EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made and dated as of May 30, 1997, by and between Xxxx
Solutions, Inc., a Delaware corporation, ("Xxxx") and Xxxx Xxxxxxx ("Employee").
W I T N E S S E T H
WHEREAS, Xxxx has agreed to employ the services of Employee to act as President
and Chief Executive Officer and Employee has agreed to accept such employment,
each upon the terms contained herein.
NOW THEREFORE, and in consideration of the promises and covenants herein
contained and intending to be legally bound hereby, the parties agree as
follows:
1. Initial Term. Xxxx agrees to employ Employee for a three (3) year term
commencing as of July 1, 1997 and ending June 30, 2000, subject to earlier
termination as provided herein.
2. Duties. Throughout the term of this Agreement, Employee shall serve Xxxx as
President and Chief Executive Officer. Employee shall faithfully and diligently
devote his best efforts, energies and abilities to the duties and
responsibilities reasonably required of him in his capacity of his positions,
such responsibilities being similar to those performed by other executives in
the same capacity in similar size companies in the same industry as Xxxx.
Employee shall discharge his duties in accordance with the policies, goals and
objectives established by the Board of Directors and management of Xxxx. Upon
the effectiveness of this Agreement, the business affairs of Xxxx shall occupy
substantially all of the business time of Employee not to be less than 40
hours per week, provided, however, Employee shall not be precluded from engaging
in other business activities, including serving as President of Xxxx Lighting
Fixture Co., Inc. and on the board of directors of Xxxx and other companies, as
long as such activity does not interfere with the duties of Employee as outlined
in this Agreement.
3. Compensation. The compensation of Employee for the services provided for
herein shall be as follows:
(a) Employee shall receive a base salary of TWO HUNDRED THOUSAND ($ 200,000)
DOLLARS annually, and such higher amount as Mark's Board of Directors may,
in its sole discretion, from time to time fix, payable in weekly
installments.
(b) In addition to the base salary provided for herein, Employee shall be
eligible for performance bonuses as determined by the Board of Directors.
(c) Employee shall be entitled to participate in any retirement plans or
benefit programs for the payment or reimbursement of medical, disability or
life insurance, stock option plans and other compensation plans generally
available to employees of Xxxx, provided, however, the initiation and exact
terms of the foregoing plans and programs shall be established in the sole
discretion of the Board of Directors.
(d) During the term hereof, Xxxx shall provide Employee with an automobile of
substantially similar kind and class now provided to Employee. Xxxx shall
pay all expenses in connection with the automobile including, but not
limited to insurance, repairs, maintenance and gasoline.
(e) Employee shall receive three-year nonqualified options to purchase 750,000
shares of Common Stock of Xxxx, 250,000 of which are exercisable at $ 1.25,
250,000 of which are exercisable at $ 2.00 and 250,000 of which are
exercisable at $ 2.75, in cash or Common Stock.
(f) Xxxx shall pay reasonable business expenses incurred by Employee in
connection with the promotion of Xxxx and in connection with the business
of Xxxx, including but not limited to travel and entertainment expenses,
subject to the presentment of appropriate receipts and documentation of
such expenses. Xxxx shall reimburse Employee not less than monthly for such
approved business expenses.
4. Renewal of Employment. Not less than sixty (60) days prior to the expiration
of the then current term of this Agreement, each party agrees to give written
notice to the other of its desire to renew or terminate this Agreement. If both
parties agree to renew this Agreement the employment of Employee shall be
automatically extended for successive one (1) year periods on the same terms
and conditions as contained herein.
5. Termination of Employment. Employee's employment with Xxxx shall be
terminated if any of the following occurs:
(a) The expiration of the term of this Agreement without notice and agreement
to renew as set forth in Section 4;
(b) Xxxx and Employee shall mutually agree in writing;
(c) Death of Employee;
(d) Ninety (90) days written notice from Xxxx through its Board of Directors
for any reason or no reason, including, but not limited to, (i) Employee
becoming "disabled", which shall be the inability, through mental or
physical illness, to perform his duties under this Agreement, (ii) Employee
shall have been convicted of a felony, as determined by a court of
competent jurisdiction and such decision shall have become final, (ii)
Employee's material failure, refusal or willful neglect to carry out the
duties following written notice of such failure from Xxxx.
