Exhibit 10.9
Form of Employment Agreement with Xxxx Xxxxxx
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement') is made and entered into
as of July 1, 1999, by and between SYNTEC ACQU1S1TION CORP., a Texas
corporation (the "Company"), and XXXX X XXXXXX (the 'Employee").
WHEREAS, the Company hereby agrees to employ the Employee and the
Employee hereby accepts employment, on the terms and conditions hereinafter
set forth:
NOW, THEREFORE, in consideration of Employee's future employment with
the Company and other good and valuable consideration, the parties agree as
follows:
L Period of Employment. The period of the Employee's employment under
this Agreement (the 'Period of Employment")shall commence immediately upon
the date hereof and shall expire on the third (3rd) anniversary of the date
hereof (the "Expiration Date"), subject to two (2) successive one (I) year
renewal options which maybe exercised by the Company by notice given no
later than sixty (60) days before the Agreement would otherwise expire, and
subject also to any earlier termination of the Employee's employment as
provided in Section 6 hereof. If the Employee's employment is terminated
pursuant to Section 6 hereof, the Period of Employment shall expire as of
the Date of Termination (as hereinafter defined).
2. Duties. The Employee agrees to serve as the Vice President of
Business Development of the Company, and shall act in accordance with the
Company's Bylaws, with all duties and authority necessary or appropriate to
carry out the responsibilities of such position, as instructed from time to
time by the Company's Board of Directors (the "Board") or Chief Executive
Officer. During the Period of Employment, the Employee will devote his full
working time and use his best efforts to advance the business and welfare
of the Company. During the Period of Employment, the Employee shall not
engage in any other employment activities (which shall not include solely
passive investments in securities or real estate investments) for any
direct or indirect remuneration without the advance written consent of the
Company.
3. Compensation. During the Period of Employment the Company shall
pay, payable at least as frequently as bi-monthly, the Employee a salary of
twelve thousand dollars ($12,000) per year (the "Base Salary"). In
addition, the Employee (a) is hereby granted an option to purchase three
hundred thousand (300,000) shares of Class B Common Stock par value $0.0001
per share (the "Class B Stock"), of the Company with an exercise price of
one dollar and fifty cents ($1 .50) per share vesting in three (3)
increments of one hundred thousand (100,000) shares each on each of the
first three anniversaries of the date of this Agreement, with all vested
portions being exercisable in whole or in part at any tune until the close
of business on June 30, 2009 (the "Option"), on which date the option shall
terminate, unless earlier terminated in accordance with this Agreement and
(b) shall be entitled to participate in an Executive Officer Bonus Plan
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intended to be adopted by the Board providing for a bonus of up to the
Employee's Base Salary upon attainment of goals established by the board.
The certificates representing shares of Class B Stock issued to the
Employee upon Employee's exercise of the Option shall bear such restrictive
legends as the Company shall deem necessary or appropriate.
If any stock dividend payable in Class B Stock or the Company's Class
A Common Stock par value $0.0001 per share (the "Class A Stock"), or any
split-up or contraction of the number of outstanding shares of Class B
Stock or Class A Stock is effected prior to the exercise in full of the
Option, the number of shares subject to the Option and the exercise price
will be proportionately adjusted. In the event of any reclassification or
change of outstanding shares of Class B Stock or in case of any
consolidation or merger of the Company with or into another company or in
case of any sale or conveyance to another company or entity of the property
of the Company as a whole or substantially as a whole, shares of stock or
other securities equivalent in kind and value to those shares the Employee
would have received if he had held the full number of shares of Class B
Stock subject to the Option immediately prior to such reclassification,
change, consolidation, merger, sale or conveyance (together with all other
shares, stock and securities thereafter issued in respect thereof) will
thereupon be subject to the Option. Upon dissolution or liquidation of the
Company, the Option will terminate, but the Employee will have the right,
immediately prior to such dissolution or liquidation, to exercise the
Option to the extent exercisable on the date of such dissolution or
liquidation. No fraction of a share of Class B Stock will be purchasable or
deliverable upon exercise, but in the event any adjustment hereunder of the
number of shares covered by the Option will cause such number to include a
fraction of a share, such number of shares will be adjusted to the nearest
smaller whole number of shares,
If a Change in Control (as defined below) shall occur dining the
Period of Employment, then, effective immediately prior to such Change in
Control, the Option (a.) shall become immediately and fully exercisable and
(b) subject to the terms and conditions of the Option set forth herein,
shall be fully exercisable for the remaining term of the Option. If a
Change In Control has not occurred and the Employee's employment is
terminated prior to the Expiration Date by reason of death or permanent
disability or by the Company without cause as provided in subsections (a),
(b) and (d), respectively, of Section 6.1, then effective immediately prior
to the Date of Termination, the Option (a) shall become immediately and
fully exercisable and (b) subject to the terms and conditions of the Option
set forth herein, shall be fully exercisable for the remaining term of the
Option. Whether or not a Change in Control has occurred, if the Employee's
employment is terminated prior to the Expiration Date by the Company for
cause as provided in subsection (c) of Section 6.1, then the Option shall
be exercisable during the shorter of the remaining term of the Option or
the period ending thirty (30) days after the Date of Termination, but only
to the extent the Option was exercisable on the Date of Termination, and
the Option shall not continue to vest after the Date of Termination. If a
Change in Control has not occurred and the Employee's employment terminated
prior to the Expiration Date voluntarily by Employee as provided in Section
6.2, then the Option, subject to the terms and condition set forth herein.,
shall be exercisable for the remaining term of the Option, but only to the
extent the Option was exercisable on the Date of Termination, and the
Option shall not continue to vest after the Date of Termination. Except as
expressly provided herein, no termination of the Employee's employment
shall affect his rights under the Option and the Option shall survive the
termination of this Agreement.
