Exhibit 10.18
EMPLOYMENT AGREEMENT
Agreement made as of the 20th day of November, 1998,
between Xxxxx Xxxxxx Corporation, a Delaware corporation
(the "Company"), and Xxxxxxx 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, beginning on December
15, 1998.
2 The Executive shall serve the Company as its
Vice President of Sales. 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; 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 may be required.
The Executive shall obey all policies of the Company and
applicable policies of its Affiliates.
3 a The Company shall pay the Executive a
salary at an annual rate of one hundred twenty-five thousand
dollars ($125,000.00), which shall be payable in accordance
with the Company's then prevailing payroll practices.
b During the period of the Executive's
employment, 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 Vice President of Sales 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
40% of the Executive's annual salary.
c.Upon execution of this Agreement, the
Company will grant the Executive five thousand (5,000)
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.
d.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.
e.During the period of the Executive's
employment, the Executive shall be entitled to be reimbursed
up to seven thousand two hundred dollars ($7,200.00) per
year for car expenses.
f.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 per the
current Corporate Policy.
g.The Executive shall be entitled to such
expense accounts, sick leave, perquisites of office, fringe
benefits, insurance coverage (including the Company's
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.
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.
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 (a) terminated without cause
within 3 years from date of agreement or (b) 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) 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
(iii) only in the event of the Executive's Termination under
4(b)(d), cause any shares of common stock granted to the
Executive pursuant to Section 3(c) 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 employment or at any earlier
time requested by the Company.
6.The Executive agrees that during his
employment and for a period of one year after termination of
his employment (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 termination, 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.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.
10.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. Xxxxxxx X. Xxxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, 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.
11.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.
12.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.
13.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.
14.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.
15.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.
16.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.
17.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.
18.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.
19.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 CORONA CORPORATION
By:/s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx
President and CEO
/s/ Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
