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Exhibit 10.15
EMPLOYMENT AGREEMENT
This SUPPLEMENTAL EMPLOYMENT AGREEMENT ("Agreement") is made and entered
this 19th day of July, 2000 by and between Xxxxxx X. Xxxxxx (the "Key Employee")
and Robotic Workspace Technologies, Inc., a Maryland corporation (the
"Company").
R E C I T A L S:
A. The Company desires to continue the employment of the Key Employee
and the Key Employee desires to accept such continuation of
employment;
B. Company and Key Employee acknowledge that Employee has been an
at-will employee of the Company for in excess of six years and that
during such period part of Employee's salary as determined by the
Company's Board of Directors from time to time has been accrued
without payment until sufficient cash was available to make such
payment;
C. Company and Key Employee acknowledge and agree that as of June 30,
2000, the commencement date of this Agreement $318,597 of his salary
has been accrued and is owing to Key Employee and Key Employee owes
Company approximately $167,000 for a net payable to Key Employee of
approximately $151,579.00;
D. As a condition of Company's continued employment of Key Employee,
Company requires that Employee and Company enter a written
agreement; and
E. Key Employee desires to continue his employment with Company on the
terms and conditions set forth herein.
NOW THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Key Employee do hereby agree as follows:
1. Employment and Duties. On the terms and subject to the conditions set
forth in this Agreement, the Company agrees to employ the Key Employee as the
President and Chief Executive Officer of the Company to perform such duties as
are consistent with such position(s) as may be assigned, from time to time, by
the Company and to render such additional services and discharge such other
reasonable responsibilities as the Company may, from time to time, stipulate.
The Key Employee shall also serve as the Chairman of the Board of Directors of
the Company upon election by the Board of Directors.
2. Performance. The Key Employee accepts the employment described in
Section 1 of this Agreement and agrees to devote all of his/her business time
and efforts to the faithful and diligent performance of the services described
herein, including the performance of such other services and responsibilities as
the Board of Directors of the Company may, from time to time, stipulate.
3. Term. The term of employment under this Agreement shall commence July
1, 2000 (the "Commencement Date") and shall remain in effect for a period of
three (3) years, ending July 1, 2003, unless sooner terminated hereunder (the
"Employment Period"). Unless sixty (60) days prior written notice by either
party is given to the other party prior to termination of the Employment Period,
the Employment Period shall be extended on an annual basis for additional one
year terms.
4. Salary.
a. Initial Salary. For all the services to be rendered by the Key
Employee hereunder, the Company agrees to pay, during the Employment
Period, an initial salary at a rate of One Hundred Fifty Thousand Dollars
($150,000) per annum ("Salary"), payable by Company in accordance with its
existing practice. Employee acknowledges and agrees that Company may
accrue up to one half of the Salary if in the Board of Directors
determination, there is insufficient cash from all sources to pay the full
Salary.
b. Automatic Increases. The Salary shall be automatically increased
for the subsequent periods as follows: to Two Hundred Thousand Dollars
when gross sales in any twelve prior consecutive month period reach Three
Million Dollars ($3,000,000) and the pre tax net profit of the Company for
such period is at least five percent (5%) of such gross sales; and to Two
Hundred Fifty Thousand Dollars ($250,000) when gross sales in any twelve
prior consecutive month period reaches Seven Million Dollars ($7,000,000)
and the pre tax net profit of the Company for such period is at least five
percent (5%) of such gross sales.
Thereafter, the salary shall be reviewed by the Compensation
Committee of the Company annually on the anniversary of the Commencement
Date.
.. 5. Bonus. During the Employment Period, the Key Employee shall be eligible for
such bonuses as may be deemed advisable by the Board of Directors of the Company
in consideration of the Key Employee's performance of his/her duties and the
Company's profitability. The Company, however, shall not be obligated to pay any
bonus unless and until the Board of Directors declares such bonus.
6. Other Benefits. Except as otherwise specifically provided herein,
during the Employment Period, the Key Employee shall be provided the opportunity
to participate in all benefits provided by Company for its other employees.
