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Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") has been entered into as of
the 25th day of May, 1998, by and between SETECH, INC., a Delaware corporation
with principal offices in Murfreesboro, Tennessee ("Employer"), and XXXXXXX
XXXXXXXX, an individual and resident of the State of South Carolina
("Employee").
Recitals
WHEREAS, Employer desires to obtain the services of Employee, and Employee
desires to secure employment from the Employer upon the following terms and
conditions;
WHEREAS, it is intended by Employer and Employee that Employee shall
relocate his residence to middle Tennessee and serve as the Chief Financial
Officer of Employer at the principal offices of Employer in Murfreesboro,
Tennessee.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties agree as follows:
1. Employment. Employer hereby employs Employee as Chief Financial Officer
of Employer, and Employee hereby accepts and agrees to such employment, pursuant
and subject to the orders, advice and direction of the Chief Executive Officer
and Board of Directors of Employer. Employee shall perform such other duties as
are customarily performed by one holding such position in other, same or similar
businesses or enterprises as that engaged in by Employer. Employee also shall
render such other and unrelated services and duties as may be assigned to him
from time to time by the Chief Executive Officer or Board of Directors of
Employer. Employee shall report directly to the Chief Executive Officer of
Employer.
2. Best Efforts of Employee. Employee agrees that he will at all times
faithfully, industriously, and to the best of his ability, experience and
talents, perform all of the duties that may be required of him pursuant to the
express and implicit terms hereof, to the reasonable satisfaction of Employer.
Such duties shall be rendered at the principal offices of Employer in
Murfreesboro, Tennessee, and at such other place or places as Employer shall in
good faith require or as the interest, needs, business or opportunity of
Employer shall require.
3. Term of Employment. The initial term of employment of Employee by
Employer shall be for a period of one (1) year, commencing on May 18, 1998 (the
"Commencement Date") and terminating on May 17, 1999 (the "Expiration Date"),
and thereafter renewing for successive one (1) year terms, each such term to
commence on the successive anniversaries of the Expiration Date, unless either
party shall give notice of intention to terminate at least ninety (90) days
prior to the Expiration Date (or prior to
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expiration of any such successive term), and subject to earlier termination as
provided in Section 5 of this Agreement.
4. Compensation of Employee. During the term of its employment of Employee,
Employer shall pay Employee, and Employee shall accept from Employer in return
for his services and the covenants contained herein, the following:
a. Base Compensation. Employer shall pay Employee, and Employee shall
accept from Employer, in payment of Employee's services hereunder, base
compensation of Ten Thousand Four Hundred Sixteen and 67/100 Dollars
($10,416.67) per month (less applicable payroll taxes and other amounts
required to be withheld or deducted under federal or state law), payable
monthly in accordance with the standard practices of the Employer ("Base
Compensation"). The Employer shall review the Base Compensation of Employee
on an annual basis, and the Employee may receive such increases in his Base
Compensation as established by the Employer, in its sole discretion,
considering, among other things, the performance of Employee, the business
and financial condition of the Employer and the operating results achieved.
b. Bonus. In addition, Employee shall receive, on an annual basis,
such bonus or other compensation as the Employer, in its sole discretion,
may determine to be reasonable supplemental compensation for Employee,
considering, among other things, the performance of Employee, the business
and financial condition of the Employer and the operating results achieved,
in an amount not less than Twenty Thousand and 0/100 Dollars ($20,000.00)
per year (less applicable payroll taxes and other amounts required to be
withheld or deducted under federal or state law).
c. Stock Options. Immediately upon the Employee's acceptance and
execution of this Agreement, Employee shall be granted an option to
purchase Five Thousand (5,000) shares of common stock of Employer ("Stock")
at Two Dollars ($2.00) per share (the "Options"), subject to the approval
by Employer's Compensation Committee. The Options shall be granted and
shall vest in accordance with Employer's incentive stock option plan (the
SETECH, Inc. Incentive Stock Option Plan) (the "Plan"). Only the currently
vested Options (the "Vested Options") shall be subject to exercise as
described herein, and any Options not vested upon Employee's death or
termination of employment shall be forfeited by Employee. Employee (or his
personal representative) must exercise any Vested Options in accordance
with the Plan, a copy of which shall be provided to Employee by Employer.
d. Employee Benefits. Employee shall be entitled to participate in and
receive all employee benefits or plans that may from time to time be
available to senior officers and employees of Employer; provided, however,
that Employer is not obligated to establish any such benefits, or plans not
already existing, and Employer expressly reserves the right to alter,
modify, amend or terminate any
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such benefits or plans, whether currently existing or hereafter adopted, at
any time and from time to time, and for any reason, during the term of
Employee's employment. Any and all such benefits shall terminate upon the
termination of Employee's employment, except as otherwise required by law.
