordance with the provisions
of this Section 9.4.
9.4.1 With respect to any dispute between the parties, the
parties shall attempt in good faith first to mediate
such dispute and use their best efforts to reach
agreement on the matters in dispute. After a written
request for non-binding mediation, which shall specify
in detail the facts of this dispute, and within ten
(10) business days from the date of delivery of the
demand, the matter shall be submitted to a mediator
mutually agreeable to the parties (the "Mediator") in
Irvine, California. The party who did not initiate the
mediation may submit a statement of facts to the
Mediator, and provide a copy to the other party within
five (5) business days of the mediation hearing. The
mediator shall hear the matter and provide an informal
opinion and advice, none of which shall be binding upon
the parties, but is expected by the parties to help
resolve the dispute. Pursuant to Evidence Code Section
1152.5(c) the parties agree: (i) Evidence of anything
said or of any admission made in the course of the
mediation is not admissible in evidence, and disclosure
of any such evidence shall not be compelled, in any
arbitration proceeding or civil action in which,
pursuant to law, testimony can be compelled to be
given; (ii) Unless the document otherwise provides, no
document prepared for the purpose of, or in the course
of, or pursuant to, the mediation, or copy thereof, is
admissible in evidence, and disclosure of any such
document shall not be compelled, in any arbitration
proceeding or civil action in which, pursuant to law,
testimony can be compelled to be given; and (iii) The
Mediator's fee shall be shared equally
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by the parties. If the dispute has not been resolved,
the matter shall then be submitted to arbitration in
accordance with section 9.4.2
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9.4.2 Any dispute between the parties that is to be resolved
by arbitration as provided in Section 9.4.1 shall be
conducted pursuant to the provisions of California Code
of Civil Procedure Sections 1280 through 1287.6, except
as provided below. Any such arbitration shall be held
and conducted in Irvine, California, and shall be
conducted by a sole arbitrator mutually selected by the
parties. If the parties cannot agree on a sole
arbitrator within ten (10) business days from the first
request for arbitration, each party shall each select
one arbitrator and the two (2) selected arbitrators
shall select the third arbitrator. The parties further
agree: (i) Any request for arbitration shall be in
writing and must be made within a reasonable time after
the claim, dispute or other matter in question has
arisen; provided, however, that in no event shall the
demand for arbitration be made after the date that
institution of legal or equitable proceedings based on
such claim, dispute, or other matter would be barred by
the applicable statute of limitations; (ii) The
arbitrator or arbitrators appointed must be former or
retired judges or attorneys at law with at least ten
(10) years experience in employment, financing, and
other matters; (iii) All proceedings involving the
parties shall be reported by a certified shorthand
court reporter and written transcripts of the
proceedings shall be prepared and made available to the
parties; (iv) The arbitrator or arbitrators shall
prepare in writing and provide to the parties an award
together with the reasons upon which the award of the
arbitrators is based; (v) The final award by the
arbitrator or arbitrators must be made within ninety
(90) days from the date the arbitration proceedings are
initiated; (vi) The prevailing parties shall be awarded
reasonable attorney's fees, expert and non-expert
witness costs and expenses, and other costs and
expenses incurred in connection with the arbitration,
unless the arbitrator or arbitrators for good cause
determine otherwise; (vii) Costs and fees of the
arbitrator or arbitrators shall be borne by the
non-prevailing parties, unless the arbitrator or
arbitrators for good cause determine otherwise; and
(viii) The award or decision of the arbitrator or
arbitrators, which may include equitable relief, shall
be final and judgment may be entered on it in
accordance with applicable law in any court having
jurisdiction over the matter.
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NOTICE: BY INITIALING IN THE SPACE BELOW THE PARTIES ARE AGREEING TO HAVE ANY
DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS SECTION DECIDED BY NEUTRAL
ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND THE PARTIES ARE GIVING UP ANY
RIGHTS THE PARTIES MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN COURT OR JURY
TRIAL. BY INITIALING IN THE SPACE BELOW THE PARTIES ARE GIVING UP THEIR JUDICIAL
RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN
THE PROVISIONS OF THIS SECTION. IF THE PARTIES REFUSE TO SUBMIT TO ARBITRATION
AFTER AGREEING TO THIS PROVISION, THE PARTIES MAY BE COMPELLED TO ARBITRATE
UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. THEIR AGREEMENT
TO THE ARBITRATION PROVISION IS VOLUNTARY.
THE PARTIES HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES
ARISING OUT OF THE MATTERS INCLUDED IN THIS SECTION TO NEUTRAL ARBITRATION.
Company Initials AD Employee's Initials MB
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Section 9.5 The rights under this Agreement, or by law or equity, shall
be cumulative and may be exercised at any time and from time to time.
No failure by any party to exercise, and no delay in exercising, any
rights shall be construed or deemed to be a waiver thereof, nor shall
any single or partial exercise by any party preclude any other or
future exercise thereof or the exercise of any other right.
Section 9.6 Except as otherwise provided in this Agreement, any notice,
approval, consent, waiver or other communication required or permitted
to be given or to be served upon any person in connection with this
Agreement shall be in writing. Such notice shall be personally served,
sent by telegram, tested telex or cable, or sent prepaid by registered
or certified mail with return receipt requested and shall be deemed
given (i) if personally served, when delivered to the person to whom
such notice is addressed, (ii) if given by telegram, telex or cable,
when sent, or (ii) if given by mail, two (2) business days following
deposit in the United States mail. Any notice given by telegram, telex
or cable shall be confirmed in writing within forty-eight (48) hours
after being sent. Such notices shall be addressed to the party to whom
such notice is to be given at the party's address set forth below or as
such party shall otherwise direct.
IF TO THE COMPANY, TO: IF TO EMPLOYEE:
XXXXXXXXX.XXX INC. Xxxx Xxxxxxxx
00000 XxxXxxxxx Xxxx., Xxxxxx Xxxxx 0000 Xxxxxxx Xxxxxx, Xxxx 000
Xxxxxx, Xxxxxxxxxx 00000-0000 Xxxxxxx, Xxxxxxxxxx 00000
Attn.: Xxxx X. Xxxxxxx
President/Chief Executive Officer
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Section 9.7 The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the successors and assigns of the
parties hereto.
Section 9.8 This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
Section 9.9 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which shall constitute one instrument.
Section 9.10 The provisions of this Agreement are agreed to be
severable, and if any provision, or application thereof, is held
invalid or unenforceable, then such holding shall not effect any other
provision or application.
Section 9.11 As used herein, and as the circumstances require, the
plural term shall include the singular, the singular shall include the
plural, the neuter term shall include the masculine and feminine
genders, and the feminine term shall include the neuter and the
masculine genders.
Section 9.12 Each party hereto shall pay its or their own expenses
incident to the negotiation, preparation and consummation of this
Agreement, including all fees and expenses of its or their respective
counsel.
ARTICLE 10. EMPLOYEE CONFIDENTIALITY AGREEMENT
As a further condition of his/her employment by Company, Employee
agrees to execute an "Employee Confidentiality Agreement".
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXXXX.XXX INC. EMPLOYEE:
By: /s/Xxx Xxxxxxxxxx /s/ Xxxx Xxxxxxxx
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Xxx Xxxxxxxxxx Xxxx Xxxxxxxx
Executive Vice President and Chief
Operating Officer
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