EXHIBIT 10.27
EMPLOYMENT AGREEMENT
AGREEMENT effective as of this 1st day of July 1995, by
and between MICROFRAME, INC., a New Jersey corporation, having its principal
office at 00 Xxxxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx 00000 (the "Company"), and
XXXX X. XXXXXXX, residing at 0000 Xxxxxx Xxxxx Xxxx #000, Xxxxx, Xxxxxxxxxxxx
00000 ("Executive").
W I T N E S S E T H :
WHEREAS, the Executive has been employed by the Company as
its Vice President - Operations/Chief Financial Officer since January 23, 1995;
and
WHEREAS, the experience, ability and knowledge of the
Executive have been and are valuable to the Company and as a result, the
Company desires to continue to employ the Executive on a full-time basis as its
Vice President - Operations/Chief Financial Officer pursuant to a formal
agreement of employment; and
WHEREAS, the Executive desires to be so employed by the
Company in such capacity and further desires to enter into an agreement with
the Company, the terms of which would govern his employment with the Company.
NOW, THEREFORE, in consideration of such employment and
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:
1. Employment: The Company hereby agrees to employ
Executive and Executive hereby accepts employment with the Company upon the
terms and conditions set forth below, subject to earlier termination as
provided herein. Executive's employment under this Agreement shall be for an
initial period of one (1) year, commencing on the date of this Agreement and it
shall automatically be renewed for a two (2) year period thereafter, unless at
least thirty (30) days prior to the termination of the initial one year term
either party gives written notice to the other of its or his desire to
terminate the Executive's employment as of the end of the one year term (the
"Employment Period"). During the Employment Period, Executive will hold the
position of Vice President - Operations/Chief Financial Officer of the Company
and shall perform such functions as are normally carried out by the Vice
President - Operations/Chief Financial Officer of a business of the type in
which the Company is engaged, including but not limited to, responsibilities
for finance, administration, purchasing and manufacturing, as well as such
other functions, as the Board of Directors of the Company (the "Board") shall
from time to time reasonably determine. Executive will devote his full-time,
energies and abilities exclusively to the business of the Company to accomplish
the duties assigned by the Board, will perform those duties to the best of
Executive's ability and will devote Executive's best efforts to advance the
interests of the Company.
2. Compensation and Benefits: As compensation for all
services performed by Executive for the Company during the Employment Period,
the Company agrees to pay Executive:
(a) (i) An annual salary at the rate of
eighty-five thousand ($85,000) dollars per annum ("Initial Salary") from the
date of this Agreement through March 31, 1996, to be paid in equal
installments, in accordance with the Company's customary payroll practice for
its executives.
(ii) Commencing April 1, 1996 and at the
beginning of each subsequent fiscal year in which Executive is employed by the
Company, Executive's Initial Salary, with respect to the 1997 fiscal year and
thereafter, Executive's current salary in each subsequent fiscal year during
the Employment Period, shall increase or decrease as set forth in paragraph
2(a)(v) based upon the Company's performance in the prior fiscal year measured
against the Company's achievement of performance goals which had been set by
the Board, in its sole discretion, for that year with respect to certain
weighted performance criteria.
(iii) The performance goals, performance cri-
teria and the percentages used to weigh such criteria shall be determined by
the Board no later than May 31st of the fiscal year in which performance is
measured. The performance goals, and weighted performance criteria for the
1996 fiscal year are set forth on Schedule A attached hereto and made a part
hereof, which shall be amended and updated each fiscal year in accordance with
this subparagraph.
(iv) The performance criteria to be consid-
ered by the Board shall include, but are not limited to revenue, operating
income, earnings per share and share price of the stock of the Company.
(v) As set forth in paragraph 2(a)(ii),
Executive's salary shall increase or decrease as follows:
(A) Where performance of the Company
shall fall below ninety (90%) percent of such year's performance goals, salary
will decrease two and one-half (2.5%) percent for each one (1%) percent
increment of performance below the ninety (90%) percent threshold, up to a
maximum twenty-five (25%) percent reduction.
(B) Where performance of the Company
is greater than one hundred and ten (110%) percent of such year's performance
goals, salary will increase two and one-half (2.5%) percent for each one (1%)
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percent increment of performance above the one hundred and ten (110%) percent
threshold, up to a maximum twenty-five (25%) percent increase.
(b) (i) Concurrently herewith, pursuant to a stock
option contract between the Company and the Executive, Executive is being
granted a five (5) year incentive stock option, under and subject to the terms
of the Company's 1994 Stock Option Plan, to purchase five thousand (5,000)
shares of common stock, par value $.001 per share of the Company ("Common
Stock"), at an exercise price equal to the fair market value of the Common
Stock as of the date hereof, exercisable on and after January 23, 1997 (the
"Option").
