EXHIBIT 10.35
EMPLOYMENT AGREEMENT
This employment agreement (the "Agreement") is entered into by and
between Xxxxx Xxxxx International, Inc. ("Xxxxx Xxxxx" or the "Company") and
Xxxxxxx X. Page ("Page" or "Employee").
1. TERM OF EMPLOYMENT.
This agreement is effective for the period commencing on May 21, 2001
and terminating without further notice at 5:00 p.m. on May 20, 2003, unless
terminated earlier in accordance with the provisions set forth in paragraphs 5,
6, 7 or 8 below.
2. DUTIES AND RESPONSIBILITIES.
The Company agrees to employ Page as Chief Financial Officer with such
powers and duties in this capacity as may be established from time to time by
the Company and its Board of Directors (the "Board") in their discretion. Page
shall diligently perform all services as may be assigned to him by the Company
and its Board and shall exercise such power and authority as may from time to
time be delegated to him by the Board. During his employment, Page will not
engage in any other business activities, regardless of whether such activity is
pursued for profits, gains or other pecuniary advantage.
In connection with his employment by the Company, Page shall be based
at the Company's principal executive offices in Miami, Florida except for
required travel on the Company's business.
3. COMPENSATION.
(a) Base Salary: Xxxxx Xxxxx will pay a base salary of One Hundred
Eighty Thousand dollars ($180,000) per annum to Page, payable in installments
according to the Company's normal payroll practices subject to applicable
withholding and other taxes. Said salary is effective upon Page's first day of
employment with the Company.
(b) Stock Options: On the commencement date of employment, the Company
shall grant to Page qualified stock options under the Company's 1993 Stock
Option Program, as amended (the "Plan") to purchase an aggregate of 15,000
Shares of Common Stock at an exercise price equal to their fair market value on
the commencement date of employment. The options shall vest over an eighteen
month period in two increments of 7,500 Shares each, with the first 7,500
options vesting on the sixth month anniversary date of Page's employment, and
the second 7,500 options vesting on the eighteenth month anniversary date of
Page's employment, assuming that Page remains employed by Xxxxx Xxxxx on the
dates that the options are to be deemed vested. In the event that Page is not
employed by Xxxxx Xxxxx on the dates that the options are to be deemed vested,
regardless of the reason for his separation with Xxxxx Xxxxx, the options that
are not vested shall immediately terminate and expire. There will be no "pro-
rated" vesting of any options for the period in which Page ceases to be employed
by Xxxxx Xxxxx. Page will have Five years to exercise the vested options. The
stock options shall otherwise be subject to and governed by the other terms of
the 1993 Stock Option Plan.
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4. BONUS.
(a) Performance Reviews: The Company and Page shall each evaluate
Page's performance at the end of the Company's fiscal years during this
agreement. It is contemplated that this review will normally occur in February
of each year. However, said review may be postponed by the Company as warranted
by appropriate or more immediate business circumstances.
(b) Bonuses: Page will be eligible to receive a bonus of up to Twenty
Four Thousand dollars ($24,000) for the fiscal year ending on January 31, 2002,
and a bonus of up to Thirty Six Thousand dollars ($36,000) for the fiscal year
ending on January 31, 2003. Fifty percent of each of these amounts (i.e.,
$12,000 and $18,000, respectively) will be paid to Page as guaranteed bonuses in
the corresponding fiscal years. The additional amount of the bonuses to be
awarded to Page above the guaranteed amount in each fiscal year will be
determined by the outcome of the performance review described above. In the
event that Page is not employed with Xxxxx Xxxxx on either of the dates set
forth above, he will not be entitled to payment of the subject bonuses in whole
or in part. That is, there will be no pro-ration of these bonuses.
(c) Relocation Costs: Xxxxx Xxxxx will reimburse Page for two thirds
(i.e., 66.6%) of all reasonable properly documented moving expenses allowed by
the Internal Revenue Code within thirty days of the submission by Page of
receipts therefor incurred in relocating from El Paso, Texas to the Miami,
Florida area, with such expenses paid by Xxxxx Xxxxx not to exceed $10,000.00.
