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EXHIBIT 10.7
CYBEX COMPUTER PRODUCTS CORPORATION
EMPLOYMENT AND NONCOMPETITION AGREEMENT
THIS EMPLOYMENT AND NONCOMPETITION AGREEMENT (the "Agreement") is made
and entered into as of July 1, 1999, by and among Cybex Computer Products
International, LTD, an Irish Single Member Company (the "Employer"); Cybex
Computer Products Corporation, an Alabama corporation (the "Employer"); and
Xxxxxx XxxXxxxxxx (the "Employee").
RECITALS
WHEREAS, the Employer is a wholly owned subsidiary of Cybex engaged in
the business of developing, producing, and marketing keyboard, video monitor,
and mouse switch and extension products for use in the computer industry; and
WHEREAS, the Employer desires to employ the Employee and the Employee
is willing to accept such employment by the Employer, on the terms and subject
to the conditions set forth in this Agreement.
AGREEMENT
THE PARTIES HERETO AGREE AS FOLLOWS:
1. DUTIES. During the term of this Agreement, the Employee agrees
to be employed by and to serve the Employer as President of Cybex Computer
Products International, Ltd., and the Employer agrees to employ and retain the
Employee in such capacities. The Employee shall devote such of his business
time, energy and skill to the affairs of the Employer as shall be necessary to
perform the duties of the President of Cybex Computer Products International,
Ltd.. The Employee shall report to the President of Cybex Computer Products
Corporation and to the Board of Directors of Cybex and at all times during the
term of this Agreement shall have powers and duties at least commensurate with
his position as President of Cybex Computer Products International, Ltd.. The
Employee's principal place of business with respect to his services to the
Employer shall be within the proximity of Xxxxxxx, Ireland.
2. TERM OF EMPLOYMENT.
2.1 DEFINITIONS. For purposes of this Agreement
the following terms shall have the following meanings:
(a) "TERMINATION FOR CAUSE" shall mean
termination by the Employer of the Employee's employment by the Employer by
reason of the Employee's willful dishonesty towards, fraud upon, or deliberate
injury or attempted injury to, the Employer or by reason of the Employee's
willful material breach of this Agreement which has resulted in material injury
to the Employer.
(b) "TERMINATIONS OTHER THAN FOR CAUSE"
shall mean termination by the Employer of the Employee's employment by the
Employer (other than in a Termination for Cause) and shall include constructive
termination of the Employee's employment by reason of material breach of this
Agreement by the Employer, such constructive termination to be effective upon
thirty (30) days written notice from the Employee to the Employer of such
constructive termination.
(c) "VOLUNTARY TERMINATION" shall mean
termination by the
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Employee of the Employee's employment by the Employer other than (i)
constructive termination as described in subsection 2.1(b), (ii) "Termination
Upon a Change in Control," and (iii) termination by reason of the Employee's
disability or death as described in Sections 2.5 and 2.6.
(d) "TERMINATION UPON A CHANGE IN
CONTROL" shall mean a termination by the Employee of the Employee's employment
with the Employer following a "Change in Control."
(e) "CHANGE IN CONTROL" shall mean any
one of the following events:
(i) Any person (other than an existing member of the Board of Directors of
Employer) acquires beneficial ownership of Employer securities and is or thereby
becomes a beneficial owner of securities entitling such person to exercise
twenty-five percent (25%) or more of the combined voting power of Employer then
outstanding stock. For purposes of this Agreement, "beneficial ownership" shall
be determined in accordance with Regulation 13D under the Securities Exchange
Act of 1934, or any similar successor regulation or rule; and the term "person"
shall include any natural person, corporation, partnership, trust or
association, or any group or combination thereof, whose ownership of Employer
securities would be required to be reported under such Regulation 13D, or any
similar successor regulation or rule.
(ii) Within any twenty-four (24) month period, individuals who were Directors of
Employer at the beginning of such period, together with any other Directors
first elected as directors of Employer pursuant to nominations approved or
ratified by at least two-thirds (2/3) of the Directors in office immediately
prior to such respective elections, cease to constitute a majority of the Board
of Directors of Employer.
