EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement (the “Agreement”) is made and entered into between Cyalume
Technologies, Inc., a Delaware Corporation (the “Company”), and Xxxxx Xxxxxxx,
(the “Employee”).
WHEREAS,
the Company desires to employ Employee as Chief Executive Officer of the
Company, and Employee desires to accept such employment upon the terms and
conditions set forth herein.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein, the parties hereto agree as follows:
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1.
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TERM. This
Agreement shall be for an initial term of three years, beginning on May
15, 2009. The Agreement shall continue for successive one-year periods
thereafter unless and until terminated by either party upon thirty days’
written notice prior to the Agreement’s anniversary/expiration date, or
until terminated pursuant to Section 8 of this
Agreement.
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2.
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DUTIES OF
EMPLOYEE.
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(a)
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Duties.
Employee shall be employed as Chief Executive
Officer. Employee’s duties shall be such executive, managerial,
administrative, and professional duties as are commensurate with the
position of Chief Executive Officer, and as shall be assigned by the Board
of Directors of the Company, or by their authorized designees. The
Employee may delegate duties to other employees of the Company as he
reasonably determines is in the best interest of the Company, consistent
with the general authority and power given to him
hereunder. The principal place of employment of Employee shall
be at the Company’s executive offices in West Springfield,
Massachusetts.
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(b)
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Exclusive
Employment.
Employee shall devote the whole of his business time, attention and
abilities to carrying out his duties
hereunder.
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(c)
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Loyal and
Conscientious Performance.
Employee agrees that to the best of his ability and experience, and in
compliance with all applicable laws and the Company’s policies,
Certificate of Incorporation and Bylaws, as they may be amended from time
to time, he will at all times loyally and conscientiously perform all the
duties and obligations required of him by the terms of this Agreement.
Employee further agrees he shall use his best efforts to promote the
interests and reputation of the Company and its affiliates and not do
anything which is to the detriment of the Company or its
affiliates.
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3.
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COMPENSATION AND
BENEFITS.
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(a)
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Salary.
For all the services to be rendered by Employee in any capacity hereunder,
the Company shall pay Employee, in equal installments consistent with the
Company’s practices for its employees, salary and compensation as set
forth in Schedule 1
attached to this Agreement and incorporated herein. The Company shall have
the ability to withhold from the compensation otherwise due to Employee
under this Agreement any amounts required to be withheld from compensation
from time to time under applicable
law.
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(b)
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Severance
Benefits.
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(i)
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In
the event Employee’s employment with the Company is terminated by the
Company other than as a result of death, disability (as defined in Section
8(a)(ii)), retirement or for “cause” (as defined in Section 8(a)(iii)), or
if Employee’s employment with the Company is terminated by Employee for
the reason set forth in Section 8(d), and upon execution by Employee of a
separation agreement prepared by the Company, the Company will pay
Employee, at normal payroll intervals for twelve (12) months, a sum equal
to the Employee’s annual Base Salary in effect at the time of termination
hereunder, less applicable deductions and
withholdings.
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(ii)
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If,
upon a Change of Control, or as a consequence of the Change of Control
prior to the Change of Control, or within twelve (12) months following a
Change of Control, the Employee’s employment is terminated without “cause”
or if the Employee terminates his employment for Good Reason, and upon
execution by Employee of a separation agreement prepared by the Company,
the Employee will be entitled to receive, in addition to the severance
benefit set forth in Section 3(b)(i), a severance benefit equal to twelve
(12) months of his Base Salary, less applicable deductions and
withholdings, payable in full on the date of Employee’s
termination. For purposes of this provision, the following
definitions will apply:
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(A)
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A
“Change of Control shall mean (1) any consolidation, merger or
amalgamation of the Company with or into any other corporation whereby the
voting shareholders of the Company immediately prior to such event receive
less than fifty percent (50%) of the voting shares of the consolidated,
merged or amalgamated corporation; (2) a sale by the Company of all or
substantially all of the Company’s assets; or (3) any transaction or
series of transactions having, directly or indirectly, the same effect as
any of the foregoing; (4) any transaction or series of transactions that
result in a material diminution in the Employee’s title or
duties.
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(B)
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A
termination for “cause” shall mean those reasons defined in Sections
8(a)(i), 8(a)(ii) and 8(a)(iii).
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(C)
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A
termination for “Good Reason” shall mean (1) a material diminution in the
Employee’s title or duties or assignment to the Employee of materially
inconsistent duties; (2) a reduction in the Employee’s Base Salary except
for reductions applicable to all management; or (3) a relocation of
Employee’s principal place of employment of a distance in excess of fifty
(50) miles unless such relocation is effected at the request of Employee
or with the Employee’s approval. There shall be no termination
for Good Reason without written notice from the Employee describing the
basis for the termination and the Company (or a successor) having a
reasonable period to cure.
