EMPLOYMENT AGREEMENT
BETWEEN
XXXXXX TECHNOLOGIES HOLDING, AG
AND
PROF. DR. XX. XXXXXXXX X. XXXXXX
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Employment Agreement") is entered into
as of the 25th day of October 2000, between Xxxxxx Technologies Holding, AG, a
Nevada corporation (the "Company"), and Prof. Dr. Xx. Xxxxxxxx X. Xxxxxx (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to be employed by the Company, on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Employment.
(a) The Company hereby employs the Executive as its President
and Chairman of the Board of Directors and the Executive hereby accepts such
employment, on the terms and subject to the conditions hereinafter set forth.
(b) During the term of this Employment Agreement and any
renewal hereof (all references herein to the term of this Employment Agreement
shall include references to the period of renewal hereof, if any), the Executive
shall be and shall have the title of President and shall devote such business
time and efforts to his employment as the Executive deems appropriate and
perform diligently such duties as are customarily performed by the President of
publicly-held companies, together with such other duties as may be reasonably
requested from time to time by the Board of Directors of the Company (the
"Board"), which duties shall be consistent with his positions as set forth above
and as provided in Paragraph 2.
2. Term and Positions.
(a) Subject to the provisions for the termination of this
Employment Agreement as provided for herein, the term of this Employment
Agreement shall commence on the date hereof and shall continue through December
31, 2005 (the "Base Term") and shall automatically be extended for an additional
one year (each a "Renewal Year") at the end of each full calendar year for which
this Employment Agreement remains in effect unless on or before November 30 of
each calendar year, either party gives to the other party written notice of
termination of this Employment Agreement, in which case this Employment
Agreement shall terminate upon the completion of the then applicable employment
period including any previous Renewal Years.
(b) The Executive shall be entitled to serve as the President
of the Company. Without limiting the general scope of the Executive's position:
(i) the Executive shall not be required to report to any person other than the
Board, (ii) no other individual shall be elected or appointed as President of
the Company, (iii) the highest levels of other executive officers of the Company
shall report to no individual other than the Executive, and (iv) no individual
or group of individuals (including a committee established or other designee
appointed by the Board) shall have any authority over or equal to the authority
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of the Executive in his role as President, and neither the Company, the Board,
nor any member of the Board shall take any action which will or could have the
effect of, or appear to have the effect of, giving such authority to any such
individual or group. The Executive shall be entitled to the full protection of
applicable indemnification provisions of the articles of incorporation and
bylaws of the Company, as the same may be amended from time to time, for his
service as a director, officer and employee of the Company.
(c) If:
(i) the Company materially changes the Executive's duties
and responsibilities as set forth in Paragraph 1(b) or 2(b) without his consent
(including, without limitation, by violating any of the provisions of clause
(i), (ii), (iii) or (iv) of Paragraph 2 (b));
(ii) there occurs a material breach by the Company of any
of its obligations under this Employment Agreement (other than those specified
in this Section 2(c)) that has not been cured in all material respects within
ten (10) days after the Executive gives notice thereof to the Company; or
(iii) the Board or any nominating committee thereof or
committee performing a Board nomination function fails to nominate the Executive
for election to the Board in connection with any stockholders' meeting to be
held or action to be taken for the election of directors;
then the Executive shall have the right to terminate his
employment with the Company, but such termination shall not be considered a
voluntary resignation or termination of such employment or of this Employment
Agreement by the Executive but rather a discharge of the Executive by the
Company without "cause" (as defined in Paragraph 4(a)(ii)).
(d) The Executive shall be considered not to have consented
to any written proposal calling for a material change in his duties and
responsibilities unless he shall give written notice of his consent thereto to
the Board within fifteen (15) days after receipt of such written proposal. If
the Executive shall not have given such consent, the Company shall have the
opportunity to withdraw such proposed material change by written notice to the
Executive given within ten (10) days after the end of said fifteen (15) day
period.
3. Compensation.
During the term of this Employment Agreement, the Company
shall pay or provide, as the case may be, to the Executive the compensation and
other benefits and rights set forth in this Paragraph 3.
