EXHIBIT 10.37
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective as of October 1, 1997, and is made and entered
into by and between Matrix Capital Corporation, a Colorado corporation
("Employer"), and T. Xxxxx XxXxxxxxx, an executive employee of Employer
("Executive").
RECITALS
A. Employer has proposed that Executive become employed by Employer,
effective October 1, 1998, in an executive capacity and Executive has agreed to
such emplyment pursuant to the terms of this Agreement.
B. Employer desires that the Executive enter into an employment
relationship with Employer in order to provide the necessary leadership and
senior management skills that are important to the success of Employer.
Employer believes that obtaining the Executive's services as an employee of
Employer and the benefits of his business experience are of material importance
to Employer and Employer's shareholders.
AGREEMENT
NOW, THEREFORE, in consideration of Executive's continued employment by
Employer and the mutual promises and covenants contained herein the receipt and
sufficiency of which is hereby acknowledged, Employer and Executive intend by
this Agreement to specify the terms and conditions of Executive's employment
relationship with Employer.
SECTION 1. General Duties of Employer and Executive.
1.1. Employer agrees to employ Executive and Executive agrees to accept
employment by Employer and to serve Employer in an executive capacity upon the
terms and conditions set forth herein. The duties and responsibilities of
Executive shall include those described for the particular position held by
Executive while employed hereunder in the Bylaws of Employer or other documents
of Employer, and shall also include such other or additional duties, for
Employer, as may from time-to-time be assigned to Executive in good faith by the
Board of Directors of Employer or any duly authorized committee thereof. The
executive capacity that Executive shall hold while this Agreement is in effect
shall be that position as determined by the Board of Directors, or any duly
authorized committee thereof, from time to time in its good faith discretion.
While employed hereunder, the initial position that Executive shall hold (until
such time as such position may be changed as aforesaid) shall be the position of
Senior Vice President, Secretary and General Counsel.
1.2. While employed hereunder, Executive shall obey the lawful directions
of the Board of Directors of Employer, or any duly authorized committee thereof,
and shall use his best efforts to promote the interests of Employer and to
maintain and to promote the reputation thereof. While employed hereunder,
Executive shall devote his time, efforts, skills and attention to the affairs of
Employer and its subsidiaries in order that he shall faithfully perform
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his duties and obligations hereunder and such as may be assigned to or vested in
him by the Board of Directors of Employer, or any duly authorized committee
thereof.
1.3. While this Agreement is in effect, Executive may from time to time
engage in any businesses or activities that do not compete directly and
materially with Employer, provided that such businesses or activities do not
materially interfere with his performance of the duties assigned to him in
compliance with this Agreement by the Board of Directors of Employer or any duly
authorized committee thereof. In any event, Executive is permitted to (i)
invest his personal assets as a passive investor in such form or manner as
Executive may choose in his discretion, (ii) participate in various charitable
efforts, and (iii) serve as a director or officer of any other entity or
organization that does not compete with Employer.
SECTION 2. Compensation and Benefits.
2.1. As compensation for services to Employer, Employer shall pay to
Executive an initial salary at a yearly rate of $155,000. Such salary may be
adjusted (up or down) upon a good faith determination of the Board of Directors
that such salary should be adjusted; provided that the Board of Directors shall
not adjust such salary downward prior to January 1, 1999. The salary shall be
payable in equal semi-monthly installments, subject only to such payroll and
withholding deductions as may be required by law and other deductions applied
generally to employees of Employer for insurance and other employee benefit
plans.
2.2. Upon Executive's furnishing to Employer customary and reasonable
documentary support (such as receipts or paid bills) evidencing costs and
expenses incurred by him in the performance of his services and duties hereunder
(including, without limitation, travel and entertainment expenses) and
containing sufficient information to establish the amount, date, place and
essential character of the expenditure, Executive shall be reimbursed for such
costs and expenses in accordance with Employer's normal expense reimbursement
policy.
2.3. Executive shall have the right to participate in any additional
compensation, benefit, life insurance or other plan or arrangement of Employer
now or hereafter existing for the benefit of executive officers of Employer.
2.4. Executive shall be entitled to such vacation (in no event less than
three (3) weeks per year), holiday and other paid or unpaid leave of absence as
consistent with Employer's normal policies or as otherwise approved by the Board
of Directors.
SECTION 3. Preservation of Business; Fiduciary Responsibility.
3.1. Executive shall use his best efforts to preserve the business and
organization of Employer, to keep available to Employer the services of present
employees and to preserve the business relations of Employer. So long as the
Executive is employed by Employer, Executive shall observe and fulfill proper
standards of fiduciary responsibility attendant upon his service and office.
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SECTION 4. Initial Term; Extensions of the Term.
