EMPLOYMENT AGREEMENT
This Agreement is entered into as of March 3, 1997 between CODED
COMMUNICATIONS CORPORATION, a Delaware corporation ("Employer"), and Xxxx
Xxxxx, an individual ("Employee"), who agree as follows:
1. Hiring. Employer hereby hires Employee as, and Employee hereby
agrees to act as, Chief Executive Officer and President.
2. Duties. Employee shall faithfully, loyally and diligently perform
the duties described on attached EXHIBIT A on a full-time basis devoting
Employee's entire productive time, ability and attention to the business of
Employer and performing such other duties as Employer's Board of Directors
shall from time to time specify that are consistent with the duties described
on EXHIBIT A and the duties normally performed by the Chief Executive Officer
and President.
3. Term. The term of this Agreement shall be three (3) years,
commencing on the date of this Agreement and, unless terminated earlier as set
forth below, this Agreement will expire on March 2, 2000 (the "Termination
Date"). Notwithstanding the above, this Agreement shall automatically extend
for a period of one year at expiration and each year thereafter, which shall
become the Termination Date, unless the Employer or Employee provides the
other party written notice not less than one hundred eighty (180) days prior
the Termination Date of its intent to terminate the Agreement.
4. Termination. At any time that Good Cause (as defined below)
exists or has arisen, Employer may, at its election, terminate this Agreement
by so notifying Employee in writing (the "Good Cause Notice"). From and after
the date of this Agreement, whether or not Good Cause exists or has arisen,
either Employer or Employee may, at either party's election, terminate this
Agreement by so notifying the other in writing (the "Termination Notice"),
under certain circumstances, in accordance with the Section below entitled
"Termination Obligations". Upon the earlier of the Termination Date,
immediately after the giving of the Good Cause Notice, or after the giving of
the Termination Notice in accordance with the Section below entitled
"Termination Obligations", (a) this Agreement shall be deemed terminated; (b)
neither Employee nor Employer shall have any further rights or obligations
under this Agreement except with respect (i) to Employer's obligations as set
out in the Sections below entitled "Termination Obligations" and
"Indemnification" of this Agreement and (ii) to Employee's obligations under
the Sections in this Agreement entitled "Confidentiality", "Proprietary
Information" and "Competition", which obligations shall survive any such
termination; and (c) Employee shall return to Employer all property belonging
to Employer, including without limitation all Confidential Material (as
defined below), promotional material, equipment, advertising information,
samples, price lists and similar items. For purposes of this Agreement, "Good
Cause" shall mean the existence or occurrence of any of the following:
5. Conviction of, or a plea of "guilty" or "no contest" to, a
felony;
6. A willful failure by Employee to substantially perform his
duties hereunder, other than a failure resulting from Employee's complete or
partial incapacity due to physical or mental illness or impairment;
7. A willful act by Employee which constitutes gross misconduct
or fraud and which is materially injurious to the Corporation
8. The death of Employee;
9. If Employee becomes materially "disabled" as the term is
defined under Employer's long-term disability group insurance plan.
No act, or failure to act, by Employee shall be considered "willful" unless
committed without good faith and without a reasonable belief that the act or
omission was in the Corporation's best interest.
10. Compensation. Employee's annual compensation under this Agreement
shall be Two Hundred Thousand Dollars ($200,000) per year ("Base Salary"),
payable at the rate of Three Thousand Eight Hundred Forty-Six Dollars and
15/100 ($3,846.15) per week, which payments shall be made in accordance with
and at the same times as Employer's ordinary payroll procedures. The
Employee's Base Salary will be reviewed annually by the Board of Directors of
the Employer; however, the Base Salary may not be reduced without the written
consent of the Employee.
11. Options. Employer hereby grants to Employee an initial stock
option (the "Options") to purchase Three Million (3,000,000) shares of
Employer's common stock at Thirty-Three Cents (.33) per share. The Options
are granted and subject to the terms and conditions of the Stock Option
Agreement attached to this Agreement as EXHIBIT B.
