EXHIBIT 10.27
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
March 12, 2001 by and between SmartDisk Corporation, a Delaware corporation (the
"Company"), and Xxx X. Xxxx (the "Executive").
Recitals
A. The Company desires to ensure the Executive's continued employment
with the Company and to compensate him therefor.
B. The Board has determined that this Agreement will reinforce and
encourage the Executive's attention and dedication to the Company.
C. The Executive is willing to make his services available to the
Company on the terms and conditions hereinafter set forth.
Agreement
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, the parties agree as follows:
1. Employment.
1.1 General. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to serve the Company on the terms and conditions set
forth herein.
1.2 Duties of Executive. During the term of this Agreement, the
Executive shall serve as a senior executive of the Company, shall diligently
perform all services as may be assigned to him by or under the direction of the
Chief Executive Officer of the Company and shall exercise such power and
authority as may from time to time be delegated to him by the Company's Board of
Directors. The Executive shall devote substantially all of his business time and
attention to the business and affairs of the Company, render such services to
the best of his ability, and use his best efforts to promote the interests of
the Company.
2. Term.
2.1 Initial Term. The initial term of this Agreement, and the
employment of the Executive hereunder, shall be for the three-year period
commencing on the date hereof (the "Initial Term").
2.2 Renewal Terms. The Initial Term of this Agreement, and the
employment of the Executive hereunder shall automatically be renewed for
successive one year periods, unless the Company or the Executive provides
written notice to the other at least 30 days prior to the expiration of the
applicable term. The terms and conditions of any renewal term shall be the same
as those contained herein unless otherwise mutually agreed upon by the Company
and the Executive in a written supplement to this Agreement signed by the
Executive and the Company's CEO (the "Written Supplement"). In the event that
the Company delivers a notice of non-renewal, the Executive shall be entitled to
the compensation and benefits as if terminated pursuant to Section 5.4 and shall
be subject to Section 6.1 as if terminated pursuant to Section 5.4.
3. Compensation.
3.1 Base Salary. The Executive shall receive a base salary at the
annual rate of $275,000 (the "Base Salary") during the Initial Term of this
Agreement, with such Base Salary payable in
installments consistent with the Company's normal payroll schedule, subject to
applicable withholding and other taxes. The Base Salary may, by action and in
the sole discretion of the CEO or the Board, be increased at any time or from
time to time. On January 1 of each year of this Agreement, the CEO or the Board
shall consider the performance of the Executive for a possible merit increase in
Base Salary; provided that any such increase shall be in the sole discretion of
the CEO or the Board.
3.2 Bonus Compensation. In addition to the Base Salary, the Executive
shall be entitled to receive bonus compensation (the "Bonus Compensation")
during the Initial Term. The CEO or the Board shall establish a performance
bonus formula with respect to Bonus Compensation pursuant to which the Executive
will be able to receive a target bonus of $140,000 per annum if the Company
achieves the specified level of financial results. This target bonus amount may
be increased during the initial term. For the period April 1, 2001 through March
30, 2002, the Executive will be entitled to a guaranteed portion of said target
bonus equal to $5,000 per quarter.
3.3 Stock Options. Contemporaneously herewith, SmartDisk is granting
the Executive a non-qualified stock option to purchase 150,000 shares of
SmartDisk's common stock, the exercise price of which shall be established in
accordance with the SmartDisk option pricing policy in effect on the date
hereof. The option will be granted pursuant to the Company's 1999 Incentive
Compensation Plan (the "Incentive Plan") and be in customary form; provided that
the option will vest (ie, become exercisable) with respect to twenty-five
percent (25%) of the shares issuable upon exercise of such option on the first
anniversary date of this Agreement and thereafter vest as to six and one-quarter
(6.25%) of the subject shares on each subsequent quarter. For example, such
option will be exercisable with respect to 37.5% of the subject shares on the
18-month anniversary of this Agreement. In the event of a "Change of Control"
(as defined in the Incentive Plan), fifty percent of the unvested shares
underlying the option shall vest on the effective date of a Change of Control.