7. Surrender of Properties. Upon termination of the Key Employee's
employment with the Company, regardless of the cause therefor, the Key Employee
shall promptly surrender to the Company all property provided him/her by the
Company for use in relation to his/her employment, and, in addition, the
employee shall surrender to the Company any and all sales materials, lists of
customers and prospective customers, price lists, files, patent applications,
records, models, software files, listings, copies of window software, or other
materials and information of or pertaining to the Company or its customers or
prospective customers or the products, business, and operations of the Company.
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8. Inventions and Secrecy. Except as otherwise provided in this Section 8,
the Key Employee: (a) shall hold in a fiduciary capacity for the benefit of the
Company all secret or confidential information, knowledge, or data of the
Company or its business or production operations obtained by the Key Employee
during his/her employment by the Company, which shall not be generally known to
the public or recognized as standard practice (whether or not developed by the
Key Employee) and shall not, during his/her employment by the Company and after
the termination of such employment for any reason, communicate or divulge any
such information, knowledge or data to any person, firm or corporation other
than the Company or persons, firms or corporations designated by the Company;
(b) shall promptly disclose to the Company all inventions, ideas, devices, and
processes made or conceived by him/her alone or jointly with others, from the
time of entering the Company's employ until such employment is terminated and
with the six (6 ) month period immediately following such termination, relevant
or pertinent in any way, whether directly or indirectly, to the Company's
business or production operations or resulting from or suggested by any work
which he/she may have done for the Company or at its request; (c) shall, at all
times during his/her employment with the Company, assist the Company in every
proper way (entirely at the Company's expense) to obtain and develop for the
Company's benefit patents or copyrights on such inventions, ideas, devices and
processes including without limitation software and software files and listings
to be used with industrial automation and industrial robots, whether or not
patented; and (d) shall do all such acts and execute, acknowledge and deliver
all such instruments as may be necessary or desirable in the opinion of the
Company to vest in the Company the entire interest in such inventions, ideas,
devices, and processes referred to above. The foregoing to the contrary
notwithstanding, the Key Employee shall not be required to assign or offer to
assign to the Company any of the Key Employee's rights in any invention for
which no equipment, supplies, facility, or trade secret information of the
Company was used and which was developed entirely on the Key Employee's own
time, unless (a) the invention related to (i) the business of the Company or
(ii) the Company's actual or demonstrably anticipated research or development,
or (b) the invention results from any work performed by the Key Employee for the
Company. The Key Employee acknowledges his/her prior receipt of written
notification of the limitation set forth in the preceding sentence on the Key
Employee's obligation to assign or offer to assign to the Company the Key
Employee's rights in inventions.
9. Confidentiality of Information; Duty of Non-Disclosure.
(a) The Key Employee acknowledges and agrees that his/her employment
by the Company under this Agreement necessarily involves his/her understanding
of and access to certain trade secrets and confidential information pertaining
to the business of the Company. Accordingly, the Key Employee agrees that after
the date of this Agreement at all times he/she will not, directly or indirectly,
without the express written consent of the Company, disclose to or use for the
benefit of any person, corporation or other entity, or for himself/herself any
and all files, trade secrets or other confidential information concerning the
internal affairs of the Company, including, but not limited to, information
pertaining to its trade secrets, business plans, clients, services, products,
earnings, finances, operations, methods or other activities, provided, however,
that the foregoing shall not apply to information which is of public record or
is generally known, disclosed or available to the general public or the industry
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generally. Further, the Key Employee agrees that he/she shall not, directly or
indirectly, remove or retain, without the express prior written consent of the
Company, and upon termination of this Agreement for any reason shall return to
the Company, any figures, calculations, letters, papers, records, computer
disks, computer print-outs, lists, documents, instruments, drawings, designs,
programs, brochures, sales literature, business plans or any copies thereof, or
any information or instruments derived therefrom, or any other similar
information of any type or description, however such information might be
obtained or recorded, arising out of or in any way relating to the business of
the Company or obtained as a result of his/her employment by the Company except
as disseminated to the public at large or industry generally. The Key Employee
acknowledges that all of the foregoing are proprietary information, and are the
exclusive property of the Company. The covenants contained in this Section 10
shall survive the termination of this Agreement.