12. Bonus Plan. Annually, the Board of Directors of Employer shall
establish an Executive Bonus Plan pursuant to which the Employee may earn up
to fifty percent (50%) of his annual Base Salary. The terms and conditions of
the Executive Bonus Plan will be set annually by the Board of Directors and
will be primarily based upon fiscal year financial targets and goals such as
revenue, gross margin, operating income and cash flow. Notwithstanding the
above, the Employee shall be paid a minimum bonus of Fifty Thousand Dollars
($50,000) for the first year of this Agreement. The bonus shall be paid in
four (4) equal installments on or about March 28, 1997, June 30, 1997,
September 30, 1997 and December 31, 1997. As a condition of payment of the
1997 bonus, the Employee must be employed by the Company at the scheduled
payment date. Further, nothing in this Section shall preclude the Board of
Directors from approving a bonus in excess of Fifty Thousand Dollars ($50,000)
for the 1997 year; however, the bonus of Fifty Thousand Dollars ($50,000)
discussed herein shall be the minimum bonus payable to Employee in 1997 and
shall be applied as an offset against any other bonuses approved by the Board
of Directors for the Employee.
13. Benefits. Employee shall be entitled to the following benefits
during the term of this Agreement:
14. Three (3) weeks paid vacation for each one-year period
during the term of this Agreement (prorated for any partial year), to be taken
at such times that are consistent with Employer's standard vacation practices
and policies;
15. Reimbursement for reasonable business expenses incurred in
the proper performance of Employee's duties under this Agreement in accordance
with Employer's standard practices and policy;
16. Inclusion in Employer's group medical and other insurance
plans for Employer's employees. Insurance premiums for dependent coverage
shall be paid by the Employer;
17. A monthly automobile allowance of Seven Hundred Dollars
($700) per month in accordance with Employer's standard practices and policy;
18. All benefits generally available to other employees of
Employer;
19. Inclusion in Employer's term life insurance plan for
Executive Officers, with premiums paid by Employer, in accordance with
Employer's standard practices and policy.
20. Termination Obligations. In the event this Agreement is
terminated, the Employee will be entitled to the following termination
benefits:
21. If terminated by the Employee for any reason (except for the
employment of Employee by a competitor of the Employer) within thirty (30)
days after giving the Termination Notice to Employer after eighteen (18)
months of continuous employment with the Employer, then Employee is to receive
a severance benefit of twenty-five percent (25%) of Base Salary, payable in
three (3) equal monthly installments at the date of termination.
22. If terminated by the Employer for Good Cause (except if
termination is the result of Employee's being convicted of a felony) after
twelve (12) months of continuous employment with the Employer, then Employee
is to receive a severance benefit of twenty-five percent (25%) of Base Salary,
payable in a lump sum at the Termination Date.
23. If terminated by the Employer for any reason due to a
"change in control" (as that term is defined below) after nine (9) months of
continuous employment with the Employer, or for Good Cause within twelve (12)
months following a change of control (defined as a person, firm or entity,
through one or a series of transactions, acquiring more than fifty percent
(50%) of the Employer's common stock or purchasing substantially all of the
Employer's assets and/or business), then the Employee is to receive a
severance benefit of the greater of (a) one hundred percent (100%) of the
annual Base Salary or (b) the value of the remainder of the Base Salary
payable under this Agreement, payable in twelve (12) equal consecutive monthly
installments beginning at the Termination Date.
24. If terminated by the Employer due to the disability of
Employee, as the term "disability" shall be defined under the Employer's long-
term disability group insurance plan, after nine (9) months of continuous
employment with the Employer, then Employee is to receive a severance benefit
of fifty percent (50%) of annual Base Salary, payable in six (6) equal
consecutive monthly installments beginning on the Termination Date, less any
amounts payable to Employee under any disability insurance plan maintained by
the Employer for the benefit of the Employee which is received during the six
consecutive month period over which the 50% of annual Base Salary is paid.
25. If terminated by the Employer due to the death of the
Employee after nine (9) months of continuous employment with the Employer,
then the Employee's beneficiaries are to receive a death benefit equal to
fifty percent (50%) of Employee's annual Base Salary, payable in three (3)
equal consecutive monthly installments beginning on the Termination Date.
