EXHIBIT 10.32
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
April 1, 1999, by and between TIVOLI INDUSTRIES, INC., a California corporation
whose principal place of business is located in Xxxxx Xxx, Xxxxxxxxxx 00000
("Employer"), and XXXXXXX XXXXXX, an individual residing in the State of
California ("Executive").
WHEREAS, Employer desires to retain the services of Executive on the terms
and conditions herein provided, and Executive is willing to provide such
services on such terms and conditions;
NOW THEREFORE, in consideration of the foregoing premises and the mutual
covenants of the parties contained herein, the parties agree as follows:
1. Term. This Agreement shall continue in full force and effect for a
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period which shall commence as of the date hereof and shall continue until
September 30, 2002 (the "Term"), unless sooner terminated as hereinafter
provided or extended by the mutual agreement of the parties.
2. Employment. Executive shall serve as the President, Chief Operating
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Officer and Chief Financial Officer of Employer, subject to the reasonable
directions of Employer's Board of Directors, and as such shall have day-to-day
responsibility for the management of all of Employer's affairs and operations,
subject to the reasonable directions of Employer's Board of Directors.
Executive shall devote his full executive time, energies and abilities to the
proper and efficient performance of his duties provided herein.
Executive shall at all times perform his duties and obligations faithfully and
diligently and to the best of Executive's ability.
3. Compensation.
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(a) As compensation for the services provided by Executive
hereunder, during the Term of this Agreement Employer shall pay Executive an
annual salary of not less that $127,000 per year. Executives' salary shall be
reviewed by Employer's Board of Directors from time to time at its discretion
but not less often than annually each November 1, and Executive shall receive
such salary increases as Employer's Board of Directors shall determine; provided
that Employee's annual salary payable for the ensuing twelve (12) month period
shall in all events be increased at the end of each succeeding twelve (12) month
period at a rate equal to the greater of 5% per annum or the increase, if any,
in the Consumer Price Index for Urban Wage Earners and Clerical Workers (Los
Angeles-Long Beach-Anaheim), as published by the Bureau of Labor Statistics of
the U.S. Department of Labor, during the preceding twelve (12) months. All such
salary shall be payable in equal installments in conformity with Employer's
normal payroll period.
(b) In addition to the minimum salary payable to Executive as
provided in subparagraph 3(a) above, Executive shall be entitled to receive, for
each full or partial calendar year during the Term hereof, a bonus, if any, as
determined by Employer's Compensation Committee.
(c) In addition to salary and bonus payment (if any), Executive
shall be entitled to receive stock options and/or warrants, if any, as
determined by the Employer's Compensation Committee. Such awards will be awarded
on an annual basis.
(d) In addition to the above, Executive shall also be entitled
to receive an auto allowance equal to $600 per month, payable monthly.
4. Benefits and Vacations.
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(a) Executive and his dependents shall be entitled to
participate in or receive benefits under Employer's health insurance plans or
arrangements as in effect on the date hereof for such period of time as such
plans and arrangements shall remain in effect. In addition, Executive shall be
entitled to participate in or receive benefits under any pension plan, profit-
sharing plan, life insurance, health-and-accident plan or arrangement made
available in the future by Employer to its executives and key management
employees, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans and arrangements. Nothing paid to Executive
under any such plan or arrangement presently in effect or made available in the
future shall be deemed to be in lieu of any compensation payable to Executive
hereunder.
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(b) Executive shall be entitled to the number of paid vacations
days in each calendar year, and to compensation for earned but unused vacation
days, determined by Employer from time to time for its executives and key
management employees, but not less than four (4) weeks in each year of the Term
hereof. Executive shall also be entitled to all paid holidays given by Employer
to its executives and key management employees.
5. Expenses. During the Term hereof, Executive shall be entitled to
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receive prompt reimbursement of all reasonable expenses incurred by Executive
(in accordance with the policies and procedures from time to time adopted by
Board of Directors of Employer for its senior executive officers) in performing
the services contemplated hereunder, provided that Executive properly accounts
therefore in accordance with Employer's policy.