(ii) The shares of the Company's Common Stock which
may be purchased by Executive pursuant to the Option granted under paragraph
2(b)(i) (the "Shares"), are to be held by Executive for his own account, for
investment purposes only and not with a view to the resale or distribution
thereof, and no sale, offer to sell or transfer of the Shares, or of any shares
or other securities issued in exchange for or in respect of the Shares shall be
made unless a registration statement under the Securities Act of 1933, as
amended, (the "Act") with respect to the Shares is in effect, or an exemption
from the registration requirements of the Act is then in fact applicable to the
Shares.
(c) Commencing with the date of this Agreement and
during the Employment Period, Executive shall receive an automobile allowance
of five hundred ($500) dollars per month.
(d) Executive shall be entitled to fifteen (15)
days of vacation each year during the Employment Period (prorated for any
partial calendar year), to be taken at such time as is consistent with the
needs of the Company. Any unused vacation time shall be treated in accordance
with Company policy.
(e) During the Employment Period, Executive shall
be entitled, to the extent he qualifies, to participate in any retirement,
incentive bonus, profit-sharing, medical, disability, health or life insurance
and other similar benefit arrangements which may be or become available to
executive officers of the Company, provided Executive shall be required to
comply with and be entitled to benefits only in accordance with the terms and
conditions of such plans.
(f) The Company shall furnish the Executive with
the office space, stenographic assistance and such other facilities and
services as shall be suitable to the Executive's position adequate for the
performance of his duties hereunder.
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(g) The Company shall reimburse Executive for all
reasonable expenses incurred by Executive in connection with the performance of
his duties hereunder, provided that such expenses are incurred and accounted
for in accordance with the reasonable policies and procedures established by
the Company.
3. Death and Disability:
(a) The Employment Period shall terminate on the
date of Executive's death, in which event Executive's salary, if any, payable
through the last day of the month in which his death occurs, shall be paid to
Executive's estate.
(b) If, during the Employment Period, Executive
due to physical or mental illness or incapacity, shall be unable to
substantially perform his duties and services under this Agreement for a period
of six (6) consecutive months or nine (9) months in the aggregate during any
twelve (12) month period ("Disability Period"), the Company may, at any time
after the expiration of such Disability Period, by written notice to Executive,
terminate Executive's employment as well as all benefits which he may be
entitled to hereunder as of the date set forth in the notice. Executive shall
be entitled to receive the salary he is receiving at that time, provided by
paragraph 2(a) up to the end of the Disability Period (less payments from any
disability insurance proceeds received by Executive with respect to the
Disability Period). Disability under this paragraph shall be determined by a
physician who shall be selected by the Company.
4. Discharge for Cause: The Company may terminate the
Executive's employment hereunder for "Cause". For purposes of the Agreement,
the Company shall have "Cause" to terminate the Executive employment hereunder
upon (a) the willful and continued failure by the Executive to substantially
perform his duties hereunder which amounts to a material neglect of his duties
to the Company, (b) the willful engaging by the Executive in misconduct which
is materially injurious to the Company, (c) the conviction of the Executive of
a felony, (d) the failure of the Executive to comply with any material
provision of this Agreement which has not been cured within thirty (30) days
after written notice of such noncompliance has been given by the Company to the
Executive, or (e) the failure to comply with material policies, procedures or
directions of the Company established by its Board of Directors and consistent
with the terms of this Agreement, which failure has not been cured within
thirty (30) days after notice of such noncompliance has been given by the
Company to the Executive. If, during the Employment Period, Executive is
discharged for Cause, this Agreement shall terminate and the Company, without
any limitation on any remedies it may have at law or equity, is without
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liability for salary or any other liability to Executive after the date of such
discharge and the Option granted to Executive under this Agreement shall cease
and terminate immediately.
5. Nondisclosure; Noncompetition:
(a) The Executive agrees not to use or disclose,
either while in the Company's employ or at any time thereafter, except with the
prior written consent of the Company, any trade secrets, proprietary
information, or other information that the Company considers confidential
relating to formulas, designs, processes, suppliers, machines, compositions,
improvements, inventions, operations, manufacturing, processing, marketing,
distributing, selling, cost and pricing data, master files or consumer lists
utilized by the Company, or any confidential information (including but not
limited to salary information) on the employees, and all other similar
confidential information material to the conduct of the business, which is not
presently generally known to the public and which is or was obtained or
acquired by the Executive while in the employ of the Company; provided,
however, that this provision shall not preclude the Executive from (i) the use
of or disclosure of such information which presently is known generally to the
public or which subsequently comes into the public domain, other than by way of
disclosure on violation of this Agreement or in any other unauthorized fashion,
or (ii) disclosure of such information required by law or court order, in which
case the Executive will give the Company three (3) business days written notice
(or, if disclosure is required to be made in less than three (3) business days,
then such notice shall be given as promptly as practicable after determination
that disclosure may be required) of the nature of the law or order requiring
disclosure and the disclosure to be made in accordance therewith.
