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EXHIBIT 10.18
EXECUTIVE EMPLOYMENT AGREEMENT
This Agreement is made and entered into as of the 1st day of January,
1997 by and among Circo Technologies Group, Inc. ("Circo"), Circo Craft
Technologies, Inc. and Circo Craft Co. Inc. (all, including Circo, collectively
called "Employer"), and Xxxxx X. Xxxxx ("Employee").
W I T N E S S E T H :
WHEREAS, Employer desires to retain the service of Employee as an
employee of the Employer upon the terms set forth herein; and,
WHEREAS, Employee desires to be employed by Employer and to
appropriately memorialize the terms and conditions of such employment;
NOW, THEREFORE, Employee and Employer, in consideration of the
agreements, covenants and conditions herein contained, hereby agree as follows:
1. BASIC EMPLOYMENT PROVISIONS.
(a) Employment and Term. Employer hereby agrees to employ Employee
(hereinafter referred to as the "Employment") as the Chairman of the Board of
Directors and Chief Executive Officer of Circo (the "Position"), and Employee
agrees to be employed by Employer in such Position, for a period ending on
December 31, 2001, unless terminated earlier as provided herein (the
"Employment Period"). In the event that termination (as hereinafter provided)
has not occurred prior to the last day of the Employment Period, unless either
party shall have given written notice to the contrary at least ninety (90) days
prior to the end of the Employment Period, the Employment Period shall annually
renew for one (1) year periods until terminated.
(b) Duties. Employee in the Position shall be subject to the
direction and supervision of the Board of Directors of Circo (the "Board") and
shall have those duties and responsibilities which are assigned to Employee
during the Employment Period by the Board consistent with the Position,
provided that the Board shall not assign any greater duties or responsibilities
to the Employee than are necessary to the Employee's faithful and adequate
supervision of the overall executive management of Circo and its subsidiaries,
both direct and indirect. Subject to the Employee's faithful and adequate
supervision of the overall executive management of Circo, the Employee shall be
free to participate in other endeavors. Employee agrees to perform faithfully
the duties assigned to Employee to the best of Employee's ability.
2. COMPENSATION.
(a) Salary. Employer shall pay to Employee during the Employment
Period a salary as basic compensation for the services to be rendered by
Employee hereunder. The initial amount of such salary shall be Three Hundred
Ninety-Five Thousand Dollars ($395,000) per annum. Such salary shall be
reviewed by the Board and may be increased in the Board's sole discretion but
may
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not be reduced. Such salary shall accrue and be payable in accordance with the
payroll practices of Employer in effect from time to time. All such payments
shall be subject to deduction and withholding authorized or required by
applicable law.
(b) Bonus. During the Employment Period, Employee shall be eligible
to receive an annual bonus (payable by the Employer) in an amount in accordance
with the Senior Executive Incentive Compensation Plan.
(c) Benefits. During the Employment Period, Employee shall be
entitled to such other benefits as are customarily accorded the executives of
Employer, including without limitation, group life, hospitalization and other
insurance and vacations.
(d) Medical Benefits. During the lifetime of Employee and/or
Employee's spouse, whether or not the Employment Period has terminated for any
reason, Employer shall provide health coverage to Employee and/or Employee's
spouse at least equal to the health coverage granted to other executives of
Employer at no cost to Employee and/or Employee's spouse.
(e) Directors and Officers Insurance. Employer will use its best
efforts to obtain and to maintain a policy of insurance on directors and
officers of Employer in amounts to be determined by Employer, in its reasonable
judgement based upon companies similarly situated.
3. TERMINATION.
(a) Death or Disability. This Agreement shall terminate
automatically upon the death or total disability of Employee. For the purpose
of this Agreement "total disability" shall be deemed to have occurred if
Employee shall have been unable to perform the Employee's duties of employment
due to mental or physical incapacity for a period of six (6) consecutive months
or for any one hundred (100) working days out of a twelve (12) consecutive
month period.
(b) Cause. Employer may terminate the employment of Employee under
this Agreement for Cause. For the purpose of this Agreement, "Cause" shall be
deemed to be fraud, dishonesty, competition with Employer, unauthorized use of
any of Employer's trade secrets or confidential information or continued gross
neglect by Employee of the duties assigned to Employee by the Board (if such
neglect continues for thirty (30) days after written notice, which notice shall
define the duties being neglected by Employee).
(c) Without Cause. Employer may terminate the employment of Employee
under this Agreement without Cause, subject to the continuing rights of
Employee pursuant to Section 4(c) below.