More specifically:
(i) Medical and Life Insurance. Employee, as well as any
qualifying dependents of Employee, shall be eligible to participate in
the Employer's group medical and life insurance plans after sixty (60)
days of employment following the Commencement Date, in accordance with
such plans.
(ii) 401K. Employee shall be eligible to participate in the
Employer's 401K program after one (1) year of employment following the
Commencement Date.
(iii) Vacation. Employee shall receive a total of four (4) weeks
of vacation per calendar year; provided, however, that Employee shall
receive sixteen (16) calendar days of vacation during the 1997
calendar year. All such vacation time must be approved in advance by
the Chief Executive Officer of Employer. All such vacation time also
must be used in the calendar year in which it is accrued.
e. Relocation Expenses. Employer shall reimburse Employee for the
following expenses he incurs in relocating from South Carolina to the
middle Tennessee area upon sufficient proof thereof:
(i) Moving Expenses. Employer shall pay Employee for all
reasonable and necessary expenses incurred by Employee to move his
household goods from Chapin, South Carolina to the middle Tennessee
area, including any expenses incurred by Employee to store such goods
on a short-term basis for a period of time not exceeding three (3)
months after the date of this Agreement.
(ii) Relocation Allowance. Employer shall reimburse employee for
all reasonable and necessary temporary living expenses incurred by
Employee, not to exceed $1,000.00 per month (the "Maximum Monthly
Allowance"), before he sells his residence in Chapin, South Carolina
and establishes a permanent residence in the middle Tennessee area.
Upon the purchase of a residence in Tennessee, and so long as Employee
has not yet sold his South Carolina residence, Employee may continue
to receive the Maximum Monthly Allowance to defray the additional
mortgage expenses caused by owning two homes; provided, however, that
Employee shall not be entitled to receive more than $6,000.00 as the
total Relocation Allowance provided pursuant to this sub-section (ii).
Relocation are expenses to be adjusted for the tax impact at calendar
year-end to eliminate tax impact on the employee.
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(iii) Realtor Commissions. Employer shall reimburse Employee for
all realtor commissions incurred by Employee with respect to the sale
of his residence in Chapin, South Carolina, in an amount not greater
than Fifteen Thousand and 0/100 Dollars ($15,000.00) or Seven Percent
(7%) of the sales price of the residence, whichever is lesser.
(iv) Down Payment Advance. Employer shall advance Employee Ten
Thousand and 00/100 Dollars ($10,000) as a loan secured by the grant
of stock options described in Section 4. c. hereof to be used by the
Employee for the purposes of paying closing costs and the down payment
on the purchase of a home in Tennessee. The advance shall not bear
interest for a period of one (1) year, and if not then paid it shall
thereafter be evidenced by a note payable on demand, with interest
payable annually at a rate of 7% per annum.
(v) Travel Expenses. Employer shall reimburse Employee up to One
Thousand Five Hundred and 0/100 Dollars ($1,5000.00) per month for all
reasonable and necessary expenses incurred by Employee for purposes of
traveling between Chapin, South Carolina and the middle Tennessee area
before Employee sells his residence in Chapin, South Carolina and
establishes a permanent residence in the middle Tennessee area;
provided, however, that Employee shall not be reimbursed for such
expenses incurred or travel undertaken more than six (6) months after
the date of this Agreement.
5. Termination.
a. For Cause. Employer may terminate the employment of Employee at any
time for "Cause." For the purposes hereof, the term "Cause" shall mean,
without limitation: the conviction of Employee of a felony, or a crime of
moral turpitude designated as such under the laws of the State of
Tennessee; a breach of trust with funds of Employer or any affiliate
thereof; the failure of the Employee to carry out the reasonable written
instructions of the Chief Executive Officer or the Board of Directors of
Employer; the inability of Employee, through sickness or other incapacity,
to perform his duties under this Agreement for a period in excess of ninety
(90) substantially consecutive days; or a material breach of this
Agreement. In the event of the termination of Employee's employment for
Cause, Employer shall have no obligation to make any further payments to
Employee except with respect to Base Compensation earned through the date
of termination, and Employee shall forfeit and lose his right to receive
any other form of compensation other than benefits vested with Employee
pursuant to stock options granted to Employee which by their terms are
exercisable after termination of employment.