For purposes of this Agreement, "Change in Control" means a change in
control of the Company after the date of this Agreement in any one of the
following circumstances: (i) there shall have occurred an event that is or
would be required to be reported in response to Item 6(e) of Schedule 14A
of Regulation 14A (or in response to any similar item on any similar
schedule or form) promulgated under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), whether or not the Company is then subject to
such reporting requirement; (ii) any "person"
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(as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
shall have become the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company's then
outstanding voting securities (other than solely as a result of' the
repurchase of voting securities by the Company) without prior approval of
at least two-thirds of the members of the Board of Directors of the Company
in office immediately prior to such person's attaining such percentage
interest; (iii) the Company is a parry to a merger, consolidation, sale of
assets, or other reorganization, or a proxy contest, as a consequence of
which members of the Board of Directors of this Company in office
immediately prior to such transaction or event constitute less than a
majority of the Board thereafter; (iv) during any period of two consecutive
years, individuals who at the beginning of such period constituted the
Board of Directors of the Company (including for this purpose any new
director whose election or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of such period)
cease for any reason to constitute at least & majority of the Board; or (v)
the stockholders of the Company shall approve a liquidation or dissolution
of the Company or a sale of all or substantially all of the stock or assets
of the Company.
4. Benefits. During the Period of Employment, the Employee shall be
entitled to participate in all fringe benefit programs maintained by the
Company which are available to salaried employees of the Company generally,
including, without limitation and to the extent they may exist from time to
time, the Company's vacation plan, group health and life insurance plans,
and retirement plans qualified under Section 401 of the Internal Revenue
Code of 1986; provided that the Employee shall not be eligible to
participate in any stock incentive or similar plan. The Employee
acknowledges that he shall have no vested rights under or to participate in
any employee benefit program except as expressly provided under the terms
'thereof. The Employee shall be entitled to the number of vacation days in
each calendar year as determined in accordance with the Company's vacation
policy as in effect from time to time. The Employee shall also be entitled
to all paid holidays and personal days given by the Company to its salaried
employees generally.
5. Expenses. The Company will pay or reimburse the Employee for such
reasonable travel or other expenses as he may incur at the request of the
Company during the Period of Employment in connection with the performance
of his duties hereunder but only to the extent that 'the Employee shall
furnish the Company with such evidence relating to such expenses as the
Company may reasonably require to substantiate such expenses for tax
purposes and shall comp1y with other policies of the Company as may relate
to reimbursement of such expenses. Plus, employee will be paid per diem,
$500.00 for each day he attends meetings, customer visits, etc. on behalf
of the Company.
6. Termination of Employment.
6.1 By the Company. Notwithstanding the terms set forth in Section 1
hereof, the Employee's employment with the Company shall terminate upon the
occurrence of any of the following circumstances:
(a) Death. Immediately upon the Employee's death.
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(b) Permanent Disability. The Employee becoming unable to
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perform the essential functions of his position and such condition
exists for an aggregate of sixty (60) consecutive days or ninety (90)
days in any twelve (12) month period (the Company, at its option and
expense, being entitled to retain a physician to confirm the existence
of such incapacity or disability, and the determination of such
physician being binding upon
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the Company and the Employee).
