EMPLOYMENT AGREEMENT
Exhibit 10.18
This
Employment Agreement (this “Agreement”), effective as of the 1st day of
October, 2008, by and between Xxxxx International, Inc., a Delaware
corporation (the “Company”),
and Xxxx Xxxxxxx (the “Executive”).
Whereas, the Company and the Executive have determined that it is in their respective best
interests to enter into this written Employment Agreement and it is the intention of the parties
to perform pursuant to this Employment Agreement and to further repudiate and void all previous
Employment Agreements, written and oral, which may have been entered into by the parties;
Now
Therefore, in consideration of the mutual covenants and agreements herein contained, the
parties hereto covenant and agree as follows:
1. Recital. The foregoing recital is made a part of this Agreement.
2. No Prior Obligations. The Executive represents and warrants to the Company that the
Executive is free to accept employment hereunder and that the Executive has no prior or other
obligations or
commitments of any kind to anyone that would in any way hinder or interfere with the
Executive’s
acceptance of, or the full uninhibited and faithful performance of, the Executive’s employment
hereunder or
the best exercise of the Executive’s efforts as an employee of the Company.
3. Employment. The Company hereby employs the Executive and the Executive hereby
accepts employment with the Company, upon the terms and conditions herein set forth. During
the term of
this Agreement, the Executive shall perform such duties as are required by the Company and
this Agreement
and shall devote his entire business time (except vacations and any other permitted leave
time), effort,
attention and ability, with undivided loyalty, to the performance of such duties.
4. Term. The term of this Agreement shall be one (1) year beginning on the effective
date
stated herein. This Agreement shall automatically renew for successive one (1) year
terms(s) unless
otherwise terminated by either party, in writing, not later than thirty (30) days prior to the
expiration of the
initial term or any renewal term thereafter.
5. Duties. During the term of this Agreement, the Executive shall as the Chief
Financial
Officer of Xxxxx International, Inc.
(a) As Chief Financial Officer for Xxxxx International, Inc. the Executive’s duties shall
involve work associated with managing and supervising corporate accounting and budgeting
functions
including cash flow, audits and certifying expenditures. Executive shall coordinate and
cooperate with
internal and external auditors and shall cooperate in the preparation of required Securities
and Exchange
Commission (SEC) and other regulatory agency reports and filings. Further, Executive shall
manage and
supervise the accounting and finance staff.
(b) The Executive shall adhere to all of the rules and regulations of the Company which are
presently in force or which may be established hereafter by the Company with respect to the
conduct of those
employees under the direction and supervision of the Executive. The Executive shall also
follow the
directions of the Chief Executive Officer, Xxxxxx Xxxxx, with respect to his duties.
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6. AT WILL EMPLOYMENT. The employment relationship set forth herein shall be an “at
will” employment relationship and not employment for a defined term. Thus, either Employer or
Executive
can terminate the employment relationship at any time.
7. Compensation.
(a) Except as otherwise provided in this Agreement, the Company shall pay the
Executive, and the Executive shall accept during the term of this Agreement, for all services
to be rendered
by the Executive, an annual base salary of One Hundred Fifty Eight Thousand Six Hundred Twenty
Five
Dollars ($158,625) (the “Salary”) payable at least monthly or on a more frequent basis as the
Company shall
determine. The Company shall review Executive’s base salary on an annual basis and any
change in
Executive’s annual salary shall be discretionary with the Company and shall be based upon
Executive’s
individual performance by meeting or not meeting goals and objectives.
(b) Any amounts paid to the Executive hereunder shall be less such sums as may be
required to be deducted or withheld under the provisions of any federal, state or local law.
(c) The Executive is intended to be compensated as an employee of the Company and
as such is to receive a W-2 wage for and the status of an employee and the Company shall
deduct federal and
state withholding and social security taxes as required.
(d) The Company shall pay or reimburse the Executive for all reasonable out-of-pocket
expenses actually incurred by Executive performing services hereunder, provided that the
Executive properly
accounts for such expenses in accordance with the Company’s policies.