3.4 Stock. The Executive shall receive 6,000 shares of SmartDisk stock
as a signing bonus. These shares will vest at 25% per quarter over a one-year
period.
4. Expense Reimbursement and Other Benefits.
4.1 Reimbursable Expenses. During the term of the Executive's
employment hereunder, the Company, upon the submission of proper substantiation
by the Executive, shall reimburse the Executive for all reasonable expenses
actually and necessarily paid or incurred by the Executive in the course of and
pursuant to the business of the Company.
4.2 Other Benefits. The Executive shall be entitled to participate in
all medical, dental and hospitalization, group life insurance, and any and all
other plans as are presently and hereinafter provided by the Company to its
executives. The Executive shall be entitled to vacations in accordance with the
Company's prevailing policy for its executives.
4.3 Working Facilities. The Company shall furnish the Executive with an
office, other facilities and services suitable to his position and adequate for
the performance of his duties hereunder.
4.4 Relocations and Other Assistance. Executive shall be reimbursed by
Company up to a maximum amount of $70,000 for relocation costs to Naples,
Florida all of which are set forth on Exhibit A. In consideration of the taxable
nature of such reimbursement, the Company will "gross up" the executive's
relocation expenses by 20%.
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5. Termination.
5.1 Termination for Cause. The Company shall at all times have the
right, upon written notice to the Executive, to terminate the Executive's
employment hereunder for "Cause" (as hereinafter defined). For purposes of this
Agreement, the term "Cause" shall mean (i) the failure or refusal of the
Executive to perform the duties or render the services reasonably assigned to
him from time to time by or under direction of the Chief Executive Officer of
the Company (except during reasonable vacation periods or sick leave), which
failure or refusal is not cured within 15 days of written notice by the Company;
(ii) gross negligence or willful misconduct by the Executive in the performance
of his duties as an employee of the Company, (iii) the conviction of the
Executive of a felony; (iv) the material breach by the Executive of any of the
provisions of Section 6.1, 6.2, 6.3 or 6.4 hereof; (v) the breach by the
Executive of his fiduciary duty or duty of trust to the Company, including the
commission by the Executive of an act of fraud or embezzlement against the
Company, (vi) substance abuse, or (vii) any other material breach by the
Executive of any of the material terms or provisions of this Agreement or any
other agreement between the Company and the Executive related to the Executive's
employment, which other material breach is not cured within ten (10) business
days of written notice by the Company. Upon any termination pursuant to this
Section 5.1, the Executive shall be entitled to receive any salary (other than
Bonus Compensation) and employment benefits which shall have accrued prior to
the date of termination, but shall not be entitled to any bonus or severance
payments, salary or employment benefits relating to periods subsequent to the
date of termination, subject to Executive's rights to continue medical and
dental coverage under the Company's group policy, at Executive's expense, as may
be provided by law.
5.2 Disability. The Company shall at all times have the right, upon
written notice to the Executive, to terminate the Executive's employment
hereunder, if the Executive shall, as the result of mental or physical
incapacity, illness or disability, become unable to perform his duties hereunder
for in excess of ninety (90) days in any 12-month period. Upon any termination
pursuant to this Section 5.2, the Company shall pay to the Executive (i) the
balance of Executive's salary and other benefits for the remainder of the month
in which disability occurs, and (ii) a pro rata portion of any Bonus
Compensation to which Executive would be otherwise entitled under Section 3.2
based upon the ratio the number of months employed (calculated through the end
of the then current month) bears to the bonus period of twelve (12) months and
the Company shall have no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the date of
termination, subject, however to the provisions of Section 4.1).
