EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT, effective February 1, 2002, is made and entered into by
and between XXXXXX XXXXXX MARINE, INC., a California corporation (the "Company")
and Xxxxxx X. Xxxxxxx ("Employee").
WHEREAS, the Company desires to employ Employee as Chairman of the
Board, Chief Executive Officer and Chief Marketing Officer of the Company and
Employee desires to accept such employment on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth herein, and for other good and valuable consideration, the parties
hereto agree as follows:
I. EMPLOYMENT. The Company shall employ the Employee, and Employee
accepts employment, upon the terms and conditions hereinafter set forth.
II. TERM. Subject to the provisions for termination as hereinafter
provided, the term of this Agreement is for a period commencing February 1,
2002, and expiring January 31, 2005.
III. DUTIES.
A. Employee shall serve as Chairman of the Board, Chief
Executive Officer and Chief Marketing Officer of the Company, to have complete
responsibility for and authority over the management of the operations of the
Company, including, but not limited to, overall management of the Company's
Sales, Marketing, Finance, Administration, Operations, Merchandising, Product
Development, Distribution and Human Resources departments or functions and
supervision of the President, Vice Presidents and other officers or managers
assigned to those departments, areas or functions, and to have full authority
and responsibility, subject only to the general direction and control of the
Board of Directors, for administering those operations of the Company in all
respects. His power shall include authority to hire and fire personnel of the
Company and to retain consultants when he deems necessary to implement the
Company's policies.
B. Board Seat. Employee shall serve on the Company's Board of
Directors during the term of this Agreement.
IV. EXTENT OF SERVICES. Employee shall faithfully, industriously, and
to the best of his ability, experience, and talents, perform all of the duties
that may be required of and from him pursuant to this Agreement for a minimum of
forty (40) hours per week. Employee shall not engage in any other employment
during the term of this Agreement. Nothing herein shall be construed as
preventing Employee from (a) investing his assets in such form or manner as will
not require any services on the part of Employee in the operation of the affairs
of the companies in which such investments are made or (b) serving as a
director, advisor, or
consultant; provided, however, that such investments or services may not be in
connection with a business which is in competition with the Company.
V. COMPENSATION AND EMPLOYEE BENEFITS.
A. Annual Base Salary. For all services rendered by Employee
under this Agreement, the Company shall pay Employee an initial annual base
salary of $100,000.00, payable in equal bi-weekly installments, effective
October 1, 2002. Until that date, Employee shall not receive a salary. The
amount of the base salary shall be determined at the beginning of each fiscal
year by the Board of Directors in its sole discretion on the basis of Employee's
merit and the Company's financial success and progress but in no event shall
such base salary be less than the initial annual base salary indicated above,
unless there is an extraordinary, across-the-board reduction in the Company's
officers' salaries, in which case Employee's salary shall be reduced by a
percentage equal to the lowest percentage reduction taken by any other officer.
B. Stock Option Grants. Employee may be eligible to receive
stock option grants in the discretion of the Board of Directors and/or the
Compensation Committee, in accordance with the terms of the Company's existing
Equity Incentive Plan.
C. Bonus Compensation. Employee may receive year-end bonuses
as determined at the beginning of each subsequent fiscal year of the Company by
the Board of Directors in its sole discretion on the basis of Employee's merit
and the Company's financial success and progress.
D. Vacation. Employee shall be entitled to six weeks of paid
vacation each year and may not obtain payment in lieu of accrued but unused
vacation without the prior approval of the Board of Directors, except upon
termination of this Agreement.
E. Employee Benefits. Employee shall be entitled to receive
all of the rights, benefits, and privileges of the Company's employees under any
retirement, pension, profit-sharing, insurance, health and hospital, and other
employee benefit plans which may be now in effect or hereafter adopted by the
Company.
F. Working Facilities. Employee shall be furnished with a
private office and such other facilities and services suitable to Employee's
position and adequate for the performance of the duties required by this
Agreement. Employee may work from his home office up to three full days per
week. The Company shall reimburse Employee for reasonable expenses incurred in
connection his home office.
G. Expenses. Subject to the limits which may be imposed by the
Board of Directors, Employee is authorized to incur reasonable expenses in
connection with his responsibilities in conducting the business of the Company,
including reasonable expenses for entertainment, travel, and similar items. The
Company will reimburse Employee in accordance with Company policy for all such
reasonable expenses upon the presentation by Employee, from time to time, of an
itemized account of such expenditures.