(b) The Key Employee agrees and acknowledges that the Company does
not have any adequate remedy at law for the breach or threatened breach by the
Key Employee of his/her covenant, and agrees that the Company shall be entitled
to injunctive relief to bar the Key Employee from such breach or threatened
breach in addition to any other remedies which may be available to the Company
at law or in equity.
10. Covenant Not to Compete.
(a) During Employment Period. During the Employment Period, the Key
Employee shall not, without the prior written consent of the Company, which
consent may be withheld at the sole discretion of the Company, engage in any
other business activity for gain, profit, or other pecuniary advantage
(excepting the investment of funds in such form or manner as will not require
any services on the part of the Key Employee in the operation of the affairs of
the companies in which such investments are made) or engage in or in any manner
be connected or concerned, directly or indirectly, whether as an officer,
director, stockholder, partner, owner, employee, creditor, or otherwise, with
the operation, management, or conduct of any business that competes with or is
of a nature similar to that of the Company.
(b) Following Termination of Employment Period. Within the two (2)
year period immediately following the later of the end of the Employment Period
or termination of the Key Employee's employment with the Company, for any reason
except as set forth below, the Key Employee shall not, without the prior written
consent of the Company, which consent may be withheld at the sole discretion of
the Company: (a) engage in or in any manner be connected or concerned, directly
or indirectly, whether as an officer, director, stockholder, partner, owner,
employee, creditor, or otherwise with the operation, management, or conduct of
any business similar to the business of the Company being conducted at the time
of such termination anywhere in the United States and (ii) any other area in
which the Company is, or reasonably contemplating, doing business at the time of
such termination; (b) solicit, contact, interfere with, or divert any customer
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served by the Company, or any prospective customer identified by or on behalf of
the Company, during the Key Employee's employment with the Company; or (c)
solicit any person then or previously employed by the Company to join the Key
Employee, whether as a partner, agent, employee or otherwise, in any enterprise
engaged in a business similar to the business of the Company being conducted at
the time of such termination. For purposes of this Agreement, the business is
deemed to be the development, manufacture and sale of controllers and related
software for use with robotic machines and consultation in connection therewith.
If the Company terminates the Employee prior to the expiration of a term without
"just cause", as defined below, then the provisions of this Section 11 shall not
apply to the Key Employee.
(c) Severability. The covenants of the Key Employee contained in
Sections 9, 10, and 11 of this Agreement shall each be construed as an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of the Key Employee against the Company, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of such covenants. Both parties hereby expressly
agree and contract that it is not the intention of either party to violate any
public policy, or statutory or common law, and that if any sentence, paragraph,
clause, or combination of the same of this Agreement is in violation of the law,
such sentence, paragraph, clause or combination of the same shall be void, and
the remainder of such paragraph and this Agreement shall remain binding on the
parties to make the covenants of this Agreement binding only to the extent that
it may be lawfully done. In the event that any part of any covenant of this
Agreement is determined by a court of law to be overly broad thereby making the
covenant unenforceable, the parties hereto agree, and it is their desire, that
such court shall substitute a judicially enforceable limitation in its place,
and that as so modified the covenant shall be binding upon the parties as if
originally set forth herein.
11. Termination.
(a) Unilateral Termination. The Employment Period may be terminated
by the Company upon written notice provided no less than ninety (90) days in
advance of the termination date stated in such notice; provided however, that in
the event of termination without Just Cause, the Company shall pay the
Employee's Salary for the balance of the Employment Period.
(b) Termination for Just Cause. The Company shall have the option to
terminate the Employment Period, effective immediately upon written notice of
such termination to the Key Employee, for Just Cause. For purposes of this
Agreement, the term "Just Cause" shall mean the occurrence of any one or more of
the following events: (a) the death or permanent total disability of the Key
Employee or his/her absence from employment by reason of illness or incapacity
for a period of one hundred twenty (120) consecutive days; (b) the breach by the
Key Employee of his/her covenants under this Agreement; (c) the commission by
the Key Employee of theft or embezzlement of Company property or other acts of
dishonesty; (d) the commission by the Key Employee of a crime resulting in
injury to the business, property or reputation of the Company or any affiliate
of the Company or commission of other significant activities harmful to the
business or reputation of the Company or any affiliate of the Company; (e) the
commission of an act by the Key Employee in the performance of his/her duties
hereunder determined by the Board of Directors of the Company to amount to
gross, willful, or wanton negligence; or (f) the willful refusal to perform or
substantial neglect of the duties assigned to the Key Employee pursuant to
Section 1 hereof;.