5.3 Death. In the event of the death of the Executive during the term
of his employment hereunder, the Company shall pay to the estate of the deceased
Executive (i) the balance of Executive's salary and other benefits for the
remainder of the month in which death occurs, and (ii) a pro rata portion of any
Bonus Compensation to which Executive would be otherwise entitled under Section
3.2 based upon the ratio the number of months employed (calculated through the
end of the then current month) bears to the bonus period of twelve (12) months
and the Company shall have no further liability hereunder (other than for
reimbursement for reasonable business expenses incurred prior to the date of the
Executive's death, subject, however to the provisions of Section 4.1).
5.4 Termination by the Company Without Cause. At any time, the Company
shall have the right to terminate this Agreement and Executive's employment with
the Company by providing at least 30 days prior written notice to the Executive;
provided, however, that, the Company shall (i) pay to the Executive any unpaid
Base Salary accrued through the effective date of termination specified in such
notice, (ii) pay Executive's Base Salary in the manner set forth in Section 3.1
hereof until the date which is six months following such effective date (the
"Severance Date") and (iii) pay a pro rata portion of any Bonus Compensation to
which the Executive would be otherwise entitled under Section 3.2 based upon the
ratio the number of months employed bears to the bonus period of twelve (12)
months. Following the effective date of such termination, the Company shall
continue to pay for or provide to the Executive such benefits as may have been
provided to the Executive in accordance with Section 4.2 immediately prior to
such termination (subject to changes in the terms of such coverage by the
provider as may be applicable to the Company as a whole) for a period ending on
the earliest of (A) the date of the Executive's employment by a third party on a
substantially full-time basis, (B) the death of the Executive and (C) the
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Severance Date. Except as expressly provided herein, the Company shall have no
further liability hereunder (other than for reimbursement for reasonable
business expenses incurred prior to the date of termination, subject, however to
the provisions of Section 4.1).
5.5 Termination by Employee. At any time, the Executive may terminate
this Agreement and Executive's employment with the Company by providing at least
30 days prior written notice to the Company. Upon termination of this Agreement
pursuant to this Section 5.5., the Executive shall be entitled to receive any
salary (other than Bonus Compensation) and employment benefits which shall have
accrued prior to the date of termination, but shall not be entitled to any bonus
or severance payments, salary or employment benefits relating to periods
subsequent to the date of termination, subject to Executive's rights to continue
medical and dental coverage under the Company's group policy at Executive's
expense, as may be provided by law.
6. Restrictive Covenants.
6.1 Non-competition. While employed by the Company and for a period of
two years following the later of the date his employment is terminated hereunder
or, if applicable, the Severance Date (the "Restricted Period"), the Executive
shall not, directly or indirectly (whether as owner, principal, agent,
shareholder, employee, partner, lender, venturer with or consultant to any
person, firm, partnership, corporation, limited liability company or other
entity), whether or not compensation is received, engage or participate in any
activity for any business or entity which is or plans to engage in the marketing
and sale of any products or services which are under active development or are
marketed or sold by the Company and/or their respective subsidiaries and
affiliates during the term of this Agreement anywhere in the United States;
provided, however, that nothing herein shall be deemed to prevent the Executive
from acquiring through market purchases and owning, solely as an investment,
less than three percent in the aggregate of the equity securities of any class
of any issuer whose shares are registered under ss.12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended, and are listed or admitted for
trading on any United States national securities exchange or are quoted on the
National Association of Securities Dealers Automated Quotations System, or any
similar system of automated dissemination of quotations of securities prices in
common use, so long as the Executive is neither involved in the management or
conduct of the business affairs of such issuer nor a member of any "control
group" (within the meaning of the rules and regulations of the United States
Securities and Exchange Commission) of any such issuer. Notwithstanding the
foregoing, in the event that the Executive's employment hereunder is terminated
pursuant to Section 5.4 or Section 5.5, the Restricted Period shall terminate on
the later of (a) one year after the date Executive's employment is terminated or
(b) two years from the date of execution of this Agreement. The Executive
acknowledges and agrees that the covenants provided for in this Section 6.1 are
reasonable and necessary in terms of time, area and line of business to protect
the Company's "Trade Secrets" (as hereinafter defined). The Executive further
acknowledges and agrees that such covenants are reasonable and necessary in
terms of time, area and line of business to protect the Company's legitimate
business interests, which include their interests in protecting the Company's
(i) valuable confidential business information, (ii) substantial relationships
with customers throughout the United States, and (iii) customer goodwill
associated with the ongoing business of the Company. The Executive expressly
authorizes the enforcement of the covenants provided for in this Section 6.1 by
(A) the Company and its subsidiaries, (B) the Company's permitted assigns, and
(C) any successors to the Company's business. To the extent that the covenant
provided for in this Section 6.1 may later be deemed by a court to be too broad
to be enforced with respect to its duration or with respect to any particular
activity or geographic area, the court making such determination shall have the
power to reduce the duration or scope of the provision, and to add or delete
specific words or phrases to or from the provision. The provision as modified
shall then be enforced.