26. If terminated for any reason by Employer (except if
termination is the result of Employee's being convicted of a felony), then
Employer shall cause to be paid the COBRA medical insurance premiums of
Employee, including dependent premiums if applicable, for a period of three
(3) months beginning on the Termination Date; if terminated by Employee for
any reason (except for the employment of Employee by a competitor of the
Employer), then Employer shall cause to be paid Employee's monthly COBRA
medical insurance premiums (including dependent coverage) for a period of one
(1) month beginning on the Termination Date.
27. Confidentiality. Employee hereby acknowledges that Employer has
made (or may make) available to Employee certain customer lists, product
design information, know-how, performance standards, future plans, business
strategies, financial information, processes and other confidential and/or
proprietary information of Employer or licensed to Employer, including without
limitation trade secrets and copyrighted materials (collectively, the
"Confidential Material"). Except as essential to Employee's obligations under
this Agreement, neither Employee nor any agent, employee, officer or
independent contractor of or retained by Employee shall make any disclosure of
this Agreement, the terms of this Agreement or any of the Confidential
Material. Except as essential to Employee's obligations under this Agreement,
neither Employee nor any agent, employee, officer or independent contractor of
or retained by Employee shall make any duplication or other copy of any of the
Confidential Material. Employee shall notify each person to whom any
disclosure is made that such disclosure is made in confidence, that the
Confidential Material shall be kept in confidence by such person and that such
person shall be bound by the provisions of this Section. Notwithstanding the
above, Employee shall be required to execute Employer's Standard Employee
Confidentiality Agreement. In the event there are any contradictions between
the Employee's obligations under the Employer's Standard Confidentiality
Agreement and Employee's obligations hereunder, then the most restrictive
provisions shall apply.
28. Proprietary Information. For purposes of this Agreement,
"Proprietary Information" shall mean any information, future plans, business
strategies, financial information, processes, observation, data, written
material, record, document, computer program, software, firmware(?),
invention, discovery, improvement, development, tool, machine, apparatus,
appliance, design, promotional idea, customer list, practice, process,
formula, method, technique, trade secret, product and/or research related to
the actual or anticipated research development, products, organization,
business or finances of Employer (or any of its affiliates). All right, title
and interest of every kind and nature whatsoever in and to the Proprietary
Information made, discussed, developed, secured, obtained or learned by
Employee during the term of this Agreement, or the sixty (60) day period
immediately following termination of this Agreement, shall be the sole and
exclusive property of Employer for any purposes or uses whatsoever and shall
be disclosed promptly by Employee to Employer. The covenants set forth in the
preceding sentence shall apply regardless of whether any Proprietary
Information is made, discovered, developed, secured, obtained or learned (a)
solely or jointly with others, (b) during the usual hours of work or
otherwise, (c) at the request and upon the suggestion of Employer or otherwise
or (d) with Employer's materials, tools, instruments or on Employer's premises
or otherwise. All Proprietary Information developed, created, invested,
devised, conceived or discovered by Employee that are subject to copyright
protection are explicitly considered by Employee and Employer to be works made
for hire to the extent permitted by law. Employee hereby assigns to Employer
all of Employee's right, title and interest in and to the Proprietary
Information. Employee hereby forever fully releases and discharges Employer,
any affiliates of Employer and their respective officers, directors and
employees from and against any and all claims, demands, damages, liabilities,
costs and expenses of Employee arising out of or relating to any Proprietary
Information. Employee shall execute any documents and take any action
Employer may deem necessary or appropriate to effectuate the provisions of
this Agreement, including without limitation assisting Employer in obtaining
and/or maintaining patents, copyrights or similar rights to any Proprietary
Information assigned to Employer if Employer, in it sole discretion, requests
such assistance. Employee shall comply with any reasonable rules established
from time to time by Employer for the protection of the confidentiality of any
Proprietary Information. Employee irrevocably appoints the Chairman of the
Board of Directors of Employer to act as Employee's agent and attorney-in-fact
to perform all acts necessary to obtain and/or maintain patents, copyrights
and similar rights to any Proprietary Information assigned by Employee to
Employer under this Agreement if (a) Employee refuses to perform those acts or