(b) During the Employment Period of this Agreement
and for a period of two (2) years thereafter, the Executive shall not, within
the United States or Canada without the prior written consent of the Company
directly or indirectly: (i) own, manage, operate, join, control, participate
in, invest in, or otherwise be connected with, in any manner, whether as an
officer, director, employee, partner, investor, consultant, lender or
otherwise, any business entity which is engaged in, or is in any way related
to, the business, or (ii) on the Executive's behalf or on behalf of anyone else
engaged in such line of business (A) persuade or attempt to persuade any
employee of the Company to leave the employ of the Company or to become
employed by any person other than the Company, (B) persuade or attempt to
persuade any current client or former client of the Company to cease doing
business with, or to reduce the amount of business it does or intends or
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anticipates doing with, the Company, or (C) solicit the business of any such
clients or former clients with respect to the business of data securities.
(c) Nothing herein contained shall be deemed to
prohibit the Executive from investing in securities of a business entity if the
securities of such entity are listed for trading on a national securities
exchange or traded in the over-the-counter market and the Executive's holdings
therein represent less than five (5%) percent of the total number of shares or
principal amount of other securities of such entity outstanding.
6. Ownership of Inventions, Discoveries and Improve-
ments: Executive shall promptly disclose in writing to the Board of Directors
of the Company all inventions, discoveries, designs, developments, processes,
software programs, works of authorship, formulas, data, techniques and any
other improvements conceived, devised, created, or developed by Executive
(either alone or with others) while in the employ of the Company (collectively,
"Invention"), and Executive shall transfer and assign to the Company all right,
title and interest in and to such Invention, including any and all domestic and
foreign patent rights, domestic and foreign copyright rights therein, and any
renewal thereof. Such disclosure is to be made promptly after the conception
of each Invention, and each Invention is to become and remain the property of
the Company, whether or not patent or copyright applications are filed thereon
by the Company. On request of the Company, Executive shall execute from time
to time, during or after the termination of employment, such further
instruments including, without limitation, applications for patents and
copyrights and assignments thereof as may be deemed necessary or desirable by
the Company to effectuate the provisions of this paragraph 6.
7. Construction: If the provisions of paragraph 5
should be deemed unenforceable, invalid, or overbroad in whole or in part for
any reason, then any court of competent jurisdiction or any Arbitrator
appointed in accordance with paragraph 8 is hereby authorized, requested, and
instructed to reform such paragraph to provide for the maximum competitive
restraints upon Executive's activities (in time, product, geographic area, and
customer solicitation as may then be legal and valid).
8. Remedies, Damages:
(a) Executive agrees that violation of paragraphs
5 and 6 would cause irreparable injury to the Company for which the remedy at
law would be inadequate, and that the Company shall be entitled in any court of
law or equity or in any arbitration proceeding in accordance with this
paragraph 8, whichever forum is designated by the Company, to preliminary,
permanent or other injunctive relief against any breach of the provisions
contained in paragraphs 5 and 6, and such punitive and compensatory damages as
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shall be awarded. Further, in the event of a violation of the provisions of
paragraph 5, the period of noncompetition referred to therein shall be
extended, but not decreased for a period of time equal to the period that the
violation occurred.
(b) Except as otherwise provided in paragraphs 7
and 8(a) relating to the reformation of the restrictive covenants and obtaining
equitable relief, any controversy or claim arising out of, or relating to this
Agreement, or the breach thereof, shall be settled by arbitration by one
arbitrator in New Jersey, in accordance with the rules of the American Arbi-
tration Association, and judgment upon the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof.
9. Severability: If any of the provisions of this
Agreement are held to be invalid, illegal, or unenforceable, that determination
will not affect the enforceability of any other provisions of this Agreement,
and the remaining provisions of this Agreement will be valid and enforceable
according to their terms.
10. Amendment; Applicable Law; Binding Effect; Suc-
cessors and Assigns: This Agreement may be modified only in a writing signed
by both parties, is governed by and construed in accordance with the laws of
the State of New Jersey, without regard to the conflicts of law rules thereof,
and will be binding upon and inure to the benefit of Executive and Executive's
personal representatives and to the Company and the Company's successors and
assigns. This Agreement is in the nature of a personal services contract, is
not assignable by Executive and the duties imposed hereby are non-delegable.
11. Waiver: No waiver by either party hereto at any
time of any breach by the other party hereto of, or in compliance with any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, expressed or implied, with respect to the subject matter
hereof have been made by either party which are not set forth expressly in this
Agreement.
12. Counterparts: This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, but all
of which together will constitute one and the same instrument.
13. Entire Agreement: This Agreement sets forth the
entire agreement of the parties hereto in respect of the subject matter
contained herein and supersedes all prior agreements, promises, covenants,
arrangements, communication, representations or warranties, whether oral or
written, by any officer, employee or representative of any part hereto and any
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prior agreement of the parties hereto in respect of the subject matter
contained herein is hereby terminated and cancelled.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
MICROFRAME, INC.
By: /s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX, President
/s/ Xxxx X. Xxxxxxx
XXXX X. XXXXXXX
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SCHEDULE A
1996 Fiscal Year
Performance Criteria Performance Goal Weight
-------------------- ---------------- ------
Revenue $11,000,000.00 40%
Operating Income $ 1,248,000.00 50%
Price of Common Stock $ 3.75 10%
Per Share -----
TOTAL 100%
