EMPLOYMENT AGREEMENT
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This Employment Agreement (the "Agreement") is made as of this 8th day
of October, 1998, by and between Xxxxx Xxxxxx (the "Executive") and Marker
International, a Delaware corporation (the "Corporation").
WITNESSETH:
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WHEREAS, the Corporation desires to employ the Executive, and the
Executive desires to accept such employment, under the terms and conditions of
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:.
1. Employment. The Corporation hereby employs the Executive, and the
Executive hereby accepts employment as the Corporation's President and Chief
Executive Officer, under the terms and conditions set forth herein.
2. Term. Subject to paragraph 8, the Executive shall be employed hereunder
for a period of five (5) years commencing on October 8, 1998 and ending on
October 7, 2003 (the "Term").
3. Duties. During the Term, the Executive shall report to the
Corporation's Board of Directors (the "Board") and perform such duties and
responsibilities commensurate 'with his position of President and Chief
Executive Officer as the Board may determine. Executive shall devote his entire
working time to the business of the Corporation and its affiliates and shall use
his best efforts, skills and abilities in his diligent and faithful performance
of his duties and responsibilities hereunder. During the Term, Executive shall
not engage in any other business activities or hold any office or position,
regardless of whether any such activity, office or position is pursued for
profit or other pecuniary advantage, without the prior consent of the Board;
however, Executive may own, solely as an investment, one percent (1%) or less of
the securities of any publicly traded corporation.
4. Principal Place of Performance. During the Term, the Executive shall be
based at the principal executive offices of the Corporation or any of its
subsidiaries, as may be determined from time to time by the Board, including,
without limitation, the Corporation's production facility in Eschenlohe,
Germany; provided further the Executive acknowledges that he will be required to
travel in connection with the business of the Corporation and its affiliates.
5. Compensation and Related Matters. As full compensation for the
Executive's performance of his duties and responsibilities hereunder during the
Term, the Corporation shall pay the Executive the compensation and provide the
benefits set forth below:
a. Base Salary. The Corporation shall pay the Executive an annual
salary ("Base Salary") of Three Hundred Thousand Dollars ($300,000), less
required deductions, payable in -accordance with the Corporation's payroll
practices. The Board shall review the Executive's Base Salary on an annual basis
and may, at its sole discretion, increase same.
b. Signing Bonus. The Corporation shall pay the Executive a one-time
signing bonus of Fifty Thousand Dollars ($50,000), less required deductions,
payable upon the execution of this Agreement on behalf of the Executive and the
Corporation.
C. Bonus. The Executive shall be eligible to receive an annual
performancebased bonus as the Board may, in its sole discretion, award.
d. Options. On or prior to December 31 , 1998, the Corporation shall
grant the Executive options to purchase 900,000 shares of the Corporation's
Common Stock, par value $.01 per share, at an exercise price equal to the
closing price of such common stock on the date of the grant. Such options shall
be issued pursuant to, and subject to the terms of, the Corporation's Stock
Option Plan. The shares shall vest in the following manner: (i) 600,000 shares
on the date of grant (the "Issue Date"); (ii) 200,000 shares on the first
anniversary of the Issue Date; and (iii) 100,000 shares on the second
anniversary of the Issue Date. Anything herein or elsewhere to the contrary
notwithstanding, all 900,000 shares shall vest immediately upon a "Change in
Control". A "Change in Control" as used herein shall be deemed to have occurred
if:
(i) a third person, including a ",group" as defined in Section
13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), but excluding any employee benefit plan
or plans of the Corporation and its subsidiaries and
affiliates and any current shareholders of the Corporation,
becomes the beneficial owner, directly or indirectly, of
fifty-one percent (51%) or more of the combined voting power
of the Corporation's outstanding voting securities ordinarily
having the right to vote for the election of directors of the
Corporation; or
(ii) the individuals who, as of the date hereof, constitute the
Board (and as of the date hereof the "Incumbent Board") cease
for any reason to constitute at least one-half (1/2) of the
Board, or in the case of a merger or consolidation of the
Corporation, do not constitute or cease to constitute at least
one-half (1/2) of the board of directors of the surviving
company (or in a case where the surviving corporation is
controlled, directly or indirectly, by another corporation or
entity, do not constitute or cease to constitute at least
one-half (1/2) of the board of such controlling corporation or
do not have or cease to have at least one-half (1/2) of the
voting seats on any body comparable to a board of directors of
such controlling entity); provided that any person becoming a
director (or, in the case of a controlling non-corporate
entity, obtaining a position comparable to a director or
obtaining a voting interest in such entity) subsequent to the
date hereof whose election, or nomination for election, was
approved by a vote of the persons comprising at least one-half
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(1/2) of the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office
is in connection with an actual or threatened election
contest, as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) shall be, for purposes
of this Agreement, considered as though such person were a
member of the Incumbent Board; or
(iii) there is a liquidation or dissolution of the Corporation or a
sale of all or substantially all of the assets of the
Corporation; or
(iv) if the Corporation enters into an agreement or series of
agreements or the Board passes a resolution which will result
in the occurrence of any of the matters described in
subsections (i), (ii) or (iii), and the Executive's employment
is terminated (other than by the Executive) subsequent to the
date of execution of such agreement or series of agreements or
the passage I of such resolution, but prior to the occurrence
of any of the matters described in subsections (i), (ii) or
(iii) then, upon the occurrence of any of the matters
described in subsections (a), (a) or (air), a Change of
Control shall be deemed to have retroactively occurred on the
date of the execution of the earliest of such agreement(s) or
the passage of such resolution.