(b) is unavailable within the meaning of any applicable laws. Employee
acknowledges that the grant of the foregoing power of attorney is coupled with
an interest and shall survive the death or disability of Employee. Employee
shall promptly disclose to Employer in confidence (a) all Proprietary
Information that Employee creates during the term of this Agreement and (b)
all patent applications filed by Employee within one year after termination of
this Agreement. Any application for a patent, copyright registration or
similar right filed by Employee within one year after termination of this
Agreement shall be presumed to relate to Proprietary Information created by
Employee during the term of this Agreement, unless Employee can prove
otherwise. Nothing contained in this Agreement shall be construed to preclude
Employer from exercising all of its rights and privileges as sole and
exclusive owner of all of the Proprietary Information owned by or assigned to
Employer under this Agreement. Employer, in exercising such rights and
privileges with respect to any particular item of Proprietary Information, may
decide not to file any patent application or any copyright registration on
such Proprietary Information, may decide to maintain such Proprietary
Information as secret and confidential or may decide to abandon such
Proprietary information or dedicate it to the public. Employee shall have no
authority to exercise any rights or privileges with respect to the Proprietary
Information owned by or assigned to Employer under this Agreement. This
Agreement does not apply to any Proprietary Information that qualifies fully
under the provisions of California Labor Code Section 2870 or any similar or
successor statute.
29. Competition. During the term of this Agreement, Employee shall
not own a five percent (5%) or more interest in, operate or participate in, or
be connected with as an officer, director, employee, agent, independent
contractor, partner, shareholder or principal of any business entity or person
producing, designing, providing, soliciting orders for selling, distributing
or marketing products, goods, equipment and/or services which compete with
Employer's products, goods, equipment and/or services. Employee, except
within the course of the performance of his duties hereunder, shall not any
time while he is in the employ of Employer or any of its parents, subsidiaries
or affiliates, and for a period of six (6) months thereafter, (a) employ any
individual who was employed by Employer or any of its parents, subsidiaries or
affiliates at any time during the period of six (6) months prior to the date
Employee intends to employ such person or (b) in any way cause, influence or
participate in the employment of any individual which would be contrary to
Employer's best interests as determined by the Employer in its sole
discretion.
30. Injunctive Relief. Each of Employer and Employee hereby
acknowledges (a) the unique nature of the provisions set forth in the Sections
of this Agreement entitled "Confidentiality", "Proprietary Information" and
"Competition"; (b) that Employer will suffer irreparable harm if Employee
breaches any of such provisions; and (c) that monetary damages will be
inadequate to compensate Employer for such breach. Therefore, if Employee
breaches any of such provisions, then Employer shall be entitled to injunctive
relief (in addition to any other remedies at law or equity) to enforce such
provisions.
31. Survival. The representations, warranties and covenants of
Employee in this Agreement shall survive any termination of this Agreement.
32. Governing Law. This Agreement is governed by and construed in
accordance with the laws of the State of California, irrespective of
California's choice-of-law principles.
33. Further Assurances. Each party to this Agreement shall execute
and deliver all instruments and documents and take all actions as may be
reasonably required or appropriate to carry out the purposes of this
Agreement.
34. Venue and Jurisdiction. All actions and proceedings arising in
connection with this Agreement must be tried and litigated exclusively in the
state and federal courts located in the County of San Diego, State of
California, which courts have personal jurisdiction and venue over each of the
parties to this Agreement for the purposes of adjudicating all matters arising
out of or related to this Agreement. Each party authorizes and accepts
service of process sufficient for personal jurisdiction in any action against
it as contemplated by this Section by registered or certified mail, return
receipt requested, postage prepaid, to its address for the giving of notices
set forth in this Agreement.
35. Arbitration. Any controversy arising between the Employer and
Employee involving the construction or application of any of the terms,
provisions or conditions of this Agreement shall, on the written request of
either party served on the other, be submitted to arbitration. Any
arbitration arising under this Agreement shall comply with the American
Arbitration Association's Commercial Arbitration Rules and shall be final and
conclusive upon both parties. Any judgment upon the award may be entered in
any court having jurisdiction thereof.