6.2 Nondisclosure. Executive 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 Company. Any
confidential information or data now known or hereafter acquired by the
Executive with respect to the Company shall be deemed a valuable, special and
unique asset of the Company that is received by the Executive in confidence and
as a fiduciary, and Executive
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shall remain a fiduciary to the Company with respect to all of such information.
For purposes of this Agreement, the following terms when used in this Agreement
have the meanings set forth below:
"Confidential Information" means confidential data and
confidential information relating to the business of the Company (which does not
rise to the status of a Trade Secret under applicable law) which is or has been
disclosed to the Executive or of which the Executive became aware as a
consequence of or through his employment with the Company and which has value to
the Company and is not generally known to the competitors of the Company.
Confidential Information does not include (a) information that is or becomes
generally available to the public other than as a result of the Executive's
disclosure of such information, (b) information that was within the Executive's
possession prior to it being furnished to the Executive by or on behalf or its
affiliates, including the Company, provided that the source of such information
was not known to the Executive to be bound by a confidentiality agreement with
or other contractual, legal or fiduciary obligation of confidentiality to the
Company or its affiliates, or any other party with respect to such information,
(c) information that becomes available to the Executive on a non-confidential
basis from a source other than the Company or any of its affiliates, provided
that such source is not known to the Executive to be bound by a confidentiality
agreement with or other contractual, legal or fiduciary obligation of
confidentiality to the Company or its affiliates, or any other party with
respect to such information, (d) information the disclosure of which is required
by applicable law or judicial process, or (e) general technical skills or
general experience gained by the Executive during the Executive's employment
with the Company.
"Trade Secrets" means information of the Company including,
but not limited to, technical or nontechnical data, formulas, patterns,
compilations, programs, financial data, financial plans, product or service
plans or lists of actual or potential customers or suppliers which (i) derives
economic value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use, and (ii) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
In addition, during the Initial Term and during the periods described
in the last sentence of this Section 6.2, the Executive (a) will receive and
hold all Confidential Information and Trade Secrets (collectively "Company
Information") in trust and in strictest confidence, (b) will take reasonable
steps to protect the Company Information from disclosure and will in no event
take any action causing, or fail to take any action reasonably necessary to
prevent, any Company Information to lose its character as Company Information,
and (c) except as required by the Executive's duties in the course of his
employment by the Company, will not, directly or indirectly, use, disseminate or
otherwise disclose any Company Information to any third party without the prior
written consent of the Company, which may be withheld in the Company's absolute
discretion. The provisions of this Section 6.2 shall survive the termination of
the Executive's employment (i) for a period of five years with respect to
Confidential Information, and (ii) with respect to Trade Secrets, for so long as
any such information qualifies as a Trade Secret under applicable law.
6.3 Nonsolicitation of Employees and Customers. While employed by the
Company and for a period of two years following the later of the date his
employment is terminated hereunder by either the Company or the Executive, or,
if applicable, the Severance Date, the Executive shall not, directly or
indirectly, for himself or for any other person, firm, corporation, partnership,
association or other entity, (i) attempt to employ or enter into any contractual
arrangement with any employee or former employee of the Company, unless such
employee or former employee has not been employed by the Company for a period in
excess of three months, and/or (ii) divert or take away, or attempt to divert or
take away, the business or prospects of any of the actual or targeted
prospective customers or clients of the Company, nor shall the Executive make
known the names and addresses of such customers or any information relating in
any manner to the Company's trade or business relationships with such customers.