(iii) Employer's stockholders approve:
(1) any consolidation or merger of Employer in which Employer is not the
continuing or surviving corporation or pursuant to which shares of Employer
common stock would be converted into cash, securities or other property, other
than a merger or consolidation of Employer in which the holders of Employer's
common stock immediately prior to the merger or consolidation have substantially
the same proportionate ownership and voting control of the surviving corporation
immediately after the merger or consolidation; or
(2.) any sale, lease, exchange, liquidation or other transfer (in one
transaction or a series of transactions) of all or substantially all of the
assets of Employer.
Notwithstanding subparagraphs (e)(iii)(1) and (e)(iii)(2) above, the term
"Change in Control" shall not include a consolidation, merger, or other
reorganization if upon consummation of such transaction all of the outstanding
voting stock of Employer is owned, directly or indirectly, by a holding company,
and the holders of Employer's common stock immediately prior to the transaction
have substantially the same proportionate ownership and voting control of the
holding company.
2.2 BASIC TERM. The term of employment of the
Employee by the Employer shall be for the period beginning on July 1, 1999 and
ending on March 31, 2004, unless terminated earlier pursuant to this Section 2.
At any time before March 31, 2004, the Employer and the Employee may by mutual
written agreement extend the Employee's employment under the terms of this
Agreement for such additional periods as they may agree.
2.3 TERMINATION FOR CAUSE. Termination For Cause
may be effected by the
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Employer at any time during the term of this Agreement and shall be effected by
thirty (30) days written notification to the Employee from the Board of
Directors of the Employer stating the reason for termination. Upon Termination
For Cause, the Employee immediately shall be paid all accrued salary, vested
deferred compensation, if any, (other than pension plan or profit sharing plan
benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Employer in which the Employee is a participant
to the full extent of the Employee's rights under such plans, accrued vacation
pay and any appropriate business expenses incurred by the Employee in connection
with his duties hereunder, all to the date of termination, but the Employee
shall not be paid any other compensation or reimbursement of any kind, including
without limitation, severance compensation.
2.4 TERMINATION OTHER THAN FOR CAUSE.
Notwithstanding anything else in this Agreement, the Employer may effect a
Termination Other Than For Cause at any time upon giving thirty (30) days
written notice to the Employee of such termination. Upon any Termination Other
Than For Cause, the Employee shall immediately be paid all accrued salary, bonus
compensation to the extent earned, vested deferred compensation, if any, (other
than pension plan or profit sharing plan benefits which will be paid in
accordance with the applicable plan), any benefits under any plans of the
Employer in which the Employee is a participant to the full extent of the
Employee's rights under such plans, accrued vacation pay and any appropriate
business expenses incurred by the Employee in connection with his duties
hereunder, all to the date of termination, and all severance compensation
provided in Section 4.2, but no other compensation or reimbursement of any kind.
2.5 TERMINATION BY REASON OF DISABILITY. If,
during the term of this Agreement, the Employee, in the reasonable judgment of
the Board of Directors of the Employer, has failed to perform his duties under
this Agreement on account of illness or physical or mental incapacity, and such
illness or incapacity continues for a period of more than six (6) consecutive
months, the Employer shall have the right to terminate the Employee's employment
hereunder by delivery of written notice to the Employee at any time after such
six month period and payment to the Employee of all accrued salary, bonus
compensation in an amount equal to the average annual bonus earned by the
Employee in the two (2) years immediately preceding the date of termination,
vested deferred compensation, if any, (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Employer in which the Employee is a participant
to the full extent of the Employee's rights under such plans (including
accelerated vesting of any awards granted to the Employee under Employer's stock
option plans), accrued vacation pay and any appropriate business expenses
incurred by the Employee in connection with his duties hereunder, all to the
date of termination, with the exception of medical and dental benefits which
shall continue through the expiration of this Agreement, but the Employee shall
not be paid any other compensation or reimbursement of any kind, including
without limitation, severance compensation.