(c) Cause. At the option of the Company, and as determined in
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good faith in the sole discretion of the Board of Directors of the
Company, because the Employee:
(i) has been convicted of or entered a plea of guilty or
nolo contendere to a felony or a crime involving moral turpitude
or financial misconduct., or
(ii) has used (A) alcohol on an ongoing basis (whether on
or off the job) to an extent that it interferes with the
performance by the Employee of his duties under this Agreement;
or (B) drugs or any controlled or illegal substance (whether on
or off the job), or
(iii) has embezzled or misappropriated Company funds or
property or engaged in any other act of dishonesty,
fraud, or misconduct injurious to the Company or its
business, or
(iv) has violated any material provision of this Agreement
or of any other agreement between the Employee and
the Company, or
(v) has failed or refused on a continuing basis to devote
his full time and use his best efforts to perform his
duties on behalf of the Company in accordance with
this Agreement, or
(vi) has failed to comply with any reasonable direction
given by the Company's Board of Directors. or
(vii) has been unable on a continuing basis to properly
perform, or has been grossly negligent in the
performance of, his duties hereunder.
(d) Not For Cause. At the option of the Company at any time for
any reason other than those referred to above or for no reason at all.
For all purposes of this Agreement, a termination of the Employee's
employment at his election following a Constructive Termination (as
defined below) shall be deemed to be a termination at the option of
the Company pursuant to this Section 6.1(d).
A "Constructive Termination" of the Employee's employment
with the Company shall be deemed to have occurred if the
Company:
(i) demotes the Employee to a lesser position, either in title
or responsibility, than the highest position held by him with the
Company at any time during his employment with the Company;
(ii) decreases the Employee's Base Salary below the level in
effect at the earlier of the occurrence of a Change in Control or the
date on which a tentative agreement is reached by the Company, or a
public announcement is made, regarding a proposed Change in Control
that ultimately occurs: or
(iii) requires or requests the Employee to relocate to a
principal office more than 25 miles from the principal office at which
the Employee is employed immediately prior to a Change in Control.
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5.2 By the Employee. The Employee may terminate his employment with
the Company at any time.
If the Employee terminates his employment hereunder (other than as a result
of a Constructive Termination), it shall be deemed a voluntary termination by
the Employee.
5.3 Notice of Termination. Any termination of the Employee's
employment by the Company or by the Employee (other than
termination pursuant to Section 6.1(a) hereof) shall be
communicated by written Notice of Termination to the other
party hereto in accordance with Section 9.2. For purposes
of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination
provision in this Agreement relied upon. For purposes of
this Agreement, the "Date of Termination" shall be the date
on which the Notice of Termination is delivered except that
with respect to Section 6.1(a) the 'Date of Termination"
shall be the date of the Employee's death.
7. Payments Upon Termination of Employment.
7.1 Incentive Compensation. In the event that Employee's employment
is terminated as a result of expiration of this Agreement or as provided in
subsection (a), (b ) or (d) of Section 6.1 hereof, the Period of Employment
shall expire as of the Date of Termination and the Employee shall be
entitled to a termination payment in an amount equal to six (6) month's
Base Salary payable in six (6) equal monthly installments over the course
of the six mouths following the Date of Termination and the Company shall
have no further obligation to provide any compensation or other
consideration in respect of the Employee's employment with the Company.
7.2 Gross-Up Payment. Notwithstanding any provision in this Agreement
to the contrary, if it shall be determined that any payment, distribution
or transfer of property or rights thereto by the Company or any successor
thereto to or for the benefit of the Employee (whether payable,
distributable or transferable pursuant to the terms of this Agreement or
otherwise, including but not limited to the acceleration of vesting of
options, restricted stock or other rights), but determined without regard
to any additional payments required pursuant to this Section 7,2 (a
"Payment") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended, or any interest or penalties
are incurred by the Employee with respect to such excise tax (such excise
tax, together with any such interest and penalties. hereinafter
collectively referred to as the "Excise Tax"), then the Employee shall be
entitled to receive an additional payment from the Company or its successor
(a Gross-Up Payment") in an amount such that after payment by the Employee
of all taxes (including any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed
upon the Gross-Up Payment, the Employee retains an amount of Gross-Up
Payment equal to the Excise Tax imposed upon the Payments. The Gross-Up
Payment shall be paid to the Employee within ten (10) days after the
Company or its accountant determines the amount of such payment.
7.3 Release and Satisfaction. With respect to the Employee, his
heirs, successors and assigns, payment by the Company of the severance to
be provided under Section 7.1 above shall release, relinquish and forever
discharge the Company and any director, officer, employee, shareholder or
agent of the Company from any and all claims, damages, losses, costs,
expenses, liabilities or obligations, whether known or unknown (other than
any such claims, damages, losses, costs, expenses, liabilities or
obligations (i) covered by any indemnification arrangement of the Company
with respect to the Employee, or (ii) arising under any written employee
benefit plan or arrangement (whether or not tax-qualified) covering the
Employee), which the Employee
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has incurred or suffered or may incur or suffer as a result of the
Employees employment by the Company or the termination of such employment.