4. COMPENSATION UPON TERMINATION.
(a) Death or Disability. If the Employment Period is terminated
pursuant to the provisions of Section 3(a) above, this Agreement shall
terminate, and no further compensation shall be payable to Employee except that
Employee or Employee's estate, heirs or beneficiaries, as applicable, shall
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be entitled, in addition to any other benefits specifically provided to them or
Employee under any benefit plan, to receive Employee's then current salary for
a period of eighteen (18) months from the date the Employment Period terminates
and Employee shall continue to receive the medical benefits provided in Section
2 (d) above during Employees lifetime.
(b) Termination for Cause or Voluntary Termination by Employee. If
the employment of Employee under this Agreement is terminated for Cause or if
Employee voluntarily terminates his employment, no further compensation shall
be paid to Employee after the date of termination but Employee shall be
entitled medical benefits provided in Section 2(d) above.
(c) Termination Without Cause. If the employment of Employee under
this Agreement is terminated pursuant to Section 3(c) above, Employee shall be
entitled to continue to receive from Employer Employee's then current salary
hereunder [which shall not be less than the amount specified in the second
sentence of Section 2(a) above] for the remainder of the Employment Period or
for one (1) year, whichever is longer, such amount to continue to be paid in
accordance with the payroll practices of Employer through the Employment
Period, and shall further be entitled to continue to receive the benefits to
which Employee would otherwise be entitled pursuant to Sections 2(c) and 2(d)
above and reimbursement for expenses incurred by Employee to own and maintain
an automobile as contemplated by Section 5 below.
5. EXPENSE REIMBURSEMENT. Upon submission of properly documented expense
account reports, Employer shall reimburse Employee for all reasonable travel
and entertainment expenses incurred by Employee in the course of his employment
with Employer. During the term hereof, Employee will be reimbursed by Employer
for expenses incurred by Employee to own and maintain an automobile.
6. ASSIGNMENT. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto except that this Agreement and all of the provisions hereof
may be assigned by Employer to any successor to all or substantially all of its
assets (by merger or otherwise) and may otherwise be assigned upon the prior
written consent of Employee.
7. CONFIDENTIAL INFORMATION.
(a) Non-Disclosure. During the Employment Period or at any time
thereafter, irrespective of the time, manner or cause of the termination of
this Agreement, Employee will not directly or indirectly reveal, divulge,
disclose or communicate to any person or entity, other than authorized
officers, directors and employees of the Employer, in any manner whatsoever,
any Confidential Information (as hereinafter defined) of Employer without the
prior written consent of the Chief Executive Officer.
(b) Definition. As used herein, "Confidential Information" means
information disclosed to or known by Employee as a direct or indirect
consequence of or through the Employment about Employer, or its respective
businesses, products and practices which information is not generally
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known in the business in which Employer is or may be engaged. However,
Confidential Information shall not include under any circumstances any
information with respect to the foregoing matters which is (i) available to the
public from a source other than Employee, (ii) released in writing by Employer
to the public or to persons who are not under a similar obligation of
confidentiality to Employer and who are not parties to this Agreement, (iii)
obtained by Employee from a third party not under a similar obligation of
confidentiality to Employer, (iv) required to be disclosed by any court process
or any government or agency or department of any government, or (v) the subject
of a written waiver executed by either Employer for the benefit of Employee.
(c) Return of Property. Upon termination of the Employment, Employee
will surrender to Employer all Confidential Information, including without
limitation, all lists, charts, schedules, reports, financial statements, books
and records of the Employer, and all copies thereof, and all other property
belonging to the Employer but Employee shall be accorded reasonable access to
such Confidential Information subsequent to the Employment Period for any
proper purpose as determined in the reasonable judgment of Employer.
8. AGREEMENT NOT TO COMPETE.
(a) Termination for Cause or Voluntary Termination. In the event
that the Employee is terminated for Cause or voluntarily terminates his
employment with Employer prior to the expiration of the term of this Agreement,
Employee hereby agrees that for a period of one (1) year following such
termination, neither he nor any affiliate shall, either in his own behalf or as
a partner, officer, director, employee, agent or shareholder [other than as the
holder of less than 5% of the outstanding capital stock of any corporation with
a class of equity security registered under Section 12(b) or Section 12(g) of
the Securities Exchange Act of 1934, as amended] engage in, invest in or render
services to any person or entity engaged in the businesses in which Employer is
then engaged and situated within the United States of America. Nothing
contained in this Section 8(a) shall be construed as restricting the Employee's
right to sell or otherwise dispose of any business or investments owned or
operated by Employee as of the date hereof.