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(iii)
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In
the event that Employee elects to terminate this Agreement for any reason
other than that set forth in Sections 3(b)(ii)(C) or 8(d), or
in the event that this Agreement is terminated due to Employee’s death or
disability, the Company shall not be obligated to pay to Employee any
severance payments whatsoever and Employee shall be entitled only to that
Base Salary and those benefits which he has earned through the date of
such termination.
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(c)
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Fringe
Benefits.
So long as Employee remains in the employ of the Company, Employee shall
be provided those benefits set forth in Schedule 1 to
this Agreement. Employee shall also receive such additional benefits as
may be authorized from time to time by the Company’s Board of
Directors.
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4.
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NONCOMPETITION BY
EMPLOYEE.
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(a)
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During
the term of this Agreement and for a period of two (2) years after
Employee has ceased to be employed by Company for any reason, Employee
shall not, without the prior written consent of a duly authorized officer
of Company, directly or indirectly (i) engage in the business of, or (ii)
assist or have an interest in (whether as proprietor, partner, investor,
stockholders, officer, director or any type of principal whatsoever), or
(iii) enter the employment of or act as an agent, advisor, or consultant
to any person, firm, partnership, association, corporation, business
organization, entity or enterprise that is, or is to become, directly or
indirectly, engaged in any business actually or potentially competitive
with that of Company in any area or territory in which Company offers its
services or products.
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(b)
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During
the term of this Agreement, and for a period of two (2) years after
Employee has ceased to be employed by Company for any reason, Employee
shall not, without the prior written consent of a duly authorized officer
of Company, solicit from any person, company, firm or organization, or any
affiliate of the foregoing, which was or is a client or associated firm of
Company or which Company was soliciting as a client or associated firm of
Company during any of the twelve (12) months immediately preceding the
termination or expiration of the Agreement, any business substantially
similar to that done by Company, including but not limited to any business
Employee was soliciting or on which he worked while employed by
Company.
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5.
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CONFIDENTIALITY.
Employee acknowledges, understands and agrees that all trade secrets and
information relating to the business of the Company and/or its affiliates,
including without limitation, procedures, product information,
manufacturing techniques or processes, expertise, records, customer or
prospect lists and information, vendor lists and information, supplier
lists and information, internal operating forms, financial information or
accounting methods, systems, books, manuals, employee information, any
confidential information concerning the business, the Company, its
affiliates, or the business, policies or operations of the business, the
Company or its affiliates which Employee may have learned, possessed or
controlled on or prior to the date hereof or which Employee may learn,
possess or control during the term of Employee’s continued employment by
the Company or any of its affiliates (as an employee, consultant, agent or
otherwise) (collectively, “Trade Secrets”) are confidential and shall
remain the sole and exclusive property of the Company and its affiliates.
Trade Secrets include both written information and information not reduced
to writing. Except as may be required pursuant to any law or the order of
a court, or except as may be public knowledge (which shall not have become
public knowledge as a result of any action of Employee), Employee shall
not, at any time, retain, duplicate, remove from the business premises of
Company or any of its affiliates, make use of, other than in the ordinary
course of fulfilling his duties as an employee of the Company, divulge or
otherwise disclose, directly or indirectly, any Trade Secrets. Employee
shall not publish or disclose, and shall exercise his best efforts to
prevent others from publishing or disclosing, any Trade Secrets and he
shall not use or attempt to use any such knowledge or information which he
may have or acquire in any manner which may injure or cause loss, whether
directly or indirectly, to the Company or its affiliates or use his
personal knowledge or influence over any customers, clients, suppliers or
contractors of the Company or its affiliates so as to take advantage of
the Company’s or its affiliate’s trade or business connections or utilize
information confidentially obtained by
him.
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6.
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NON-SOLICITATION.
Employee hereby covenants and agrees that, at all times during his
employment with the Company and for a period of two (2) years immediately
following his termination for any reason, Employee shall not employ or
seek to employ any person employed at the time by the Company or any of
its affiliates, or otherwise engage or entice, either directly or
indirectly, such person to leave such
employment.
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7.
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VIOLATION
OF AGREEMENT.
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(a)
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The
restrictions set forth in Sections 4, 5 and 6 shall extend to any and all
activities of the Employee, whether alone or together with or on behalf of
or through any other person or
entity.
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(b)
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Employee’s
obligations under Sections 4, 5 and 6 shall survive termination of this
Agreement and of Employee’s employment with the
Company.
