Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the 5th day of March, 2004, (this
"Agreement") by and among XXXXXX MOTORCYCLE COMPANY, LTD. (the "Company"), with
its principal offices located Xxxxxxx Xxxxxx, Xxxxxxxx 0, Xxxxxxxxxxx, Xxx
Xxxxxx 00000 and XXXXXXX X. XXXXXX (the "Executive") with address at 000 Xxxxx
Xxxxxxx Xxxxx 71, Apartment No. 1, Spring Lake, New Jersey 07762-2001.
WITNESSETH:
WHEREAS, in recognition of Executive's significant contribution to the
creation of shareholder value and leadership during his tenure as President of
the Company during its early development and research of the Xxxxxx heavy
cruiser motorcycle product, the independent directors of the Board of Directors
of the Company (the "Committee") wish to obtain his commitment to serve as
President of the Company for the next three years; and
WHEREAS, the Committee has determined to offer Executive the benefits
described in this Agreement to provide an incentive to encourage Executive to
remain in the employ of the Company so that the Company may receive his
continued dedication and assure the continued availability of his advice and
counsel and to assure that he will not provide services for a competing business
in accordance with the terms hereof; and
WHEREAS, Executive has agreed to serve the Company pursuant to the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:
1. Position/Duties. The Company hereby agrees to employ the Executive and
the Executive agrees to serve the Company as President. The Executive shall have
the normal duties, responsibilities and authority of the President of the
Company on terms no less favorable to Executive than his present conditions of
employment. The Executive shall devote so much of his time and attention as is
necessary to the business of the Company. The Executive agrees to give his best
efforts in the performance of those duties commensurate with such position and
his experience. Such employment shall continue until terminated in accordance
with Paragraph 3 hereof.
2. Compensation and Perquisites.
A. During Employment. The Company shall provide to the Executive and the
Executive shall receive the compensation and perquisites set forth below:
(a) A base annual minimum salary of One Hundred Fifty Thousand
($150,000.00), paid in fifty-two (52) equally weekly installments, (together
with a bonus, if any, declared in accordance with any incentive or bonus plan
which may be implemented by the Company at the discretion of the Board of
Directors of the Company;
(b) Health, dental, medical, optical, hospitalization, 401K plan, profit
sharing, life insurance and long term disability insurance coverage, as the same
may be from time to time adopted by the Company;
(c) Annual merit review and increase in conformity with Company
guidelines;
(d) Reimbursement for costs associated with travel, meals, and
entertainment;
(e) Paid vacation for a minimum of four (4) weeks per year.
(f) The cost of acquiring, servicing and maintaining an automobile
commensurate with the Executive's current automobile;
(g) Automobile insurance;
(h) Liability insurance; and
(i) Telephone, pager, computer, fax machine and other means of
3. Termination of Employment
I. By the Company.
The Company shall have the right to terminate the employment of the
Executive only by reason of the following events or circumstances (each a
"Terminating Event"):
(a) The Executive's death;
(b) The inability of the Executive to perform the primary duties of his
position due to sickness or injury, which requires continuing care of a
physician or the inability of the Executive to discharge his responsibilities
due to limitations on the amount of time he may devote to his employment because
of sickness or injury if such disability shall continue for a period of one (1)
continuous year. The Company shall be entitled to select a physician of its
choice to verify the condition of the Executive. Should the physician who has
been selected by the Company and the Executive's treating physician disagree as
to whether the Executive is disabled, a third physician shall be selected by
agreement of the parties. The determination of any two (2) of the three (3)
physicians selected pursuant to this paragraph shall bind the parties. All costs
and expenses connected with the determination of disability under this Agreement
shall be borne by the Company;
(c) The conviction of the Executive for a crime that either (i) was
against the Company (ii) is premised upon alleged fraud or misconduct or (iii)
results in a sentence and actual detention of the Executive in a prison or other
correctional facility for a period in excess of three hundred and sixty-five
(365) consecutive days; or
(d) A material breach of this Agreement by the Executive.
II. By the Executive.
The Executive shall have the right to terminate his employment with the
Company at any time, subject to the following conditions: the Executive shall
give the Company nine month's advance written notice. During the ensuing nine
(9) month period the Executive shall comply with the items and provisions of
this Agreement in return for which the Executive shall, for that nine (9) month
period, continue to receive compensation pursuant to paragraph 2A.
4. Effect of Termination. Termination of the Executive by the Company for
any reason, even cause, except pursuant to Paragraph 3.I.(c) shall require the
Company to continue to pay to the Executive the then existing compensation of
the Executive as set forth in paragraph 2 for a period of two (2) years from the
date of termination by the Company.