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VI. RESTRICTIVE COVENANTS.
E. Duty of Confidentiality. Employee acknowledges that as part
of performing his duties as the Chairman of the Board, Chief Executive Officer
and Chief Marketing Officer of the Company, Employee will have access to and/or
may develop or assemble confidential and/or proprietary information and trade
secrets owned by, or related to the Company, its customers, or its business
partners (collectively "Confidential Information"), such information including
without limitation (i) applications, operating system, data base, communications
and other computer software, whether now or hereafter existing, developed for
use on any operating system, all modifications, enhancements and versions and
all options available with respect thereto, and all future products developed or
derived therefrom; (ii) source and object codes, flowcharts, algorithms, coding
sheets, routines, subroutines, compilers, assemblers, design concepts and
related documentation and manuals; (iii) plans, designs, data, processes,
know-how, manuals, techniques, customer and/or subscribers lists and
information, mailing lists, contracts, marketing strategies and literature,
agency relationships and terms, financial information, pricing and compensation
structures, business relations and negotiations, employee lists, vendors and
suppliers, and any other information which is identified as "confidential"
either verbally or in writing. Employee shall retain all Confidential
Information in confidence in perpetuity, and shall not use or disclose
Confidential Information for any purpose other than to the extent necessary to
perform his duties as the Chairman of the Board, Chief Executive Officer and
Chief Marketing Officer of the Company.
Upon termination of Employee's employment for
whatever reason pursuant to Section VII hereof, Employee shall promptly return
to the Company all materials in his possession or under his custody which
contain, represent, or convey any Confidential Information, including without
limitation Employee's notes or memoranda which comment on or refer to
Confidential Information. Employee understands that all Confidential Information
and any physical representation thereof is the unique and valuable asset of the
Company, and that Employee shall not have a proprietary interest therein, even
if created or developed solely by Employee.
F. Proprietary Interests of the Company. Employee understands
that as part of his employment he may improve, modify, create or contribute to
the creation of computer software, source codes, object codes, designs,
literature, or any other copyrightable works (the "Works"), or hardware
technology, know-how, and designs (the "Inventions"). Employee acknowledges that
all Works created by him in whole or in part in the course of his employment are
and shall be a "work made for hire" and that the Company shall be the author of
such Works, and shall own all right, title, and interest in and to the
copyrights in such Works. In the event that the Works do not qualify as a "work
made for hire" under applicable law, Employee hereby assigns to the Company all
right, title, and interest in and to the copyrights to such Work, including all
rights of renewal and termination, and to any and all other intellectual
property rights, including without limitation, patents, trademarks, trade
secrets, and know-how, embodied in the Works, the Inventions, or in any other
idea or technology developed in whole or in part by Employee in the course of
his employment. Employee further agrees to take all actions necessary and to
execute all documents in order to
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perfect and to vest such intellectual property rights in the Company. Employee
agrees to promptly report and disclose to the Company any Works and Inventions
conceived or created or any ideas or technology, whether or not patentable,
which Employee conceived, encountered, created, or perfected in the course of
his employment at the Company. The Company reserves all rights to all tangible
and intangible representations Works and Inventions, including all designs,
models, prototypes, and physical embodiments of Works and Inventions.
G. Non-Competition. Employee understands that the business of
the Company is highly specialized and involves proprietary techniques developed
and continually improved through substantial investment of time and resources by
the Company. During the term of this Agreement, Employee will not, directly or
indirectly, own, manage, operate, control, be employed by, participate in, or be
connected in any manner with the ownership, management, operation, or control of
any business which is similar to the type of business conducted by the Company
and which conducts such business or sells its products within and to the same
market as the Company's market at the time of the termination of the Noncompete
Period, or expiration of this Agreement. The foregoing agreement not to compete
shall not be held invalid because of the scope of the territory or the actions
restricted thereby, or the period of time within which such agreement is
operative; but any judgment by a court of competent jurisdiction may define the
maximum territory and action subject to, and restricted by, this paragraph and
the period of time during which such agreement is enforceable.
Notwithstanding the foregoing, in the event of a CHANGE OF
CONTROL, as hereinafter defined, not recommended by a majority of the Board of
the Company as constituted prior to the CHANGE OF CONTROL date, this noncompete
agreement shall terminate upon the CHANGE OF CONTROL date.