36. Counterparts and Exhibits. This Agreement may be executed in
counterparts, each of which is deemed an original and all of which together
constitute one document. All exhibits attached to and referenced in this
Agreement are incorporated into this Agreement.
37. Attorneys' Fees. The prevailing party(ies) in any litigation,
arbitration, mediation, bankruptcy, insolvency or other proceeding
("Proceeding") relating to the enforcement or interpretation of this Agreement
may recover from the unsuccessful party(ies): all costs, expenses and actual
attorneys' fees (including expert witness and other consultants' fees and
costs) relating to or arising out of (a) the Proceeding (whether or not the
Proceeding proceeds to judgment) and (b) any post-judgment or post-award
Proceeding including, without limitation, one to enforce or collect any
judgment or award resulting from the Proceeding. All such judgments and
awards shall contain a specific provision for the recovery of all such
subsequently incurred costs, expenses and actual attorneys' fees. The
arbitrator(s) or court shall determine who is the prevailing party, whether or
not the dispute or controversy proceeds to final judgment. Employer and
Employee expressly acknowledge that this Section is not intended to in any way
alter the parties' agreement that arbitration shall be the exclusive method of
resolving any dispute related to this Agreement or Employee's employment with
the Employer as set forth in Section 18. Employer and Employee agree that the
reference to litigation in this Section is included so that the prevailing
party can recover his or its attorneys' fees and costs if (a) either party
files a lawsuit in violation of Section 18 (e.g., fees and costs incurred
obtaining a court order compelling arbitration); or (b) a court rules that the
arbitration provision in Section 18 is unenforceable for any reason.
38. Indemnification. Employer hereby indemnifies Employee against all
Claims (as defined below) and all costs, expenses and attorneys' fees incurred
in the defense of any of such Claims or any action or Proceeding brought on
any of such Claims to the extent not covered by any applicable insurance or to
the extent of any liability in excess of the policy limits of such insurance.
For purposes of this Section, "Claims" shall mean all liabilities, damages,
losses, costs, expenses, attorneys' fees and claims arising from any activity,
work or thing done, permitted or suffered by or undertaken by Employee in the
course and scope of his employment with Employer. If any action or Proceeding
is brought against Employee by reason of any such Claims, Employer, upon
notice from Employee, shall defend such action or Proceeding at Employer's
sole cost by legal counsel satisfactory to Employee. Nothing in this Section
creates any rights to which any insurance company may be subrogated and no
person who is not a party to this Agreement may enforce, directly or
indirectly, this Section. Employer acknowledges and agrees that, at such time
as it shall become financially practicable, Employer shall obtain errors and
omissions insurance for all officers and directors in commercially reasonable
amounts. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section unless otherwise provided when authorized or
ratified, shall survive the termination of this Agreement, whether upon the
expiration of the term or otherwise and shall continue as to the Employee who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of the Employee.
39. Modification. This Agreement may be modified only by a contract
in writing executed by the party to this Agreement against whom enforcement of
the modification is sought.
40. Headings. The Section headings in this Agreement: (a) are
included only for convenience, (b) do not in any manner modify or limit any of
the provisions of this Agreement and (c) may not be used in the interpretation
of this Agreement.
41. Prior Understandings. This Agreement and all documents
specifically referred to and executed in connection with this Agreement: (a)
contain the entire and final agreement of the parties to this Agreement with
respect to the subject matter of this Agreement; and (b) supersede all
negotiations, stipulations, understandings, agreements, representations and
warranties, if any, with respect to such subject matter, which precede or
accompany the execution of this Agreement.
42. Interpretation. Whenever the context so requires in this
Agreement, all words used in the singular may include the plural (and vice
versa) and the word "person" includes a natural person, a corporation, a firm,
a partnership, a joint venture, a trust, an estate or any other entity. The
terms "includes" and "including" do not imply any limitation. For purposes of
this Agreement, the term "day" means any calendar day and the term "business
day" means any calendar day other than a Saturday, Sunday or any other day
designated as a holiday under California Government Code Sections 6700-6701.