2.6 TERMINATION BY REASON OF DEATH. In the
event of the Employee's death during the term of this Agreement, the Employee's
employment shall be deemed to have terminated as of the last day of the month
during which his death occurs and the Employer shall pay to his estate or such
beneficiaries as the Employee may from time to time designate all accrued
salary, bonus compensation to the extent earned, vested deferred compensation,
if any, (other than pension plan or profit sharing plan benefits which will be
paid in accordance with the applicable plan), any benefits under any plans of
the Employer in which the Employee is a participant to the full extent of the
Employee's rights under such plans (including accelerated vesting of any awards
granted to the Employee under Employer's stock option plans), accrued vacation
pay and any appropriate business expenses incurred by the Employee in connection
with his duties hereunder, all to the date of termination, but the Employee's
estate shall not be
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paid any other compensation or reimbursement of any kind, including without
limitation, severance compensation.
2.7 VOLUNTARY TERMINATION. Notwithstanding
anything else in this Agreement, the Employee may effect a Voluntary Termination
at any time upon giving thirty (30) days written notice to the Employer of such
termination. In the event of a Voluntary Termination, the Employer shall
immediately pay all accrued salary, bonus compensation to the extent earned,
vested deferred compensation, if any, (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Employer in which the Employee is a participant
to the full extent of the Employee's rights under such plans, accrued vacation
pay and any appropriate business expenses incurred by the Employee in connection
with his duties hereunder, all to the date of termination, but no other
compensation or reimbursement of any kind, including without limitation,
severance compensation.
2.8 TERMINATION UPON A CHANGE IN CONTROL. In
the event of a Termination Upon a Change in Control, the Employee shall
immediately be paid all accrued salary, bonus compensation to the extent earned,
vested deferred compensation, if any, (other than pension plan or profit sharing
plan benefits which will be paid in accordance with the applicable plan), any
benefits under any plans of the Employer in which the Employee is a participant
to the full extent of the Employee's rights under such plans (including
accelerated vesting of any awards granted to the Employee under the Employer's
stock option plans), accrued vacation pay and any appropriate business expenses
incurred by the Employee in connection with his duties hereunder, all to the
date of termination, and all severance compensation provided in Section 4.1, but
no other compensation or reimbursement of any kind.
3. SALARY, BENEFITS AND BONUS COMPENSATION.
3.1 BASE SALARY. As payment for the services to
be rendered by the Employee as provided in Section 1 and subject to the terms
and conditions of Section 2, the Employer agrees to pay to the Employee a "Base
Salary" at the rate of US$125,000.00 per annum, payable in equal bi-weekly
installments. The Base Salary for each year will be converted, on the
anniversary date each year, to Irish Pounds based on the existing US$/IEP
exchange rate on that date. The exchange rate on July 1, 1999 is .759071 IEP to
the Dollar. Therefore, the base salary for year one shall be IEP 94,883.88. It
is intended that the base salary will not be adversely affected from year to
year due to the exchange rates. The Base Salary for each year (or proration
thereof) beginning April 1, 2000, shall be determined by the Compensation
Committee of Cybex, which shall authorize an increase in the Employee's Base
Salary in an amount which, at a minimum, shall be equal to the cumulative
cost-of-living increment on the Base Salary as reported in the "Consumer Price
Index, Huntsville, Alabama, All Items," published by the U.S. Department of
Labor (using January 1, 1999, as the base date for computation). The Employee's
Base Salary shall be reviewed annually by the Compensation Committee of Cybex.
3.2 BONUSES. The Employee shall be eligible to
receive a bonus for each year (or portion thereof) during the term of this
Agreement and any extensions thereof, with the actual amount of any such bonus
to be determined in the sole discretion of the Board of Directors of Cybex based
upon its evaluation of the Employee's performance during such year. All such
bonuses shall be payable during the last month of the fiscal year or within
forty-five (45) days after the end of the fiscal year to which such bonus
relates. All such bonuses shall be reviewed annually by the Compensation
Committee of Cybex.