(a) The Company shall pay to the Executive a base salary
payable in accordance with the Company's usual pay practices (and in any event
no less frequently than monthly) at the rate of Twenty Thousand Dollars
(US$20,000) per calendar month, to be increased (but not decreased) from time to
time (based upon the performance of the Company and the Executive) in a manner
consistent with the compensation of Presidents of publicly-held companies.
(b) The Company shall pay to the Executive bonus compensation
for each calendar year of the Company, not later than sixty (60) days following
the end of each year or the termination of his employment, as the case may be,
prorated on a per diem basis for partial calendar years, and determined by the
Board in its sole and absolute discretion, taking into consideration performance
of Executive, success of the Company and Executive's contribution to the
Company.
(c) The Executive and his family shall be permitted to
participate in all the medical, dental, and all other group insurance benefits
of the Company generally available from time to time to employees of the Company
during active employment. In the event of disability or death of the Executive,
these benefits shall be continued by the Company for life of the Executive and
his spouse.
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(d) The Executive shall be permitted to participate in all
retirement and other benefit plans of the Company generally available from time
to time to employees of the Company and for which the Executive qualifies under
their terms (and nothing in this Employment Agreement shall or shall be
considered to in any way affect the Executive's rights and benefits thereunder
except as expressly provided herein).
(e) The Executive shall be entitled to such periods of
vacation and sick leave allowance each year as are determined by the Executive
in his reasonable and good faith discretion, which in any event shall be not
less than as provided generally under the Company's vacation and sick leave
policy for executive officers.
(f) The Executive shall be entitled to participate in any
option or other employee benefit compensation plan that is generally available
to senior executive officers, as distinguished from general management, of the
Company. The Executive's participation in and benefits under any such plan shall
be on the terms and subject to the conditions specified in the governing
document of that plan.
(g) The Company shall reimburse the Executive during the term
of this Employment Agreement for travel, entertainment and other expenses
reasonably and necessarily incurred by the Executive in connection with the
Company's business. The Executive shall furnish such documentation with respect
to reimbursements to be made hereunder as the Company shall reasonably request.
4. Termination.
(a) The employment of the Executive under this Employment
Agreement, and the terms hereof, may be terminated by the Company:
(i) on the death or permanent disability (as hereinafter
defined) of the Executive,
(ii) for cause at any time by action of the Board. For
purposes hereof, the term "cause" shall mean:
(A) The Executive's fraud, commission of a felony or
of an act or series of acts which result in material injury to the business
reputation of the Company, commission of an act or series of repeated acts of
dishonesty which are materially inimical to the best interests of the Company,
or the Executive's willful and repeated failure to perform his lawful duties
under this Employment Agreement, which failure has not been cured within fifteen
(15) days after the Company gives notice thereof to the Executive; or
(B) The Executive's material breach of any material
provision of this Employment Agreement, which breach has not been cured in all
substantial respects within ten (10) days after the Company gives notice thereof
to the Executive; or
(iii) other than for cause by action of the Board,
subject to the operation of Paragraph 4(c).
The exercise by the Company of its rights of termination under
this Paragraph 4 shall be the Company's sole remedy in the event of the
occurrence of an event as a result of which such right to terminate arises. Upon
any termination of this Employment Agreement, the Executive shall be deemed to
have resigned from all offices held by the Executive in the Company.
For purposes of this Paragraph 4(a), "permanent disability"
shall be deemed to have occurred after one hundred twenty (120) days in the
aggregate during any consecutive twelve (12) month period, or after ninety (90)
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consecutive days, during which one hundred twenty (120) or ninety (90) days, as
the case may be, the Executive, by reason of his physical or mental disability
or illness, shall have been unable to discharge his duties under this Employment
Agreement. The date of permanent disability shall be such one hundred twentieth
(120th) or ninetieth (90th) day, as the case may be. In the event either the
Company or the Executive, after receipt of notice of the Executive's permanent
disability from the other, dispute that the Executive's permanent disability
shall have occurred, the Executive shall promptly submit to a physical
examination by the chief of medicine of any major accredited hospital in the
_______________, area and, unless such physician shall issue his written
statement to the effect that in his opinion, based on his diagnosis, the
Executive is capable of resuming his employment and devoting his full time and
energy to discharging his duties within thirty (30) days after the date of such
statement, such permanent disability shall be deemed to have occurred.