H. Equitable Relief. Employee understands that if he violates
any provision of this Section VI, Employee will cause immediate irreparable harm
to the Company and monetary damages would be difficult if not impossible to
ascertain. Therefore, the parties agree that upon any breach or threatened
breach of any covenant in this Section, the Company may obtain from a court of
competent jurisdiction, an appropriate restraining order, preliminary injunction
or other form of equitable relief with respect thereto. Nothing contained herein
shall be construed as prohibiting the Company from pursuing any other available
remedies for such breach or threatened breach, including the recovery of
damages, costs, and attorney fees.
VII. TERMINATION OF EMPLOYMENT.
E. TERMINATION BY MUTUAL AGREEMENT. The Company and Employee
may agree to terminate this Agreement on terms and conditions mutually
acceptable to them at any time, without further notice.
F. DEATH. In the event of Employee's death, the Employee's
employment with the Company shall be terminated and the Company shall pay to any
beneficiary designated
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by Employee or, if no such beneficiary has been designated, to his estate, an
amount equal to the then annual base salary for one (1) year, together with any
bonuses which the Company's Board of Directors shall determine in its sole
discretion to be due and payable to Employee. If Employee's beneficiary or
estate receives any proceeds from any life insurance policies paid for by the
Company, the payments of annual base salary and bonuses will be reduced by the
amount of such proceeds from such life insurance policies.
G. DISABILITY. If Employee becomes disabled during the term of
employment, such that Employee is unable to perform the essential functions of
his job, with or without reasonable accommodation, the Company, at its option,
may thereafter, upon written notice to Employee or Employee's personal
representative, terminate the employment. Employee shall thereafter be eligible
to receive disability benefits under the Company's standard employee disability
insurance policy like any other employee.
H. INVOLUNTARY TERMINATION. If prior notice is given of any
Involuntary Termination as defined herein, Employee, if requested by the
Company, shall continue to render his services to the date of such Involuntary
Termination and shall be paid on the basis of the then annual base salary up to
the date of such Involuntary Termination, any bonuses which the Company's Board
of Directors shall determine in its sole discretion to be due and payable to
Employee, and the Severance Amount as provided herein. In the event of an
Involuntary Termination, Employee shall have the right to offer to the Company
all or a portion of shares of the Company's stock, of any class or type, owned
by Employee on such date. In the event Employee chooses to exercise this option,
Employee shall give the Company prior written notice of exercise of such option
setting forth the number of shares Employee wishes to sell.
I. DEFINITIONS. All the terms defined in this Section shall
have the meanings given below throughout this Agreement.
1. "CAUSE" shall mean (A) the Employee's continued
failure substantially to perform the Employee's duties hereunder (other than as
a result of total or partial incapacity due to physical or mental illness) for a
period of 10 days following written notice by the Company to the Employee of
such failure, (B) intentional dishonesty in the performance of the Employee's
material duties hereunder, (C) an act or acts on the Employee's part
constituting (x) a felony under the laws of the United States or any state
thereof or (y) a misdemeanor involving moral turpitude, (D) the Employee's
willful malfeasance or willful misconduct in connection with (i) the Employee's
duties hereunder, or (ii) any act or omission which is injurious to the
financial condition or business reputation of the Company or any of its
subsidiaries or affiliates or (E) the Employee's breach of the provisions of the
Article VI this Agreement.
2. "CHANGE IN DUTIES, COMPENSATION, OR BENEFITS"
shall mean any one or more of the following:
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a. a significant and detrimental change in
the nature or scope of Employee's authority, responsibilities or duties from
those currently applicable to him;
b. a reduction in Employee's annual base
salary from that currently provided to him;
c. a diminution in Employee's eligibility to
participate in bonus, stock option, incentive award or any other compensation
plan which provides opportunities to receive compensation from those currently
applicable to him, except for: (i) changes in the eligibility requirements for
plans that are applicable to employees generally; (ii) changes in plans that are
applicable to all executives and result in a diminution of Employee's benefits
under such plan that is fair and proportional as compared to the diminution of
benefits for all executives; and (iii) changes that are required by applicable
law;
d. a material diminution in employee
benefits (including but not limited to medical, dental or life insurance and
long-term disability plans) and perquisites currently applicable to Employee,
except for: (i) changes in the eligibility requirements for benefits that are
applicable to employees generally; (ii) changes in benefits and perquisites that
are applicable to all executives and result in a diminution of Employee's
benefits that is fair and proportional as compared to the diminution for all
executives; and (iii) changes that are required by applicable law;
e. a change in the location of Employee's
principal place of employment by the Company (including its subsidiaries) by
more than twenty-five (25) miles from the location where he was principally
employed immediately prior to the date on which a CHANGE OF CONTROL occurs; or
f. a reasonable determination by a majority
of those persons comprising the Board of Directors of the Company prior to a
CHANGE OF CONTROL (even if such determination is made after such CHANGE OF
CONTROL) that, as a result of a CHANGE OF CONTROL and a change in circumstances
thereafter significantly affecting his position, Employee is unable to exercise
the functions or duties attached to his position immediately prior to the date
on which a CHANGE OF CONTROL occurs.