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(c)
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Employee
acknowledges that the restrictions contained in Sections 4, 5 and 6, in
view of the nature of the business in which Company is engaged, are
reasonable and necessary to protect the legitimate interests of
Company. Employee understands that the remedies at law for his
violation of any of the covenants or provisions of Sections 4, 5 and 6
will be inadequate, that such violations will cause irreparable injury
within a short period of time, and that Company shall be entitled to
preliminary injunctive relief and other injunctive relief against such
violation. Such injunctive relief shall be in addition to, and
in no way in limitation of, any and all other remedies that Company shall
have in law and equity for the enforcement of those covenants and
provisions. Employee further acknowledges that should he
violate any of the covenants or provisions of Sections 4, 5 and 6, he will
reimburse Company for its reasonable costs and attorneys’ fees incurred to
enforce the terms of this
Agreement.
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8.
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TERMINATION.
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(a)
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The
Employee’s employment hereunder may be terminated by the Company
immediately upon the occurrence of any of the following events, and the
Company shall have no obligations to the Employee for any period after the
effective date of such termination, except vested benefits or as otherwise
provided in Section 3 herein:
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(i)
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The
death of Employee.
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(ii)
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A
mental or physical illness or injury that prevents Employee from
performing his duties hereunder for a period of 90 consecutive days or for
120 days in any 360 day period, or the Employee has been declared by a
court of competent jurisdiction to be mentally incompetent or incapable of
managing his affairs.
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(iii)
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For
“cause” which, for the purposes of this Section, shall
mean:
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(A)
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Continued
neglect or failure to perform his duties and responsibilities;
or
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(B)
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Formally
being charged, either criminally or civilly, with committing fraud,
misappropriation or embezzlement, whether or not in the performance of
Employee’s duties as an employee of the Company;
or
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(C)
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Violations
of any law which violation materially affects the Employee’s performance
of his duties to the Company; or
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(D)
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The
conviction of, or plea of guilty or nolo contendere to, a felony or crime
involving moral turpitude; or
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(E)
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Willfully
engaging in conduct materially injurious to the Company or its affiliates;
or
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(F)
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Diverting
any business opportunity of the Company or its affiliates for Employee’s
direct or indirect personal gain;
or
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(G)
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Failure
to observe or perform the covenants and agreements contained in this
Agreement, including but not limited to those contained in Sections 4, 5
and 6 of this Agreement.
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(b)
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The
Employee’s employment hereunder may be terminated at any time upon the
mutual written agreement of Employee and the
Company.
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(c)
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The
Employee’s employment hereunder may be terminated by either party with
thirty (30) days of written notice thereof. Notwithstanding the
foregoing, if Employee’s employment hereunder is terminated without
“cause” during the initial term of this Agreement, Employee shall be paid
any applicable severance benefits as set forth in Section 3(b) and the
remainder of the compensation due him during that initial term as set
forth in Schedule 1 to
this Agreement, less applicable deductions and
withholdings.
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(d)
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The
Employee may terminate his employment hereunder for Good Reason as defined
in Section 3(b)(ii)(c) or upon any breach by the Company of any material
provision of this Agreement not cured within sixty (60) days of written
notice thereof.
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(e)
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Except
as may otherwise be set forth herein, in the event of termination of the
Employee’s employment by the Company as permitted under clause (a) of this
Section, Employee shall be entitled only to his Base Salary and other
compensation and benefits earned through the date of
termination.
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(f)
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Upon
the termination of his employment hereunder for any reason whatsoever,
Employee shall immediately deliver to the Company all documents,
statistics, accounts, records, programs and other items of whatever nature
or description (the “Documents”) which may be in his possession or under
his control which relate in any way to the Trade Secrets or the business
or affairs of the Company or of any of its affiliates, and no copies of
any such Documents or any part thereof shall be retained by
him.
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(g)
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In
the event of the termination of Employee’s employment under this
Agreement, Employee shall be deemed to have resigned from all positions
held in the Company. Upon request of the Company, Employee shall promptly
sign any and all documents reflecting such resignations as of the date of
termination of his employment.
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9.
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REPRESENTATIONS.
Employee hereby represents and warrants that this Agreement constitutes
his valid and binding obligation enforceable in accordance with its terms
and the execution, delivery and performance of this Agreement does not
violate any agreement, arrangement or restriction of any kind to which
Employee is a party or by which he is
bound.
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10.
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MISREPRESENTATION.
Neither party hereto shall knowingly at any time make any untrue statement
in relation to the other or any of their affiliates and in particular
Employee shall not after the termination of his employment hereunder
wrongfully represent himself as being employed by or connected with the
Company or any affiliate of the
Company.