(b) In the event of a termination claimed by the Company to
be for "cause" pursuant to Paragraph 4(a)(ii), the Executive shall have the
right to have the justification for said termination determined by arbitration
in Washington, D.C., U.S.A. In order to exercise such right, the Executive shall
serve on the Company a written request for arbitration within thirty (30) days
after termination. The Company immediately shall request the appointment of an
arbitrator by the American Arbitration Association and thereafter the question
of "cause" shall be determined under the rules of the American Arbitration
Association, and the decision of the arbitrator shall be final and binding on
both parties. The parties shall use all reasonable efforts to facilitate and
expedite the arbitration and shall act to cause the arbitration to be completed
as promptly as possible. During the pendency of the arbitration, the Executive
shall continue to receive all compensation and benefits to which he is entitled
hereunder, and if at any time during the pendency of such arbitration the
Company fails to pay and provide all compensation and benefits to the Executive
in a timely manner, the Company shall be deemed to have automatically waived
whatever rights it then may have had to terminate the Executive's employment for
cause. If the arbitrator determines that the Executive's termination was
effected for "cause," the Executive shall reimburse the Company for all
compensation and benefits received by him during the pendency of the arbitration
to which he is not entitled in accordance with the first sentence of Paragraph
4(c). Expenses of the arbitration shall be borne equally by the parties.
(c) In the event of termination for any of the reasons set
forth in subparagraph (a)(i) or (a)(ii) of this Paragraph 4, except as otherwise
provided in Paragraph 3(e), the Executive shall be entitled to no further
compensation or other benefits under this Employment Agreement, except as to
that portion of any unpaid salary and other benefits accrued and earned by him
hereunder up to and including the effective date of such termination. If the
Company terminates the Executive's employment other than pursuant to
subparagraph 4(a)(i) or 4(a)(ii) or the Executive terminates his employment
pursuant to subparagraph 2(c), all of the compensation and benefits payable to
the Executive pursuant to this Employment Agreement shall be paid to the
Executive for the remainder of the term of this Employment Agreement (as that
term is defined in subparagraph 2(a)).
5. Covenants and Confidential Information.
(a) The Executive acknowledges the Company's reliance and
expectation of the Executive's continued commitment to performance of his duties
and responsibilities during the term of this Employment Agreement. In light of
such reliance and expectation on the part of the Company, at any time during and
after the term of this Employment Agreement), the Executive shall not, directly
or indirectly, disclose, divulge, discuss, copy or otherwise use or suffer to be
used in any manner, in competition with, or contrary to the interests of, the
Company, any confidential information relating to the Company's operations,
properties or otherwise to its particular business or other trade secrets of the
Company, it being acknowledged by the Executive that all such information
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regarding the business of the Company compiled or obtained by, or furnished to,
the Executive while the Executive shall have been employed by or associated with
the Company is confidential information and the Company's exclusive property;
provided, however, that the foregoing restrictions shall not apply to the extent
that such information: (A) is clearly obtainable in the public domain, (B)
becomes obtainable in the public domain, except by reason of the breach by the
Executive of the terms hereof, (C) was not acquired by the Executive in
connection with his employment or affiliation with the Company, (D) was not
acquired by the Executive from the Company or its representatives, or (E) is
required to be disclosed by rule of law or by order of a court or governmental
body or agency.
(b) The Executive agrees and understands that the remedy at
law for any breach by him of this Paragraph 5 will be inadequate and that the
damages flowing from such breach are not readily susceptible to being measured
in monetary terms. Accordingly, it is acknowledged that, upon adequate proof of
the Executive's violation of any legally enforceable provision of this Paragraph
5, the Company shall be entitled to immediate injunctive relief and may obtain a
temporary order restraining any threatened or further breach. Nothing in this
Paragraph 5 shall be deemed to limit the Company's remedies at law or in equity
for any breach by the Executive of any of the provisions of this Paragraph 5
which may be pursued or availed of by the Company.
