Exhibit 10(ii)
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Agreement
Effective as of the 1/st/ Day of May, 1999
By and between
Xxxx Technology, Inc
A Delaware Corporation
With its principal place of business at
0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
(the "Company")
and
Xxxxxxx X. Xxxx
0000 Xxxxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(the "Employee")
WITNESSETH
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Whereas, the Company and Employee mutually desire to enter into this
Agreement with respect to Employee's employment with the Company;
Now, therefore, in consideration of the mutual covenants hereinafter
contained, the Company and Employee agree as follows:
1. Employment and Term. The Company agrees to employ the Employee and the
Employee agrees to serve the Company as the Executive Vice President of the
Company for a term beginning May 1, 1999 and ending April 30, 2002, unless
sooner terminated in accordance with Section 9. This agreement shall be
automatically extended for twelve-month periods after April 30, 2002 unless
otherwise terminated as provided herein or unless either party shall have
given to the other written notice of termination 3 months prior to the
start of any extension period.
2. Duties. Employee agrees to serve the Company faithfully and to the best of
his ability; to devote his entire time, energy and skill during regular
business hours to such employment; to use his best efforts, skill and
ability to promote its interest; and to perform such duties as from time to
time may be assigned to him by the Board of Directors.
3. Responsibilities. Employee's area of responsibility shall be that of
Executive Vice President of the Company and during the term of this
Agreement the duties assigned to Employee shall
not be inconsistent therewith and further, Employee shall at all times have
executive powers and authority as shall be reasonably required to enable
him to discharge such duties in an efficient manner, together with such
facilities and services as are suitable or customary to his position.
4. Compensation. The Company agrees to pay Employee as compensation for all
duties performed by him in any capacity during the period of his employment
under this Agreement:
(a) base salary of $150,000 per annum payable in at least equal monthly
installments or such higher base salary as may be established in
annual reviews of performance and compensation by the Board of
Directors; and
(b) beginning in fiscal year ending March 31, 2001, a target bonus of up
to 50% of base salary payable in accordance with goals and objectives
set forth annually for the Company by the Board of Directors.
5. Severance Pay. In the event the Employee is terminated without cause (cause
is as defined in Section 9), the Company will provide the Employee with
severance pay equal to one year of his then current base salary plus target
incentive of 50% of base pay. This amount will be paid in a lump sum within
15 days of termination. In the event this severance payment is made to the
Employee, compensation payments as provided in Section 4 will cease and no
further compensation payments will be earned or payable under this
agreement. Benefits and perquisites will be furnished for a one-year period
following termination.
6. Benefits, Reimbursements of Expenses. Employee shall be entitled:
(a) to participate in all of the benefit programs which are presently or
may hereafter be provided by the Company to its executives and key
employees, including, without limitation, all retirement, health
insurance and life insurance programs;
(b) to reimbursement for all expenses reasonably incurred by him in
connection with the performance of his duties, including, without
limitation, travel and entertainment expenses reasonably related to
the business or interests of the Company, upon submission by him of
written documentation of such expenses;
(c) to an automobile or automobile allowance of $1,000 per month during
the term of his employment. The Company shall afford the Employee the
right to use an automobile on a continuing basis. The Company shall
pay all reasonable expenses associated with the operation of such
automobile in the same manner as is, from time to time, in effect with
respect to executive officers of the Company, including, without
limitation, all reasonable maintenance and insurance expenses. At the
expiration of the term of the Agreement, employee shall promptly
return the automobile to the Company.
7. Inventions; Confidential Information; Competitors.
(a) All inventions, whether or not patentable, conceived or developed by
the Employee that may reasonably relate to the Company's business,
alone or with others, during his employment by the Company shall be
the property of the Company and shall be promptly and fully disclosed
by the Employee to the Company. Employee shall perform all necessary
actions to vest title fully to any such invention in the Company and
to enable the Company, at its expense, to secure and maintain domestic
and/or foreign patents or any other rights for such inventions.