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11.
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REIMBURSEMENT OF
EXPENSES.
The Company shall reimburse Employee for all ordinary and necessary
out-of-pocket expenses reasonably incurred by Employee on behalf of the
business of the Company. Employee agrees that expense reports must be
submitted to obtain reimbursement of expenses as well as presentation of
such supporting documentation as the Company may reasonably require.
Employee further agrees to submit with expense reports such records and
logs as may be required by the relevant taxing authorities for the
substantiation of each such business expense as a deduction on the
Company’s income tax returns.
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12.
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INVENTIONS,
ETC.
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(a)
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It
shall be part of the normal duties of Employee at all times to consider in
what manner and by what new methods or devices the products, services,
processes, equipment or systems of the Company or any of its affiliates
with which he is concerned or for which he is responsible might be
improved, and promptly to give to the President of the Company or Board of
Directors full details of any invention or improvement which he may from
time to time make or discover in the course of his duties, and to further
the interests of the Company with regard thereto. Subject only to any
contrary provisions of the laws of the United States or the Commonwealth
of Massachusetts, all such materials, inventions, improvements, methods,
products, services, equipment or systems shall be deemed to be “works made
for hire”, and to the extent such items are not works made for hire, the
Employee hereby irrevocably grants and assigns such materials, inventions,
improvements, methods, products, services, equipment or systems to the
Company which shall be entitled, free of charge, to the sole ownership of
any such invention or improvement.
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(b)
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Employee
shall, if and when required so to do by the Company, at the expense of the
Company, apply or join with the Company in applying for patents or other
protection in any part of the world for any such discovery, invention or
process as aforesaid and shall at the expense of the Company, execute and
do or cause to be done all instruments and things reasonably necessary for
vesting the said patent or other protection when obtained and all right,
title and interest to and in the same in the Company or in such other
person as the Company may
designate.
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(c)
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For
the purpose of this clause Employee hereby irrevocably authorizes the
company as his attorney in his name to execute any documents or take any
actions which are required in, order to give effect to the provisions of
this Section and the Company is hereby empowered to appoint and remove at
its pleasure any person as agent and substitute for and on behalf of the
Company in respect of all or any of the matters
aforesaid.
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13.
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NOTICES.
Any notices to be given hereunder by either party to the other may be
effectuated either by personal delivery in writing, by electronic
facsimile transmission, by commercial overnight courier or by mail,
postage prepaid, with return receipt requested. Notices shall be addressed
to the parties as follows:
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If to the
Company:
Cyalume
Technologies, Inc.
00
Xxxxxxx Xxxxxx
Xxxx
Xxxxxxxxxxx, XX, 00000
Attention:
President
with a
copy to:
Bowditch
& Xxxxx, LLP
000 Xxxx
Xxxxxx, X.X. Xxx 00000
Xxxxxxxxx,
XX 00000-0000
Attention:
Xxxxx X. Xxxxxx, Esquire
If to
Employee:
Xxxxx
Xxxxxxx
0000
Xxxxxxxx Xxxxxx, Xxx. 000
Xxxxxxxx,
XX 00000
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or to
such other addresses as either the Company or Employee may designate by written
notice to each other. Notices delivered personally shall be deemed duly given on
the date of actual receipt; mailed notices shall be deemed duly given as of the
fifth (5th) day
after the date so mailed. Notices hereunder may be delivered by electronic
facsimile transmission (fax) if confirmation by sender is made within three (3)
business days by mail or personal delivery.
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14.
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ATTORNEYS’
FEES.
If any party shall bring an action to enforce this Agreement, each party
will bear her/his/its own attorneys’ fees and
costs.
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15.
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WAIVER OF
BREACH.
The waiver by any party to a breach of any provision in this Agreement
cannot operate or be construed as a waiver of any subsequent breach by a
party.
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16.
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SEVERABILITY.
The invalidity or unenforceability of any particular provision in this
Agreement shall not affect the other provisions hereof, and this Agreement
shall be construed in all respects as if the invalid or unenforceable
provision were omitted.
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17.
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ENTIRE
AGREEMENT.
Except as otherwise provided herein, this Agreement covers the entire
understanding of the parties as to the employment of Employee, superseding
all prior understandings and agreements, and no modification or amendment
of its terms and conditions shall be effective unless in writing and
signed by the parties or their respective duly authorized
agents.
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19.
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CONSENT TO
JURISDICTION.
Employee hereby irrevocably submits to the jurisdiction of any court of
Delaware or any federal court sitting in the State of Delaware over any
suit, action or proceeding arising out of or relating to this Agreement.