3.3 ADDITIONAL BENEFITS. During the term of
this Agreement, the Employee
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shall be entitled to the following fringe benefits:
(a) THE EMPLOYEE BENEFITS. The Employee
shall be eligible to participate in such of the Employer's benefits and deferred
compensation plans as are now generally available or later made generally
available to executive officers of the Employer, including, without limitation,
Employer's stock option plans, pension schemes, profit sharing plans, annual
physical examinations, dental and medical plans, personal catastrophe and
disability insurance, retirement plans and supplementary executive retirement
plans, if any. For purposes of establishing the length of service under any
benefit plans or programs of the Employer, the Employee's employment with the
Employer will be deemed to have commenced on the date that Employee first
commenced employment with the Employer.
(b) VACATION. The Employee shall be
entitled to vacation in accordance with the Employer's vacation policy but in no
event less than three weeks during each year of this Agreement.
(c) LIFE INSURANCE. For the term of
this Agreement and any extensions thereof, the Employer shall at its expense
procure and keep in effect term life insurance on the life of the Employee,
payable to such beneficiaries as the Employee may from time to time designate,
in an aggregate amount equal to the lesser of (i) four times the Employee's Base
Salary or (ii) a maximum amount of $500,000. Such policy shall be owned by the
Employee or by any person or entity with an insurable interest in the life of
the Employee.
(d) REIMBURSEMENT FOR EXPENSES. During
the term of this Agreement, the Employer shall reimburse the Employee for
reasonable and properly documented out-of-pocket business and/or entertainment
expenses incurred by the Employee in connection with his duties under this
Agreement.
(e) AUTO ALLOWANCE. The employee shall
be provided an auto allowance in the amount of IEP 12,000, annually. This amount
will be paid in equal installments. The auto allowance for each year (or
proration thereof), beginning April 1,2000, shall be determined in similar
manner to that of the Base Salary.
(f) PENSION SCHEME, EMPLOYER CONTRIBUTION.
In addition to the benefits of the Employee contribution to the Employer pension
scheme, the Employer shall contribute a percentage of the Employee's salary to
the pension scheme. For the first year the percentage contribution is ten
percent. Beginning April 1, 2000, the contribution shall be determined in
similar manner to that of the Base Salary.
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4. SEVERANCE COMPENSATION.
4.1 SEVERANCE COMPENSATION IN THE EVENT OF A TERMINATION
UPON A CHANGE IN CONTROL. In the event the Employee's employment is terminated
in a Termination Upon a Change in Control, the Employee shall be paid as
severance compensation his Base Salary (at the rate payable at the time of such
termination) for a period of 12 months from the date of termination of this
Agreement, on the dates specified in Section 3.1, and an amount equal to the
average annual bonus earned by the Employee in the two (2) years immediately
preceding the date of termination. Notwithstanding anything in this Section 4.1
to the contrary, the Employee may in the Employee's sole discretion, by delivery
of a notice to the Employer within thirty (30) days following a Termination Upon
a Change in Control, elect to receive from the Employer a lump sum severance
payment by bank cashier's check equal to the present value of the flow of cash
payments that would otherwise be paid to the Employee pursuant to this Section
4.1. Such present value shall be determined as of the date of delivery of the
notice of election by the Employee and shall be based on a discount rate equal
to the interest rate of 90-day U.S. Treasury bills, as reported in the Wall
Street Journal (or similar publication), on the date of delivery of the election
notice. If the Employee elects to receive a lump sum severance payment, the
Employer shall make such payment to the Employee within ten (10) days following
the date on which the Employee notifies the Employer of the Employee's election.
The Employee shall also be entitled to an accelerated vesting of any awards
granted to the Employee under Employer's stock option plans. The Employee shall
be provided with medical plan benefits under any health plans of the Employer in
which the Employee is a participant to the full extent of the Employee's rights
under such plans for a period of 12 months from the date of termination of this
Agreement; provided, however, that the benefits under any such plans of the
Employer in which the Employee is a participant, including any such perquisites,
shall cease upon employment by a new employer.
