Exhibit 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective as of November 1,
2000, between Alpha Technologies Group, Inc., a Delaware corporation (the
"Company"), and Xxxxxxxx Xxxxxx (the "Employee").
WHEREAS, Employee has been serving as Chairman and Chief Executive
Officer of the Company, and the parties wish to provide for the continuation of
such services.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
1. Employment, Duties and Acceptance.
1.1. The Company hereby employs the Employee for the Term (as
hereinafter defined) to render services to the Company as its Chairman and Chief
Executive Officer and, in connection therewith, to perform such executive and
managerial duties as he shall be directed by the Board of Directors to perform.
Notwithstanding the foregoing, Employee may pursue other business ventures
provided they do not (x) materially interfere with his duties hereunder or, (y)
compete, directly or indirectly, with the Company's businesses.
1.2. Acceptance of Employment by the Employee. The Employee
hereby accepts such employment and agrees to render the executive and managerial
services described above on the terms and conditions set forth.
2. Term of Employment. The term of the Employee's employment under
this Agreement (the "Term") shall commence on the Effective Date hereof and
shall end on October 31, 2003, unless sooner terminated pursuant to Article 5 of
this Agreement.
3. Compensation.
3.1. Salary. For services to be rendered pursuant to this
Agreement, the Company agrees to pay the Employee a salary of $260,000 per annum
(the "Annual Salary") for the fiscal year ending October 31, 2001, payable in
accordance with the Company's regular payroll practices but no less frequently
than once per month. Employee's annual salary shall be reviewed by the Board of
Directors from time to time, but may not be decreased.
3.2. Incentive Compensation. For each of the Company's fiscal
years ending during the Term, the Employee shall be awarded an incentive bonus
(the "Bonus") pursuant to a formula to be determined by the Board of Directors,
based upon the Company's achieving approved targeted earnings from continuing
operations before provision for income taxes ("Earnings"). For the purpose of
calculating the Bonus, the Company's Earnings shall be conclusively determined
from its statement of income for each fiscal year as certified by the Company's
independent certified public accountants. Employee's Bonus, if any, shall be
paid within ten days after the filing of the Company's Form 10-K for each fiscal
year ending during the Term, or February 28, of the year following the end of
each fiscal year of the Term, whichever is earlier.
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3.3. Withholdings and Deductions. All Compensation described in
this Article 3 shall be less such deductions as may be required to be withheld
by applicable law and regulation.
4. Expenses and Benefits.
4.1. Expenses. The Company shall pay or reimburse the Employee
for all reasonable expenses actually incurred or paid by him during the Term in
the performance of his services under this Agreement, upon presentation of
expense statements or vouchers or such other supporting information as it may
require.
4.2. Benefits. The Employee shall be entitled to all rights and
benefits for which he shall be eligible under any stock option or extra
compensation plan, pension, group insurance or other so-called "fringe" benefits
which the Company may, in its sole discretion, provide for him or for its senior
executive employees generally.
4.3. Vacation. The Employee shall be entitled to such vacation
as is provided from time to time to other senior executives of the Company.
5. Termination.
5.1. Termination upon Death. If the Employee shall die during
the Term, this Agreement shall terminate, except that the Employee's legal
representatives shall be entitled to receive the Annual Salary provided for in
Section 3.1 of this Agreement through the thirtieth day after the Employee's
death, and his Bonus shall be calculated on a pro rata basis through the end of
the fiscal quarter immediately preceding his death.
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5.2. Termination upon Disability. If, during the Term, the
Employee shall become physically or mentally disabled, whether totally or
partially, so that he is unable substantially to perform his services hereunder
for (i) a period of six consecutive months, or (ii) for shorter periods
aggregating six months during any twelve-month period, the Company may at any
time after the last day of the sixth consecutive month of disability or the day
on which the shorter periods of disability shall have equaled an aggregate of
six months, by written notice to the Employee (but before the Employee has
recovered from such disability), terminate the term of the Employee's employment
hereunder. Notwithstanding such disability, the Company shall continue to pay
the Employee the Annual Salary herein provided for in Section 3.1 up to and
including the date of such termination, and his Bonus shall be calculated on a
pro rata basis through the end of the fiscal quarter immediately preceding such
termination.
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5.3. Termination for Cause. Nothing contained herein shall preclude
the Company from terminating this Agreement for cause. As used herein the term
"for cause" shall be deemed to mean and include with respect to the Employee
chronic alcoholism, drug addiction, conviction of the Employee of any felony, or
of any lesser crime or offense involving the property of the Company or any of
its subsidiaries or affiliates, misappropriation of any money or other assets or
properties of the Company or its subsidiaries, or willful failure or refusal to
substantially perform the services required of the Employee under this
Agreement.
6. Non-Competition.
6.1. During Term. During the Term and for one year thereafter,
the Employee will not, directly or indirectly, as an officer, director,
stockholder, partner, associate, employee, consultant or owner, become or be
interested in, or associated with, any other corporation, firm or business
engaged in a business which is the same as, similar to or competitive with the
business of the Company; provided that the ownership by the Employee, directly
or indirectly, of shares of stock of a corporation, which shares are regularly
traded on a national securities exchange or on the over-the-counter market and
which shares do not amount to the lesser of (a) five per cent of the issued and
outstanding shares of such corporation, or (b) an aggregate market value in
excess of $500,000, shall not, in any event, be deemed to be in violation of the
provisions of this Section 6.1.