4.1. The term of this Agreement shall commence on the effective date
hereof and shall end on December 31, 1998.
4.2. The term of this Agreement shall automatically be extended for
additional one-year periods commencing on January 1, 1999, 2000, 2001 and 2002,
respectively, unless Executive gives written notice to Employer on or before
December 1, 1998, 1999, 2000 or 2001, respectively, of his intention not to
extend this Agreement.
SECTION 5. Termination other than by Expiration of the Term. Employer or
Executive may terminate Executive's employment under this Agreement at any time,
but only on the following terms:
5.1. Executive may terminate his employment under this Agreement at any
time upon at least 60 days' prior written notice to Employer.
5.2. Employer may terminate Executive's employment under this Agreement at
any time, without prior notice, for "due cause." As used herein, the term "due
cause" shall mean any of the following events:
(I) any intentional misapplication by Executive of Employer's funds,
or any other act of dishonesty injurious to Employer committed by
Executive; or
(II) Executive's conviction of a felony involving moral turpitude; or
(III) Executive's breach, non-performance or non-observance of any of
the material terms of this Agreement if such breach, non-performance or
non-observance shall continue beyond a period of 30 business days
immediately after notice thereof by Employer to Executive; or
(IV) any other action by the Executive involving willful and
deliberate malfeasance or gross negligence in the performance of
Executive's duties.
5.3. In the event Executive is incapacitated by accident, sickness or
otherwise so as to render Executive mentally or physically incapable of
performing the services required under SECTION 1 of this Agreement for a period
of one hundred eighty (180) consecutive days, and such incapacity is confirmed
by the written opinion of two (2) practicing medical doctors licensed by and in
good standing in the state in which they maintain offices for the practice of
medicine, upon the expiration of such period or at any time reasonably
thereafter, or in the event of Executive's death, Employer may terminate
Executive's employment under this Agreement upon giving Executive or his legal
representative written notice at least thirty (30) days' prior to the
termination date. Executive agrees, after written notice by the Board of
Directors of Employer or a duly authorized committee or officer of Employer, to
submit to
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examinations by such practicing medical doctors selected by the Board
of Directors of Employer or a duly authorized committee or officer of Employer.
5.4. Employer may terminate Executive's employment under this Agreement at
any time for any reason whatsoever, even without "due cause," by giving a
written notice of termination to Executive, in which case the employment
relationship shall terminate immediately upon the giving of such notice.
SECTION 6. Effect of Termination.
6.1. In the event the employment relationship is terminated (a) by
Executive upon 60 days' written notice pursuant to SUBSECTION 5.1 hereof, or (b)
by Employer for "due cause" pursuant to SUBSECTION 5.2 hereof, all compensation
and benefits shall cease as of the date of termination, other than: (i) those
benefits that are provided by retirement and benefit plans and programs
specifically adopted and approved by Employer for Executive that are earned and
vested by the date of termination, and (ii) Executive's pro rata annual salary
through the date of termination.
6.2. If Executive's employment relationship is terminated pursuant to
SUBSECTION 5.3 hereof due to Executive's incapacity or death, Executive (or, in
the event of Executive's death, Executive's legal representative) will be
entitled to those benefits that are provided by retirement and benefits plans
and programs specifically adopted and approved by Employer for Executive that
are earned and vested at the date of termination and, even though no longer
employed by Employer, shall continue to receive the salary compensation (payable
at the then current rate at the time of incapacity or death and in the manner as
prescribed in the second sentence of SUBSECTION 2.1) for one (1) year following
the date of termination.
6.3. If Employer (i) terminates the employment of Executive other than
pursuant to SUBSECTION 5.2 hereof for "due cause" or other than for a disability
or death pursuant to SUBSECTION 5.3 hereof, (ii) demotes Executive to a position
below his present position or substantially decreases the scope of the duties or
responsibilities of Employee, (iii) decreases Executive's salary below the
initial level described in SECTION 2 hereof (unless it is determined that
executive compensation is to be reduced across the board) or reduces the
employee benefits and perquisites below the level provided for by the terms of
SECTION 2 hereof, other than as a result of any amendment or termination of any
employee and/or executive benefit plan or arrangement, which amendment or
termination is applicable to all qualifying executives of Employer, or (iv)
requires or requests that Executive locate to a place other than Denver, then
such action by Employer, unless consented to in writing by Executive, shall be
deemed to be a constructive termination by Employer of Executive's employment (a
"Constructive Termination"). In the event of a Constructive Termination, the
Executive shall be entitled to receive, in a lump sum within thirty (30) days
after the date of the Constructive Termination, an amount equal to two years'
salary (undiscounted) at the rate in effect immediately prior to the event
giving rise to the Constructive Termination.
