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EXHIBIT 10.22
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 W. Xxxxxx XxXxxx ("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 Secretary and
General Counsel 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 Chairman of the Board of Directors of Circo
(the "Chairman") and shall have those duties and responsibilities which are
assigned to Employee during the Employment Period by the Chairman consistent
with the Position, provided that the Chairman shall not assign any greater
duties or responsibilities to the Employee than are necessary to the Employee's
faithful and adequate supervision of the management of the legal affairs and
the corporate secretarial duties of Circo and its subsidiaries, both direct and
indirect. Subject to the Employee's faithful and adequate supervision of the
management of the legal affairs and the corporate secretarial duties 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 Ninety-Nine
Thousand Dollars ($99,000) per annum. Such salary shall be
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reviewed by the Chairman and may be increased in the Chairman's sole discretion
but may 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 Chairman (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
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to Employee except that Employee or Employee's estate, heirs or beneficiaries,
as applicable, shall 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
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Employer, or its respective businesses, products and practices which
information is not generally 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
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medical benefits pursuant to Section 2(d), shall immediately terminate and the
Employer shall be 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: Chairman
Employee: W. Xxxxxx XxXxxx
00 Xxx Xxxx Xxxxx
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 Chairman 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. Xxxxx, Chairman and W. Xxxxxx XxXxxx
Chief Executive Officer
CIRCO CRAFT TECHNOLOGIES, INC.
By:
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Xxxxx X. Xxxxx, Chairman and
Chief Executive Officer
CIRCO CRAFT CO. INC.
By:
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Xxxxx X. Xxxxx, Chairman and
Chief Executive Officer
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