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6.2. Non-Detrimental Conduct. During the Term and for a period
of one year thereafter (regardless of any termination under Section 5 hereof),
the Employee will not engage in any course of conduct anywhere that will
diminish the value of the business of the Company, including, without
limitation, the solicitation or hiring of employees of the Company other than
those dismissed by the Company.
6.3. Specific Performance. The parties recognize that, because
of the nature of the subject matter of this Section 6, it would be impractical
and extremely difficult to determine the Company's actual damages in the event
of a breach of this Section 6 by the Employee. Accordingly, if the Employee
commits a breach, or threatens to commit a breach, of any of the provisions of
Section 6.1 or 6.2, the Company shall be entitled to have the provisions of said
Sections specifically enforced by temporary, preliminary and permanent
injunctive relief without the posting of bond or other security by and court of
competent jurisdiction, notwithstanding the provisions of Section 8 hereof.
6.4. Severability. (a) If any of the provisions contained in
Section 6.1 or 6.2, or any part thereof, is held to be unenforceable because of
the duration of such provision or the area covered thereby, the Employee agrees
that the body making such determination shall have the power to reduce the
duration and/or area of such provision and, in its reduced form, said provisions
shall then be enforceable.
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(b) In the event that, under the laws of any state within
the geographical scope of the covenants contained in Sections 6.1 or 6.2, such
covenants would be wholly unenforceable by reason of the breadth of their scope
or otherwise, it is the intention of the parties hereto that such determination
not bar nor in any way affect the Company's right to the relief provided above
under the laws of any other state within the geographical scope of such
covenants, as to breaches of such covenants in such other respective
jurisdictions, the above covenants as they relate to each state being, for this
purpose, severable into diverse and independent covenants.
7. Protection of Confidential Information.
7.1. Confidential Information. In view of the fact that the
Employee's work for the Company will bring him into close contact with many
confidential affairs of the Company not readily available to the public, the
Employee agrees:
(a) To keep secret and retain in the strictest confidence
all confidential matters of the Company, including, without limitation, trade
"know-how", secrets, the names of its customers, suppliers and contractors, the
Company's procedures and policies in purchasing and sales, including its pricing
policies, operational methods and technical processes, and other business
affairs of the Company, learned by him heretofore or hereafter, and not to
disclose them to anyone outside of the Company, either during or after his
employment with the Company,
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except in the course of performing his duties hereunder or with the Company's
express written consent; and
(b) To deliver promptly to the Company on termination of his
employment, all memoranda, notes, records, reports, manuals, drawings and other
documents (and all copies thereof) relating to the Company's business and all
property associated therewith, which he may then possess or have under his
control.
7.2. Survival. The provisions of this Section 7 shall survive
any termination of this Agreement.
7.3. Specific Performance. The parties recognize that, because
of the nature of the subject matter of this Section 7, it would be impractical
and extremely difficult to determine the Company's actual damages in the event
of a breach of this Section 7 by the Employee. Accordingly, if the Employee
commits a breach, or threatens to commit a breach, of any of the provisions of
Section 7.1, the Company shall be entitled to have the provisions of said
Sections specifically enforced by temporary, preliminary and permanent
injunctive relief without the posting of bond or other security by and court of
competent jurisdiction.
8. Notices.
All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
deemed to have been duly given if delivered personally, or mailed first-class,
postage prepaid by registered or certified mail (notices shall be deemed to have
been
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given when so delivered personally) or, if mailed, two days after the date of
mailing, as follows (or to such other address as either party shall designate by
notice so given to the other in accordance herewith):
If to the Company, to:
Alpha Technologies Group, Inc.
Attention: Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to the Employee, to:
Xxxxxxxx Xxxxxx
00000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
9. General.
9.1. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the local laws of the State of
California applicable to agreements made and to be performed entirely in
California.
9.2. Section Headings. The article and section headings contained
herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
9.3. Entire Agreement. This Agreement sets forth the entire
agreement and understanding of the parties relating to the subject matter
hereof, and supersedes all prior agreements, arrangements and understandings,
written or oral, relating to the subject matter hereof. No representation,
promise or inducement has been made by either party that is not embodied in this
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Agreement, and neither party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.
9.4. Successors and Assigns. This Agreement, and the Employee's
rights and obligations hereunder, may not be assigned by the Employee. The
Company may assign its rights, together with its obligations, hereunder in
connection with any sale, transfer or other disposition of all or substantially
all of its business or assets; in any event the obligations of the Company
hereunder shall be binding on its successors or assigns, whether by merger,
consolidation or acquisition of all or substantially all of its business or
assets.
9.5. Amendments, Modifications, etc. This Agreement may be
amended, modified, superseded, cancelled, renewed or extended and the terms or
covenants hereof may be waived, only by a written instrument executed by the
party to be charged therewith. The failure of either party at any time or times
to require performance of any provision hereof shall in no manner affect the
right at a later time to enforce the same. No waiver by either party of the
breach of any term or covenant contained in this Agreement, whether by conduct
or otherwise, in any one or more instances, shall be deemed to be, or construed
as, a further or continuing waiver of any such breach, or a waiver of the breach
of any other term or covenant contained in this Agreement. The invalidity or
unenforceability of any term or provision of this Agreement shall in no way
impair or affect the balance thereof, which shall remain in full force and
effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
November 1, 2000.
ALPHA TECHNOLOGIES GROUP, INC.
By:/s/ Xxxxxxxx Xxxxxx
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XXXXXXXX XXXXXX
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