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EXHIBIT 10.11
EMPLOYMENT AGREEMENT
This Agreement is made as of the 25 day of July, 1996 between Triton
Systems, Inc., a Mississippi corporation (the "Company"), and Xxxxxx X.
Xxxxxxxx, an individual residing at 0000 Xxxx Xxxxxx Xxxxxx, Xxxx Xxxxxxxxx,
Xxxxxxxxxxx 00000 (the "Employee").
RECITALS
WHEREAS, pursuant to a Stock Purchase and Redemption Agreement dated as
of the date hereof (the "Purchase Agreement"), Summit Ventures IV, L.P., Summit
Investors III, L.P. and Summit Subordinated Debt Fund, L.P. (collectively, the
"Investors") have agreed to purchase an aggregate of 114,000 shares of Series A
Preferred Stock, par value $.01 per share, of the Company and 4,160,000 shares
of Common Stock, par value $1.00 per share, of the Company (collectively, the
"Shares");
WHEREAS, pursuant to the terms of the Purchase Agreement, the Company
will apply the proceeds received upon the sale of the Shares to redeem a
portion of the shares of Common Stock held by the Employee; and
WHEREAS, the Investors would be unwilling to purchase the Shares and
the Company would be unwilling to redeem the shares of Common Stock held by the
Employee without the execution of this Agreement by the Employee containing
certain covenants on the part of the Employee, including, without limitation,
the covenants contained in Section 6 and 7 hereof.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound
hereby, agree as follows:
1. Employment. The Company hereby employs the Employee as President
and Chief Executive Officer of the Company, and the Employee accepts such
employment for the term of employment specified in Section 3 below (the
"Employment Term"). During the Employment Term, the Employee shall, subject to
the direction of the Board of Directors of the Company, oversee and direct the
operations of the Company and perform such other duties as may from time to
time be assigned to him by the Board of Directors.
2. Performance. The Employee agrees to devote his best efforts and
substantially all of his business time to the performance of his duties
hereunder during the Employment Term.
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3. Employment Term. The Employment Term shall begin on the date of this
Agreement and continue until July 31, 1999 (the "Employment Term"), unless
earlier terminated in accordance with the terms of this Agreement.
4. Compensation.
(a) Salary. During the Employment Term, the Company shall pay the
Employee a base salary, payable in equal installments in accordance with the
Company's then current compensation practices for all of its employees, subject
to withholding and other applicable taxes, at an annual rate of One Hundred
Seventy-Five Thousand Dollars ($175,000.00). The annual base salary will be
subject to review annually and will be revised based on the recommendation of
the Compensation Committee of the Board of Directors of the Company; provided,
however, that such annual base salary shall not be decreased during the term of
this Agreement.
(b) Bonus. The Employee shall be eligible to participate in a bonus
plan of the Company pursuant to which he may be entitled to receive an annual
bonus equal to a specified percentage of the annual base salary then in effect,
subject to achieving specified financial targets. The actual amount of such
bonus and the financial targets for the payment thereof shall be as determined
by the Compensation Committee of the Board of Directors of the Company.
(c) Insurance; Other Benefits. The Employee shall be entitled to
participate in all employee benefit plans now existing or hereinafter
established by the Company, including, but not limited to, medical plans, group
life and disability insurance plans, pension, profit sharing or bonus plans, and
any other employee benefit plan or arrangement made available to executive
officers of the Company.
(d) Vacation. The Employee shall be entitled to take four weeks of
paid vacation during each year of the Employment Term, consistent with the
Company's past employment practices with regard to the Employee, to be taken at
such time or times as shall be mutually convenient and consistent with his
duties and obligations to the Company.
(e) Automobile. The Employee shall be entitled to an automobile
allowance of $500 per month which shall cover, without limitation, all
maintenance, insurance and other costs respecting such automobile.
5. Expenses. The Employee shall be reimbursed by the Company for all
reasonable expenses incurred by him in connection with the performance of his
duties hereunder in accordance with policies established by the Board of
Directors from time to time and upon receipt of appropriate documentation.
