EXHIBIT 10.53
EMPLOYMENT AGREEMENT
This AGREEMENT made as of the 3rd day of November, 1997, by and between
Bigmar, Inc., a Delaware corporation (hereinafter, "the Employer" or
"Employer"), and Xxxxxxx X. Xxx, III (hereinafter, "the Executive" or
"Executive").
1. Commencing on the Effective Date, as hereinafter defined, of this
Agreement, Employer shall employ Executive as Chief Financial Officer to
perform the duties normally incident to such positions.
2. Executive agrees to devote all of Executive's business time, efforts,
skills and attention to fulfill Executive's duties and responsibilities
hereunder faithfully, diligently and competently.
3. The term of this Agreement shall commence on November 3, 1997 (the
"Effective Date") and shall terminate two years thereafter, unless sooner
terminated as hereinafter provided, and shall be subject to automatic
annual renewal thereafter unless at least sixty days prior to the end of
the term of this Agreement or any annual renewal period Executive or
Employer shall give written notice to the other that this Agreement shall
not be renewed.
4. Employer will pay to Executive hereunder a salary at the rate of s
compensation for all services to be rendered by Executive hereunder a
salary at the rate of Eighty Thousand and 00/100 ($80,000.00) Dollars
("Base Salary") for the twelve-month period commencing on the Effective
Date and for each twelve month period thereafter (each a "Twelve-Month
Period") subject to annual cost of living increases as may be approved by
and in the discretion of the Board of Directors of Employer. The Base
Salary shall be payable once weekly.
5. Employer may pay to Executive bonuses (in cash or stock options) as may be
approved by and in the discretion of the Board of Directors of Employer.
The performance of Executive shall be reviewed by the Chief Executive
Officer on or about each anniversary of the Effective Date.
6. Employer will reimburse Executive for all reasonable travel and business
expenses incurred by Executive in connection with performance of
Executive's services hereunder in accordance with the usual practices and
policies of Employer in effect from time to time, upon presentation of
vouchers.
7. Executive will be eligible for and will be afforded an opportunity to
participate in all benefit plans and programs which are currently afforded
or which may be afforded during the term of this Agreement to other
executive officers of Employer, including, without limitation, group
insurance. health, hospital, dental, major medical, life and disability
insurance, 401k, and stock option plans or other similar fringe benefits.
8. Executive will be entitled to four weeks vacation during each Twelve-Month
Period.
9. Executive represents and warrants that, to the best of Executive's
knowledge, Executive is in good health.
10. In the event of Executive's death during the term of this Agreement, this
Agreement shall terminate immediately, provided, however, that Executive's
legal representatives shall be entitled to receive the Base Salary which
would otherwise have been due Executive had Executive worked through the
end of the month of Executive's death plus two additional months of the
Base Salary for the Twelve-Month Period in which Executive died.
11. If during the term of this Agreement, Executive is unable to perform
Executive's duties hereunder on account of illness or other incapacity, and
such illness or other incapacity shall continue for a period of more than
three consecutive months during any Twelve-Month Period, Employer shall
have the right, on thirty days' notice to Executive, given after such three
month period, to terminate this Agreement. In the event of any such
termination Employer shall be obligated to pay to Executive the Base Salary
which would otherwise be due Executive until the end of the month during
which the termination occurred plus four additional months of the Base
Salary for the Twelve-Month Period in which such termination occurred. If,
prior to the date specified on such notice, Executive's illness or
incapacity shall have ceased and Executive shall have resumed the
performance of Executive's duties hereunder, Executive shall be entitled to
resume Executive's employment hereunder as though such notice had not been
given. Employer's Board of Directors shall determine in good faith, upon
consideration of medical evidence satisfactory to it, whether Executive by
reason of physical or mental disability shall be unable to perform the
services required of Executive hereunder.
12. If Employer shall terminate Executive's employment hereunder for Cause, as
hereinafter defined, or if Executive shall voluntarily leave Executive's
employment hereunder, Employer will pay to Executive within ten days after
the termination of such Agreement an amount equal to the amount which
Executive would have earned as the Base Salary hereunder through the end of
the then current month in which such termination or departure occurred.
Cause shall mean any gross malfeasance directly and materially affecting
Employer or conviction of a felony directly and materially affecting
Employer, each of determined in the sole discretion of Employer.
13. If Executive's employment is terminated by Employer without Cause, this
Agreement shall terminate immediately, provided, however, that Employer
shall be obligated to pay Executive the Base Salary had Executive worked
through the last day of the month in which Executive was terminated and
three months of the Base Salary for the Twelve-Month Period in which
Executive was terminated.
14. Executive covenants and agrees that any work or research, or the result
thereof, including without limitation, inventions, processes or formulae
made, conceived or developed by Executive, alone or in connection with
others, during Executive's employment with Employer, whether within or
without the usual hours of employment, which are related to the business,
research, development work or field of operation of Employer, or any of its
subsidiaries or affiliates, shall to the extent of
Executive's interest therein be the sole and exclusive property of
Employer. Executive further agrees to disclose all such inventions,
processes and formulae completely and in writing to the Board of Directors
of Employer and to no other persons unless so directed in writing by the
Board of Directors of Employer. To the extent of Executive's interest
therein, all papers and records of every kind, relating to any invention,
process, formula, improvement or patent included within the terms of this
Agreement, which shall at any time come into the possession of the
Executive shall be the sole and exclusive property of Employer and shall be
surrendered to Employer upon termination of Executive's employment by
Employer or upon Employer's request at any other time either during or
after the termination of such employment.
