EXHIBIT 10.25
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective as of March 23, 1999 (the
"Effective Date"), between Alpha Technologies, Group, Inc., a Delaware
corporation (the "Company"), and XXXXXX X. XXXXXXXX, (the "Employee").
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties hereto agree as follows:
1. Employment, Duties and Acceptance.
1.1 The Company hereby employs the Employee, for the Term (as
hereinafter defined), to render exclusive full-time services to the business of
the Company as the President of the Company, subject to the direction of the
Board of Directors of the Company and the Chairman of the Company, and in
connection therewith, to perform such executive, marketing, product development,
administrative and managerial duties as he shall reasonably be directed by the
Board of Directors of the Company.
1.2 Acceptance of Employment by the Employee. The Employee hereby
accepts such employment and agrees to render the executive and managerial
services described above on the terms and conditions set forth.
1.3 Place of Employment. The services to be performed hereunder by
the Employee shall be performed primarily at the offices of the Company, which
are currently located in South Pasadena, California, subject to reasonable
travel requirements on behalf of the Company.
1.4 Vacation. The Employee shall be entitled to vacation at the rate
of three weeks for each twelve months of his employment during the Term, without
compensation for any accrued and unused vacation days as of the end of the Term.
2. Term of Employment. The term of the Employee's employment under this
Agreement (the "Term") shall commence on Effective Date and shall end on March
22, 2001, unless sooner terminated pursuant to Article 4 of this Agreement.
3. Compensation.
3.1 Salary and Benefits. As full regular compensation for all
services to be rendered pursuant to this Agreement, the Company agrees to pay
the Employee, during the Term, a salary at the fixed rate of $200,000 per annum
(the "Annual Salary"). Said Annual Salary will be payable in such payroll
installments as the Company ordinarily pays its salaried employees, less such
deductions and withholdings as shall be required by applicable law and
regulations.
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3.2 Bonus Compensation. Employee shall be eligible to participate in,
and to receive bonuses in accordance with, the Company's bonus plan. All such
payments shall be less such deductions and withholdings as may be required by
applicable law and regulations.
3.3 Options. Employee shall be eligible to participate in, and to
receive bonuses in accordance with, the Company's bonus plan.
3.4 Expenses. The Company shall reimburse the Employee for all
reasonable expenses actually incurred or paid by him during the Term in the
performance of his services under this Agreement, upon presentation of expense
statements or vouchers of such other supporting information as it may require;
provided, however, that the maximum amount available for such expenses during
any period may be fixed in advance by the Chairman of the Board of Directors.
3.5 Benefits. The Employee shall be eligible to all rights and
benefits under any pension, group insurance or other so-called "fringe" benefits
which the Company may, in its sole discretion, provide for him and its senior
employees generally.
4. Termination.
4.1 Termination upon Death. If the Employee shall die during the
Term, this Agreement shall terminate, except that the Employee's legal
representatives shall be entitled to receive the Annual Salary provided for in
Section 3.1 of this Agreement to the 60th day after the date of the Employee's
death.
4.2 Termination upon Disability. If during the Term the Employee
shall become physically or mentally disabled, whether totally or partially, so
that he is unable substantially to perform his services hereunder for (i) a
period of three consecutive months, or (ii) for shorter periods aggregating
three months during any twelve month period, the Company may at any time after
the last day of the third consecutive month of disability or the day on which
the shorter periods of disability shall have equaled an aggregate of three
months, by written notice to the Employee (but before the Employee has recovered
from such disability), terminate the term of the Employee's employment
hereunder. Notwithstanding such disability, the Company shall continue to pay
the Employee the Annual Salary herein provided for in Section 3.1 up to and
including the date of such termination. Nothing in this Section 4.2 shall be
deemed to extend the Term.
4.3 Termination for Cause. Nothing contained herein shall preclude
the Company from terminating this Agreement for cause without notice, in which
case the Company shall have no further obligation to the Employee. Upon such
termination, no incentive compensation shall be payable for the fiscal year in
which the termination took place. As used herein, the term "for cause" shall be
deemed to include, with respect to the Employee breach of any of his
representations in this Agreement, chronic alcoholism, drug addiction, criminal
dishonesty, conviction of the Employee of any felony, or of any lesser
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crime or offense involving the property or affairs of the company,
misappropriation of any money or other assets or properties of the Company or
any of its subsidiaries or operations, willful violation of specific and lawful
directions from the Board of Directors of the Company (which directions must not
be inconsistent with the provisions of this Agreement), failure or refusal to
perform the services required of the Employee under this Agreement, willful
misconduct by the Employee in connection with the performance of his duties
hereunder, or any other misconduct on the part of the Employee seriously
detrimental to the best interest of the company or that of its subsidiaries or
operations.