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6. Agreement Not to Compete. The Employee acknowledges and agrees that
the covenants contained in Sections 6 and 7 hereof are provided in connection
with the transactions contemplated by the Purchase Agreement. The Employee
agrees that during the Non-Competition Period (defined below) he will not in any
capacity, either separately, jointly, or in association with others, directly or
indirectly, as an officer, director, consultant, agent, employee, owner,
partner, stockholder or otherwise, engage or have a financial interest in any
business which competes with the Company in the United States (excepting only
the ownership of not more than 5% of the outstanding securities of any class
of an issuer listed on an exchange or regularly traded in the over-the-counter
market). The "Non-Competition Period" shall mean the period ending two years
after the termination of the Employee's employment with the Company for any
reason. The Employee further agrees that during the Non-Competition Period,
except in connection with the performance of services hereunder, he will not in
any capacity, either separately, jointly or in association with others, directly
or indirectly, solicit or contact with regard to a business competitor of the
Company any of the Company's employees, consultants, agents or suppliers,
customers, distributors or prospects, as shown by the Company's records, that
were employees, consultants, agents, suppliers, customers or prospects of the
Company at any time during the two years immediately preceding termination of
employment hereunder.
If a court determines that the foregoing restrictions are too broad or
otherwise unreasonable under applicable law, including with respect to time or
space, the court is hereby requested and authorized by the parties hereto to
revise the foregoing restrictions to include the maximum restrictions allowed
under the applicable law. The Employee expressly agrees that breach of the
foregoing would result in irreparable injuries to the Company, that the remedy
at law for any such breach will be inadequate and that upon breach of this
provision, the Company, in addition to all other available remedies, shall be
entitled as a matter of right to injunctive relief in any court of competent
jurisdiction without the necessity of proving the actual damage to the Company.
7. Secret Processes and Confidential Information. For the Employment Term
and thereafter, (a) the Employee will not divulge (except as legally compelled
by court order, and then only to the extent required, after prompt notice to the
Company of any such order), directly or indirectly, other than in the regular
and proper course of business of the Company, any Confidential Information (as
defined below) and (b) the Employee will not use, directly or indirectly, any
Confidential Information for the benefit of anyone other than the Company. For
purposes of this Agreement, "Confidential Information" means any information
which is proprietary or unique to the Company, including information with
respect to the operations or finances of the Company or with respect to
confidential or secret processes, techniques, machinery, customers, plans or
products manufactured or sold by the Company. Notwithstanding the foregoing,
Confidential Information shall not include information (i) that is of public
knowledge at the time of disclosure to Employee, (ii) that becomes generally
available to the public other than as a result of disclosure by Employee, (iii)
that is rightfully received by the Employee from a third party on a
nonconfidential basis, or (iv) that is unrelated to the
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products then being developed, manufactured or sold by the Company and is
developed by Employee independently and is not derived from Confidential
Information. All new processes, techniques, know-how, inventions, plans,
products, patents and devices (collectively, "Developments") developed, made or
invented by the Employee, alone or with others, while an employee of the
Company, shall be and become the sole property of the Company, unless released
in writing by the Company or unless such Developments do not result from tasks
assigned to the Employee by the Company and do not relate to the business of
the Company or any of its products or services, and the Employee hereby assigns
any and all rights therein or thereto to the Company.
8. Termination.
(a) Termination at End of Term. The employment of the Employee
hereunder shall automatically terminate at the end of the Employment Term,
unless the parties hereto mutually agree otherwise in writing at least 60 days
prior to expiration of the Employment Term, or earlier terminated by the
Company or the Employee pursuant to this Section 8.
(b) Termination by the Company With Cause. The Company shall have the
right at any time to terminate the Employee's employment hereunder upon the
occurrence of any of the following (any such termination being referred to as a
termination for "Cause"):
(i) the commission by the Employee of any embezzlement or other
deliberate and premeditated act of dishonesty against the financial or business
interests of the Company;
(ii) the habitual drug addiction or intoxication of the Employee;
(iii) the conviction by the Employee of, or the pleading by the
Employee of nolo contendere to, a felony;
(iv) the willful failure or refusal of the Employee to perform
the duties specified in and pursuant to Section 1 hereof, which failure or
refusal is not cured within 15 days subsequent to notice from the Company to
the Employee specifying the nature of such failure or refusal; or
(v) the breach by the Employee of any material terms of this
Agreement, which breach is not cured within 30 days subsequent to notice from
the Company to the Employee specifying such breach.