8. CASH
BONUS: In addition to the Salary, the Company may pay to the Executive a
bonus (the “Cash Bonus”) in an amount which, for any twelve (12) month period, may be up to but
not greater than fifty percent (50%) of the Executive’s base annual salary as stated herein,
provided that the Executive is an employee in good standing of the Company on the date the cash
bonus is paid as determined by the Company, in its sole and absolute discretion, and based upon
the Executive’s individual performance by meeting goals and objectives. Executive’s goals and
objectives shall be defined and agreed upon by the parties not later than thirty (30) days from
the effective date of this Agreement. The Company shall during the initial six months of this
Agreement conduct a review of Executive’s individual performance on a date not later than three
(3) months from the effective date of this Agreement and again at six months from the effective
date and shall make payment of any Cash Bonus earned by the Executive not later than thirty (30)
days from the date of each of the performance review. The Company shall thereafter include the
Executive in the Company’s annual Cash Bonus cycle.
9. ADDITIONAL COMPENSATION UPON SEVERANCE: In addition to, and not in lieu of, the
Salary and Benefits reserved herein by the Executive, the Company shall pay to the Executive or
his estate in the event of a termination of the Executive’s employment for any reason, other than
for just cause, within ninety (90) days next after the involuntary termination without just cause
of his employment by the Company, a severance payment equal to twenty five percent (25%) of the
Executive’s annual salary. In the event Executive is involuntarily terminated for just cause then
he shall not be entitled to any severance payment. For purposes of this Agreement, “just cause”
shall be defined as any of the following:
a) acts of fraud, embezzlement or misappropriation with respect to the business;
b) conviction of a felony or a crime involving moral turpitude;
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c) violation of any non-disclosure or non-compete covenants;
d) material breach of the employment agreement;
e) violation of the Company’s “Drug Free Workplace Policy” or any use of drugs or alcohol
which substantially interferes with performance of duties.
10. ADDITIONAL COMPENSATION UPON A CHANGE IN CONTROL In the event there is a change
of control of the Company and within six (6) months of the Change of Control Date your
employment with the Company or its successor is terminated for a reason other- than for an act
of fraud, embezzlement or misappropriation, a conviction of a felony or crime of moral
turpitude, violations of any non-disclosure or non-compete covenant, or violation of the Company
“Drug Free Workplace Policy” the Company or its successor shall pay to the Executive or his
estate a severance payment equal to fifty percent (50%) of the Executive’s annual salary.
a. The term “Change in Control” as used in this Agreement means a change of control of a
nature that would be required to be reported pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended, whether or not the Company is then subject to the reporting
requirement; provided that, whether or not any of the following events would constitute a change
of control of such a nature, a “Change in Control” shall be deemed to occur for purposes of this
Agreement if and when any of the following events occur:
1) any “person” (as such term is used in 13(d) and 14(d)(2) of the Securities Exchange Act of
1934, as amended) other than -
a) the Company
b) a Subsidiary
c) a trustee or other fiduciary holding securities
d) an underwriter engaged in a distribution of Company stock to the public with the
Company’s written consent,
becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of Voting Securities that represents more than fifty percent (50%) of the
combined voting power of the then outstanding Voting Securities.
2) the stockholders of the Company approve a, merger, consolidation, recapitalization
or reorganization of the Company or a Subsidiary, reverse split of any class of Voting Securities, or the consummation of any such transaction if stockholder approval is not obtained.
3) the stockholders of the Company approve a plan of complete liquidation of the Company or an
agreement for the sale or disposition by the Company of all or substantially all of the
company’s assets other
than any such transaction which would result in a related party owning or acquiring more than
fifty percent
(50%) of the assets owned by the Company immediately prior to the transaction. A “related
Party” shall
mean a subsidiary, an employee or group of employees of the Company or any subsidiary, a
trustee or other
fiduciary holding securities under an employee benefit plan of the Company or any subsidiary,
or a
corporation or other form of business entity owned directly or indirectly by the stockholders
of the Company
in substantially the same proportion as their ownership of voting securities.
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4) the current Board members as of October 1, 2008 constitute less than fifty percent
(50%) of the Board at any future date.
11. Vacation;
Benefits.
(a) Executive shall be entitled to and shall receive four (4) weeks vacation per year,
during which time the Salary provided for herein shall be paid, provided that not more than
one week of
vacation may be taken at any time without the prior written consent of the Company.
(b) Executive shall be entitled to and shall receive such other benefits that generally are
made available to other employees of the Company to the same extent and on the same conditions
as such
benefits generally are made available to such other employees.