3. "CHANGE OF CONTROL" shall be deemed to have
occurred if:
a. any "person," including a "group" as
determined in accordance with Section 13(d)(3) of the Securities Exchange Act of
1934 (the "Exchange Act"), becomes the beneficial owner, directly or indirectly,
of securities of the Company representing 50% or more of the combined voting
power of the Company's then outstanding securities;
b. as a result of, or in connection with,
any tender offer or exchange offer, merger or other business combination, sale
of assets or contested election, or any combination of the foregoing
transactions (a "Transaction"), the persons who were
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directors of the Company before the Transaction shall cease to constitute a
majority of the Board of Directors of the Company or any successor to the
Company;
c. the Company is merged or consolidated
with another corporation and, as a result of the merger or consolidation, less
than 51% of the outstanding voting securities of the surviving or resulting
corporation is then owned in the aggregate by the former stockholders of the
Company;
d. a tender offer or exchange offer is made
and consummated for the ownership of securities of the Company representing 50%
or more of the combined voting power of the Company's then outstanding voting
securities; or
e. the Company transfers substantially all
of its assets to another corporation which is not a wholly-owned subsidiary of
the Company.
4. "DISABILITY" shall mean mental or physical illness
or condition rendering Employee incapable of performing Employee's normal
essential functions with or without reasonable accommodation.
5. "INVOLUNTARY TERMINATION" shall mean any
termination except:
a. VOLUNTARY TERMINATION;
b. termination by mutual agreement;
c. any termination as a result of death,
DISABILITY, or normal retirement pursuant to a retirement plan to which Employee
was subject prior to any CHANGE OF CONTROL; or
d. termination for Cause.
6. "SEVERANCE AMOUNT" is equal to:
a. in the case of an INVOLUNTARY TERMINATION
which occurs after a CHANGE OF CONTROL, an amount equal to Employee's Annual
Base Salary for one year, payable immediately upon termination; and
b. in the case of an INVOLUNTARY TERMINATION
which does not occur after a CHANGE OF CONTROL, an amount equal to Employee's
Annual Base Salary for one year, payable on regular bi-weekly payroll dates,
for a one-year period;
7. "VOLUNTARY TERMINATION" shall mean any termination
which results from a resignation or an early retirement by the Employee other
than a resignation within sixty (60) days of a CHANGE IN DUTIES, COMPENSATION,
OR BENEFITS as defined herein or a termination for Cause.
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8. "VOTING SECURITIES" shall mean any securities
which ordinarily possess the power to vote in the election of directors without
the occurrence of any pre-condition or contingency other than the passage of
time.
J. Section 280G Payment Reduction. It is the intention of the
parties that the SEVERANCE AMOUNT payments under this Agreement shall not
constitute "excess parachute payments" within the meaning of Section 280G of the
Internal Revenue Code of 1986, as amended, and any regulations thereunder. If
the independent accountants acting as auditors for the Company prior to the date
of a CHANGE OF CONTROL (or another accounting firm designated by them) determine
that the SEVERANCE AMOUNT payments under this Agreement may constitute "excess
parachute payments," the payments may be reduced to the maximum amount which may
be paid without the payments being "excess parachute payments." The
determination shall take into account (i) whether the payments are "parachute
payments" under Section 280G and, if so, (ii) the amount of payments under this
Agreement that constitutes reasonable compensation under Section 280G. Nothing
contained in this Agreement shall prevent the Company after a CHANGE OF CONTROL
from agreeing to pay Employee compensation or benefits in excess of those
provided in this Agreement.