4.2 SEVERANCE COMPENSATION IN THE EVENT OF A TERMINATION
OTHER THAN FOR CAUSE. In the event the Employee's employment is terminated in a
Termination Other Than for Cause, the Employee shall be paid as severance
compensation his Base Salary (at the rate payable at the time of such
termination) for a period of 12 months from the date of such termination, on the
dates specified in Section 3.1, and an amount equal to the average annual bonus
earned by the Employee in the two (2) years immediately preceding the date of
termination. Notwithstanding anything in this Section 4.2 to the contrary, the
Employee may in the Employee's sole discretion, by delivery of a notice to the
Employer within thirty (30) days following a Termination Other Than for Cause,
elect to receive from the Employer a lump sum severance payment by bank
cashier's check equal to the present value of the flow of cash payments that
would otherwise be paid to the Employee pursuant to this Section 4.2. Such
present value shall be determined as of the date of delivery of the notice of
election by the Employee and shall be based on a discount rate equal to the
interest rate on 90-day U.S. Treasury bills, as reported in the Wall Street
Journal (or similar publication), on the date of delivery of the election
notice. If the Employee elects to receive a lump sum severance payment, the
Employer shall make such payment to the Employee within ten (10) days following
the date on which the Employee notifies the Employer of the Employee's election.
The Employee shall also be entitled to an accelerated vesting of any awards
granted to the Employee under Employer's stock option plans.
4.3 NO SEVERANCE COMPENSATION UNDER OTHER TERMINATION. In
the event of a Voluntary Termination, Termination For Cause, termination by
reason of the Employee's disability pursuant to Section 2.5, or termination by
reason of the Employee's death pursuant to Section 2.6, the Employee or his
estate shall not be paid any severance compensation.
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5. NON-COMPETITION OBLIGATIONS. Unless waived or reduced by the
Company, during the term of this Agreement and for a period of 12 months
thereafter, Employee will not, without the Employer's prior written consent,
directly or indirectly, alone or as a partner, joint venturer, officer,
director, employee, consultant, agent, independent contractor or stockholder of
any company or business, engage in any business activity in the United States,
Canada or Europe which is substantially similar to or in direct competition with
any of the business activities of or services provided by the Employer at such
time. Notwithstanding the foregoing, the ownership by the Employee of not more
than five percent (5%) of the shares of stock of any corporation having a class
of equity securities actively traded on a national securities exchange or on The
Nasdaq Stock Market shall not be deemed, in and of itself, to violate the
prohibitions of this Section 5.
6. MISCELLANEOUS.
6.1 PAYMENT OBLIGATIONS. If litigation after a Change in
Control shall be brought to enforce or interpret any provision contained herein,
the Employer, to the extent permitted by applicable law and the Employer's
Amended and Restated Articles of Incorporation and Amended and Restated Bylaws,
hereby indemnifies the Employee for the Employee's reasonable attorneys' fees
and disbursements incurred in such litigation.
6.2 GUARANTEE. Cybex hereby unconditionally and
irrevocably guarantees the payment obligations of the Employer under this
Agreement, including, without limitation, the Employer's obligations under
Section 6.1 hereof.
6.3 WITHHOLDINGS. All compensation and benefits to the
Employee hereunder shall be reduced by all government and other withholdings and
similar taxes and payments required by applicable law.
6.4 WAIVER. The waiver of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach of the same or other provision hereof.
6.5 ENTIRE AGREEMENT; MODIFICATIONS. Except as otherwise
provided herein, this Agreement represents the entire understanding among the
parties with respect to the subject matter hereof, and this Agreement supersedes
any and all prior understandings, agreements, plans and negotiations, whether
written or oral with respect to the subject matter hereof including without
limitation, any understandings, agreements or obligations respecting any past or
future compensation, bonuses, reimbursements or other payments to the Employee
from the Employer. All modifications to the Agreement must be in writing and
signed by the party against whom enforcement of such modification is sought.
6.6 NOTICES. All notices and other communications under
this Agreement shall be in writing and shall be given by hand delivery or first
class mail, certified or registered with return receipt requested, and shall be
deemed to have been duly given upon hand delivery to an officer of Cybex or the
Employer (other than the employee) or the Employee, as the case may be, or upon
three (3) days after mailing to the respective persons named below:
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If to the Employer: Cybex Computer Products International, Ltd.