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Upon termination of employment with Just Cause or upon a voluntary
termination by the Key Employee, the Key Employee shall have no rights to
compensation or severance for any period beyond the effective date of
termination.
12. Other Provisions.
(a) Payment of Accrued Salary. Upon receipt of additional capital of
no less than Three Million Dollars ($3,000,000), the Company shall pay Key
Employee its accrued but unpaid salary less advances to Key Employee in the net
amount of approximately One Hundred Fifty-one Thousand Five Hundred Seventy-nine
and no/100 Dollars ($151,579) on such terms as are mutually agreed between the
Company and the Key Employee which payments may be made in two payments over a
two-year period.
(b) Goodwill. The Company has invested substantial time and money in
the development of its products, services, territories, advertising and
marketing thereof, soliciting clients and creating goodwill. By accepting
employment with the Company, the Key Employee acknowledges that the customers
are the customers of the Company, and that any goodwill created by the Key
Employee belongs to and shall inure to the benefit of the Company.
(c) Notices. Any notice required or permitted hereunder shall be
made in writing (i) either by actual delivery of the notice into the hands of
the party thereunder entitled, or (ii) by the mailing of the notice in the
United States mail, certified or registered mail, return receipt requested, all
postage prepaid and addressed to the party to whom the notice is to be given at
the party's respective address as set forth in the records of the Company.
The notice shall be deemed to be received in case (i) on the date of its actual
receipt by the party entitled thereto and in case (ii) on the date of its
mailing.
(d) Amendment and Waiver. No amendment or modification of this
Agreement shall be valid or binding upon the Company unless made in writing and
signed by an officer of the Company duly authorized by the Board of Directors or
upon the Key Employee unless made in writing and signed by him/her. The waiver
by the Company of the breach of any provision of this Agreement by the Key
Employee shall not operate or be construed as a waiver of any subsequent breach
by him/her.
(e) Entire Agreement. This Agreement along with the agreements with
the Leasing Agent constitute the entire agreement between the parties with
respect to the Key Employee's duties and compensation as an Key Employee of the
Company, and there are no representations, warranties, agreements or commitments
between the parties hereto with respect to his/her employment except as set
forth herein.
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(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws (and not the law of conflicts) of the State
of Florida.
(g) Severability. If any provision of this Agreement shall, for any
reason, be held unenforceable, such provision shall be severed from this
Agreement unless, as a result of such severance, the Agreement fails to reflect
the basic intent of the parties. If the Agreement continues to reflect the basic
intent of the parties, then the invalidity of such specific provision shall not
affect the enforceability of any other provision herein, and the remaining
provisions shall remain in full force and effect.
(h) Assignment. The Key Employee may not under any circumstances
delegate any of his/her rights and obligations hereunder without first obtaining
the prior written consent of the Company. This Agreement and all of the
Company's rights and obligations hereunder may be assigned or transferred by it,
in whole or in part, to be binding upon and inure to the benefit of any
subsidiary or successor of the Company.
(i) Costs of Enforcement. In the event of any suit or proceeding
seeking to enforce the terms, covenants, or conditions of this Agreement, the
prevailing party shall, in addition to all other remedies and relief that may be
available under this Agreement or applicable law, recover his/hers or its
reasonable attorneys' fees and costs as shall be determined and awarded by the
court.
IN WITNESS WHEREOF, this Agreement is entered into on the day and year
first above written.
COMPANY:
Robotic Workspace Technologies, Inc.
By:/s/ Xxxxx Xxxxxxxxxx
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Its: Vice President
KEY EMPLOYEE:
/s/Xxxxxx X.Xxxxxx
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Xxxxxx X. Xxxxxx