Employee hereby agrees that a final judgment in any such suit, action or
proceeding brought in any such court, after all appropriate appeals, shall
be conclusive and binding upon
him.
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20.
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SUCCESSORS AND
ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors, permitted assigns, legal
representatives and heirs, but neither this Agreement nor any rights
hereunder shall be assignable by any of its parties except as permitted by
this Section. Employee agrees that this Agreement may be assigned or
transferred by operation of law by the Company upon a sale, merger,
reorganization or other business combination of or involving the Company;
provided, however, that (i) such assignee or other successor to the
Company shall assume all obligations of the Company hereunder and (ii)
that Employee shall perform all services required pursuant to this
Agreement for any such assignee or
successor.
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21.
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MISCELLANEOUS.
The Section headings of this Agreement are for convenience of reference
only and do not form a part hereof and do not in any way modify,
interpret, or construe the intentions of the parties. This Agreement may
be executed in one or more counterparts and all such counterparts shall
constitute one and the same
instrument.
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22.
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RIGHT OF
SET-OFF.
The Company may at any time offset against any compensation or other
remuneration due or to become due to the Employee, or anyone claiming
through or under the Employee, any debt or debts due or to become due from
the Employee to the Company.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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[COMPANY]
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By:
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Name:
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Title:
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10
SCHEDULE
1
TO
EMPLOYMENT AGREEMENT OF
Xxxxx
Xxxxxxx
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1.
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Salary.
The Company shall pay Employee an annual base salary (“Base Salary”) of
Three-hundred fifty thousand ($350,000.00), at normal payroll intervals
and less applicable deductions and withholdings, which shall be subject to
annual adjustments at the sole discretion of the Board of Directors of the
Company.
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2.
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Cash Bonus and Equity
Bonus Awards
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Cash
Bonus. For
purposes of this Section, cash bonuses shall include all payments under all
bonus, incentive or other similar programs maintained by the Company for which
the Employee qualifies.
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Cash Bonus (Up to
$150,000)
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Criteria
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Maximum % of
Total Award |
Award
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Revenue
goals
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25
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100%
if the Company achieves 100% of Revenue goal; 80% if the Company achieves
80% of Revenue goal. If the Company achieves percentages of its
budgeted Revenue between the limits above, the bonus will be awarded pro
rata.
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EBITDA
goals
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25
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100%
if the Company achieves 100% of EBITDA goal; 80% if the Company achieves
80% of EBITDA goal. If the Company achieves percentages of its
budgeted EBITDA between the limits above, the bonus will be awarded pro
rata.
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Specific
objectives
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50
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Percentage
determined by Board based on specific objective
accomplishments
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25%
of the bonus will be based on the Company achieving overall Revenue
targets
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25%
of the bonus will be based on the Company achieving overall EBITDA
targets
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The
remaining 50% of bonus will be based on specific objectives relating
to:
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§
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Achieving
business plan objectives
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If the
Employee’s employment is terminated by the Employer other than for “cause”, the
Employee shall be entitled to receive a prorated bonus for the calendar year in
which the Employee terminated employment and, if applicable, the prior calendar
year, based on the number of full calendar months such Employee was employed by
the Employer during such calendar year.
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Equity
Bonus.
Employee shall be entitled to participate in the Company’s Restricted Stock Plan
in accordance with the eligibility requirements for participation
therein. Nothing herein shall be construed so as to prevent the
Company modifying or terminating the Restricted Stock Plan.
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Employee
shall be entitled to receive equity compensation of up to 50,000 shares in
the form of restricted stock, as well as 200,000 options. Such
restricted stock shall be vested over a period of three
years.
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Each year
an additional 20,000 options and 10,000 shares will be issued with three-year
vesting terms, contingent upon achieving the Board approved
objectives.
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The
restricted stock award will be based on specific objectives relating
to:
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§
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Achieving
business plan objectives
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3.
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Benefits.
Employee shall be provided with health, life, and disability insurance
coverages and other similar benefits substantially equivalent to those
provided to employees of the Company from time to time, all in accordance
with the standard policies of the Company. Employee shall be
permitted to participate in the Company’s 401(k) Retirement
Plan.
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4.
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Paid Time Off
(PTO)/Sick Days.
Employee shall be provided with three (3) weeks of PTO, accrued on a
monthly basis, and with sick days in accordance with the standard policies
of the Company. Employee shall be permitted to carry over any unused PTO
into any subsequent period. Upon termination of employment, Employee shall
not be paid for unused sick days, but will be paid for accrued, unused
PTO.
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5.
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Automobile
Allowance.
Employee
shall be furnished an automobile allowance of $12,000 per year, paid on a
weekly basis.
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