(c) Termination Upon Death or Disability. The Employee's employment
hereunder shall automatically terminate upon the Employee's death or upon his
inability to perform his duties hereunder by reason of any mental, physical or
other disability for a period of at least six consecutive months, as determined
by a qualified physician.
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(d) Termination by the Company Without Cause. The Company
shall have the right to terminate the Employee's employment at any time after
the first anniversary of the date hereof for any reason without Cause.
(e) Voluntary Termination by Employee. The Employee may
terminate his employment hereunder at any time for any reason.
9. Effect of Termination of Employment.
(a) With Cause; Resignation; Death or Disability. If the
Employee's employment is terminated with Cause pursuant to Section 8(b), if the
Employee's employment is terminated by the death or disability of the Employee
pursuant to Section 8(c) or if the Employee elects to terminate his employment
under Section 8(e), the Employee's salary and other benefits specified in
Section 4 shall cease at the time of such termination; provided, however, that
the Employee shall be entitled to continue to participate in the Company's
medical benefit plans to the extent required by law and shall be entitled to
the reimbursement for expenses incurred by him through the date of termination
pursuant to Section 5.
(b) Without Cause by the Company. If the Employee's
employment is terminated by the Company without Cause pursuant to Section 8(d),
the Employee's salary and other benefits specified in Section 4 shall cease at
the time of such termination, and the Employee shall only be entitled to
receive his then current annual base salary payable under Section 4(a) for a
period equal to the lesser of (i) twelve months from the date of termination,
and (ii) the remaining period of the Employment Term. In addition, the Employee
shall also be entitled to receive any bonus accrued or earned by the Employee
through the date of termination pursuant to Section 4(b) and the amount of any
expenses incurred by the Employee through the date of termination pursuant to
Section 5.
10. Insurance. The Company may purchase insurance on the life of the
Employee, and if it does so, the Employee shall cooperate fully by performing
all the requirements of the life insurer which are necessary conditions
precedent to the issuance of the life insurance policy issued by it.
11. Notice. Any notices required or permitted hereunder shall be in
writing and shall be deemed to have been given when personally delivered or
when mailed, certified or registered mail, postage prepaid, to the following
addresses or such other address as to which notice is given in the manner
provided herein:
If to the Employee:
Xxxxxx X. Xxxxxxxx
0000 Xxxx Xxxxxx Xxxxxx
Xxxx Xxxxxxxxx, XX 00000
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With a copy to:
Xxxxx Xxxxxxx Rain Xxxxxxx
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxx Xxxxxx, Esq.
If to the Company:
Triton Systems, Inc.
000 Xxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
With copies to:
Summit Partners IV, L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx; and
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Xx.
12. General.
(a) Governing Law. The terms of this Agreement shall be
governed by and construed under the laws of the State of Mississippi without
regard to its principles of conflicts of laws.
(b) Assignability. The Employee may not assign his interest
in or delegate his duties under this Agreement. The Company may not assign the
Agreement or the rights and obligations hereunder without written consent of
Employee.
(c) Enforcement Costs. In the event that either the Company
or Employee initiates an action or claim to enforce any provision or term of
this Agreement, the costs and expenses (including reasonable attorneys' fees
and expenses) of the prevailing party shall be paid by the other party, such
party to be deemed to have prevailed if such action or claim is concluded
pursuant to a court order or final judgment which is not subject to appeal,
a settlement agreement or dismissal of the principle claims.
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(d) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company, its permitted successors and assigns,
and the Employee, his representatives and heirs.
(e) Entire Agreement; Modification. This Agreement constitutes
the entire agreement of the parties hereto with respect to the subject matter
hereof and may not be modified or amended in any way except in writing by the
parties hereto and shall require the consent of the Investors as provided in
Section 5.8 of the Purchase Agreement.
(f) Duration. Notwithstanding the term of employment hereunder,
this Agreement shall continue for so long as any obligations remain under
this Agreement.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto executed this Agreement the day and year first written above.
TRITON SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: President
EMPLOYEE
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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