12. Confidential
Information and Company Property. For purposes of this
Agreement “Confidential Information” shall include:
(a) any patents, trade-secrets, computer programs, computer software code, know-how,
data, knowledge, ideas, concepts, models, designs, innovations, improvements, inventions,
packages,
prototypes, creations, sketches, techniques, processes, specifications, schematics, and
technology; and
(b) all documentation or other information relating to (i) the business, operations,
financial or internal structure of the Company or its affiliates, (ii) the customers, clients
and accounts of the
Company, Company personnel, sales and statistical data, (iii) past, present or future research
or other studies
performed by or on behalf of the Company with respect to the business or operations of the
Company and/or
the Company’s products, such as marketing plans, analyses, forecasts, systems, flow charts,
programs, audit
procedures, or any other matters concerning any work performed by the Company for its
customers or
performed in an effort to solicit or obtain customers, (iv) work performed by the Executive
for any customer
or client, and/or (v) any method and/or procedure (such as records, systems, computer
programs,
correspondence or other documents), relating or pertaining to products or projects developed
by the Company
or contemplated by the Company to be developed for its present or its actively solicited
customers; and
(c) any other information obtained, learned or created by the Executive during the
course of or in connection with Executive’s employment by the Company.
13. Agreement not to Use or Disclose. The Executive shall not, whether during the term
of Executive’s, employment under this Agreement or at any time after Executive shall leave the
employ of the
Company for any reason whatsoever, use, reproduce, copy or disclose, directly or indirectly,
any Confidential
Information to any other person, firm, partnership, corporation or any other entity, except
where required in
the discharge of the Executive’s duties under this Agreement, or where required by applicable
law. Further,
upon leaving the employ of the Company for any reason whatsoever, the Executive shall
surrender and
deliver to the Company all documentation, correspondence, manuals, computer programs, reports,
tapes,
photographs, listings and any other data, of any type whatsoever, and any copies thereof,
emanating from the
Company or from any of its agents, servants, employees, suppliers, and existing or potential
customers, that
shall have come into the Executive’s possession, by any means whatsoever, during the course of
Executive’s
employment. The restrictions and covenants contained in this paragraph shall not be construed
or interpreted
as to prohibit or forbid the Executive from utilizing the general knowledge, education or
experience gained
by the Executive during the course of her employment in any future endeavors, and shall be
strictly construed
as to only include Company, client or customer specific information.
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14. Ownership of Work Product. Any Confidential Information, design, program,
product, invention, package, prototype, model, innovation, data, improvement, new technique,
process,
computer software program, or product, made, collected, developed, discovered, learned or
used, by the
Executive in connection with the performance of projects assigned to Executive during the
course of
Executive’s employment, whether during or after normal business hours, shall be deemed to have
been made
or developed by the Executive solely for the benefit of the Company and shall be the sole and
exclusive
property of the Company. In order further to effectuate the terms of this Agreement, the
Executive agrees to
assign to the Company all of Executive’s rights to copyrights, patents, and all other
proprietary interests
which Executive might have in any such Confidential Information, design, program, product,
invention,
package, prototype, model, innovation, data, improvement, new technique, process, computer
software
program, or product, which Executive develops during the course of Executive’s employment by
the
Company and take whatever action necessary, including assistance in filing for patent
protection, to protect
the Company’s rights to any such Confidential Information, design, program, product,
invention, package,
prototype, model, innovation, data, improvement, new technique, process, computer software
program, or
product. The Executive will not, during the course of Executive’s employment, use or disclose
to any other
person any such Confidential Information, design, program, product, invention, package,
prototype, model,
innovation, data, improvement, new technique, process, computer software program, or product,
except as
expressly authorized in writing by the Company.
15. Covenant not to Compete or Interfere.
(a) Executive recognizes a just purpose in the Company’s protection of its investment in the
contacts, experience, and opportunities afforded to the Executive by his employment with the
Company, and the need of the Company to avoid, for limited times and within a limited area,
competition from persons given training, contacts, and experience by, or through employment with,
the Company. In recognition of such need, Executive agrees that during the term of his employment
with the Company, and for a period of six (6) months after any termination of this Agreement,
Executive will not directly or indirectly, on his own behalf or as a partner, officer, director,
Executive, stockholder or consultant of any other person, firm or corporation compete with the
Company by working as an employee, consultant, partner, officer, director of any organization
which does provide program engineering, acquisition/procurement services, environmental, safety
and health services, business process engineering, systems integration and knowledge management
services which directly competes in any way whatsoever with Xxxxx International and which is
located, either headquartered or has a satellite office, in the Washington D.C. metropolitan area,
which shall be defined as within a one hundred (100) mile radius of Washington, D.C. Executive
also agrees that he will not directly or indirectly, on his own behalf or as a partner, officer,
director, Executive, five percent (5%) or greater stockholder or consultant of any other person,
firm or corporation compete with the Company by working as an employee, consultant, partner,
officer or director of any organization which does provide full life cycle management or any
individual part thereof for the design, development, fabrication and integration of aircraft or
munitions support equipment which directly competes with Spectrum Sciences and Software, Inc. and
which is located, either headquartered or has a satellite office within a one hundred (100) mile
radius of 00 Xxxx Xxxxxx, Xxxx Xxxxxx Xxxxx, XX. Executive further agrees that during the term of
his employment and for a period of six (6) months thereafter, Executive will not, directly or
indirectly, on his own behalf or as a partner, officer, director, Executive, majority stockholder
or consultant of any other person, firm or corporation solicit, accept or deal with in competition
with the Company the business of any person or entity which either at present or during the six
(6) months prior to the termination of Executive’s employment was a customer or client of the
Company and with whom the Executive had any contact with or dealings with on behalf of the
Company.