6. Termination.
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(a) Executive's employment hereunder shall terminate immediately upon
death.
(b) In the event that Executive shall be unable to perform the
services contemplated hereunder by reason of disability, illness or other
incapacity, such failure to so perform such duties shall not be grounds for
terminating the employment of Executive by Employer; provided, however, that
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Employer may terminate Executive's employment hereunder should the period of
such incapacity exceed six (6) consecutive months. Any such termination shall
not be considered to be for "Cause" as defined in subparagraph (c) immediately
below.
(c) Executive's employment hereunder may be terminated by Employer
prior to the expiration of the Term with or without "Cause" (as defined in
subparagraph 6(e) below), immediately upon delivery by Employer of a written
notice of termination; provided, however, that if Employer shall not have Cause
to terminate Executive's employment hereunder, then upon any such termination,
and as a condition of the effectiveness thereof, Employer shall pay to Executive
as severance pay, in one lump sum in cash, an amount equal to (i) the amount of
the current annual salary and benefits listed in paragraphs 3(a) and 4(a) that
would have been payable over the remainder of the term of this Agreement had
Executive not been terminated (subject to a minimum amount equal to 24 months
base salary, such 24 month period being a "Minimum Severance Period").
(d) In the event that Executive is terminated for Cause, Employer
shall pay Executive's salary through the date of termination, after deducting
any amounts lawfully owing from Executive to Employer, and shall thereafter have
no further obligation to Executive.
(e) For the purposes of this Agreement, "Cause" means (i) the willful
and continued failure by Executive to substantially perform Executive's duties
hereunder, other than any such failure resulting from Executive's incapacity due
to physical or mental illness, after a demand for substantial performance is
delivered to Executive by the Board of Directors of Employer (the "Board") which
specifically identifies the manner in which the Board believes that Executive
has not substantially performed such duties, or (ii) the willful engaging by
Executive in gross misconduct materially and demonstrably injurious to Employer.
For purposes of this subparagraph, no act, or failure to act, on Executive's
part shall be considered "willful" merely because it was the result of bad
judgment or negligence; rather, such act or failure to act must have been done,
or omitted to have been done, by Executive other than in good faith and without
reasonable belief that Executive's action or omission was in the best interests
of the Employer. Notwithstanding the foregoing, Executive's employment shall not
be deemed to have been terminated for "Cause" unless and until there shall have
been delivered to Executive a copy of a resolution duly adopted by the
affirmative vote of Employer's Board of Directors at a meeting of the Board
called and held for such purpose (after reasonable notice to Executive and an
opportunity for Executive, together with Executive's counsel, to be heard before
the Board), finding that in the good faith opinion of the Board Executive was
guilty of conduct described above in clauses (i) or (ii) of this subparagraph
and specifying the particulars thereof in detail. In the event that Executive is
terminated for Cause, Employer shall pay Executive's salary through date of
termination, any bonuses which have been earned by Executive through the date of
termination after deducting any amounts lawfully owing from Executive to
Employer, and shall thereafter have not further obligation to Executive, expect
to the extent the Executive may be entitled to exercise any of the options
granted to Executive as contemplated in paragraph 3(c) above.
(f) Executive shall be entitled to terminate his employment with
Employer hereunder for "Good Reason." Within five (5) business days of such
termination, Employer shall pay Executive in one lump sum the Severance Amount
provided above. For purposes of this Agreement, any termination of employment
under any one or more of the following circumstances shall be for "Good Reason":
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(i) Without Executive's express written consent, the
assignment to Executive of any duties inconsistent with Executive's positions,
duties, responsibilities and status with Employer, or an change in Executive's
reporting responsibilities, titles or offices as in effect upon the execution
hereof, or any removal of Executive from or any failure to re-elect Executive to
any such positions, except in connection with the termination of Executive's
employment for Cause, Disability, Retirement or as a result of death;
(ii) Without Executive's express written consent, the Employer
or Employer's ultimate parent corporation experiences a change of control via
merger, consolidation, sale of all or substantially all the shares or the assets
or other transaction (or series of related transactions) following which the
shareholders or Employer or Employer's ultimate parent immediately prior to such
transaction own less than 50% of the outstanding voting shares of Employer or
Employer's ultimate parent following such transaction.