Xxxxx Xxxxx will also pay for directly for Page's temporary lodging
expenses for the balance of the month of May 2001, June 2001, and July 2001,
with temporary lodging expenses for August 2001 or any part thereof to be paid
by Xxxxx Xxxxx only to the extent that Page has not yet found suitable long term
housing in South Florida by July 31, 2001. Notwithstanding the foregoing, Page
will make his best efforts to find such suitable long term housing in South
Florida and to close on purchase of same or move to a suitable rental property
prior to July 31, 2001.
In addition to temporary lodging expenses, Xxxxx Xxxxx agrees to
reimburse Page for two airline trips from Miami to El Paso during June 2001 and
July 2001, and for one airline trip for Page's wife to travel from El Paso to
Miami at any time between May 24, 2001 and July 31, 2001.
(d) Other Benefits: Page will be entitled to participate in any group
health, dental, life or disability plan and is entitled to any other benefits
that the Company may maintain from time to time for all employees, provided that
Page meets the representative eligibility requirement.
(e) Vacation, Personal, and Sick Leave: Page shall be entitled to take
two weeks of paid vacation during the period from his commencement date to
January 31, 2002, as well as three weeks of paid vacation during the period from
February 1, 2002 to January 31, 2003. Page shall be entitled on annual basis to
three (3) days of paid sick leave and three (3) days personal leave. Unused
vacation time, sick leave and/or personal leave may not be carried over to
subsequent years and will not paid-out if not taken for any reason.
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(f) Expense Reimbursement: During Page's term of employment, the
Company, upon the submission of supporting documentation by Page, and in
accordance with Company policies for its executives, shall reimburse Page for
all expenses actually paid or incurred by Page in the course of and pursuant to
the business of the Company, including expenses for travel and entertainment.
Expenses incurred to date by Page in connection with interviewing at Xxxxx
Xxxxx'x Miami office shall be promptly paid by Xxxxx Xxxxx upon submission by
Page.
5. PAGE'S DEATH OR INABILITY TO PERFORM.
(a) In the event of Page's death, this agreement and the Company's
obligation to pay Page's salary and compensation automatically end.
(b) If Page becomes unable to perform his employment duties during the
Term of this agreement, his compensation under this agreement shall
automatically end until such time as Page becomes able to resume his job duties
for the Company. In the event that Page becomes unable to perform his employment
duties for a cumulative period of six months within any span of twelve months,
this agreement and Page's employment will be automatically terminated. In such
case Page's salary and compensation shall automatically end.
6. TERMINATION BY COMPANY FOR CAUSE.
The Company may terminate this agreement and Page's employment "for
cause" at any time with or without notice. As used herein, "for cause" shall
mean anyone of the following;
A. Page's willful breach, habitual neglect, or poor performance of his
job duties and responsibilities; or
B. Conviction (or the entry of a guilty plea or plea of nolo
contendre) of any crime, excluding minor traffic offenses; or
C. Commission of an act of dishonesty or breach of a fiduciary duty;
or
D. Commission of a serious violation of any of the Company's personnel
policies, including but not limited to violations of the Company's policies
against any form of harassment; or
E. Any act or omission defined as grounds for termination of employees
as set forth in the Company's personnel policies in existence at the time; or
F. A material breach of this agreement; or
G. Any action or omission by Page, which, as reasonably determined by
the Company, is materially contrary to the business interest, reputation or
goodwill of the Company.
In the event the Company terminates Page's employment and his Agreement for
cause, the "Effect of Termination" provisions of paragraph 9 shall apply.
7. TERMINATION OF AGREEMENT BY COMPANY WITHOUT CAUSE.
The Company may terminate this agreement and Page's employment without
cause at any time
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upon thirty (30) days prior written notice to Page. In such case, the Company
will pay to Page on the date of termination without cause a severance allowance
of four months base salary, less taxes and other applicable withholding amounts.
Page shall not be entitled to any remaining compensation or benefits under this
Agreement from the date of his termination forward, and the provisions of
paragraph 9 below shall apply. To obtain the severance payment, Page will be
required to execute a full waiver and release of all claims in favor of the
Company and any successor entities. In the event that the Company decides not to
renew Page's Employment Agreement, the Company will provide Page with at least
ninety (90) days prior notice.