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6.4 Assignment Of Inventions.
(a) Original Development. The Executive represents and
warrants to the Company that all work that the Executive performs for
or on behalf of the Company and its clients, and all work product that
the Executive produces in such capacity, including but not limited to
software, documentation, memoranda, ideas, designs, inventions,
processes, algorithms, etc. ("Work Product"), will not knowingly
infringe upon or violate any patent, copyright, trade secret, or other
property right of any of his former employers or of any other third
party. The Executive will not disclose to the Company, or use in any of
his Work Product, any confidential or proprietary information belonging
to others, unless both the owner thereof and the Company have consented
in writing.
(b) Disclosure. The Executive will promptly disclose to the
Company all Work Product developed by him within the scope of his
employment with the Company or which relates directly to, or involve
the use of, any Company Information, including but not limited to all
software, concepts, ideas and designs, and all documentation, manuals,
letters, pamphlets, drafts, memoranda and other writings or tangible
things of any kind. The Executive will not disclose them to anyone
other than authorized Company personnel.
(c) Copyright Ownership. The Executive acknowledges and agrees
that all Work Product which is made by him (solely or jointly with
others) within the scope of his employment and which is protectable by
copyright is being created at the instance of the Company and is "work
made for hire," as that term is defined in the United States Copyright
Act (17 USCA, Section 101).
(d) Assignment. The Executive hereby assigns to the Company
all of his other rights, title and interest (including but not limited
to all patent, copyright and trade secret rights) in and to all Work
Products prepared by him, whether patentable or not, made or conceived
in whole or in part by him within the scope of his employment
hereunder, or that relates directly to, or involves the use of Company
Information.
(e) Documents. The Executive agrees to execute all documents
reasonably requested by the Company to further evidence the foregoing
assignment and to provide all reasonable assistance to the Company (at
the Company's expense) in perfecting or protecting any or all of the
Company's rights in his Work Product.
(f) Pre-existing Inventions Not Assigned. The Executive
represents that the Executive has indicated on Annex III to this
Agreement all inventions, expression of ideas or other Work Product
related to the Company's business and created prior to his employment
by the Company in which the Executive has any right, title or interest
that the Executive does not assign to the Company. If the Executive
does not have any such inventions, expressions of ideas, or work
product to indicate, the Executive will write "none" on Annex III. The
Executive will not assert any rights under any inventions as having
been made or acquired by him prior to his being employed by the
Company, unless such inventions are identified on Annex I.
6.5 Books and Records. All books, records, reports, writings, notes,
notebooks, computer programs, sketches, drawings, blueprints, prototypes,
formulas, photographs, negatives, models, equipment, chemicals, reproductions,
proposals, flow sheets, supply contracts, customer lists and other documents
and/or things belonging to the Company or embodying or relating to any
Confidential Information or Trade Secrets, whether prepared by the Executive or
otherwise coming into the Executive's possession shall not be copied,
duplicated, replicated, transformed, modified or removed from the premises of
the Company except pursuant to the business of the Company and shall be returned
immediately to the Company on termination of the Executive's employment
hereunder or on the Company's request at any time.
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6.6 No Conflict. The Executive represents to the Company that his
execution and performance of this Agreement does not violate the provisions of
any employment, non-competition, confidentiality or other material agreement to
which he is a party or by which he is bound. The Executive also agrees to
indemnify and hold harmless the Company from any and all damages and other
obligations or liabilities incurred by the Company in connection with any breach
of the foregoing representation.
7. Injunction. It is recognized and hereby acknowledged by the parties
hereto that a breach by the Executive of any of the covenants contained in
Section 6 of this Agreement will cause irreparable harm and damage to the
Company, the monetary amount of which may be virtually impossible to ascertain.