Any act permitted or required to be performed under this Agreement upon a
particular day which is not a business day may be performed on the next
business day with the same effect as if it had been performed upon the day
appointed. No remedy or election under this Agreement is exclusive but,
rather, to the extent permitted by applicable law, each such remedy and
election is cumulative with all other remedies at law or in equity.
43. Partial Invalidity. Each provision of this Agreement is valid and
enforceable to the fullest extent permitted by law. If any provision of this
Agreement (or the application of such provision to any person or circumstance)
is or becomes invalid or unenforceable, the remainder of this Agreement and
the application of such provision to persons or circumstances other than those
as to which it is held invalid or unenforceable are not affected by such
invalidity or unenforceability (unless such provision or the application of
such provision is essential to this Agreement).
44. Successors in Interest and Assigns. Employee may not voluntarily
or by operation of law assign, hypothecate, delegate or otherwise transfer or
encumber all or any part of its rights, duties or other interests in this
Agreement without the prior written consent of Employer, which consent may be
withheld in Employer's sole and absolute discretion. Any such transfer in
violation of this Section is void. Subject to the foregoing and any other
restrictions on transferability contained in this Agreement, this Agreement is
binding upon and inures to the benefit of the successors-in-interest and
assigns of each party to this Agreement.
45. Notices. Each notice and other communication required or
permitted to be given under this Agreement ("Notice") must be in writing.
Notice is duly given to another party upon (a) hand delivery to the other
party; (b) receipt by the other party when sent by facsimile to the address
and number for such party set forth below (provided, however, that the Notice
is not effective unless a duplicate copy of the facsimile Notice is promptly
given by one of the other methods permitted under this Section); (c) three (3)
business days after the Notice has been deposited with the United States
Postal Service as first-class, certified mail, return receipt requested,
postage prepaid, and addressed to the party as set forth below; or (d) the
next business day after the Notice has been deposited with a reputable
overnight delivery service, postage prepaid, addressed to the party as set
forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
To Employer: Coded Communications Corporation
0000 Xxxxxxx Xxxx Xxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
To Employee: Xxxx Xxxxx
0000 Xxxxxxx Xxxx Xxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
and X.X. Xxx 0000
Xxxxxx Xxxxx Xx, XX 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Each party shall make a reasonable good faith effort to ensure that it will
accept or receive Notices to it that are given in accordance with this
Section. A party may change its address for purposes of this Section by
giving the other party(ies) written notice of a new address in the manner set
forth above.
46. Waiver. Any waiver of a default or provision under this Agreement
must be in writing. No such waiver constitutes a waiver of any other default
or provision concerning the same or any other provision of this Agreement. No
delay or omission by a party in the exercise of any of its rights or remedies
constitutes a waiver of (or otherwise impairs) such right or remedy. A
consent to or approval of an act does not waive or render unnecessary the
consent to or approval of any other or subsequent act.
47. Drafting Ambiguities. Each party to this Agreement has reviewed
and revised this Agreement and has had the opportunity to have such party's
legal counsel review and revise this Agreement. The rule of construction that
ambiguities are to be resolved against the drafting party or in favor of the
party receiving a particular benefit under an agreement may not be employed in
the interpretation of this Agreement or any amendment to this Agreement.
48. Third-Party Beneficiaries. Nothing in this Agreement is intended
to confer any rights or remedies on any person or entity other than the
parties to this Agreement and their respective successors-in-interest and
permitted assignees, unless such rights are expressly granted in this
Agreement to another person specifically identified as a "Third-Party
Beneficiary".
49. Receipt of Copy. Employee hereby acknowledges that it has
received a signed copy of this Agreement.
