TEXTECHNOLOGIES, INC. EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.10
This
Executive Employment Agreement ("Agreement"), including any attached Exhibits
is
entered into by and between Textechnologies, Inc., a Delaware corporation having
offices at 00000 Xxxxxxxx Xx, Xxxxxxxxx, Xx 00000 ("Employer"), and Xxxxx
Xxxxxxxx, an individual currently residing at 00
Xxxxxxx Xx Xxxxxxxx Xxxxxxxx, Xxxxxxx, Xxxx XX0
0XX
U.K. ("Employee"), to be effective on the later of the date of execution of
this
Agreement by the parties hereto or the date of approval of this Agreement by
the
Board of Directors of Employer pursuant to the provisions of Section 6.2 (the
"Effective Date").
WITNESSETH:
WHEREAS,
Employer is desirous of employing Employee pursuant to the terms and conditions
and for the consideration set forth in this Agreement, and Employee is desirous
of entering the employ of Employer pursuant to such terms and conditions and
for
such consideration. NOW, THEREFORE, for and in consideration of the mutual
promises, covenants, and obligations contained herein, Employer and Employee
agree as
follows:
ARTICLE
1: EMPLOYMENT AND
DUTIES:
1.1. Employer
agrees to employ Employee, and Employee agrees to be employed by Employer,
beginning as of the Effective Date and continuing until June 1st,
2007
(the "Term"), subject to the terms and conditions of this
Agreement.
1.2. Beginning
June 1st,
2006,
Employee shall be employed as Chief Executive Officer of Employer. Employee
agrees to serve in the assigned position and to perform diligently and to the
best of Employee's abilities the duties and services appertaining to such
position as determined by Employer, as well as such additional or different
duties and services appropriate to such position which Employee from time to
time may be reasonably directed to perform by Employer. As of the Effective
Date, Employee shall be elected as a member of Employer's Board of Directors
and, upon the retirement of the incumbent Chairman of the Employer's Board
of
Directors, shall be elected to serve as the Chairman of the Employer's Board
of
Directors. Employee shall at all times comply with and be subject to such
policies and procedures as Employer may establish from time to time.
1.3. Employee
shall, during the period of Employee's employment by Employer, devote Employee's
full business time, energy, and best efforts to the business and affairs of
Employer; provided. Subject to the provisos to the immediately preceding
sentence, Employee may not engage, directly or indirectly, in any other
business, investment, or activity that interferes with Employee's performance
of
Employee's duties hereunder, is contrary to the interests of Employer, or
requires any significant portion of Employee's business time. The foregoing
notwithstanding, the parties recognize and agree that Employee may engage in
passive personal investments and
other
business activities which do not conflict with the business and affairs of
the
Employer or interfere with Employee's performance of his duties hereunder.
In
that regard, Employee may serve on the board of directors of up to three
corporations of his choice, so long as service on any such board simultaneously
with his service on Employer's Board of Directors does not constitute a
violation of federal statutory provisions, or related rules and regulations,
pertaining to interlocking directorships and the
meeting times of such boards of directors do not conflict with the meeting
times
of Employer's Board of Directors. Except as provided in the preceding sentence,
Employee may not serve on the board of directors of any entity other than the
Employer during the Term without the approval of the Employer's Board of
Directors in accordance with the Employer's policies and procedures regarding
such service, which approval will not be unreasonably withheld. Employee shall
be permitted to retain any compensation received for such service on other
corporations' boards of directors.
1.4. Employee
acknowledges and agrees that Employee owes a fiduciary duty of loyalty, fidelity
and allegiance to act at all times in the best interests of the Employer and
to
do no act which would intentionally injure Employer's business, its interests,
or its reputation. It is agreed that any direct or indirect interest in,
connection with, or benefit from any outside activities, particularly commercial
activities, which interest might in any way adversely affect Employer, or any
of
its affiliates, involves a possible conflict of interest. In keeping with
Employee's fiduciary duties to Employer, Employee agrees that Employee shall
not
knowingly become involved in a conflict of interest with Employer, or its
affiliates, or upon discovery thereof, allow such a conflict to continue.