(iii) The reduction by Employer in Executive's base salary, as
the same may be thereafter be increased from time to time, the failure by
Employer to increase such base salary each successive year, as specified in
subparagraph 3(a)hereof, or the failure by Employer to otherwise pay Executive
the base salary provided for herein;
(iv) The failure by Employer to continue Executive's
participation in the bonus and other compensation plans and incentive plans
specified in subparagraph 3(b) hereof;
(v) The failure by Employer to continue Executive's
participation in any benefit plan, pension plan, qualified retirement plan, life
insurance plan, vacation plan, holiday plan, car lease plan, medical expense,
health and accident plan or disability plan, or expense reimbursement
arrangement specified in paragraphs 4 and 5 hereof, or the taking of any action
by Employer (prompt notice of which shall be provided to Executive) which would
adversely affect Executive's participation in (including materially increasing
Executive's costs of such participation), or materially reduce Executive's
benefits under, any of such plans, or which would deprive Executive of any other
fringe or personal benefits under any of such plans; provided, however, that
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notwithstanding the provisions of this subparagraph 6(f)(iv), Employer's
providing benefits of a type or amount different than as provided for
hereinabove shall not be deemed a violation of this subparagraph if required by
law;
(vi) Any action by Employer that would require Executive to
relocate his principal residence or office to a location more than 50 miles from
Employer's current principal executive offices.
(g) Any termination of Executive's employment by Employer for
Disability, Retirement or Cause, or by Executive for Good Reason, shall be
communicated by Written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provisions in this Agreement relied
upon, shall set forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated, and shall set forth the date upon which such termination is to
become effective.
7. Proprietary Information. Executive acknowledges that certain
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technological and other information may from time to time be disclosed to
Executive by Employer during the continuance hereof. Executive hereby
acknowledges that all such information and technology, whether currently
existing or hereafter developed by Employer through or involving the services
and efforts of Executive hereunder, shall at all times consist of and be
preserved by Executive as valuable trade secrets and confidential information
which is proprietary to and owned exclusively by Employer, and that Executive
does not have, and shall not have or hereafter acquire, any rights in or to any
such information and technology, including without limitation any patents,
inventions, discoveries, know-how, trademarks or tradenames used or adopted by
Employer in connection with the design, development, manufacture, marketing,
sale or installation of any products which at any time during the continuation
hereof may be offered or sold or licensed by Employer. Executive further
warrants and agrees that he shall not at any time, whether during the
continuance of this Agreement or after its expiration or earlier termination,
whether by Executive or by Employer, in any manner or form, directly or
indirectly, use, disclose, duplicate, license, sell, reveal, divulge, publish or
communicate any portion of any such information or technology, nor use,
disclose, duplicate, license, sell, reveal, divulge, publish or communicate any
other confidential information concerning Employer, or any customers or other
products of Employer, to any person, firm or entity.
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8. Agreement Not to Compete; Non-Solicitation
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(a) Executive acknowledges that, by virtue of his position with
Employer, Executive will develop considerable expertise in the business
operations of Employer and will have access to extensive confidential
information with respect to Employer. Executive also acknowledges that this is a
personal services contract wherein Executive's services are of a special,
unique, unusual, extraordinary and intellectual character. Executive further
acknowledges that his services will have peculiar value, the loss of which
cannot be reasonably or adequately compensated in damages in an action at law.
Executive acknowledges that Employer would be irreparably damaged, and its
substantial investment materially impaired, if Executive were to enter into an
activity competing with Employer's business in violation of the terms of this
Agreement or if Executive were to make unauthorized use or disclosure of any
confidential information concerning the business Employer.