50. Guarantee. The obligations to Employee herein shall be guaranteed
and become the joint and severable obligations of the Employer, its parent
corporation (if any), its affiliated corporations and any corporation or
entity that owns or controls, directly or indirectly, more than fifty percent
(50%) of the Employer's common stock.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EMPLOYEE:
XXXX XXXXX
[Signatures continued on next page]
EMPLOYER: CODED COMMUNICATIONS CORPORATION,
a Delaware corporation
By:
Xxxx X. Xxxxx
Chairman of the Board of Directors
ATTEST:
Xxxxxx Xxxxxxxx
Secretary
EXHIBIT A
POSITION DESCRIPTION
POSITION TITLE: President/CEO
POSITION REPORTS TO: Board of Directors
FUNCTION: As Chief Executive Officer, shall have general active
charge and control over the business and affairs of
the Corporation, subject to the Board of Directors.
Is responsible for directing the organization with the
objective of generating the maximum profit and return
on invested capital over the long term. Establishes
current and long-range objectives, plans and policies
subject to the approval of the Board of Directors, is
the senior spokesman and represents the Corporation
with its major customers, suppliers, the financial
community, the shareholders and the public. May
appoint such persons as officers, agents and employees
of the Corporation as he shall from time to time deem
necessary for the proper conduct of the business of
the Corporation and may fix their compensation and
terminate their employment. Any person appointed by
him as an officer, but not elected by the Board, shall
be a titular officer and not a corporate officer.
ETHICS AND VALUES: Performs all job responsibilities and conducts all
business relationships, both internal and external, in
concert with the ethical standards of the
Corporation's stated policies and values.
RESPONSIBILITIES AND JOB DUTIES:
1. With the advice of senior members of management and other resources,
develops basic objectives, policies and business plans; reviews these
with the Board of Directors.
2. Ensures that corporate policies are properly interpreted and
administered by subordinates; reviews and approves proposed internal
policies of operating units.
3. Directs the preparation of adequate plans for the future development and
growth of the Corporation and all of its operating units and joint
ventures; periodically presents such plans to the Board of Directors for
concurrence.
4. At specific times, presents operation and capital expenditure budgets
for review and approval by the Board of Directors.
5. Maintains liaison with the Board of Directors concerning the
investigations and negotiations pertaining to mergers, joint ventures,
the acquisition of businesses or sale or relocation of corporate assets.
6. Analyzes operating results of the Corporation and operating units
relative to established objectives and ensures that appropriate action
is taken to correct unsatisfactory conditions.
7. Ensures the adequacy and soundness of the Corporation's financial
conditions and reviews working capital projections; negotiates and
arranges for outside financing as necessary.
8. Establishes the specific limitation of authority of subordinates
regarding policies, contractual commitments, corporate assets,
expenditures and personnel actions.
9. Reviews and approves the appointment, employment, compensation, transfer
or termination of key executives, including all direct corporate reports
and direct reports of operating unit presidents.
10. Plans for the development of personnel resources within the Corporation
and recruitment of outside personnel necessary to initiate programs to
ensure successful management continuity; ensures the development and
implementation of a viable management succession program for all of his
direct reports and their direct reports as well; reviews all performance
reviews of direct reports of operating unit presidents.
11. Reviews and approves the engagement of consultants and advisors whose
fees during any 30-day period are anticipated to exceed $1,200 per day
or $150.00 per hour and the renewal of such agreements and/or contracts
in excess of $36,000 or 30 mandays.
12. Ensures the adequacy and proper utilization of corporate staff
activities as well as maintaining a cooperative effort on the part of
operating groups, staff units or other elements under his direction.
13. Represents the Corporation with major customers, suppliers, competitors,
commercial and investment banks, legal counsel, stockholders, government
agencies, professional and public organizations and other similar
groups.
14. Establishes the compensation policies of all operating unit
organizations and, in concert with the compensation committee of the
Board of Directors, sets the specific compensation elements of his
direct reports and approves the compensation of their direct reports as
well.
15. Approves all legal and litigation matters for all the Corporation and
operating units of the Corporation and reports significant legal matters
to the Board.
16. Is the Corporation's senior officer responsible, in concert with the
Board, for all environmental policies, actions, plans, investigations
and reviews; ensures that all operating units of the Corporation are in
compliance (in fact and spirit) with all local, state and federal laws
and regulations; reviews on an annual basis all operation units' plans
and programs relating to environmental and safety matters.