Moreover, Employee agrees that Employee shall disclose to the Employer's Board
of Directors any facts which might involve a possible conflict of
interest.
1.5. Effective
as
of the Effective Date, Employer and Employee shall enter into an Indemnification
Agreement containing the terms and conditions and forming a part of, this
Agreement.
1.6. Employee
represents that he is not aware of any pre-existing health problems which have
not been disclosed to Employer.
ARTICLE
2: COMPENSATION AND
BENEFITS:
2.1. For
the
period between the Effective Date and June 30th,
2007,
Employee's base salary shall be $0 and that he acknowledges that in lieu of
pecuniary consideration, he shall receive stock in the company.
2.2. As
of the
Effective date, the Employer shall grant to Employee 250,000 shares of the
Employer's common stock subject to the restrictions and other terms and
conditions.
2.3. From
and
after the Effective Date, Employer shall pay, or reimburse Employee, for all
ordinary, reasonable and necessary expenses which Employee incurs in performing
his duties under this Agreement including, but not limited to, travel,
entertainment, professional dues and subscriptions, and all dues, fees and
expenses associated with membership in various professional, business and civic
associations and societies of which Employee's participation is in the best
interest of Employer. Employer will reimburse Employee for reasonable legal
expenses in connection with the negotiation of this Agreement.
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2.4. During
the
Term and while Employee is employed by Employer, and in addition to any group
term life insurance otherwise generally provided to executive employees of
Employer, Employer will purchase and maintain at its expense term life insurance
on the life of Employee payable to the beneficiary or beneficiaries designated
by Employee.
2.5. While
employed by Employer, Employee shall be allowed to participate, on the same
basis generally as other employees of Employer, in all general employee benefit
plans and programs, including improvements or modifications of the same, which
on the effective date or thereafter are made available by Employer to all or
substantially all of Employer's executive employees. Such benefits, plans,
and
programs may include, without limitation, medical, health, and dental care,
life
insurance, disability protection, and qualified retirement plans. Except as
specifically provided herein, nothing in this Agreement is to be construed
or
interpreted to provide greater rights, participation, coverage, or benefits
under such benefit plans or programs than provided to executive employees
pursuant to the terms and conditions of such benefit plans and
programs.
2.6. Employer
shall not by reason of this Article 2 be obligated to institute, maintain,
or
refrain from changing, amending, or discontinuing, any incentive compensation
or
employee benefit program or plan, so long as such actions are similarly
applicable to covered employees generally.
2.7. Employer
may
withhold from any compensation, benefits, or amount payable under this Agreement
all federal, state, city, or other taxes as may be required pursuant to any
law
or governmental regulation or ruling.
ARTICLE
3: TERMINATION PRIOR TO
EXPIRATION OF TERM AND EFFECTS OF SUCH TERMINATION:
3.1. Employee's
employment with Employer shall be terminated (i) upon the death of Employee,
(ii) upon Employee's permanent disability (permanent disability being defined
as
Employee's physical or mental incapacity to perform his usual duties as an
employee with such condition likely to remain continuously and permanently);
provided, however, that in such event, Employee's employment shall be continued
hereunder for a period of not less than one year from the date of such
disability, but not beyond the end of the Term, with Employee's base salary
during such period to be reduced by any Employer-financed disability benefits,
or (iii) subject to the provisions of clause (ii), at any time during the Term
by Employer upon notice to Employee or by Employee upon 60 days' notice to
Employer for any or no reason.