e. Benefits. The Executive shall be eligible to receive medical and
life insurance and such other benefits and perquisites under terms and
conditions no less favorable than those under which the Corporation generally
makes such benefits and perquisites available to its senior executives.
f. Vacation. The Executive shall be entitled to four (4) weeks paid
vacation which will be accrued monthly on a pro-rata basis during each full
calendar year and acknowledges that such vacation must be used in the calendar
year in which it is accrued and may not be accumulated or carried over into
subsequent years. The Executive may schedule the vacation as he elects, subject
to the Corporation's business needs.
6. Expenses. The Executive shall be reimbursed for reasonable and
necessary outof-pocket expenses, including for travel and entertainment, upon
presentation of appropriate receipts in accordance with the policies and
procedures established by the Corporation.
7. Offices. During the Term, the Executive agrees to serve without
additional compensation, if elected or appointed thereto, as a director of the
Corporation or any of its subsidiaries or affiliates, and in one or more
executive positions for any of the Corporation's subsidiaries or affiliates.
8. Termination. Anything herein to the contrary notwithstanding, the
Executive's employment shall terminate immediately upon:
a. his death; or
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b. his "disability". For purposes of this Agreement, the term
"disability" shall mean that the Executive has been unable to perform the duties
and responsibilities required of him hereunder due to a physical and/or mental
disability for a period of ninety (90) consecutive days or one hundred twenty
(120) non-consecutive days during any twelve (12) month period. During the first
sixty (60) days of any such period of disability, the Executive shall continue
to receive his Base Salary provided that he assigns to the Corporation any
insurance benefits that he receives or is eligible to receive, such as short
term disability and workers compensation, during such period; or
C. the existence of "cause." For purposes of this Agreement, the term
"cause" shall mean that the Corporation, in the reasonable judgment of the
Board, has determined that:
(i) Executive has failed to perform his duties and/or
responsibilities under this Agreement in a satisfactory
manner and such failure shall be continuing for the fifteen
(15) day period following his receipt of a written notice
from the Board notifying him of the Board's determination; or
(ii) Executive has engaged in dishonesty or unethical conduct in
his dealings with or on behalf of the Corporation, has
committed fraud, or has committed or been convicted of (or
entered a plea of guilty or nolo contendere to) any crime
involving dishonesty or moral turpitude; or
(iii) Executive has materially breached any of the provisions of
this Agreement; or
(iv) Executive has engaged in any act or omission which is
materially injurious to the financial condition or business
reputation of the Company.
d. If the Executive's employment is terminated, he or his
beneficiaries or estate, as appropriate, shall, in full satisfaction of the
Corporation's obligations under this Agreement, be entitled to receive (i) the
Base Salary provided for herein up to and including the effective date of
termination, prorated on a daily basis, (ii) payment for any accrued, unused
vacation, (iii) medical benefit continuation at Executive and/or his dependent's
expense as provided by law and (iv) benefits, if any, payable upon his death or
disability (as defined herein), respectively.
