EXHIBIT 10.1
EMPLOYMENT AGREEMENT
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EMPLOYMENT AGREEMENT effective as of the 25th day of June, 1997, between
Wave Technologies International, Inc., a Missouri corporation ("Wave"), and J.
Xxxxxxx Xxxxxx, a resident of St. Louis, Missouri (the "Executive").
WITNESSETH:
WHEREAS, the Executive has been serving as Chief Financial Officer of Wave.
WHEREAS, the Board of Directors of Wave has determined that the retention
of the Executive is important to the continued long-term viability of Wave; and
WHEREAS, Wave desires to continue the services of the Executive, and the
Executive is willing to continue on the terms and conditions hereinafter set
forth; and
NOW, THEREFORE, in consideration of the mutual promises and conditions
contained herein, the parties hereby agree as follows:
1. Definition of Wave. For the purposes of this Agreement, unless the
context otherwise requires, all references to Wave herein shall include both
Wave and any subsidiaries.
2. Engagement. Wave hereby continues the engagement of the Executive as
Chief Financial Officer, and the Executive hereby accepts said continued
engagement upon the terms and conditions hereinafter set forth.
3. Term. Subject to the provisions for termination hereinafter set
forth, the term of this Agreement began as of the date first above written, and
shall expire on June 30, 2000.
4. Compensation.
(a) Salary. As base compensation for the services to be rendered
hereunder, Wave shall pay the Executive his current annual salary payable
in equal bi-weekly installments. Said salary may be increased to take into
account the nature of the contributions to Wave by the Executive and any
other factors that may be deemed relevant by the Compensation Committee of
the Board of Directors of Wave (the "Compensation Committee").
(b) Compensation Plans. The Executive shall be entitled to
participate in any stock option plans(s), employees' stock purchase
plan(s), 401(k) savings plan, retirement plans, profit sharing plans, bonus
programs and deferred compensation plan(s) as Wave may from time to time
adopt upon the terms and conditions established by the Compensation
Committee or the board of Directors of Wave.
(c) Bonus Compensation. The Executive shall be entitled to such cash
bonuses, if any, during the term of his employment based upon the success
of Wave and/or the Executive in reaching certain goals and objectives as
determined by the Executive, the President of Wave and the Compensation
Committee.
5. Employment Benefits. Wave shall maintain such policies of health,
hospitalization, disability and life insurance covering the Executive as Wave
shall reasonably determine to be comparable to policies covering other senior
executive officers of Wave.
6. Vacations. The Executive shall be entitled to vacation time and
sick leave in accordance with the Wave policy then in effect.
7. Duties, Understandings and Expectations. The Executive shall devote
his full and exclusive business time, attention, energies and best efforts to
the performance of his duties hereunder, in such manner and at such times as may
be determined by the President or the Board of Directors from time to time, in
accordance with the usual standards of ethics and the usual customs and
procedures applicable to the commercial businesses in which Wave is engaged.
During the term of this Agreement, or any extension hereof, the Executive shall
neither directly nor indirectly be employed by any other person, firm or
corporation, in any capacity whatsoever except (a) as a director or the like of
any business or charitable entity or organization provided such entity or
organization are not engaged in activity competitive with Wave or its
affiliates, and (b) as an officer and/or director of any corporation or manager
of any limited liability company as requested by Wave. It is expressly
understood that the Executive's primary mission is to enhance the growth and
value of Wave through sound management.
8. Expenses. Wave shall reimburse the Executive for all reasonable and
necessary costs and expenses incurred by him in connection with the performance
of his duties hereunder upon the presentation by the Executive from time to time
in accordance with Wave's policy of itemized accounts of such expenditures.
9. Executive Covenants. To induce Wave to execute, deliver and perform
this Agreement, and for $10.00 in hand paid, Executive hereby covenants and
agrees:
(a) Nondisclosure of Information - Executive agrees that during the
term of employment by Wave and thereafter, Executive shall not disclose
Wave's (or Wave's customers') trade secrets or confidential, technical, and
business information and shall use such information only for the benefit of
Wave. Upon request, or automatically upon termination of employment with
Wave, Executive agrees to return all of Wave's property, including but not
limited to material related to trade secrets, and confidential, technical
and business information.