8. TERMINATION OF AGREEMENT BY PAGE.
Page may terminate this Agreement and his employment with the Company
without cause upon thirty (30) days prior written notice to the Company. In
such case, Page may be required to perform his business duties and will be paid
his regular salary up to the date of termination. At the option of the Company,
the Company may require Page to depart from the Company upon receiving said
thirty (30) days' notice from Page of the termination of the Agreement.
9. EFFECT OF TERMINATION.
In the event of Page's termination under paragraph 5, 6 or 8 above,
Page's compensation and benefits to be provided under this Agreement will
immediately cease and terminate. The Company shall not be liable to Page for any
further or additional compensation or benefits from the date of termination
forward. Compensation that would otherwise be payable for the remainder of the
Agreement (and for prior years and for subsequent years) shall automatically
terminate and be forfeited immediately. Except as provided above, the Company
shall have no further liability hereunder (other than for reimbursement for
reasonable business expenses incurred prior to the date of termination). All
stock options that are not vested shall immediately terminate and expire. As
noted above, there will be no pro-ration of bonuses and no pro-ration or vesting
of stock options.
10. COOPERATION.
Upon the termination of this Agreement for any reason, Page agrees to
cooperate with the Company in effecting a smooth transition of the management of
the Company with respect to the duties and responsibilities which Page performed
for the Company. Further, after termination of this Agreement, Page will, upon
reasonable notice, furnish such information and proper assistance to the Company
as it may reasonably require in connection with any litigation to which the
Company is or may become a party.
11. COVENANT NOT TO COMPETE.
During the term of his employment (whether under this Agreement or
otherwise) and for a period of one year following the termination of Page's
employment (for any reason, whether initiated by Page or
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the Company), Page shall not, directly or indirectly engage in or have any
interest in directly or indirectly any sole proprietorship, partnership,
corporation, business or any other person or entity (whether as an employee,
officer, director, partner, agent, security holder, creditor, consultant or
otherwise) that, directly or indirectly, engages primarily in the development,
manufacturing, distribution, or supply of products and services competitive with
the Company's and/or any subsidiary products and services in any and all states
in which the Company and/or any subsidiary conducts its business or at the time
that Page's employment with the Company is terminated (the "Territory");
provided, however, that Page may hold the securities and/or acquire, solely as
an investment, shares of capital stock or other equity securities of any such
entity, so long as Page does not acquire a controlling interest in or become a
member of a group which exercises direct or indirect control of, more than five
percent of any class of capital stock of such entity. This restrictive covenant
may be assigned to any successor entities.
12. AGREEMENT NOT TO DISCLOSE TRADE SECRETS OR CONFIDENTIAL
INFORMATION.
During the term of his employment (whether under this Agreement or
otherwise), and for ten (10) years after Page's termination of employment with
the Company or any successor organization (for any reason by Page or the
Company), Page promises and agrees that he will not disclose or utilize any
trade secrets, confidential information, or other proprietary information
acquired during the course of his service with the Company and/or its related
business entities. As used herein, "trade secret" means the whole or any portion
or phase of any formula, pattern, device, combination of devices, or compilation
of information which is for use, or is used in the operation of the Company's
business and which provides the Company an advantage, or an opportunity to
obtain an advantage, over those who do not know or use it. "Trade secret" also
includes any scientific technical, or commercial information, including any
design, list of supplies, list of customers, or improvement thereof, as well as
pricing information or methodology, contractual arrangements with vendors or
suppliers, business development plans or activities, or Company financial
information.
During the term of his employment (whether under this Agreement or
otherwise), and for ten (10) years after Page's termination of employment with
Xxxxx Xxxxx or any successor organization (for any reason, whether initiated by
Page or the Company), Page shall not divulge, communicate, use to the detriment
of the Company or for the benefit of any other person or persons, or misuse in
any way, any Confidential Information pertaining to the business of the Company.
Any Confidential Information or Data now or hereafter acquired by Page with
respect to the business of the Company (which shall include, but not be limited
to, information concerning the Company's financial condition, prospects,
technology, customers, suppliers, methods of doing business and promotion of the
Company's products and services) shall be deemed a valuable, special and unique
asset of the Company that is received by Page in confidence and as a fiduciary.
