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EXHIBIT 10.16
ANNEX 1X-A
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this day of
, 1995 by and between Wedco Technology, Inc. ("the Employer"), a
wholly owned subsidiary of Xxxxxxxxxx International, and Xxxx X. Xxxxx, an
individual ("the Employee"), who agree as follows:
1. Employment. The Employer agrees to continue to employ the
Employee, and the Employee agrees to continue to be employed by the Employer,
on the terms and conditions set forth in this Agreement.
2. Position and Duties. The Employee shall serve initially in
the position of Vice President, and shall have such responsibilities and
authority in accordance with that position the Employee currently has; however,
the Employer reserves the right to change the Employee's job title and to
reassign duties and responsibilities in accordance with the business needs of
the Employer.
3. Term. This Agreement shall commence on the date first written
above and shall end on December 31, 2000.
4. During the period of the Employee's employment, the Employer
shall provide him with the following compensation and other benefits:
(a) Salary. The Employer shall pay to the Employee a
starting salary at the rate of not less than $160,000.00 per annum,
payable in accordance with the standard payroll practices of the
Employer. This salary shall be reviewed at least annually and may be
increased (but not decreased) by the Employer and, if so increased,
shall not thereafter be decreased.
(b) Other Benefits. The Employee shall participate in all
employee benefit, health, welfare, bonus (including but not limited to
the Fiscal Year 1996 bonus plan), stock option and all other
compensation plans available to executive employees and officers of the
Employer. This includes all such plans and benefits currently in effect
and all which are made available by the Employer in the future to its
executives. Nothing paid to the Employee
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under any plan or program presently in effect or made available in the
future shall be deemed to be in lieu of the salary payable pursuant to
Section 4(a) above.
(c) Expenses. The Employee shall be entitled to prompt
reimbursement of all reasonable expenses incident to his employment,
provided that the Employee incurs and properly accounts for such
expenses in accordance with the Employer's policies.
(d) Vacation. The Employee shall be entitled to receive
five (5) weeks of vacation during calendar year 1996 and thereafter
shall be entitled to the number of weeks of vacation per year in
accordance with the Employer's policies, but in no event less than five
(5) weeks per year.
(e) Automobile. The Employee shall have the use of a
medium-priced automobile at no cost to the Employee. The Employer also
shall pay or reimburse the Employee for all costs (insurance,
maintenance, repairs, registration, etc.) associated with such
automobile.
5. Proprietary Information.
(a) The Employee acknowledges that in the course of
his employment by the Employer, he has, is or may be making use of, acquiring
or adding to confidential information of a special and unique nature and value
relating to such matters as the Employer's trade secrets, know-how, systems,
programs, developments, designs, procedures, manuals, confidential reports and
communications, and lists of customers and clients. The Employee understands
that any information and materials received by the Employer at any time from
third parties in confidence (or subject to nondisclosure or similar covenants)
shall also be deemed to be and shall be confidential information. The Employee
hereby confirms that he has not and shall not, except with the prior written
consent of the Employer, or except as he is acting as an employee of the
Employer solely for the benefit of the
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Employer in connection with the Employer's business practices and employee
practices, at any time during or following the termination of this Agreement,
directly or indirectly, disclose, divulge, reveal, report, publish, transfer or
use, for any purposes whatsoever, any of such confidential information which
has been obtained by or disclosed to him as a result of his employment with the
Employer.
(b) The Employee will immediately notify the Employer
about and assign, transfer and set over to the exclusive benefit of the
Employer any patent, trademark, copyright, invention, product design, works of
authorship, product improvement, or technological innovation which the Employee
conceives, develops, creates, obtains, or learns in whole or in part while
employed by the Employer and relating, directly or indirectly, to any of such
confidential information; and the Employee agrees upon request to, without
additional compensation but at no expense to the Employee, execute and assent
to any application, assignment, license, or other legal documents necessary for
the Employer to enjoy fully all rights assigned under this Agreement.
(c) These restrictions shall not apply to any information
which is in the public domain or which is independently developed by the
Employee after termination of his employment with the Employer.
6. Covenant Not to Compete. During the term of the Employee's
employment with the Employer hereunder, and for a period of two (2) years after
the termination of such employment for any reason or for no reason, or after
the expiration of the term of this Agreement, the Employee shall not, directly
or indirectly, as an owner, partner, stockholder, proprietor, officer,
director, manager, consultant, employee or in any other capacity or capacities,
(a) engage in any business activity in which Employer engaged immediately prior
to the termination of the Employee's employment; or (b) solicit, sell, service,
accept, manage or otherwise seek to acquire the custom or patronage in any
business activity in which
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Employer engaged of any person or entity who is a client, customer or active
prospective client or customer of Employer; or (c) without the prior written
consent of Employer, solicit the employment, consulting or other services of
any other employee Employer or otherwise induce any of such employees to leave
such employment or to breach an employment agreement therewith. Each of the
above clauses (a) through (c) shall constitute a separate and severable
covenant of the Employee.
The geographic scope of the foregoing restrictive covenants shall be
the territory comprised of the United States of America and its territories and
possessions, Canada, Mexico and (without duplication) all other countries in
which Employer was engaged in business at the time of the termination of
Employee's employment. Nothing in the foregoing restrictive covenants shall be
deemed to prohibit the Employee from obtaining or maintaining beneficial
ownership (as defined in Rule 13d-3 promulgated under the Securities Exchange
Act of 1934, as amended) of securities of any publicly traded corporation or
other entity if the Employee's beneficial ownership is less than 5% of the
issued and outstanding securities of that class of that issuer.