5. Employee's Representations.
5.1 Representations. The Employee represents and warrants to the
Company that: (a) he is subject to no contractual, fiduciary or other
obligation which may affect or limit the performance of his duties under this
Agreement, (b) he has delivered to the company his completed and signed
Officer's Questionnaire, (c) his answers therein are true and complete, and (d)
his employment with the Company will not require him to use or disclose
proprietary or confidential information of any other person or entity.
6. Confidentiality; Non-Solicitation Agreements; Proprietary Information.
(a) The Employee realizes that his employment with the Company will
involve access to information, whether or not in tangible form, which is the
property of the Company and which is not known in the trade or generally by the
public, and to information which is identified as confidential by the Company,
or which the Employee has reason to believe is being maintained in confidence,
whether embodied in memoranda, manuals, letters or other documents, computer
disks, tapes or other information storage devices or any other media or vehicle
("Proprietary Information"). Proprietary Information includes all results,
intermediate and final, of the Company's business plans and product and
marketing activities in which the Employee may participate or of which the
Company, together with business, manufacturing, development and research
methods, including (without limitation) product design and specifications,
manufacturing procedures and tolerances, research and development tools, test
procedures, prices and pricing formulae, cost information, customers' special
materials, and produce specifications and requirements, sales records,
salesmen's reports, customers lists, customer contact reports, and customer
records. Employee agrees to treat Proprietary Information as confidential both
during the Term and thereafter and to recognize and protect the property rights
of the Company. The Employee agrees that during the term of his employment and
thereafter, he will not use such information for himself or others, or divulge
or convey such information to others, and at all times will hold such
information in strictest confidence; provided, however, that the Employee shall
not be liable for disclosure of that information if (A) the information is in;
or becomes part of the public domain, other than by the Employee's disclosure of
the information or (B) the information is disclosed by the Employee with the
prior written approval of the Board of Directors of the Company.
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(b) The Employee agrees that, during the Term, and for a period of one
year after its termination, but for a minimum period of two years from the date
of this Agreement, he shall not solicit for employment, directly or indirectly,
or advise or recommend to any other person that such person employ or solicit
for employment, any person who is or was employed by the Company within one year
of the termination of Employee's employment.
(c) It is understood and agreed that the Company would suffer
irreparable harm for which there is no adequate remedy available at law in the
event of a breach of this Section 6 by the Employee, and, in addition to
remedies available at law, the Company shall be entitled to enforce the
provisions of this Section 6 through actions in equity, including injunctive and
similar remedies.
(d) The provisions of this Section 6 shall be non-exclusive and shall
not limit any rights the Company may have at law, and no action taken by the
Company pursuant to this Section 6 shall constitute a waiver of any rights the
Company may have at law.
(e) If for any reason any court of competent jurisdiction shall have
deemed the provisions of this Section 6 unreasonable in duration or in
geographic scope or otherwise unenforceable, the prohibitions herein contained
shall be restricted to such time and geographic area or shall otherwise be
reformed in such manner as the court determines to be reasonable.
(f) The Employee recognizes that, because of the nature of the subject
matter of Section 6, it would be impractical and extremely difficult to
determine the Company's actual damages in the event of his breach of Section 6.
Accordingly, if the employee commits a breach or threatens to commit a breach,
of any of the provisions of the Section, the Company shall be entitled to have
the provisions of said Section specifically enforced by temporary, preliminary
and permanent injunctive relief without the posting of bond or other security by
a court of competent jurisdiction, notwithstanding the provisions of Section 9
hereof.
7. Ownership of Employee Developments.
(a) All copyrights, patents, trade secrets, or other intellectual
property rights associated with any ideas, concepts, techniques, inventions,
processes, or works of authorship developed or created by the Employee during
the Term (collectively, the "Work Product") shall belong exclusively to the
Company and shall, to the extent possible, be considered a work made by the
employee for hire for the Company within the meaning of Title 17 of the United
States Code. To the extent the Work Product may not be considered work made by
the Employee for hire for the Company, the Employee agrees to assign, and
automatically assigns to the Company at the time of creation of the Work
Product, without any requirement of further consideration, any right, title or
interest the employee may have in such Work Product.