As a result, the Executive recognizes and hereby acknowledges that the Company
shall be entitled to seek an injunction from any court of competent jurisdiction
(without posting a bond or other security) enjoining and restraining any
violation of any or all of the covenants contained in Section 6 of this
Agreement by the Executive or any of his affiliates, associates, partners or
agents, either directly or indirectly, and that such right to injunction shall
be cumulative and in addition to whatever other remedies the Company or the
Company may possess.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to conflicts of
laws principles thereof and all questions concerning the validity and
construction hereof shall be determined in accordance with the laws of said
state.
9. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and, upon
its effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between the Executive and the Company (or
any of its affiliates) with respect to such subject matter. Except for the
obligation to pay all accrued but unpaid salary due the Executive, all such
prior agreements, understandings and arrangements for the provision of services
by the Executive to the Company and the compensation of the Executive in any
form are hereby terminated, and the Executive hereby releases and forever
discharges the Company (as well as its affiliates) from any and all liabilities
and obligations of any nature arising out of or in connection with any and all
such prior agreements, understandings or arrangements. This Agreement may not be
modified in any way unless by a written instrument signed by both the Company
and the Executive.
10. Notices. Any notice required or permitted to be given hereunder shall
be deemed given when delivered by hand or when deposited in the United States
mail, by registered or certified mail, return receipt requested, postage
prepaid, (i) if to the Company, c/o SmartDisk Corporation, 0000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxx, Vice President, and
(ii) if to the Executive, to his address as reflected on the payroll records of
the Company, or to such other address as either party hereto may from time to
time give notice of to the other.
11. Benefits; Binding Effect. This Agreement shall be for the benefit of
and binding upon the parties hereto and their respective heirs, personal
representative, legal representatives, successors and, where applicable,
assigns, including, without limitation, any successor to the Company, whether by
merger, consolidation, sale of stock, sale of assets or otherwise; provided,
however that the Executive shall not delegate his employment obligations
hereunder, or any portion thereof, to any other person.
12. Severability. The invalidity of any one or more of the words, phrases,
sentences, clauses or sections contained in this Agreement shall not affect the
enforceability of the remaining portions of this Agreement or any part thereof,
all of which are inserted conditionally on their being valid in law, and, in the
event that any one or more of the words, phrases, sentences, clauses or sections
contained in this Agreement shall be declared invalid, this Agreement shall be
construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, or section or sections had not been inserted. If
such invalidity is caused by length of time or size of area, or both, the
otherwise invalid provision will be considered to be reduced to a period or area
which would cure such invalidity.
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13. Waivers. The waiver by either party hereto of a breach or violation of
any term or provision of this Agreement shall not operate nor be construed as a
waiver of any subsequent breach or violation.
14. Damages. Nothing contained herein shall be construed to prevent the
Company or the Executive from seeking and recovering from the other damages
sustained by either or both of them as a result of its or his breach of any term
or provision of this Agreement. In the event that either party hereto brings
suit for the collection of any damages resulting from, or for the injunction of
any action constituting, a breach of any of the terms or provisions of this
Agreement, then the party found to be at fault shall pay all reasonable court
costs and attorneys' fees of the other.
15. Section Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
16. No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the Company, the parties hereto and their respective heirs, personal
representatives, legal representatives, successors and assigns, any rights or
remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
SMARTDISK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx,
President and Chief Executive Officer
/s/ Xxx X. Xxxx
--------------------------------------------
Xxx X. Xxxx
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ANNEX I
PRE-EXISTING INVENTIONS
None
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Exhibit A
Relocation Assistance: Up to $70,000
o Relocation of household goods and autos
o Closing costs and realtor's fees for sale of Employee's
residence in Connecticut.
o Reasonable expenses incurred in connection with purchasing a
residence in Naples, Florida
o Four round trips for family for house hunting visits, etc.
from the Northeast to Naples in calendar year 2001.
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