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b. Without Cause. The Employee's employment by Employer may also be
terminated without Cause by either party upon sixty (60) days' prior
written notice to the other. In the event Employee's employment is so
terminated without Cause, Employee shall be entitled to all Base
Compensation earned through the date of termination, but shall forfeit and
lose his right to receive any other form of compensation other than
benefits vested with Employee pursuant to stock options granted to Employee
which by their terms are exercisable after termination of employment.
6. Restrictive Covenants. Employee covenants and agrees that, during the
term of his employment with Employer and for a period of two (2) years
thereafter, he shall be subject to the following restrictions:
a. Competition. Employee will not, directly or indirectly, engage or
invest in, own, manage, operate, finance, control or participate in the
ownership, management, operation, financing or control of, be employed by,
associated with, or in any manner connected with, lend credit to, or render
services or advice to any business whose products, services or activities
compete in whole or in part with the products, services or activities of
the Employer or its affiliates, anywhere within the United States of
America; provided, however, that Employee may purchase or otherwise acquire
up to (but not more than) one percent (1%) of any class of securities of
any enterprise (but without otherwise participating in the activities of
such enterprise) if such securities are listed on any national or regional
securities exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934.
b. Customer Solicitation. Employee will not in any way, directly or
indirectly, for himself or on behalf of or in conjunction with any person
or entity other than the Employer, solicit, divert, take away, or attempt
to take away any person or entity (or their business or patronage) that has
been a customer or client of the Employer, or whose business or patronage
the Employer has solicited or sought to obtain, during the term of his
employment with Employer.
c. Employee Solicitation. Employee will not in any way, directly or
indirectly, for himself or on behalf of or in conjunction with any person
or business entity other than the Employer, solicit, entice, hire, employ,
or endeavor to employ any officers, directors, employees or agents of the
Employer.
d. Employee Representations. Employee represents to Employer that he
understands the nature of the foregoing restrictive covenants regarding his
employment, and that he has sufficient financial resources and personal
business skills to seek and obtain alternative employment that would not
violate the restrictions set forth in this Section 6 in the event that he
were to cease his employment with Employer for any reason. Employee
understands that this is a
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specific inducement to Employer to engage Employee in the capacity of Chief
Financial Officer.
7. Confidential Information. Employee covenants and agrees that, during the
term of his employment with Employer and for a period of ten (10) years
thereafter, he shall be subject to the following restrictions:
(a) Definition. For purposes of this Agreement, the term "Confidential
Information" shall mean information that the Employer owns or possesses,
that it uses or is potentially useful in its business, that it treats as
proprietary, private, or confidential, and that is not generally known to
the public, including, but not limited to, information relating to
Employer's existing and contemplated businesses, sales, company financial
information, products, technology, manufacturing techniques, engineering
processes, chemical formulae, marketing, sales methods, technical service
expertise, employees, lists of actual or potential customers, actual and
potential customer usage and requirements, new and existing programs or
services, prices and terms, pricing strategy, sources of supplies and
materials, operating and other cost data, trade secrets, inventions, patent
applications, and other proprietary information as may exist or be
developed from time to time by the Employer, or its affiliates.
(b) Information Access and Disclosure. Employee acknowledges that he
shall occupy a position of trust and confidence with the Employer and will
have access to and may develop Confidential Information of actual or
potential value to or otherwise useful to Employer. Employee shall hold in
strictest confidence and not disclose, without express written
authorization from the Chief Executive Officer or Board of Directors of
Employer, to any person or entity, other than the Employer and its
affiliates and their officers and agents, or use in whole or in part any
Confidential Information that Employee may acquire while employed by
Employer.
(c) Employer Property Return. At the termination of Employee's
employment with Employer, or at any other time that Employer may request,
Employee shall promptly deliver to Employer all memoranda, notes, records,
reports, documents, sketches, plans, models, compositions, formulations,
computer data, and other tangible items made or compiled by Employee or in
Employee's possession concerning or relating to the Employer or its
affiliates and their businesses, operations or affairs and any Confidential
Information that the Employee may possess or have under his control
("Company Property").