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Upon request of the Company, the Employee shall take such further actions,
including execution and delivery of instruments of conveyance, as may be
appropriate to give full and proper effect to such assignment.
(b) The Employee assigns to the Company, will hold for the Company's
exclusive benefit, and will confirm assignment thereof in writing without
additional payment, all Employee's right, title and interest in; and to
discoveries, inventions and improvements conceived or made by the Employee,
whether solely or jointly with others, during his employment with the Company
(including periods prior to the effective date of this Agreement) and which fall
within the scope of the Company's, Alpha's or any of its subsidiaries or
affiliates actual or anticipated business or research and development whether
made within or outside of usual work hours, and whether on or off Company
premises. The Employee will make prompt and full disclosure thereof to the
Company and maintain records of creative or inventive activities and deliver
such records to the Company at termination of employment or as requested by the
Company. The Employee will assist the Company both during and after his
employment with the Company in every proper manner and at the Company's expense
and without cost to the Employee to obtain for the Company in any and all
countries and to maintain and enforce patents, on all discoveries, inventions,
improvements, or refinements assigned by the Employee to the Company as provided
above, or which the executive is bound to assign to the Company, and for that
purpose, the Employee will sign all documents which the Company deems necessary
or desirable.
8. Avoidance of Conflicts of Interest. During the Term, the Employee
shall not engage in any business activity that conflicts with the interests of
the Company or his duties under the Agreement. He shall not have any direct or
indirect financial interest in, or receive any direct or indirect benefit from,
any competitor, except for minor investments, as part of a diversified
portfolio, in the securities of a competitor whose stock is traded on a national
securities exchange.
9. Disputes; Arbitration. In the event that a dispute should arise
between the Company and the Employee, and such dispute shall not have been
resolved within 30 days after is arose, then such dispute, subject to the
provisions of Section 6(f) hereof, shall be submitted to arbitration. Such
arbitration shall be conducted in Los Angeles, California, under the rules of
the American Arbitration Association then obtaining. The arbitrator(s) shall
award the predominantly prevailing party in the arbitration its reasonable
attorneys' fees and other costs and expenses in connection with the arbitration.
Such award shall be final and binding, and judgment upon such award may be
entered in any court having jurisdiction thereof.
10. Notices. All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
deemed to have been duly given if delivered personally, or mailed first-class,
postage prepaid by registered or certified mail (notices shall be deemed to have
been given when so delivered personally or, if mailed, two days after the date
of mailing) as follows, or to such other address as
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either party shall designate by notice so given to the other in accordance
herewith:
If to the Company, to:
Alpha Technologies Group, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
If to the Employee, to:
Xxxxxx Xxxxxxxx
c/o Uni-Star Industries, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxxx, XX 00000
11. General.
11.1 This Agreement shall be governed by and construed and enforced in
accordance with the local laws of the State of California applicable to
agreements made and to be performed entirely in California.
11.2 The article and section headings contained herein are for
reference purposes only and shall not in any way effect the meaning or
interpretation of this Agreement.
11.3 This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement has been made
by either party that is not embodied in this Agreement, and neither party shall
be bound by or liable for any alleged representation, promise or inducement not
so set forth.
11.4 This Agreement, and the Employee's rights and obligations
hereunder; may not be assigned by the Employee. The Company may assign its
rights, together with its obligations, hereunder in connection with any sale,
transfer or other disposition of all or substantially all of its business or
assets; in any event the obligations of the Company hereunder shall be binding
on its successors or assigns, whether by merger, consolidation or acquisition of
all or substantially all of its business or assets.
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11.5 This Agreement may be amended, modified, superseded, canceled,
renewed or extended and the terms or covenants hereof may be waived, only by a
written instrument executed by the part to be charged therewith. The failure of
either party at any time or times to require performance of any provision hereof
shall in no manner affect the right at a later time to enforce the same. No
waiver by either party of the breach of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
breach, or a waiver of the breach of any other term or covenant contained in
this Agreement. The invalidity or unenforceability of any term or provision of
this Agreement shall in no way impair or affect the balance thereof, which shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
ALPHA TECHNOLOGIES GROUP, INC.
By: /s/ Xxxxxxxx Xxxxxx
--------------------
Xxxxxxxx Xxxxxx
Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
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