(b) In consideration of the terms and conditions of this
Agreement, including without limitation, this Section 8 and payment of the
Severance Amount, Executive hereby agrees that, during the period of his
employment with Employer and for the longer of (i) the remainder of the term of
this Agreement had Executive not been terminated, or (ii) a period of 24 months,
he will not, without Employer's express written consent, (i) engage in any
employment or business activity which is competitive with, or would otherwise
conflict with, the business of Employer as is currently conducted or presently
under development as of the date of Executive's termination; or (ii) solicit or
attempt to solicit, either directly or through others, (A) any employee,
consultant, or independent contractor of Employer to terminate his or her
relationship with Employer in order to become an employee, consultant, or
independent contractor to or for any other person or business entity; or (B) the
business of any customer, vendor, or distributor of Employer. Executive further
agrees to notify Employer, in writing, before Executive obtains employment with,
performs work for, or engages in any professional activity on behalf of any
company, person or entity in the lighting industry.
(c) In the event that Executive engages in any such competitive
activity in breach of this Agreement, Executive hereby agrees that he shall
return to Employer the Severance Amount in full immediately following such
breach and that Employer shall be entitled to equitable relief (e.g.
injunctions) to prevent any such competitive activity by Executive. The rights
and remedies hereof shall be cumulative (and not alternative).
(d) Executive expressly acknowledges that he is voluntarily
entering into this Agreement, that the provisions in this Section 8 are a
material inducement to Employer in entering this Agreement, and that the terms
and conditions of this Agreement are fair and reasonable to Executive in all
respects.
9. General Provisions.
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(a) Any notice, request, demand or other communication required
or permitted hereunder shall be deemed to be properly given when personally
served in writing, when deposited in the United States mail, postage prepaid, or
when communicated to a public telegraph company for transmittal, addressed to
Employer or Executive at their respective last known address. Either party may
change its address by written notice given in accordance with this subparagraph.
(b) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective executors, administrators,
successors and assigns; provided, however, that Executive may not assign any or
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all of Executive's rights or duties hereunder without the prior written consent
of Employer.
(c) This Agreement is made and entered into, is to be performed
primarily within, and shall be governed by and constructed in all respects in
accordance with the laws of the State of California.
(d) Captions and Paragraph headings used herein are for
convenience only and are not a part of this Agreement and shall be used in
construing it.
(e) Should any provision of this Agreement for any reason be
declared invalid, void, or unenforceable by a court of competent jurisdiction,
the validity and binding effect of any remaining portions shall not be affected,
and the remaining provisions of this Agreement shall remain in full force as if
this Agreement had been executed with said provision eliminated.
(f) Employer shall indemnify Executive to the fullest extent
permitted by applicable law with respect to any claims arising from the
performance by Executive of his duties hereunder during the Term of this
Agreement.
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(g) This Agreement contains the entire agreement of the parties,
and supersedes any and all other agreements, either oral or in writing, between
the parties hereto with respect to the employment of Executive by Employer. Each
party to this Agreement acknowledges that no representations, inducements,
promises or agreements, oral or otherwise, have been made by any party, or
anyone acting on behalf of any party, which are not embodied herein or therein,
and that no other agreement, statement or promise not contained herein or
therein shall be relied upon or be valid or binding. This Agreement may not be
modified or amended by oral agreements, but only by an agreement in writing
signed by Employer on the one hand, and by Executive on the other hand.
(h) In the event of any litigation between Executive and
Employer concerning the rights or obligations of any party under this Agreement,
the non-prevailing party shall pay the reasonable costs and expenses, including
attorneys' fees, of the prevailing party in connection therewith.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
APPROVED:
"Employer"
TIVOLI INDUSTRIES, INC. TIVOLI INDUSTRIES, INC.
By: /s/ Xxxxx X Xxxx By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxx Xxxx Xxxxxx Xxxxxxxxxx
Director/Compensation Committee Director/Compensation Committee
"Executive"
/s/ Xxxxxxxx X Xxxxx
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Xxxxxxxx X. Xxxxx
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