Cybex House
Shannon Free Zone
Shannon, County Clare
Ireland
Phone: 000 00 000 000
Fax: 000 00 000 000
If to Cybex: Cybex Computer Products Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Employee: Xx. Xxxxxx XxxXxxxxxx
"Xxxxx Xxxxx"
Clonmacken
Xxxxx Road
Limerick, Ireland
Phone: 000-00-000000
Any party may change such party's address for notices by notice duly given
pursuant to this Section 6.5.
6.7 HEADINGS. The Section headings herein are intended
for reference and shall not by themselves determine the construction or
interpretation of this Agreement.
6.8 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Alabama.
6.9 ARBITRATION. Any controversy or claim arising out of
or relating to this Agreement, or breach thereof, shall be settled by
arbitration in Huntsville, Alabama, in accordance with the Rules of the American
Arbitration Association, and judgment upon any proper award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. There shall
be three (3) arbitrators, one (1) to be chosen directly by each party at will,
and the third arbitrator to be selected by the two (2) arbitrators so chosen. To
the extent permitted by the Rules of the American Arbitration Association, the
selected arbitrators may grant equitable relief. Each party shall pay the fees
of the arbitrator selected by him and of his own attorneys, and the expenses of
his witnesses and all other expenses connected with the presentation of his
case. The cost of the arbitration including the cost of the record or
transcripts thereof, if any, administrative fees, and all other fees and costs
shall be borne equally by the parties.
6.10 SEVERABILITY. If a court or other body of competent
jurisdiction determines that any provision of this Agreement is excessive in
scope or otherwise invalid or unenforceable, such provision shall be adjusted
rather than voided, if possible, and all other provisions of this Agreement
shall be deemed valid and enforceable to the extent possible.
6.11 SURVIVAL OF EMPLOYER'S OBLIGATIONS. The Employer's
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obligations hereunder shall not be terminated by reason of any liquidation,
dissolution, bankruptcy, cessation of business, or similar event relating to the
Employer. This Agreement shall not be terminated by any merger or consolidation
or other reorganization of the Employer. In the event any such merger,
consolidation or reorganization shall be accomplished by transfer of stock or by
transfer of assets or otherwise, the provisions of this Agreement shall be
binding upon and inure to the benefit of the surviving or resulting corporation
or person. This Agreement shall be binding upon and inure to the benefit of the
executors, administrators, heirs, successors and assigns of the parties;
provided, however, that except as herein expressly provided, this Agreement
shall not be assignable either by the Employer (except to an affiliate of the
Employer in which event the Employer shall remain liable if the affiliate fails
to meet any obligations to make payments or provide benefits or otherwise) or by
the Employee.
6.12 COUNTERPARTS. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one and the
same Agreement.
6.13 INDEMNIFICATION. In addition to any rights to
indemnification to which the Employee is entitled to under the Employer's
Amended and Restated Articles of Incorporation and Amended and Restated Bylaws,
the Employer shall indemnify the Employee at all times during and after the term
of this Agreement to the maximum extent permitted under Sections 10-2B-8.51 and
10-2B-8.56 of the Alabama Business Corporation Act or any successor provision
thereof and any other applicable state law, and shall pay the Employee's
expenses in defending any civil or criminal action, suit, or proceeding in
advance of the final disposition of such action, suit, or proceeding, to the
maximum extent permitted under such applicable state laws.
(Signature Page Follows)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the day and year first above written.
CYBEX COMPUTER PRODUCTS INTERNATIONAL, LTD.
By /s/ XXXXXXX X. XXXXXXXX
---------------------------------------
Its: President
CYBEX COMPUTER PRODUCTS CORPORATION
By /s/ XXXXX X. XXXXX
---------------------------------------
Its: Executive Vice President
EMPLOYEE
/s/ XXXXXX XXXXXXXXXX
------------------------------------------
Xxxxxx XxxXxxxxxx