(b) Termination Without Cause or For Disability. In the event that
the employment of Employee is terminated by Employer without Cause or as a
result of the total disability of Employee, Employee hereby agrees that during
the period that Employee accepts payments from the Employer pursuant to Section
4(a) or Section 4(c) above, as applicable, but not including medical benefits
pursuant to Section 2(d), neither Employee nor any affiliate shall, either in
Employee's own behalf or as a partner, officer, director, employee, agent or
shareholder [other than as the holder of less that 5% of the outstanding
capital stock of any corporation with a class of equity security registered
under Section 12(b) or Section 12(g) of the Securities Exchange Act of 1934, as
amended] engage in, invest in or render services to any person or entity
engaged in the businesses in which Employer or any subsidiary of Employers is
then engaged and situated within the United States of America. Nothing
contained in this Section 8(b) shall be construed as restricting the Employee's
right to sell or otherwise dispose of any business or investments owned or
operated by Employee as of the date hereof. In the event of Employee's
violation of the provisions of Section 8(b), the right of Employee to receive
any further payment pursuant to Sections 4(a) or 4(c) above, as applicable, but
not as to medical benefits pursuant to Section 2(d), shall immediately
terminate and the Employer shall be
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entitled to secure reimbursement from Employee for all payments made to
Employee under Section 4(a) or 4(c) subsequent to the date of any such
violation. The parties hereto hereby acknowledge and agree that the provisions
of the immediately preceding sentence shall be the sole and exclusive remedy of
the Employer in respect of any violation of this Section 8(b).
9. AGREEMENT NOT TO SOLICIT EMPLOYEES. Employee agrees that, for a period
of three (3) years following the termination of the Employment Period, neither
Employee nor any affiliate shall, on behalf of any business engaged in a
business competitive with Employer, solicit or induce, or in any manner attempt
to solicit or induce, any person employed by, or any agent of, Employer to
terminate Employee's employment or agency, as the case may be, with Employer.
10. NO VIOLATION. Employee hereby represents and warrants to Employer that
the execution, delivery and performance of this Agreement or the passage of
time, or both, will conflict with, result in a default, right to accelerate or
loss of rights under any provision of any agreement or understanding to which
the Employee or, to the best knowledge of Employee, any of Employee's
affiliates are a party or by which Employee, or to the best knowledge of
Employee, Employee's affiliates may be bound or affected.
11. CAPTIONS. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit or
amplify the provisions hereof.
12. NOTICES. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed delivered, whether or not actually received,
two days after deposited in the United States mail, postage prepaid, registered
or certified mail, return receipt requested, addressed to the party to whom
notice is being given at the specified address or at such other address as such
party may designate by notice:
Employer: Circo Technologies Group, Inc.
000 Xxxxx Xxxxxx Xxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Board of Directors
Employee: Xxxxx X. Xxxxx
000 Xxxxx Xxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
13. INVALID PROVISIONS. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provisions
shall be fully severable, and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement; the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance of this Agreement. In lieu of each
such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement a provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable.
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14. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, if any, relating to the
subject matter hereof. This Agreement may be amended in whole or in part only
by an instrument in writing setting forth the particulars of such amendment and
duly executed by an officer of Employer expressly authorized by the Board to do
so and by Employee.
15. WAIVER. No delay or omission by any party hereto to exercise any right
or power hereunder shall impair such right or power to be construed as a waiver
thereof. A waiver by any of the parties hereto of any of the covenants to be
performed by any other party or any breach thereof shall not be construed to be
a waiver of any succeeding breach thereof or of any other covenant herein
contained. Except as otherwise expressly set forth herein, all remedies
provided for in this Agreement shall be cumulative and in addition to and not
in lieu of any other remedies available to any party at law, in equity or
otherwise.
16. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall constitute an original, and all of which together shall
constitute one and the same agreement.
17. GOVERNING LAW. This Agreement shall be construed and enforced according
to the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
EMPLOYER: EMPLOYEE:
CIRCO TECHNOLOGIES GROUP, INC.
By:
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Xxxxx X. Xxxxxxxx, Vice President Xxxxx X. Xxxxx
CIRCO CRAFT TECHNOLOGIES, INC.
By:
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Xxxxx X. Xxxxxxxx, Vice President
CIRCO CRAFT CO. INC.
By:
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Xxxxx X. Xxxxxxxx, Vice President
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