3.2. If
Employee's
employment is terminated by reason of a "Voluntary Termination" (as hereinafter
defined), the death of Employee, permanent disability of Employee (as defined
in
Section 3.1) or by the Employer for "Cause" (as hereinafter defined), all future
compensation to which Employee is otherwise entitled and all future benefits
for
which Employee is eligible shall cease and terminate as of the date of
termination, except as specifically provided in this Section 3.2. Employee,
or
his estate in the case of Employee's death, shall be entitled to pro rata base
salary through the date of such termination and shall be entitled to any
individual bonuses or individual incentive compensation not yet paid but due
under Employer's plans but shall not be entitled to any other payments by or
on
behalf of Employer except for those which may be payable pursuant to the terms
of Employer's employee benefit plans (as hereinafter defined). For purposes
of
this Section 3.2, a "Voluntary Termination" of the employment relationship
by
Employee prior to expiration of the Term
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shall
be
a termination of employment in the sole discretion of and at the election
of
Employee, other than (i) a termination of Employee's employment because of
a
material breach by Employer of any material provision of this Agreement which
remains uncorrected for thirty (30) days following written notice of such
breach
by Employee to Employer or (ii) a termination of Employee's employment within
six (6) months of a material reduction in Employees' rank or responsibility
with
Employer. For purposes of this Section 3.2, the term "Cause" shall mean any
of
(i) Employee's gross negligence or willful misconduct in the performance
of the
duties and services required of Employee pursuant to this Agreement; (ii)
Employee's final conviction of a felony; or (iii) Employee's material breach
of
any material provision of this Agreement which remains uncorrected for thirty
(30) days following written notice to Employee by Employer of such
breach.
3.3. If
Employee's
employment is terminated for any reason other than as described in Section
3.2
above during the Term, Employee's rights under this Section 3.3 are Employee's
sole and exclusive rights against the Employer or its affiliates and the
Employer's sole and exclusive liability to Employee under this Agreement, in
contract, tort or otherwise, for the termination of his employment relationship
with Employer. Employee covenants not to xxx or lodge any claim, demand or
cause
of action against Employer based upon Employee's termination of employment
for
any monies other than those specified in this Section 3.3. If Employee breaches
this covenant, Employer shall be entitled to recover from Employee all sums
expended by Employer (including costs and attorneys' fees), in connection with
such suit, claim, demand or cause of action.
3.4. It
is
expressly acknowledged and agreed that the decision as to whether "Cause" exists
for termination of the employment relationship by the Employer and whether
and
as of what date Employee has become permanently disabled is delegated to the
Board of Directors. If Employee disagrees with the decision reached by Employer,
the dispute will be limited to whether the Board of Directors reached this
decision in good faith.
3.5. Termination
of the employment relationship does not terminate those obligations imposed
by
this Agreement which are continuing obligations, including, without limitation,
Employee's obligations under Articles 4 and 5.
ARTICLE
4: OWNERSHIP AND PROTECTION
OF INTELLECTUAL PROPERTY & CONFIDENTIAL INFORMATION:
4.1. All
information, ideas, concepts, improvements, discoveries, and inventions, whether
patentable or not, which are conceived, made, developed or acquired by Employee,
individually or in conjunction with others, during Employee's employment by
Employer (whether during business hours or otherwise and whether on Employer's
premises or otherwise) which relate to Employer's business, products or services
(including, without limitation, all such information relating to corporate
opportunities, research, financial and sales
data, pricing ad trading terms, evaluations, opinions, interpretations,
acquisition prospects, the identity of customers or their requirements, the
identity of key contacts within the customer's organizations or within the
organization of acquisition prospects, or marketing
and merchandising techniques, prospective names, and marks), and all writings
or
materials of any type embodying any of such items, shall be disclosed to
Employer and are and shall be the sole and exclusive property of
Employer.
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4.2. Employee
acknowledges that the businesses of Employer and its affiliates are highly
competitive and that their strategies, methods, books, records, and documents,
their technical information concerning their products, equipment, services,
and
processes, procurement procedures and pricing techniques, the names of and
other
information (such as credit and financial data) concerning their customers
and
business affiliates, all comprise confidential business information and trade
secrets which are valuable, special, and unique assets which Employer, or its
affiliates use in their business to obtain a competitive advantage over their
competitors. Employee further acknowledges that protection of such confidential
business information and trade secrets against unauthorized disclosure and
use
is of critical importance to Employer, and its affiliates in maintaining their
competitive position. Employee hereby agrees that Employee will not, at any
time
during or after his employment by Employer, make any unauthorized disclosure
of
any confidential business information or trade secrets of Employer, or its
affiliates, or make any use thereof, except in the carrying out of his
employment responsibilities hereunder. The above notwithstanding, a disclosure
shall not be unauthorized if (i) it is required by law or by a court of
competent jurisdiction or (ii) it is in connection with any judicial or other
legal proceeding in which Employee's legal rights and obligations as an employee
or under this Agreement are at issue; provided, however, that Employee shall,
to
the extent practicable and lawful in any such events, give prior notice to
Employer of his intent to disclose any such confidential business information
in
such context so as to allow Employer an opportunity (which Employee will not
oppose) to obtain such protective orders or similar relief with respect thereto
as it may deem appropriate.