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6.4. For purposes of this SECTION 6, the term "salary" shall mean the sum
of (i) the annual rate of compensation provided to Executive by Employer under
SUBSECTION 2.1 immediately prior to the Constructive Termination plus (ii) the
average annual cash bonuses or other cash incentive compensation paid to
Executive by Employer for the three calendar year period immediately preceding
the year in which there shall occur a Constructive Termination.
6.5. In the event of a Constructive Termination, all other rights and
benefits Executive may have under the employee and/or executive benefit plans
and arrangements of Employer generally shall be determined in accordance with
the terms and conditions of such plans and arrangements.
SECTION 7. Change in Control.
7.1. Notwithstanding anything to the contrary in this Agreement, if a
"Change in Control" (as defined below) of the Employer occurs and, within
thirty-six months from the date of the Change in Control, the Executive
voluntarily terminates his employment under SUBSECTION 5.1 or there occurs a
Constructive Termination of Employee, then the Executive, even though no longer
employed by the Employer, shall be entitled to all payments provided in
SUBSECTION 6.3, payable in a lump sum within thirty (30) days after the date of
termination.
7.2. For the purposes of this Agreement, the term "Change in Control" of
the Employer shall be deemed to have occurred if (i) after October 1, 1997, any
"person" (as such term is used in Sections 13(d) and 14(d)(2) of the Securities
Exchange Act of 1934, as amended) other than any Employer employee stock
ownership plan or the Employer, becomes the beneficial owner (as such term is
used in Section 13(d) of the Securities Exchange Act of 1934, as amended),
directly or indirectly, of securities of the Employer representing 20% or more
of the combined voting power of the Employer's then outstanding securities, (ii)
the Board ceases to consist of a majority of Continuing Directors (as defined
below) or (iii) a person (as defined in CLAUSE (I) above) acquires (or, during
the 12-month period ending on the date for the most recent acquisition by such
person or group of persons, has acquired) gross assets of Employer that have an
aggregate market value greater than or equal to over 50% of the fair market
value of all of the gross assets of Executive immediately prior to such
acquisition or acquisitions.
7.3. For purposes of this Agreement, a "Continuing Director" shall mean a
member of the Board of Directors who either (i) is a member of the Board of
Directors at the date of this Agreement or (ii) is nominated or appointed to
serve as a director by a majority of the then Continuing Directors.
7.4. Notwithstanding any other provision of this Agreement, if (a) there
is a change in the ownership or effective control of the Employer or (b) in the
ownership of a substantial portion of the assets of the Employer within the
meaning of Section 280G of the Internal Revenue Code ("Section 280G"), the
payments to be paid to the Executive in the nature of compensation to be
received by or for the benefit of the Executive and contingent upon such event
(the "Termination Payments") would create an "excess parachute payment" within
the
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meaning of Section 280G, then the Employer shall make the Termination
Payments in substantially equal installments, the first installment being due
within thirty days after the date of termination and each subsequent installment
being due on January 31 of each year, such that the aggregate present value of
all Termination Payments, whether pursuant to this Agreement or otherwise, will
be as close as possible to, but not exceed 299% of, the Executive's base salary,
within the meaning of Section 280G. It is the intention of this SUBSECTION 8.3
to avoid excise taxes on the Executive under Section 4999 of the Code and the
disallowance of a deduction to the Employer pursuant to Section 280G.
SECTION 8. Confidential and Proprietary Information.
8.1. Executive acknowledges and agrees that he will not, without the prior
written consent of the Employer, at any time during the term of this Agreement
or any time thereafter, except as may be required by law, regulatory process or
other competent legal authority or as required by the Employer to be disclosed
in the course of performing Executive's duties under this Agreement for the
Employer, use or disclose to any person, firm or other legal entity, any
confidential records, secrets or information related to the Employer or any
parent, subsidiary or affiliated person or entity (collectively, "Confidential
Information"). Executive acknowledges and agrees that all Confidential
Information of Employer and/or its affiliates that he has acquired, or may
acquire, were received, or will be received in confidence and as a fiduciary of
the Employer. Executive will exercise utmost diligence to protect and guard
such Confidential Information.
8.2. Executive agrees that he will not take with him upon the termination
of this Agreement, any document or paper, or any photocopy or reproduction or
duplication thereof, relating to any Confidential Information (that is disclosed
in writing to Executive prior to his departure to be Confidential Information).
SECTION 9. Return of Employer's Property. Upon the termination of this
Agreement or whenever requested by Employer, Executive shall immediately deliver
to Employer all property in his possession or under his control belonging to
Employer, in good condition, ordinary wear and tear excepted.