6. Representations and Warranties of the Company.
(a) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada, and has all
requisite corporate power and authority to enter into, execute and deliver this
Employment Agreement, fulfill its obligations hereunder and consummate the
transactions contemplated hereby.
(b) The execution and delivery of, performance of obligations
under, and consummation of the transactions contemplated by, this Employment
Agreement have been duly authorized and approved by all requisite corporate
action by or in respect of the Company, and this Employment Agreement
constitutes the legally valid and binding obligation of the Company, enforceable
by the Executive in accordance with its terms.
(c) No provision of the Company's governing documents or any
agreement to which it is a party or by which it is bound or of any material law
or regulation of the kind usually applicable and binding upon the Company
prohibits or limits its ability to enter into, execute and deliver this
Employment Agreement, fulfill its respective obligations hereunder and
consummate the transactions contemplated hereby.
7. Miscellaneous.
(a) The Executive represents and warrants that he is not a
party to any agreement, contract or understanding, whether employment or
otherwise, which would restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions of this Employment
Agreement.
(b) The provisions of this Employment Agreement are severable
and if any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any partially
unenforceable provision, to the extent enforceable in any jurisdiction,
nevertheless shall be binding and enforceable.
(c) The rights and obligations of the Company under this
Employment Agreement shall inure to the benefit of, and shall be binding on, the
Company and its successors and assigns, and the rights and obligations (other
than obligations to perform services) of the Executive under this Employment
Agreement shall inure to the benefit of, and shall be binding upon, the
Executive and his heirs, personal representatives and assigns.
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(d) Any controversy or claim arising out of or relating to
this Employment Agreement, or the breach thereof, shall be settled by
arbitration in accordance with the Rules of the American Arbitration Association
then pertaining in Washington, D.C., U.S.A., and judgment upon the award
rendered by the arbitrator or arbitrators may be entered in any court having
jurisdiction thereof. The arbitrator or arbitrators shall be deemed to possess
the powers to issue mandatory orders and restraining orders in connection with
such arbitration; provided, however, that nothing in this Paragraph 7(d) shall
be construed so as to deny the Company the right and power to seek and obtain
injunctive relief in a court of equity for any breach or threatened breach by
the Executive of any of his covenants contained in Paragraph 5 hereof.
(e) Any notice to be given under this Employment Agreement
shall be personally delivered in writing or shall have been deemed duly given
when received after it is posted in the United States mail, postage prepaid,
registered or certified, return receipt requested, and if mailed to the Company,
shall be addressed to its principal place of business, attention: General
Counsel, and if mailed to the Executive, shall be addressed to him at his home
address last known on the records of the Company, or at such other address or
addresses as either the Company or the Executive may hereafter designate in
writing to the other.
(f) The failure of either party to enforce any provision or
provisions of this Employment Agreement shall not in any way be construed as a
waiver of any such provision or provisions as to any future violations thereof,
or prevent that party thereafter from enforcing each and every other provision
of this Employment Agreement. The rights granted the parties herein are
cumulative and the waiver of any single remedy shall not constitute a waiver of
such party's right to assert all other legal remedies available to it under the
circumstances.
(g) This Employment Agreement supersedes all prior agreements
and understandings between the parties and may not be modified or terminated
orally. No modification, termination or attempted waiver shall be valid unless
in writing and signed by the party against whom the same is sought to be
enforced.
(h) This Employment Agreement shall be governed by and
construed according to the laws of the State of Nevada, without giving effect to
applicable conflict of laws principles.
(i) Where necessary or appropriate to the meaning hereof, the
singular and plural shall be deemed to include each other, and the masculine,
feminine and neuter shall be deemed to include each other.
XXXXXX TECHNOLOGIES HOLDING, AG
By: /s/ Xxxx Xxxxxxxxx
----------------------
Name: Xxxx Xxxxxxxxx
Title: Executive Vice President
Date: October 25, 2000
----------------------
By: /s/ Xx. Xxxxxxxx X. Xxxxxx
-----------------------------------
PROF. DR. XX. XXXXXXXX X. XXXXXX