4.3. All
written
materials, records, and other documents made by, or coming into the possession
of, Employee during the period of Employee's employment by Employer which
contain or disclose confidential business information or trade secrets of
Employer, or its affiliates shall be and remain the property of Employer, or
its
affiliates, as the case may be. Upon termination of Employee's employment by
Employer, for any reason, Employee promptly shall deliver the same, and all
copies thereof, to Employer.
ARTICLE
5: POST-EMPLOYMENT AND
NON-COMPETITION OBLIGATIONS:
5.1. As
part of
the consideration for the compensation and benefits to be paid to Employee
hereunder, and as an additional incentive for Employer to enter into this
Agreement, Employer and Employee agree to the non-competition provisions of
this
Article 5. Employee agrees that during the period of Employee's non-competition
obligations hereunder, Employee will not, directly or indirectly for Employee
or
for others, in any geographic area or market where Employer or any of their
affiliated companies are conducting any business (other than de minimis business
operations) as of the date of termination of the employment relationship or
have
during the previous twelve months conducted any business (other than de minimis
business operations):
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(i) engage
in any
business directly competitive with any business(other than de minimis business
operations) conducted by Employer or any of Employer's affiliates;
(ii) render
advice or
services to, or otherwise assist, any other person, association, or entity
who
is engaged, directly or indirectly, in any business directly competitive with
any business(other than de minimis business operations) conducted by Employer
or
any of Employer's affiliates; or
(iii) induce
any employee
of Employer or any of its affiliates (other than Employee's personal secretary
or administrative assistant)to terminate his employment with Employer, or its
affiliates, or hire or assist in the hiring of any such induced employee by
any
person, association, or entity not affiliated with Employer. These
non-competition obligations shall extend until two years after termination
of
the employment relationship between Employer and Employee. The above
notwithstanding, nothing in this Section 5.1 shall prohibit Employee from
engaging in or being employed by any entity that engages in the provision of
management consulting or other consulting services to third parties, even where
such entity on occasion renders advice or services to, or otherwise assists,
any
other person, association, or entity who is engaged, directly or indirectly,
in
any business directly competitive with any business conducted by Employer or
any
of Employer's affiliates, so long as Employee does not personally, directly
or
indirectly (A) participate in rendering such advice, services or assistance
to
any such competing person, association or entity, (B) provide any information
or
other assistance to any other person employed by Employee or by any such
consulting entity for use, directly or indirectly, in rendering such assistance
to any competing person, association or entity or (C) engage in any conduct
which would be violative of the provisions of Article 4 hereof.
5.2. Employee
understands that the foregoing restrictions may limit his ability to engage
in
certain businesses anywhere in the world during the period provided for above,
but acknowledges that Employee will receive sufficiently high remuneration
and
other benefits under this Agreement to justify such restriction. Employee
acknowledges that money damages would not be sufficient remedy for any breach
of
this Article 5 by Employee, and agrees that Employer, on its own behalf or
on
behalf of any of its affiliates, shall be entitled to specific performance
and
injunctive relief as remedies for such
breach or any threatened breach. Such remedies shall not be deemed the exclusive
remedies for a breach of this Article 5, but shall be in addition to all
remedies available at law or in equity to Employer, including, without
limitation, the recovery of damages from Employee and his agents involved in
such breach.
5.3. It
is
expressly understood and agreed that Employer and Employee consider the
restrictions contained in this Article 5 to be reasonable and necessary to
protect the proprietary information and/or goodwill of Employer and its
affiliates. Nevertheless, if any of the aforesaid restrictions are found by
a
court having jurisdiction to be unreasonable, or overly broad as to geographic
area or time, or otherwise unenforceable, the parties intend for the
restrictions therein set forth to be modified by such courts so as to be
reasonable and enforceable and, as so modified by the court, to be fully
enforced.