In the event of the termination of the employment, Employee shall only be
entitled to receive any base salary, performance compensation and other benefits
accruing prior to such termination and shall not be entitled to any other
payments or compensation.
6. Confidential Information; Noncompete. Employee acknowledges that while
providing services under this Agreement, he will be privy to financial and other
information relating to the business and industry of Xxxx. Accordingly, Employee
acknowledge that he is acting in a fiduciary capacity with respect to Xxxx and
agrees as follows:
(a) During the term of this Agreement and at any time thereafter, Employee
shall not divulge, furnish or make accessible to anyone (other than in the
regular course of business) any knowledge or information with respect to
any confidential or secret aspect of the business of Xxxx, including, but
not limited to, trade secrets and proprietary technology, or any customer
lists or other information relating to the customers of Xxxx;
(b) During the term of this Agreement and for a period of two (2) year(s)
following the termination thereof, Employee shall not engage, as a
shareholder, partner, sole proprietor, employee, consultant or independent
contractor of any corporation, partnership or other business entity, in any
business activities which are in direct or indirect competition with Xxxx;
(c) During the term of this Agreement and for a period of two (2) years
following the termination hereof, he shall not, directly or indirectly
solicit or negotiate with any person who has been a material supplier to,
or client of, Xxxx during Employee's employment or one (1) year prior to
the termination thereof; and
(d) During the term of this Agreement and for a period of two (2) years
following the termination hereof, he shall not solicit, encourage or
otherwise participate in any effort or attempt to influence any of the then
employees or agents to terminate their affiliation or other relationship
with Xxxx.
The Employee acknowledges that the scope of the restrictions set forth in this
Section 6 is reasonably required to protect Mark's business interests for which
the Employee is being compensated under this Agreement, and if any such
restriction is nevertheless determined to be too broad for enforcement in
accordance with its terms, the Employee agrees that such restriction shall be
enforced to the maximum extent permitted by law.
7. Vacation/Sick Days. During each year of the term of this Agreement, Employee
shall be entitled to four (4) weeks vacation and the customary sick leave.
8. Indemnification. In the event Employee is, or was a party, or is threatened
to be made a party to any threatened, pending or completed action, suit, or
proceeding by reason of the fact he is or was an officer, director, agent or
employee of Xxxx he shall be indemnified by Xxxx to the maximum extent permitted
by law not inconsistent with the provisions of the Certificate of Incorporation
and By-laws of Xxxx. The right of indemnification herein provided for shall not
be deemed exclusive of any other rights to which Employee may be entitled to as
a matter of law or otherwise, but shall be deemed to be in addition thereof.
9. Notices. Any notice to be given under this Agreement shall be deemed received
upon the date of actual receipt. Such notice shall be sent to the last know
business or residential address of the recipient by means which evidence such
receipt including (i) certified mail return receipt requested, (ii) facsimile or
(iii) overnight delivery.
10. Transferability. This Agreement is a contract for Employee's personal
services and shall not be assigned, delegated or transferred in whole or in part
by Employee.
11. Successors and Assigns. This Agreement binds, inures to the benefit of, and
is enforceable by the successors and assigns of the parties, and does not confer
any rights on any other persons or entities.
12. Entire Agreement; Amendments. This Agreement contains the entire agreement
between the parties. No amendment or modification of this Agreement shall be
effective unless it is in writing and signed by both parties. Any amendments
shall be attached hereto and become a part of this Agreement.
13. Severability. The provisions of this Agreement shall be severable and if any
provision shall be prohibited by law, invalid or unenforceable in whole or in
part for any reason, the remaining provisions shall remain in full force and
effect.
14. Governing Law. The validity, construction and performance of this Agreement
shall be governed by the substantive laws of the State of New Jersey as applied
to agreements entered into and performed entirely within New Jersey.
15. Counterparts. This Agreement may be executed in counterparts and by
facsimile, each of which shall be an original and all of which taken together
will constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement, in a manner legally binding upon them as of the first date first
above written.
Xxxx Solutions, Inc.
By:/s/ Xxxx Xxxxxxx
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(Print Name and Title)
and
Xxxx Xxxxxxx
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Xxxx Xxxxxxx