15. Executive covenants and agrees with Employer that Executive has not, and
will not, during Executive's employment with Employer and thereafter,
directly or indirectly, use, communicate, disclose or disseminate to
anyone (except to the extent reasonably necessary for Executive to perform
his duties hereunder, except as required by law or except if generally
available to the public otherwise than through use, communication,
disclosure or dissemination by the Executive) any materials, documents or
records containing confidential information concerning the businesses or
affairs of Employer or of any of its affiliates or subsidiaries which
Executive may have acquired in the course of or as incident to Executive's
employment or prior dealings with Employer or with any of its affiliates
or subsidiaries, including, without limitation, customer lists, business or
trade secrets of, or methods or techniques used by Employer of any of its
affiliates or subsidiaries in or about their respective businesses, or any
information whatsoever concerning the customer or suppliers of any of
them.
16. Executive acknowledges that Executive's services and responsibilities are
of particular significance to Employer and that Executive's position with
Employer has given and will give Executive a close knowledge of its
policies and trade secrets. Since the Employer is in a creative and
competitive business, Executive's continued and exclusive service to
Employer under this Agreement is of a high degree of importance.
Executive covenants and agrees with Employer that Executive has not,
and will not during Executive's employment with Employer and for a
period of two years after the termination of Executive's employment
with Employer, in any manner, directly or indirectly, (i) induce or
attempt to influence any present or future officer, employee, lessor,
lessee, licenser, licensee or agent of Employers or its subsidiaries
or its affiliates to leave its respective employ or solicit or divert
or service any customers or clients of Employers or its subsidiaries
or its affiliates or (ii) alone or as a partner, officer, director,
employee, consultant or stockholder (except for ownership of no more
than 5% of the capitol stock) of any corporation, partnership or
other entity be competitive with the business of Employer or its
subsidiaries or affiliates. For purposes of subdivision (ii) above of
this paragraph 16, (a) a business shall be
presumed to be competitive if it conducts in whole or in part anywhere in
Switzerland, Italy, Germany and the United States any business in which
Employer, its subsidiaries or affiliates has engaged in or engages in
during the term of Executive's employment with Employer or which Employer,
its subsidiaries or affiliates contemplated or contemplates engaging in,
and the burden of proving otherwise shall be on Executive, and (b) the
business activities of a subsidiary or division of a publicly held
corporation shall not be deemed to include the business activities of other
subsidiaries or divisions of such publicly held corporation.
Nothing herein shall restrict or otherwise limit Executive from
managing Executive's private investments which are not competitive
with the businesses of Employer. Executive shall be permitted to serve
as a director of companies which are not competitive with the
businesses of Employer, so long as such services do not interfere with
the performance of Executive's duties under this Agreement.
17. Executive acknowledges that the remedy at law for any breach or threatened
breach by Executive of the covenants contained in paragraphs 14, 15, and 16
would be wholly inadequate, and therefore Employer or its subsidiaries or
its affiliates shall be entitled to preliminary and permanent injunctive
relief and specific performance thereof. Paragraphs 14, 15, and 16
constitute independent and separable covenants that shall be enforceable
notwithstanding rights or remedies that Employer or its subsidiaries or its
affiliates may have under any provision of this Agreement, or otherwise. If
any or all of the foregoing provisions of paragraph 14, 15, and 16 are held
to be unenforceable for any reason whatsoever, it shall not in any way
invalidate or affect the remainder of this Agreement which shall remain in
full force and effect. If the period of time or geographical areas
specified in paragraphs 14, 15, and 16 are determined to be unreasonable in
any judicial proceeding, the period of time or areas of restriction shall
be reduced so that this Agreement may be enforced in such areas and during
such period of time as shall be determined to be reasonable.
18. Executive represents and warrants to Employer that since commencement of
Executive's employment with Employer, Executive was not, is not now and, in
the future will not without the approval of the Board of Directors of
Employer, become, 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
execution of this Agreement or the performance by Executive of Executive's
obligations hereunder and Executive will indemnify and hold harmless
Employer, its Directors, officers and employees against and in respect of
all liability, loss, damage, expense or deficiency resulting from any
misrepresentation, or breach of any warranty or agreement made by Executive
in connection with Executive's employment hereunder or under Executive's
Original Employer Agreement.
19. The waiver by either party of a breach of any provision of this Agreement
shall not operate as or be constructed as a waiver of any subsequent breach
thereof.
20. Any and all notices referred to herein shall be sufficient if furnished in
writing and sent by certified mail, return receipt requested, to the
respective parties at the addresses set forth below, or such other address
as either party may from time to time designate in writing.
To Executive: To Employer:
Xxxxxxx X. Xxx, III Bigmar, Inc.
0000 Xxxx Xxxx 0000 Xxxxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxx 00000 Xxxxxxxxx, XX 00000
21. This Agreement shall be binding upon, and shall inure to the benefit of,
Employer and its successors and assigns, and Executive and Executive's
legal representatives, heirs, legatees and distributees, but neither this
Agreement nor any rights hereunder shall be assignable, encumbered or
pledged by Executive.
22. This Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes any and all prior
written or oral agreements between Employer and Executive with respect to
the subject matter hereof. No modification, amendment or waiver of any of
the provisions of this Agreement shall be effective unless in writing and
signed by both parties hereto.
23. This Agreement shall be construed and enforced in accordance with the laws
and decisions of the State of Delaware.
24. This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which together shall constitute one and
the same Agreement. Delivery of an executed counterpart of a signature page
to this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
25. If any provisions or part of any provision of this Agreement is held for
any reason to be unenforceable, the remainder of this Agreement shall
nevertheless remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the 3rd day of November, 1997.
Bigmar, Inc.
By: /s/Xxxx X. Xxxxxxxxxx
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Name: Xxxx X. Xxxxxxxxxx
Title: President
/s/Xxxxxxx X. Xxx, III
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Xxxxxxx X. Xxx, III