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ARTICLE
6:
MISCELLANEOUS:
6.1. For
purposes
of this Agreement, (i) the terms "affiliates" or "affiliated" means an entity
who directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with Employer or in which Employer
has
a 50% or more equity interest, and (ii) any action or omission permitted to
be
taken or omitted by Employer hereunder shall only be taken or omitted by
Employer upon the express authority of the Board of Directors of Employer or
of
any Committee of the Board to which authority over such matters may have been
delegated.
6.2. Although
executed and delivered by the parties hereto, this Agreement shall not become
effective until such time as the Board of Directors has expressly approved
this
Agreement. Employer agrees to notify Employee promptly of the date of such
approval.
6.3. For
purposes
of this Agreement, notices and all other communications provided for herein
shall be in writing and shall be deemed to have been duly given when received
by
or tendered to Employee or Employer, as applicable, by pre-paid courier or
by
United States registered or certified mail, return receipt requested, postage
prepaid, addressed as follows: (i) If to Employer, to Textechnologies, Inc.
at
its corporate headquarters to the attention of the General Counsel of
Textechnologies, Inc.. (ii) If to Employee, to his last known personal
residence.
6.4. This
Agreement shall be governed in all respects by the laws of the State of
Maryland, excluding any conflict-of-law rule or principle that might refer
to
the laws of another State or country.
6.5. No
failure by
either party hereto at any time to give notice of any breach by the other party
of, or to require compliance with, any condition or provision of this Agreement
shall be deemed a waiver of similar or dissimilar provisions or conditions
at
the same or at any prior or subsequent time.
6.6. It
is a
desire and intent of the parties that the terms, provisions, covenants, and
remedies contained in this Agreement shall be enforceable to the fullest extent
permitted by law. If any such term, provision, covenant, or remedy of this
Agreement or the application thereof to any person, association, or entity
or
circumstances shall, to any extent, be construed to be invalid or unenforceable
in whole or in part, then such term, provision, covenant, or remedy shall be
construed in a manner so as to permit its enforceability under the applicable
law to the fullest extent permitted by law. In any case, the remaining
provisions of this Agreement or the application thereof to any person,
association, or entity or circumstances other than those to which they have
been
held invalid or unenforceable, shall remain in full force and
effect.
6.7. This
Agreement shall be binding upon and inure to the benefit of Employer and any
other person, association, or entity which may hereafter acquire or succeed
to
all or substantially all of the business or assets of Employer by any means
whether direct or indirect, by purchase, merger, consolidation, or otherwise.
Employee's rights and obligations under this Agreement are personal and such
rights, benefits, and obligations of Employee shall not be voluntarily or
involuntarily assigned, alienated, or transferred, whether by operation of
law
or otherwise, without the prior written consent of Employer, other than in
the
case of death or incompetence of Employee.
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6.8. This
Agreement replaces and merges any previous agreements and discussions pertaining
to the subject matter covered herein. This Agreement constitutes the entire
agreement of the parties with regard to such subject matter, and contains all
of
the covenants, promises, representations, warranties, and agreements between
the
parties with respect such subject matter. Each party to this Agreement
acknowledges that no representation, inducement, promise, or agreement, oral
or
written, has been made by either party with respect to such subject matter,
which is not embodied herein, and that no agreement, statement, or promise
relating to the employment of Employee by Employer that is not contained in
this
Agreement shall be valid or binding. Any modification of this Agreement will
be
effective only if it is in writing and signed by each party whose rights
hereunder are affected thereby, provided that any such modification must be
authorized or approved by the Board of Directors of Employer.
IN
WITNESS WHEREOF, Employer and Employee have duly executed this Agreement
on the date first stated above.
 ________________________________
Xxxxx X. Xxxxx, Esq., Secretary
Textechnologies, Inc., Employer
|
 ______________________________________
Xxxxx Xxxxxxxx,
Employee
|
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