EMPLOYMENT AGREEMENT
THIS AGREEMENT dated April 1, 1995 is by and between MTX International, Inc., a
Colorado Corporation ("Corporation") and Xxxxxx X. Xxxxxxxx, (Employee").
The Corporation desires to employ Employee and Employee desires to be employed
by the Corporation.
The parties hereby enter into this Agreement to set forth their mutual promises
and understandings.
ARTICLE I
EMPLOYMENT DUTIES AND RESPONSIBILITIES
Section 1.1 Employment. The Corporation hereby employees the Employee as
Chairman and Chief Executive Officer of the Corporation. The Employee accepts
such employment and agrees to abide by the Articles of Incorporation, By-Laws,
and the decisions of the Board of Directors of the Corporation.
Section 1.2 Director of the Corporation. The Employee shall if elected or
appointed, serve as a Director of the Corporation. Nothing in this Agreement
shall be construed as requiring the Corporation, its Shareholders or agents to
cause the election or appointment of the Employee as a Director.
Section 1.3 Duties and Responsibilities. The Employee is employed pursuant to
the terms of this Agreement and agrees to devote substantially all of his time
and energies to his employment under this Agreement. The Employee shall perform
such duties as may be determined and assigned to him by the Board of Directors
of the Corporation.
Section 1.4 Working Facilities. The Employee shall be furnished with facilities
and services suitable to the position and adequate for the performance of the
duties of the Employee under this agreement.
Section 1.5 Vacations. The Employee shall be entitled each year to a reasonable
vacation, during which time the Employee's compensation shall be paid in full.
Each vacation shall be taken by the employee over a period or periods meeting
with the approval of the Board of Directors.
Section 1.6 Automobile. The Employee shall be furnished with an automobile, the
cost of which shall be borne 80% by the Corporation. The total purchase price of
such automobile shall be as approved by the Board of Directors.
Section 1.7 Life Insurance. The Corporation shall pay the premiums on a $100,000
policy of term non convertible life insurance covering the Employee's life. The
Employee shall have the sole right to designate the beneficiary of such policy.
The Corporation, at its election, may secure "Key Man" insurance for its benefit
on the Employee's life and the Employee shall cooperate with the Corporation in
acquiring such insurance.
Section 1.8 Benefit Plans. The Employee may participate in any plans,
arrangements, or distributions, in accordance with their terms, by the
Corporation pertaining to or in connection with any retirement, health,
disability, bonus, pension. profit sharing, or similar plans.
Section 1.9 Expenses. The Employee is authorized to incur reasonable expenses
for promoting the business of the Corporation, including expenses for
entertainment, travel, and similar items. The Corporation will reimburse the
Employee for all such expenses upon the presentation by the Employee, from time
to time, of an itemized account of such expenditures. Such expenditures, shall,
however, be subject at all times to the approval of the Board of Directors.
Section 1.10 Indemnification Against Liabilities. The Employee (and his heirs,
executors and administrators) shall be indemnified by the Corporation against
expenses reasonably incurred by or imposed upon him in connection with or
arising out of any action, suit or proceeding in which he may be involved or to
which he may be a party by reason of his being or having been a Director or
Officer of the Corporation, except in respect of matters as to which he shall be
finally adjudged in such action, suit or proceeding to be liable for negligence
or misconduct; or in the event of a settlement of any such action, suit or
proceeding, indemnification shall be provided only in connection with such
matters covered by the settlement as to which the Corporation is advised by
counsel that the Employee did not commit a breach of duty. The foregoing right
of indemnification shall not be exclusive of other rights to which the Employee
may be entitled under any applicable state statute.
ARTICLE II
COMPENSATION
Section 2.1 Basic Salary. The Corporation shall pay to the Employee a basic
salary of $96,000 for the first year of this Agreement, $96,000 for the second
year of this Agreement and $96,000 for the third year of this Agreement. Such
salary shall be paid over the course of each year pursuant to the Corporation's
usual pay periods.
Section 2.2 Director's Compensation. The Employee may receive additional
compensation, if elected or appointed a Director of the Corporation, upon
approval of such additional compensation by the Board of Directors of the
Corporation.
Section 2.3 Bonus. In addition to the basic salary, the Employee will receive a
bonus. The bonus will be based on performance and will be determined by
multiplying 6% times the net profit of the Corporation before taxes. Payments
will be made at the rate of 80% of the bonus paid quarterly and the balance in
full after completion of the certified audit at September 30.
A net loss at any quarter end voids a bonus calculation for that quarter. A net
loss requires a return of any previous bonus equal to 6% of the net loss, not to
exceed any previously paid bonus within the same fiscal year.
ARTICLE III
TERM OF EMPLOYMENT AND TERMINATION
Section 3.1 Term. This Agreement shall be for a period of three years commencing
on its effective date, subject , however to termination during such period, as
provided in this article. This Agreement shall end at the end of such period.