The Employee acknowledges that the Employer would be injured
irreparably in a manner not adequately compensated by money damages in the
event of a breach or threatened breach by the Employee of this non-competition
covenant, and therefore agrees that, in the event of such breach or threatened
breach, the Employer shall be entitled, without limiting or other prejudice to
its other rights and remedies, to a temporary restraining order, a preliminary
injunction and other equitable relief, all without the need to post bond or
other security.
The parties hereby instruct any court or other tribunal of competent
jurisdiction that may find any provision of this non-competition covenant to be
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unenforceable as written: (a) to sever the unenforceable provision from the
other enforceable provisions of this instrument; (b) to reform the
unenforceable provision to the extent necessary (but no more) to make it
enforceable and to give effect to the mutual intentions of the parties that the
good will of the Employer should be protected; and (c) to enforce the
non-competition covenant as reformed. The prevailing party in any legal action
initiated to interpret or to enforce this non-competition covenant shall be
entitled to recover from the non-prevailing party its or his reasonable
attorneys' fees and disbursements as well as all costs of suit.
7. Termination.
(a) By Employer for Cause. The Employer may terminate
the Employee's employment for "cause" which shall be defined as (a) the
Employee willfully engages in conduct which involves dishonesty or moral
turpitude in connection with his employment, (b) the Employee engages in
willful and intentional misconduct or breach of any of his fiduciary duties to
the Company, which misconduct or breach has a material adverse effect on the
Company, financial or otherwise; (c) the Employee willfully discloses
confidential and proprietary information or trade secrets of the Company. An
act or omission shall be deemed "willful" only if done, or omitted to be done,
in bad faith and without reasonable belief that it was in the best interest of
the Company.
The Employer shall exercise its right to terminate the
Employee's employment for cause by giving him a written notice of termination
specifying in reasonable detail the circumstances constituting such cause, and
specifying such date of termination as the Employer shall determine. The
Employee shall not be entitled to receive any separation or severance pay or
benefits if terminated for "cause" as so defined.
(b) By Employer Other than for Cause. The Employer
may terminate this Agreement without cause by giving the Employee at least
sixty (60)
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days written notice prior to the expiration of the initial or any subsequent
term of a desire not to renew this Agreement. If the Agreement is so
terminated by the Employer, the Employee shall receive his full salary and all
benefits pursuant to Article 4 above for the balance of the term of this
Agreement or for three years, whichever is longer.
(c) By the Employee for Good Reason. The Employee may
terminate his employment for good reason if (i) the Employee's title, duties and
responsibilities are decreased in any material way, (ii) the Employer requires
that the Employee relocate more than 50 miles from his present place of
employment, or (iii) the Employer fails in any material respect to comply with
this Agreement. The Employee shall exercise his right to terminate his
employment for good reason by giving the Employer written notice of termination
specifying in reasonable detail the circumstances constituting such good
reason. In that event, the Employee shall receive his full salary and all
benefits pursuant to Article 4 above for the balance of the term of this
Agreement or for three years, whichever is longer.
(d) By the Employee Other than for Good Reason. The
Employee may terminate his employment at any time and for any reason, without
good reason, by giving the Employer a written notice of termination at least
sixty (60) days prior to the effective date. In that event, he shall convert
from an employee to an independent consultant for a period equal to the balance
of the term of this Agreement or for three years, whichever is longer, at the
rate of $130,000 per annum and under the terms and conditions set forth in the
form of Consulting Agreement attached as Exhibit A.
8. Indemnification. The Employer will pay all costs of suits
(including reasonable attorneys' fees) and any damages incurred by the Employee
on matters relating to the Employer, to the extent set forth in the Employer's
Articles, By-Laws and/or Corporate Resolutions.
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9. Binding Agreement. This Agreement shall be binding upon any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Employer, in the same manner and to the same extent that the Employer would be
required to perform it if no such succession had taken place. This Agreement
and all rights of the Employee under it shall inure to the benefit of, and
shall be enforceable by, the Employee's legal representatives. If the Employee
should die while any amounts remain payable to him, then all such amounts shall
be paid to his designated beneficiaries or, if there be no such beneficiaries,
to his Estate.
10. Notice. Any written notice required by this Agreement shall be
properly given if by personal delivery or registered or certified mail, return
receipt requested, to the Employee's immediate supervisor (if to the Employer)
or to the Employee's last known address (if to the Employee).
11. Governing Law and Venue. This Agreement shall be construed and
governed by the laws of the State of New Jersey, irrespective of whether either
party now or in the future is located or resides in another jurisdiction. Any
litigation with respect to this Agreement shall be venued in a Court of
competent jurisdiction in New Jersey.
12. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision.
13. Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties with respect to the subject matter
contained in it, and supersedes all previous negotiations, agreements or
representations, whether oral or written. This Agreement may not be released,
discharged or changed in any manner, except in a writing signed by the parties.
No waiver of any breach of this Agreement shall be held to be a waiver of any
other or subsequent breach.
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IN WITNESS WHEREOF, the parties have executed this Agreement of the
date first written above.
W TECHNOLOGY, INC.
BY: ________________________________
________________________________
Xxxx X. Xxxxx Employee