K. Medical and Dental Benefits After Termination. If
Employee's employment by the Company or any subsidiary or successor of the
Company is terminated because of DISABILITY, VOLUNTARY TERMINATION, or
INVOLUNTARY TERMINATION, then to the extent that Employee or any of Employee's
dependents may be covered under the terms of any medical and dental plans of the
Company (or any subsidiary) for active Employees immediately prior to the
termination, Employee may, at his option, continue coverage under such medical
and dental plans, or equivalent plans offered by the Company, for himself and
those dependents for a period of two years after such termination. The coverages
may be procured directly by the Company (or any subsidiary, if appropriate)
apart from, and outside of the terms of, the plans themselves; provided that
Employee and Employee's dependents comply with all of the conditions of the
medical or dental plans. In consideration for the Company's efforts in procuring
these benefits, Employee shall pay the entire cost of such coverage, including
what is typically considered the employer's portion.
L. Except as expressly set forth herein, following the
termination of the Employee's employment by the Company, the Employee shall have
no further rights to any compensation or any other benefits from the Company or
any of its subsidiaries under this Agreement or otherwise.
VIII. CONTINUED EMPLOYMENT BEYOND THE EXPIRATION OF THE EMPLOYMENT
TERM. Unless the parties otherwise agree in writing, continuation of the
Employee's employment with the Company beyond the expiration of the term of this
Agreement shall be deemed an employment at-will and shall not be deemed to
extend any of the provisions of this Agreement and the Employee's employment may
thereafter be terminated at will by either the Employee or the Company; provided
that the provisions of Article VI of this Agreement shall survive any
termination of this Agreement or the Employee's termination of employment
hereunder.
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IX. DIRECTORS AND OFFICERS INSURANCE. The Company shall procure
Directors and Officers liability insurance coverage on all directors and
officers in such an amount as the Company deems reasonable and necessary under
the circumstances.
X. WITHHOLDING TAXES. The Company may withhold from any amounts payable
under this Agreement such federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
XI. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered in person or sent by
registered or certified mail to Employee's residence in the case of Employee or
to its principal office in the case of the Company.
XII. WAIVER. The waiver of any provision of this Agreement shall not
operate or be construed as a waiver of any other provision of this Agreement. No
waiver shall be valid unless in writing and executed by the party to be charged
therewith.
XIII. SEVERABILITY/MODIFICATION. In the event that any clause or
provision of this Agreement shall be determined to be invalid, illegal or
unenforceable, such clause or provision may be severed or modified to the extent
necessary, and, as severed and/or modified, this Agreement shall remain in full
force and effect.
XIV. ASSIGNMENT. Except for a transfer by will or by the laws of
descent or distribution, Employee's right to receive payments or benefits under
this Agreement shall not be assignable or transferable, whether by pledge,
creation of a security interest or otherwise. In the event of any attempted
assignment or transfer contrary to this paragraph, the Company shall have no
liability to pay any amount so attempted to be assigned or transferred.
Employee acknowledges that the services to be rendered under
this Agreement are unique and personal. Accordingly, Employee may not assign
such duties or obligations under this Agreement.
XV. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Company, its successors and assigns (including, without
limitation, any company into or with which the Company may merge or
consolidate). The Company agrees that it will not effect the sale or other
disposition of all or substantially all of its assets unless either (i) the
person or entity acquiring the assets or a substantial portion of the assets
shall expressly assume by an instrument in writing all duties and obligations of
the Company under this Agreement or (ii) the Company shall provide, through the
establishment of a separate reserve for the payment in full or all amounts which
are or may reasonably be expected to become payable to Employee under this
Agreement.
XVI. ENTIRE AGREEMENT. This instrument contains the entire agreement
concerning the employment arrangement between the parties and shall, as of the
effective date hereof, supersede all other such agreements between the parties
provided however, that, nothing in this Agreement shall prevent the Company from
granting additional or special compensation or
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benefits to Employee after the date of execution of this Agreement. This
Agreement may not be amended except by an agreement in writing signed by both
parties.
XVII. GOVERNING LAW AND JURISDICTION. This Agreement shall be
interpreted, construed, and enforced under the laws of the State of California.
The courts and authorities of the State of California shall have sole
jurisdiction and venue over all controversies which may arise with respect to
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year indicated above.
THE COMPANY:
XXXXXX XXXXXX MARINE, INC.
By:
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Xxxxx Xxxxxxx Xxxxxxx, President
EMPLOYEE:
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Xxxxxx X. Xxxxxxx
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