5. Non-competition. Executive acknowledges that he performs services of a
unique nature for the Company that are irreplaceable, and that his performance
of such services to a competing business will result in irreparable harm to the
Company. Accordingly, during Executive's employment hereunder, and continuing
for the period during which Executive remains a "control person" as that term is
defined under U.S securities laws or while rendering any services to the
Company, its subsidiaries or affiliates that may follow any termination hereof
(the "Restricted Period"), Executive agrees that Executive will not, directly or
indirectly, own, manage, operate, control, be employed by (whether as an
employee, consultant, independent contractor or otherwise, and whether or not
for compensation) or render services to any person, firm, corporation or other
entity, in whatever form, engaged in any business of the same type as any
business in which the Company or any of\ its subsidiaries or affiliates is
engaged on the date of termination or in which they have proposed, on or prior
to such date, to be engaged in on or after such date and in which Executive has
been involved to any extent (other than DE INIMIS) at any time during the 12
-month period ending with the date of termination of employment or termination
of Xx. Xxxxxx' services following any termination hereof , in any locale of any
country in which the Company conducts business. This shall not prevent Executive
from owning not more than one percent of the total shares of all classes of
stock outstanding of any publicly held entity engaged in such business, nor will
it restrict Executive from rendering services to charitable organizations, as
such term is defined in Section 501(c) of the Code.
6. Non-Solicitation.
During Executive's employment with the Company and continuing throughout
the Restricted Period, Executive agrees that he will not, directly or
indirectly, individually or on behalf of any other person, firm, corporation or
other entity, knowingly solicit, aid or induce (a) any managerial level employee
of the Company or any of its subsidiaries or affiliates to leave such employment
in order to accept employment with or render services to or with any other
person, firm, corporation or other entity unaffiliated with the Company or
knowingly take any action to materially assist or aid any other person, firm,
corporation or other entity in identifying or hiring any such employee or (b)
any customer of the Company or any of its subsidiaries or affiliates to purchase
goods or services then sold by the Company or any of its subsidiaries or
affiliates from another person, firm, corporation or other entity or assist or
aid any other persons or entity in identifying or soliciting any such customer.
7. Confidential Information.
Executive agrees that he shall not, directly or indirectly, use, make
available, sell, disclose or otherwise communicate to any person, other than in
the course of Executive's assigned duties and for the benefit of the Company,
either during the period of Executive's employment or at any time thereafter,
any nonpublic, proprietary or confidential information, knowledge or data
relating to the Company, any of its subsidiaries, affiliated companies or
businesses, which shall have been obtained by Executive during Executive's
employment by the Company. The foregoing shall not apply to information that (i)
was known to the public prior to its disclosure to Executive; (ii) becomes known
to the public subsequent to disclosure to Executive through no wrongful act of
Executive or any representative of Executive; or (iii) Executive is required to
disclose by applicable law, regulation or legal process (provided that Executive
provides the Company with prior notice of the contemplated disclosure and
reasonably cooperates with the Company at its expense in seeking a protective
order or other appropriate protection of such information). Notwithstanding
clauses (i) and (ii) of the preceding sentence, Executive's obligation to
maintain such disclosed information in confidence shall not terminate where only
portions of the information are in the public domain.
8. Notice. All notices, requests, demands, instructions, consents or other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if an when (a) delivered
personally, (b) transmitted by prepaid, confirmed, telegram, telex or facsimile,
(c) mailed by first class certified mail, return receipt requested, postage
prepaid, or (d) sent by a nationally recognized express courier service, postage
or delivery charges prepaid, and receipt confirmed, to the parties at the
addresses first stated above, or to such other addresses of which the parties
may give notice in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
9. Assignment; Binding Agreement. The Executive may not assign this
Agreement or his rights, duties or obligations hereunder. The Company may not
assign this Agreement or any of its rights hereunder without the prior written
consent of the Executive which will not be unreasonably withheld. This Agreement
is binding upon and shall inure to the benefit of the Executive, the Company,
and their respective successors and assigns.
10. Entire Agreement; Modification. This Agreement represents the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement may not be amended, modified or supplemented at any time whatsoever
unless such amendment, modification or supplementation is reduced to writing and
executed by all of the parties hereto.
11. No Waiver. Except as otherwise expressly provided herein, no failure
to exercise, delay in exercising or single or partial exercise of any right,
power or remedy by any party hereto shall constitute a waiver thereof or shall
preclude any other or further exercise of the same or any other right, power or
remedy.
12. Validity. The invalidity or unenforceability of any provision or
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
13. Governing Law. This Agreement is made under, and shall be construed
and enforced in accordance with, the laws of the State of New Jersey. The
parties hereto irrevocably consent to the exclusive jurisdiction of the state
and federal courts located in the Sate of New Jersey in any action to which they
are parties, whether arising hereunder or otherwise.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals, or caused these presents to be properly executed by their proper
corporate officers the date and year first above written.
WITNESS EXECUTIVE
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
ATTEST: XXXXXX MOTORCYCLE COMPANY, LTD.
By: /s/ Xxxxxx X. XxXxxx
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Xxxxxx X. XxXxxx, Independent Director
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Independent Director
ATTEST:
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, Independent Director
XXXXXX XXXX EMPLOYMENT AGREEMENT - CMC 02-23