For purposes of this Agreement, "Confidential Information" means information
disclosed to Page as a consequence of or through his employment by the Company
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(including information conceived, originated, discovered or developed by Page)
prior to or after the date hereof and not generally known or in the public
domain, about the Company or its business.
As previously stated, Page's obligations under this section shall
survive the termination of the Agreement. Page is also hereby cautioned that
improper disclosure of trade secrets is a felony under Florida Law. This
restrictive covenant may be assigned to any successor entities.
13. AGREEMENT NOT TO SOLICIT OR HIRE COMPANY EMPLOYEES.
If Page leaves the employment of the Company for whatever reason, Page
promises and agrees that, during the two (2) years following his departure from
the Company, he will not, without the express written permission of the Company,
directly or indirectly employ as a consultant or employee any person who is
employed as a consultant or employee of the Company at the time of Page's
departure, or any person who was an employee or consultant of the Company during
the six months preceding Page's departure. This restrictive covenant may be
assigned to any successor entities.
14. INJUNCTIVE RELIEF.
In recognition of the unique services to be performed by Page and the
possibility that any violation by Page of paragraphs 11, 12 or 13 of this
Agreement may cause irreparable or indeterminate damage or injury to Company,
Page expressly stipulates and agrees that the Company shall be entitled, upon
ten (10) days written notice to Page, to obtain an injunction from any court of
competent jurisdiction regarding any violation or threatened violation of this
Agreement. Such right to an injunction shall be in addition to, and not in
limitation of, any other rights or remedies the Company may have for actual or
liquidated damages.
15. JUDICIAL MODIFICATION OF AGREEMENT.
The Company and Page specifically agree that a court of competent
jurisdiction (or an arbitrator, as appropriate) may modify or amend paragraphs
11, 12, or 13 of this Agreement if absolutely necessary to conform with relevant
law or binding judicial decisions in effect at the time the Company seeks to
enforce any or all of said provisions.
16. RESOLUTION OF DISPUTES BY ARBITRATION.
Any claim or controversy that arises out of or relates to this
Agreement, or the breach of it, will be resolved by arbitration in the City of
Miami in accordance with the rules then obtaining of the American Arbitration
Association. Judgment upon the award rendered may be entered in any court
possessing jurisdiction over arbitration awards. This Section shall not limit or
restrict the Company's right to obtain injunctive relief for violations of
paragraphs 11, 12, or 13 of this Agreement. The prevailing party shall be
entitled to payment for all costs and reasonable attorney's fees (both trial and
appellate) incurred by the prevailing party in regard to the proceedings.
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17. ADEQUATE CONSIDERATION.
Page expressly agrees that the Company is providing adequate,
reasonable consideration for the obligations imposed upon him in this agreement.
18. EFFECT OF PRIOR AGREEMENTS.
This Agreement supersedes any prior verbal or written agreement or
understanding between the Company and Page.
19. LIMITED AFFECT OF WAIVER BY COMPANY.
If the Company waives a breach of any provision of this Agreement by
Page, that waiver will not operate or be construed as a waiver of other breaches
of this Agreement by Page.
20. SEVERABILITY.
If any provision of this Agreement is held invalid for any reason, the
other provisions of this Agreement will remain in effect, insofar as they are
consistent with the relevant law.
21. ASSUMPTION OF AGREEMENT BY COMPANY'S SUCCESSORS AND ASSIGNS.
At the Company's sole option, the Company's rights and obligations
under this Agreement will inure to the benefit of and be binding upon the
Company's successors and assigns. Page may not assign his rights and obligations
under this Agreement.
22. APPLICABLE LAWS
Page and the Company agree that this Agreement shall be subject to,
and enforceable under, the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this Agreement on the 16th of
May, 2001.
Agreed and Accepted Xxxxx Xxxxx International, Inc.
/s/ Xxxxxxx X. Page /s/ Xxxxx X. Xxxxxxxx
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Xxxxxxx X. Page By: Xxxxx X. Xxxxxxxx
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