(b) Executive's Restrictive Covenants - As an inducement to Wave to
enter into this Employment Agreement and to agree to pay to the Executive
his regular compensation, bonuses and other payments and fringe benefits
provided hereunder, and
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in view of the Executive's services and his access to confidential
information, Executive agrees that during the period of his employment by
Wave and for a period of 12 months after termination of this employment,
for any reason other than a Wave Cause or by Wave without Executive Cause,
the Executive will not, directly or indirectly, on his own account, or as
an employee, consultant, adviser, partner, co-venturer, owner, member,
manager, officer, director or stockholder of any other person, firm,
partnership, limited liability company, or corporation:
(i) conduct, engage in, be connected with, or directly aid or
assist as a member of or consultant to management anyone else to
engage in, a business directly competitive with Wave throughout the
United States of America,
(ii) during such time, directly or indirectly, for himself or on
behalf of any other person or entity in which he shall have any direct
or indirect business or employment interest (collectively an
"affiliated entity"), induce or attempt to induce any present or
future management or other key employee of Wave to leave the employ of
Wave and/or to seek or accept employment with the Executive or any
affiliated entity, nor shall he negotiate with any such employee in
the employ of Wave with respect to such person's present or future
employment outside of Wave.
Nothing herein contained shall prevent the Executive from
purchasing and owning stock in any corporation listed on any stock
exchange or traded in the over-the-counter market provided such
purchases shall not result in the Executive owning in the aggregate
directly or beneficially, five percent (5%) or more of the equity
securities of any corporation or other entity engaged in a business
which is competitive to that of Wave.
The Executive further agrees that, in view of the present scope
of Wave's business activities, the time periods, territory and scope
of activities specified above describe the minimum reasonable time,
area and scope of activities necessary to protect Wave and its
successors and assigns, in the use of the good will of the business to
be conducted by Wave, and therefore he agrees that Wave, in case of
violation of this Paragraph 9(b), may have injunctive relief, without
bond (but upon due notice) in addition to such other relief as may
appertain inequity or at law. No waiver of any violation hereof shall
be implied from Wave's forbearance or failure to take action pursuant
hereof. All covenants and provisions of this Paragraph 9(b)
constitute a series of separate covenants, and if any particular
portion of this Paragraph 9(b) is adjudicated invalid or
unenforceable, because of its scope in terms of area, time or business
activities, the parties agree that such provision may be made
enforceable by reductions or limitations thereon so as to be
enforceable to the fullest extent permissible under the laws and
public policies of any applicable jurisdiction.
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The provisions of this Paragraph 9 shall continue in full force and effect
notwithstanding the termination of this Employment Agreement.
10. Termination.
(a) Events of Termination. This Agreement and the Executive's
employment with Wave may be terminated:
(1) at any time by mutual consent of Wave and the Executive;
(2) by Wave for Executive Cause upon written notice to the
Executive;
(3) by Wave without Executive Cause upon 30 days prior written
notice to the Executive;
(4) by the Executive for Wave Cause; or
(5) by the Executive without Wave Cause upon no less than 30
days prior written notice to Wave.
(b) Definition of Executive Cause. For purposes of this Agreement,
termination of the Executive by Wave shall be deemed to be for "Executive
Cause" if the Board of Directors of Wave shall have determined in good
faith that the Executive has:
(1) willfully neglected his normal and material duties
hereunder;
(2) willfully breached any of the material covenants contained
herein;
(3) wrongfully converted funds or property of Wave;
(4) made any unauthorized disclosure of any trade secrets,
patents, trademarks, copyrights or other proprietary business
information owned or developed by or on behalf of Wave, its successors
or assigns; or
(5) been arrested and arraigned for any felony.
(c) Definition of Wave Cause. For purposes of this Agreement,
termination by the Executive shall be deemed for "Wave Cause" if the
Executive shall have terminated his employment with Wave due to:
(1) the assignment to the Executive of duties not consistent
with the position of Chief Financial Officer or demanding
additional, official work days per week;
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(2) a reduction in salary or discontinuance of any bonus plan
now in effect in which the Executive may participate; or
(3) a change in the geographic location where the Executive's
position is primarily based in excess of fifty (50) miles
from the Wave facility at which the Executive predominantly
performs his duties at the time of a change in control.