8. Extension of Term of Restrictive Covenants. If Employee breaches any of
the foregoing restrictive covenants as are contained in the foregoing Sections
6. and 7, the term of such covenant shall be extended by the period of the
duration of such breach.
9. Remedies. Employee acknowledges that any violation of any of the
restrictive covenants contained in Sections 6 and 7 of this Agreement will cause
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continuing and irreparable harm to the Employer for which monetary damages would
not be adequate compensation. Employee, therefore, agrees that, if he violates
or threatens to violate any of these restrictive covenants, the Employer shall
be entitled, in addition to any other legal or equitable remedies available to
it, to (a) entry of an injunction, temporary and permanent, enjoining such
breach and securing specific performance of this Agreement, including requiring
Employee to return all Company Property; (b) monetary damages, insofar as they
can be determined; (c) forfeiture of all accrued but unpaid (or unvested)
bonuses or stock options arising under this Agreement; and (d) recovery of
Employer's reasonable attorney's fees and costs of prosecuting any such action.
THE PARTIES WAIVE THE RIGHT TO A JURY TRIAL WITH RESPECT TO ANY CONTROVERSY OR
CLAIM BETWEEN OR AMONG THE PARTIES HERETO, INCLUDING BUT NOT LIMITED TO THOSE
ARISING OUT OF OR RELATING TO THIS AGREEMENT, AS WELL AS ANY CLAIM BASED ON OR
ARISING FROM AN ALLEGED TORT.
10. Severability. Whenever possible, each provision and term of this
Agreement will be interpreted in a manner to be effective and valid; however, if
any provision or term of this Agreement is held to be prohibited or invalid,
then such provision or term will be ineffective only to the extent of such
prohibition or invalidity, without invalidating or affecting in any manner
whatsoever the remainder of such provision or term or the remaining provisions
or terms of this Agreement. More specifically, Employee acknowledges that the
restrictive covenants contained in Sections 6 and 7 of this Agreement are
reasonable in scope, time and geographic area; however, if any of these
covenants are held to be unreasonable, arbitrary, or against public policy, such
covenants will be considered divisible with respect to scope, time, and
geographic area, and in such lesser scope, time and geographic area, will be
effective, binding and enforceable against the Employee.
11. Successors and Assigns. This Agreement will be binding upon the
Employer and the Employee and will inure to the benefit of the Employer and its
affiliates, successors and assigns, as well as to the Employee and his heirs.
This Agreement is not assignable by the Employee, except upon the written
agreement of both parties.
12. Waiver. Neither the failure nor any delay by any party in exercising
any right, power, or privilege under this Agreement will operate as a waiver of
such right, power, or privilege, and no single or partial exercise of any such
right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law, (a) no claim or
right arising out of this Agreement can be discharged by one party, in whole or
in part, by a waiver or renunciation of the claim or right unless in writing,
signed by the other party; (b) no waiver that may be given by a party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one party will be deemed to be a waiver of any obligation
of such party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this Agreement.
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13. Governing Law. This Agreement and all performance hereunder shall be
construed and governed by the laws of the State of Tennessee, without regard to
conflicts of laws principles.
14. Construction. The headings of Sections in this Agreement are provided
for convenience only and will not affect its construction or interpretation. All
references to "Section" or "Sections" refer to the corresponding Section or
Sections of this Agreement unless otherwise specified. All words used in this
Agreement will be construed to be of such gender or number, as the circumstances
require. Unless otherwise expressly provided, the word "including" does not
limit the preceding words or terms. All references herein to the word "and"
shall mean "and/or," and all references herein to the word "or" shall mean
"and/or." The parties, in acknowledgment that all of them have been represented
by counsel and that this Agreement has been carefully negotiated, agree that the
construction and interpretation of this Agreement and other documents entered
into in connection herewith shall not be affected by the identity of the party
or parties under whose direction or at whose expense this Agreement and such
documents were prepared or drafted.
15. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter of this Agreement and
supersedes all prior written and oral agreements and understandings between
Employer and Employee with respect to the subject matter of this Agreement. This
Agreement may not be amended except by a written agreement executed by the party
to be charged with the amendment.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
SETECH, INC.
/s/ Xxxxxxx Xxxxxxxx By: /s/ Xxx Xxxxxxxx
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XXXXXXX XXXXXXXX
Title: President and CEO
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