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(b) It is intended and agreed that, in the event any portion of the non-competition or
non-interference provisions of this Section 15 is judicially held to be invalid or
unenforceable, for whatever reason, such invalid portion shall be treated as severed here from and
this Section 15 shall be considered revised and limited in such manner and to such extent
as may be necessary to make the remaining portion valid and enforceable.
16. Remedies for Breach.
(a) The
Executive acknowledges and agrees that any monetary remedy, which the
Company may have, for any breach or threatened breach by the Executive of any of the
provisions of this
Agreement will be inadequate. Therefore, in the event of the breach or threatened breach of
any provision of
this Agreement by the Executive, the Company shall be entitled to specific performance of the
provisions
hereof, and or an ex parte, interlocutory and permanent injunction to enjoin and restrain such
breach or
threatened breach. Such remedies shall be in addition to all other remedies available at law
or in equity,
including the Company’s right to recover from the Executive any and all damages that may be
sustained as a
result of the Executive’s breach or threatened breach of this Agreement.
(b) If it shall be judicially determined that Executive has violated any of Executive’s
obligations under Section 15, then the period applicable to the obligation which has
been violated shall
automatically be extended by a period of time equal in length to the period during which said
violation(s)
occurred.
(c) Any and all attorneys’ fees and other expenses incurred by either party to this
Agreement in any action to enforce this Agreement shall be paid by the non-prevailing party in
such action.
17. Governing Law, Waivers, Consent to Jurisdiction.This agreement will be
governed by, construed and enforced in accordance with the laws of Virginia. The Executive
irrevocably (a)
agrees that any suit, action or other legal proceeding arising out of or relating to this
Agreement or such other
documents which may be delivered in connection with this Agreement may be brought in a court
of record in
the State of Virginia or in the Courts of the United States of America located in such State,
(b) consents to the
jurisdiction of each such court in any such suit, action or proceeding, agrees that a final
and non-appealable
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by
suit on the judgment or in any other manner provided by law. THE EXECUTIVE AND THE COMPANY
HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT EITHER MAY HAVE TO
A TRIAL BY JURY.
18. Entire
Agreement, Survival. This Agreement contains the entire understanding
between the parties hereto and supersedes all other oral and written agreements or
understandings between
them with respect to the subject matter herein. No modification or addition hereto or waiver
or cancellation
of any provision shall be valid except by a writing signed by the party to be charged
therewith. The
provisions of Sections 12 through 15 shall survive and continue in full force and effect upon
the expiration or
termination of this Agreement for any reason.
19. Binding
Effect. This Agreement shall be binding upon, and inure to the benefit of,
the
parties hereto and their respective heirs, successors, assigns and personal representatives.
As used herein, the
successors of the company shall include, but not be limited to, any successor by a way of
merger,
consolidation, sale of all or substantially all of its assets, or similar reorganization. In
no event may the
Executive assign any rights or duties under this Agreement.
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20. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall constitute one and the
same instrument.
In Witness Whereof, the parties duly executed this Agreement as of the day and year first
above written.
WITNESS or ATTEST:
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XXXXX INTERNATIONAL, INC. | |||||
/s/
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/s/ Xxxxxx X. Xxxxx | |||||
Name:
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Name: Xxxxxx X. Xxxxx | |||||
| Title: Chief Executive Officer | ||||||
| EXECUTIVE | ||||||
/s/ Xxxxxx Xxxxxxxxx
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/s/ Xxxx Xxxxxxx | |||||
Printed Name:
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Name: Xxxx Xxxxxxx |
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