11. Severance Benefits from Wave.
(a) Benefits/accrual. To induce the Executive to continue to serve
Wave in his present capacities, Wave shall provide the Executive with
severance benefits set forth in Section 11(c) below, if, within one (1)
year after there has occurred a "change in control" (as hereinafter
defined) the Executive has terminated his employment due to a Wave Cause,
or the Executive's employment is terminated by Wave or its successor in
interest for any reason other than Executive Cause.
(b) Definition of Change of Control. A "change of control" shall
have occurred if (i) any person (as used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")) that presently owns
50% or less of the outstanding shares of Wave Common Stock becomes the
beneficial owner (as defined in Rule 13(d)-3 of the Exchange Act) of a
total of more than 50% of the outstanding shares of Wave Common Stock, or
(ii) Wave shall have sold all or substantially all of its assets.
(c) Description of Severance Benefits. Severance benefits for the
Executive pursuant to Section 11(a) shall be as follows:
(1) a lump-sum payment of eighteen (18) months' salary based on
the total annual rate of base compensation for the Executive in effect
prior to the date of change of control;
(2) continued participation in all employee benefits for a
period of one (1) year. Should such participation not be possible due
to terms of the employee benefit plans, equivalent benefits shall be
provided to the Executive through alternative means. These benefits
shall include, but not be limited to, all health, accident, and
disability plans, as well as any life insurance plans, provided by or
through Wave; and
(3) a release and discharge of the covenants set forth in
Section 9(b).
(d) Time of Paying Severance Benefits. The severance benefits
described above shall be payable by Wave or its successor in interest to
the Executive on the last day of the Executive's employment. The Executive
shall not be required to
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mitigate the amount of severance benefit by seeking other employment and
none of these payments may be reduced by any future salary the Executive
may earn.
12. Arbitration. Except as otherwise specifically provided herein, any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration in the County of St. Louis in
accordance with the rules of the American Arbitration Association then
obtaining, and judgment upon any award so rendered may be entered in any court
having jurisdiction thereof.
13. Notices. Any notice or other communication required or permitted to
be transmitted under this Agreement shall be in writing and personally delivered
(by commercial courier or otherwise) or mailed, return receipt requested,
postage prepaid, addressed to the parties hereto at their addresses indicated
below, or at such other addresses as may be hereafter designated by a party by
notice delivered in accordance herewith. Any notice delivered personally shall
be effective on the day of delivery; any notice mailed, as aforesaid, shall be
effective on the second day following posting.
14. Assignment. The rights and obligations of Wave under this Agreement
shall inure to the benefit of, and shall be binding upon, Wave and its
successors and assigns.
15. Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be deemed originals and together shall
constitute one and the same instrument.
16. Severability. The invalidity, illegality or unenforceability of any
provision hereof shall not in any way affect, impair, invalidate or render
unenforceable this Agreement or any other provision hereof.
17. Taxes. Wave shall be entitled to deduct or withhold all applicable
payroll and social security taxes where required on all applicable compensation
paid to the Executive or any successor in interest.
18. Entire Agreement. This instrument contains the entire agreement
between the parties. It supersedes any and all other agreements and
understandings of or by the parties with respect to the subject matter hereof.
It may not be changed orally, but only by agreement in writing and signed by the
party against whom enforcement of any waiver, change, modification or discharge
is sought.
19. Governing Law. This Agreement shall be governed by the internal laws
of the State of Missouri.
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IN WITNESS WHEREOF, this Agreement is effective as of the day and year
first above written.
WAVE:
WAVE TECHNOLOGIES INTERNATIONAL, INC.
00000 Xxxxx Xxxx., Xxxxx 000
Xx. Xxxxx, XX 00000
By: /s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ J. Xxxxxxx Xxxxxx
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J. Xxxxxxx Xxxxxx
Address: 0000 Xxxxxxxx
Xx. Xxxxx, XX 00000
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