(b) Without the express prior written consent of the Company, Employee
shall not disclose or make available to anyone outside the Company any
confidential or proprietary information of the Company including,
without limitation, trade secrets, know how, customer lists,
inventions or other information not generally known to any competitor
of the Company. Upon termination of this Agreement, Employee shall
promptly deliver to the Company all documents containing such
confidential or proprietary information without retaining any copies
or extracts thereof.
(c) During the time he is employed by the Company, Employee shall not
serve as officer, director or employee or be associated in any other
capacity with any corporation, partnership or other entity or person
that is a competitor of the Company. During such period Employee shall
have no financial interest in any corporation, partnership or other
entity which is a competitor of the Company, except participation
solely as a stockholder owning not more than 5% of the outstanding
shares of a publicly owned business.
(d) Employee acknowledges that his services are special, unique, unusual
and extraordinary, giving them peculiar value, the loss of which
cannot be reasonably or adequately compensated for by damages and, in
the event of Employee's breach of this Section 7, the Company shall be
entitled to equitable relief by way of injunction or otherwise.
8. Work Situs and Relocation. Except for occasional travel, Employee shall not
be required to perform his duties under this Agreement outside of the
Knoxville, Tennessee area.
9. Termination. This agreement shall terminate prior to the expiration of its
term upon the occurrence of any of the following:
(a) employee's death;
(b) employee's permanent disability;
(c) employee's gross misconduct, material dishonesty or felony conviction
in which event the Company may elect to terminate this Agreement upon
sixty (60) days prior written notice to Employee; or
(d) cessation of all or substantially all business of the Company.
10. Breach of Agreement. In the event of the breach of any material provision
of this Agreement by the Company, the Employee shall be entitled to receive
the severance pay, benefits and perquisites due him as provided in Section
5. If the Company and Employee become involved in litigation relating to
any alleged breach of this Agreement, and if a judgement in such litigation
is rendered in favor of one of the parties, the party against whom the
judgment is rendered will reimburse the prevailing party for all reasonable
costs (including reasonable fees and disbursements of counsel) incurred by
such party in connection with such litigation upon presentation to the
Company of evidence of such costs.
11. Termination of Prior Agreements. This Agreement expressly supersedes all
employment agreements and understandings between the parties and any such
agreements are terminated as of the date first written above.
12. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective legal representatives and
to any successor of the Company, which successor shall be deemed
substituted for the Company under the terms of this Agreement. As used in
this Agreement, the term "successor" shall included any person, firm,
corporation or other business entity which at a time, whether by merger,
purchase or otherwise, acquires all or substantially all of the assets or
business of the Company.
13. Waiver of Breach. The waiver of a breach of any provision of this Agreement
by a party shall not operate or be construed as a waiver of any subsequent
breach by such party.
14. Notices. All notices, claims, requests, demands and other communications
hereunder will be in writing and will be deemed given if delivered by hand,
if mailed (by registered or certified mail, return receipt requested and
postage prepaid), if sent by reputable overnight courier service for next
business day delivery, or if sent by facsimile transmission, to the
Employee at the most recent address provided by the Employee to the Company
and to the Company at its principle place of business, or to such other
address as the party to whom notice is to be given may have furnished to
the other party in writing in accordance herewith. Any such communication
will be effective (a) if given by facsimile transmission, when transmitted
to the applicable number specified in (or pursuant to) this Section and an
appropriate mechanical or voice confirmation is received, (b) if given by
United States mail, on the earlier of the date of receipt or the fifth day
after deposit in the mails, or (c) if given by any other means, on the date
of receipt.
15. Entire Agreement. This document contains the entire agreement of the
parties and may not be changed except in a written modification signed by
both parties.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee, as applied to contracts
executed and performed wholly within the State of Tennessee.
In Witness Whereof, the parties have executed this Agreement as of the date
below.
XXXX TECHNOLOGY, INC.
By: /s/
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Date:
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XXXXXXX X. XXXX
By: /s/
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Date:
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