Section 3.2 Termination By The Corporation Without Cause. The Board of
Directors, without cause, may terminate the Employee's employment, under this
Agreement at any time upon 30 days written notice to the Employee, but such
termination shall not affect the provisions of Article V of this Agreement. In
such event, the Employee, if requested by the Board of Directors, shall continue
to render the services required under this Agreement up to the date of
employment termination, and shall be paid, in such increments as agreed by the
Employee and the Board of Directors, the full amount of the compensation
provided for in Section 2.1 of this Agreement which remains unpaid at the date
of termination. However, in no event shall the amount of compensation payable
under this section be less than 50% of the total value of the agreement for all
three years.
Section 3.3 Termination By The Employee Without Cause. The Employee, without
cause, may terminate this Agreement upon 30 days written notice to the
Corporation. In such event, the Employee shall continue to render services
required under this Agreement and shall be paid the compensation set forth in
Section 2.1 of this Agreement up to the date of termination and no severance
allowance shall be paid to the employee.
Section 3.4 Termination With Cause. The Board of Directors may terminate the
Employee at any time without notice by reason of misconduct by the Employee. The
term misconduct shall mean either the conviction of a felony or the continued
violation of direct orders of the Board of Directors by the Employee 30 days
after the Employee has received written notice that he has violated direct
orders. In such event, the employee shall be paid the compensation owed him by
the Corporation up to the date of termination.
Section 3.5 Termination Upon Death of Employee. In addition to any other
provisions relating the termination, this Agreement is terminated in the event
of the Employee's death.
ARTICLE IV
DISABILITY AND ILLNESS
Section 4.1 Disability And Salary Continuation.
A. Definition Of Disability. For purposes of this Agreement, the terms "totally
disabled", "disabled" and "disability" shall mean continuous disability as
defined in, and for the period necessary to qualify for, the benefits under any
disability income insurance policies paid for by the Corporation on the life of
the Employee.
If no disability insurance is in effect on the life of the Employee, the terms
"totally disabled", "disabled", and "disability" shall mean continuous
disability which prevents the Employee from performing his normal duties in the
Corporation pursuant to this Agreement as shall be determined by two physicians,
one designated by the Corporation and the other designated by the Employee. If
these two physicians can not agree on whether the employee is disabled within
the meaning of this Section, they shall appoint a third physician and the
opinion of the majority shall be final, binding and conclusive. The cost of all
examining physicians shall be at cost to the Corporation and not to the
Employee.
B. Salary Continuation. If the Employee becomes totally disabled during the term
of this Agreement, 60% of his salary shall continue for the remaining term of
this Agreement or for the period of time for which he remains totally disabled,
whichever is shorter.
If the Corporation pays premiums on a disability income insurance policy on the
life of the Employee, then any proceeds paid to the Employee by reason of
disability under such disability insurance policy shall be offset against salary
continuation payments due from the Corporation.
Section 4.2 Illness. In addition, if the Employee is unable to perform the
services required under this Agreement by reason of illness or physical injury
not amounting to disability as defined in this Article, the compensation
otherwise payable to the Employee under this Agreement shall be continued in
full.
ARTICLE V
DISCLOSURE OF INFORMATION
Section 5.1 Employee Shall Not Disclose Information. The Employee recognizes and
acknowledges the confidentiality of any trade secret information regarding the
Corporation to which he has access, including, but not limited to, the
Corporations computer software knowledge which the Employee gains access to or
knowledge of while in the Corporations employment, any computer software
designs, the Contractors Management System, the MTX Accounting for Microsoft
Office, or other microcomputer systems, processes, user manuals and training
manuals, patents, pending patents, trademarks and other proprietary information
or any adaptation or modifications thereto which the Employee develops or
creates while in the Corporation's employ or subsequently, even if the
Corporation has declined to make use of such adaptation or modification. The
Employee also recognizes and acknowledges that the list of the Corporation's
customers, as it may exist from time to time, is a valuable, special, and unique
asset of the Corporation. The Employee will not disclose any such trade secret
information or the list of the Corporation's customers or any part thereof or
any information to any person, firm, corporation, association, or other entity
for any reason of purpose whatsoever. This Section 5.1 shall operate to so
restrict the Employee regardless of the nature of the termination of his
employment with the Corporation.
Section 5.2 Breach Of This Article. In the event of a breach or threatened
breach by the Employee of the provisions of this paragraph, the Corporation
shall be entitled to an injunction restraining the Employee from disclosing, in
whole or in part, any such trade secret information or the list of the
Corporation's customers, or rendering any services to any person, firm,
corporation, association, or other entity to whom such trade secret information
or list , in whole or in part, has been disclosed or is threatened to be
disclosed. Nothing herein shall be construed as prohibiting the Corporation from
pursuing any other remedies available to the Corporation for such breach or
threatened breach, including recovery of damages.
ARTICLE VI
ARBITRATION
Section 6.1 Agreement To Arbitration Disputes. The parties agree to submit all
claims, disputes, and other controversies between them arising out of this
Agreement or the employment arrangement contemplated to arbitration in
accordance with the provisions below and the Colorado Uniform Arbitration Act of
1975 or any amendments thereto applicable upon the date of initiation of
arbitration proceedings.