SECTION 10. Injunctive Relief. Executive acknowledges that the breach by
the Executive of the provisions of this Agreement shall cause irreparable harm
to the Employer, which harm cannot be fully redressed by the payment of damages
to the Employer. Accordingly, the Employer shall be entitled, in addition to
any other right or remedy it may have at law or in equity, to an inunction
enjoining or restraining Executive from any violation or threatened violation of
this Agreement.
SECTION 11. Arbitration.
11.1. As concluded by the parties and as evidenced by the signatures of
the parties, any dispute between the parties arising out of any section of this
Agreement will, on the written notice of one party served on the other, be
submitted to arbitration complying with and
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governed by the provisions and rules of the American Arbitration Association,
provided that such arbitration shall be held in Denver, Colorado.
11.2. Each of the parties will appoint one person as an arbitrator to hear
and determine the dispute and if they are unable to agree, then the two
arbitrators so chosen will select a third impartial arbitrator whose decision
will be final and conclusive upon the parties.
11.3. The expenses of such arbitration will be borne by the losing party
or in such proportion as the arbitrators decide.
11.4. A material or anticipatory breach of any section of this Agreement
shall not release either party from the obligations of this SECTION 14.
SECTION 12. Miscellaneous.
12.1. If any provision contained in this Agreement is for any reason held
to be totally invalid or unenforceable, such provision will be fully severable,
and in lieu of such invalid or unenforceable provision there will be added
automatically as part of this Agreement a provision as similar in terms as may
be valid and enforceable.
12.2. All notices and other communications required or permitted hereunder
or necessary or convenient in connection herewith shall be in writing and shall
be deemed to have been given when faxed (with confirmation of receipt), sent via
overnight courier, or mailed by registered mail or certified mail, return
receipt requested, as follows (provided that notice of change of address shall
be deemed given only when received):
if to Employer:
Matrix Capital Corporation
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
Attn: President
if to Executive:
T. Xxxxx XxXxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Fax: 000-000-0000
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or to such other names or addresses as Employer or Executive, as the case may
be, shall designate by notice to the other party hereto in the manner specified
in this SUBSECTION 12.2.
12.3. This Agreement shall be binding upon and inure to the benefit of
Employer, its successors, legal representatives and assigns, and upon Executive,
his heirs, executors, administrators, representatives, legatees and assigns.
Executive agrees that his rights and obligations hereunder are personal to him
and may not be assigned without the express written consent of Employer.
12.4. This Agreement replaces and merges all previous agreements and
discussions relating to the same or similar subject matters between Executive
and Employer with respect to the subject matter of this Agreement. This
Agreement may not be modified in any respect by any verbal statement,
representation or agreement made by any employee, officer, or representative of
Employer or by any written agreement unless signed by an officer of Employer who
is expressly authorized by Employer to execute such document.
12.5. The laws of the State of Colorado will govern the interpretation,
validity and effect of this Agreement without regard to the place of execution
or the place for performance thereof, and Employer and Executive agree that the
state and federal courts situated in Denver County, Colorado shall have personal
jurisdiction over Employer and Executive to hear all disputes arising under this
Agreement. This agreement is to be at least partially performed in Denver
County, Colorado, and, as such, Employer and Executive agree that venue shall be
proper with the state or federal courts in Denver County, Colorado to hear such
disputes. In the event either Employer or Executive is not able to effect
service of process upon the other with respect to such disputes, Employer and
Executive expressly agree that the Secretary of State for the State of Colorado
shall be an agent of Employer and/or the Executive to receive service of process
on behalf of Employer and/or the Executive with respect to such disputes.
12.6. Executive and Employer shall execute and deliver any and all
additional instruments and agreements that may be necessary or proper to carry
out the purposes of this Agreement.
12.7. The descriptive headings of the several sections of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
12.8. If either party should file a lawsuit against the other to enforce
any right such party has hereunder, the prevailing party shall also be entitled
to recover reasonable attorneys' fees and costs of suit in addition to any other
relief awarded such prevailing party.
12.9. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement.
12.10. Executive acknowledges that Executive has had the opportunity to
read this Agreement and discuss it with advisors and legal counsel, if Executive
has so chosen.
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Executive also acknowledges the importance of this Agreement and
that Employer is relying on this Agreement in entering into an employment
relationship with Executive.
12.11. Notwithstanding anything else herein to the contrary, this
Agreement shall not supercede or govern the terms of the stock options granted
to Executive as of October 1, 1997, which are governed by an option agreement
dated as of October 1, 1997.
12.12. The provisions of Sections 6, 7, 8, 9, 10, and 11 shall survive a
termination of this Agreement.
The undersigned, intending to be legally bound, have executed this
Agreement as of October 1, 1997.
EMPLOYER:
MATRIX CAPITAL CORPORATION
By:
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------------, Authorized Signatory
EXECUTIVE:
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T. Xxxxx XxXxxxxxx
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