7.4 Effect on This Agreement. Any termination of this Agreement or of
the Employee's employment and any expiration of the Period of Employment
under this Agreement shall not affect the continuing operation and effect
of Section 7.3 above which shall continue in full force and effect with
respect to the Company and the Employee, and its and his heirs, successors,
and assigns.
8. Miscellaneous.
8.1 Other Contracts. The Employee represents and warrants to the
Company that he is not under any obligation of a contractual or other
nature to any person, firm, or corporation which is inconsistent or in
conflict with this Agreement, or which would prevent, limit, or impair in
any way the performance by him of his obligations hereunder.
8.2 Notice. Any notice required or permitted to be given hereunder
shall be deemed sufficiently given if either hand delivered or sent by
registered or certified mail, postage prepaid, addressed to the addressee
at his or its address last provided the sender in writing by the addressee
for purposes of receiving notices hereunder or, unless or until such
address shall be so furnished, to the address indicated opposite his or its
signature to this Agreement.
8.3 Modifications and No Waiver of Breach. No waiver, amendment, or
modification of this Agreement sha1l be binding unless it is in writing
signed by the parties hereto. No wavier by a party of a breach hereof by
the other party shall be deemed to constitute a waiver of a future breach,
whether of a similar or dissimilar nature, except to the extent
specifically provided in any written waiver under this Section 8.3.
8.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
8.5 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same agreement.
8.6 Captions. The captions used herein are for ease of reference only
and shall not define or limit the provisions hereof.
8.7 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto relating to the matters encompassed hereby and
supersedes any prior oral or written agreements (including the Prior
Agreement, which is hereby terminated). No representations, oral or
written, modifying or contradicting the terms of this Agreement have been
made by any party. The foregoing notwithstanding, the Employee shall enter
into the Company's standard Employee Confidentiality and Intellectual
Property Ownership Agreement and Employee Non-Competition Agreement (the
"Other- Employee Agreements") concurrent herewith.
8.8 Assignment. The rights of the Company under this Agreement may,
without the consent of the Employee, be assigned by the Company, in its
sole and unfettered discretion., to any person, firm, corporation, or ether
business entity which at any time, whether by purchase, merger, or
otherwise, directly or indirectly, acquires all or substantially all of the
stock, assets or business of the Company or of any business with which the
Company is reasonably connected.
8.9 Non-Transferability of Interest. None of the rights of the
Employee to receive
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any form of compensation payable pursuant to this Agreement shall be
assignable or transferable except through a testamentary disposition or by
the laws of descent and distribution upon the death of the Employee, and
upon any such disposition the only rights that may be transferred are
rights to receive compensation that has accrued and become payable at the
time of the Employee's death or that becomes payable as a result of the
Employee's death pursuant to Section 7.1. Any attempted assignment,
transfer, conveyance, or other disposition (other their as aforesaid) of
any interest in the rights of the Employee to receive any form of
compensation to be made by the Company pursuant to this Agreement shall be
void.
8.10 Tax Matters. The Employee acknowledges and agrees that all
payments and benefits made or provided to Employee pursuant to the terms
hereof which are required by applicable federal, stare or local laws to be
subject to withholding for income taxes or otherwise shall be so subject
8.11 Invalid Provisions. If any provision of this Agreement is held to
be Illegal, invalid, or unenforceable under any present or future law, and
if the tights or obligations of the Employee or the Company under this
Agreement would not be materially and adversely affected thereby. (a) such
provisions shall be fully severable; (b) this Agreement shall be construed
and enforced as if such illegal, invalid, or unenforceable provisions had
never comprised a part hereof: (c) the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid, or unenforceable provision or by its severance
herefrom; and (d) in lieu of such illegal, invalid, or unenforceable
provision, there shall be added automatically as a part of this Agreement a
legal, valid, and enforceable provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible.
8.12 Arbitration. Except as to any injunction hereunder or under the
Other Employee Agreements, any controversy or claim arising out of or
relating to this Agreement, or the breach thereo1~ shall be settled by
arbitration in accordance with the Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrator or
arbitrators may be entered in any court having jurisdiction thereover. The
arbitration proceeding shall be conducted in the city and state of the
Company's principal executive office in the United States unless otherwise
agreed by the parties thereto. 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 Section 8.12 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 Employee of any of his covenants contained
herein. The prevailing party in any such arbitration shall be awarded its
legal fees from the other.
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