Section 6.2 Initiation Of Arbitration. Arbitration pursuant to this Agreement
may be initiated by either party upon written demand mailed certified mail,
return receipt requested, to the other party. Such demand shall briefly set
forth the nature of the claim, dispute or controversy and the relief requested.
The party upon whom a demand for arbitration has been made may, in writing, and
within twenty (20) days following receipt of the demand, set forth any
counterdemand he or it may have against the other party. Such counterdemand
shall likewise briefly set forth the nature of the claim, dispute or controversy
and the relief requested. Neither party shall be required to make a written
answer to any demand or counterdemand.
Section 6.3 Appointment Of Arbitrator(s). Within thirty (30) days following the
date upon which the arbitration demand was mailed to the other party, the
Corporation and the Employee shall jointly appoint an arbitrator agreeable to
both of them.
If the Corporation and the Employee cannot agree upon an arbitrator mutually
acceptable to them, each party shall designate an arbitrator and the two
arbitrators so selected shall, within thirty (30) days following the date upon
which the last of the arbitrators is selected, designate a third arbitrator. All
three arbitrators shall be present at all hearings and participate in
deliberations, but the decision of the arbitrators will be final and binding.
Section 6.4 Place Of Hearings. Arbitration hearings shall be conducted at a
place mutually agreeable to the parties and the arbitrators at Denver, Colorado
unless the parties and the arbitrators otherwise mutually select a different
place for the hearings or any portion of the hearings.
Section 6.5 Attendance At Hearings. Arbitration hearings shall be scheduled by
the arbitrator(s) at the earliest date mutually convenient to the arbitrator(s)
and the parties. Notice of such hearing dates shall be given in writing by
certified mail, return receipt requested, to each party. Arbitration hearings
may proceed in the absence of any party if notice of the proceedings has been
given to such party.
Section 6.6 Awards. The arbitrator(s) shall make his or their award in writing
within thirty (30) days after completion of the arbitration hearings. Copies of
the award shall be mailed to each of the parties and their attorneys, if any, by
certified mail, return receipt requested.
The award entered by the arbitrator(s) shall be final and binding upon the
parties to the extent and in the manner provided by the Colorado Uniform
Arbitration Act of 1975, as amended.
Section 6.7 Venue For Court Proceedings. Any court proceedings relative to these
arbitration provisions shall be initiated and conducted in the District Court in
and for the City and County of Denver and the State of Colorado.
Section 6.8 Effect Of Pendency Of Arbitration Proceedings. No party shall be
considered in default with respect to any obligation under the terms of this
Agreement which is subject matter of any pending arbitration proceedings but the
pendency of such proceedings shall not otherwise affect the rights and
obligations of the parties to this Agreement.
Section 6.9 Exception. This Article shall not apply with respect to any action
which the Corporation may wish to take pursuant to Article V of this Agreement.
ARTICLE VII
GENERAL MATTERS
Section 7.1 Colorado Law. This Agreement shall be governed by the laws of the
State of Colorado and shall be construed in accordance therewith.
Section 7.2 No Waiver. No provision of this Agreement may be waived except by an
agreement in writing signed by the waiving party. A waiver of any term or
provision shall not be construed as a waiver of any other term or provision.
Section 7.3 Amendment. This Agreement may be amended, altered or revoked at any
time, in whole or in part, by filing with this Agreement a written instrument
setting forth such changes, signed by all of the parties.
Section 7.4 Effect Of Agreement. The terms of this Agreement shall be binding
upon and inure to the benefit of the Employee and the Corporation and their
heirs, personal representatives, successors and assigns to the extent that any
such benefits survive or may be assigned under the terms of this Agreement.
Section 7.5 Construction. Throughout this Agreement the singular shall include
the plural, and plural shall include the singular, and masculine and neuter
shall include the feminine, wherever the context so requires.
Section 7.6 Text To Control. The headings of articles and sections are included
solely for the convenience of reference. If any conflict between any heading and
the text of this Agreement exists, the text shall control.
Section 7.7 Severability. If any provision of this Agreement is declared by any
court of competent jurisdiction to be invalid for any reason, such invalidity
shall not affect the remaining provisions. On the contrary, such remaining
provisions shall be fully severable, and this Agreement shall be construed and
enforced as if such invalid provisions never had been inserted in this
Agreement.
Section 7.8 Buy-Sell Agreement. Notwithstanding anything to the contrary
contained in this Agreement, any Buy-Sell Agreement between the Employee and the
Corporation shall control wherever applicable.
The effective date of this Agreement shall be April 1, 1995.
The parties have executed this Agreement on , 199 .
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MTX International, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Chairman and C.E.O.
Attest:
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, Secretary/Treasurer
Employee:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Approved:
/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx X. Xxxxxxxxx, Director
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx, Director
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Director