9. Confidential and Proprietary Information: Non-Competition:
Non-Solicitation.
a. Confidentiality. Except in the performance of Executive's duties
hereunder, at no time during the Term or any time thereafter, shall Executive,
individually or jointly with others, for his benefit or the benefit of any third
party, publish, disclose, use or authorize anyone else to publish, disclose or
use, any secret or confidential and proprietary information relating to any
aspect of the business or operations of the Corporation or its subsidiaries or
affiliates including, without limitation, any trade secret, marketing or
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business plans, suppliers, trade or industrial practices or subsidiaries or
technology of the Corporation or its affiliates, whether or not the Corporation
and/or its subsidiaries or affiliates have a patent (or applied for- a patent)
regarding same. The Executive acknowledges and agrees that such information is a
valuable asset of the Corporation and/or its subsidiaries or affiliates and is
the sole exclusive proprietary of each of them, respectively. Upon the
termination of Executive's employment, regardless of the reason for or
circumstances giving rise to such termination or at any other time at the
request of the Corporation, he shall immediately return to the Corporation all
of the property of the Corporation or its subsidiaries or affiliates,
including-, all such confidential and proprietary information, in his possession
or control. Notwithstanding the foregoing, confidential and proprietary
information shall not include information which (i) is or becomes generally
available to the public or trade other than as a result of a disclosure by the
Executive or any other person who directly or indirectly receives such
information from the Executive or at his direction, or (ii) the Executive is
required to disclose in accordance with his duties hereunder or by law in the
course of any legal or administrative proceeding; provided, however, the
Executive shall provide the Corporation with written notice of any such
disclosure request and a copy of any related documents, such as a subpoena,
within forty eight (48) hours of the Executive's receipt of same and before he
discloses same.
b. Non-Competition. During the Term and for two (2) years thereafter,
the Executive agrees that he shall not, directly or indirectly, with or without
remuneration, either as an employee, employer, consultant, agent, principal,
partner, shareholder, corporate officer, director, manager, investor, advisor or
in any other individual or representative capacity, engage or participate in any
business or business activity that competes with the business of the Corporation
or its subsidiaries or affiliates.
c. Non-Solicitation. During the Term and for two (2) years thereafter,
the Executive agrees that he shall not, directly or indirectly, engage, employ,
or solicit for employment for himself or for any firm, person, corporation,
partnership or otherwise, any person who is then an employee of the Corporation
or its affiliates or was an employee of the Corporation or its subsidiaries or
affiliates during the Term.
d. Injunctive Relief The Executive acknowledges that a breach or
threatened breach of any of the terms set forth in this paragraph 9 shall result
in an irreparable and continuing, harm to the Corporation and/or its
subsidiaries or affiliates for which there shall be no adequate remedy of law.
The Corporation and/or its subsidiaries or affiliates shall, without posting a
bond, be entitled to obtain injunctive and other equitable relief, in addition
to any other remedies available to the Corporation and/or its affiliates.
e. Survival of Terms: Representations. The Executive's obligations
under this paragraph 9 hereof shall remain in full force and effect
notwithstanding the termination of Executive's employment. The Executive
acknowledges that he is sophisticated in business, and that the restrictions and
remedies set forth in this paragraph 9 do not create an undue hardship on the
Executive and will not prevent Executive from earning a livelihood. Executive
and Corporation agree that the restrictions and remedies contained in this
paragraphs 9 are reasonable and necessary to protect Corporation's legitimate
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business interests regardless of the reason for or circumstances giving rise to
such termination and that Executive and Corporation intend that such
restrictions and remedies shall be enforceable to the fullest extent permissible
by law. Executive agrees that given the sophistication of the information
highway, any geographic limitation on such remedies and restrictions would deny
Corporation the protection to which it is entitled hereunder. If it shall be
found by a court of competent jurisdiction that any such restriction or remedy
is unenforceable but would be enforceable if some part thereof were deleted or
modified, then such restriction or remedy shall apply with such modification as
shall be necessary to make it enforceable to the fullest extent permissible
under law.
10. Successors. This Agreement and Executive's performance hereunder are
personal to the Executive and shall not be assignable by the Executive. This
Agreement shall inure to the benefit of and be binding upon the Corporation and
its successors and assigns. The Corporation shall require any successor to all
or substantially all of the business and/or assets of the Corporation, whether
directly or indirectly, by purchase, merger, consolidation, acquisition of
stock, or otherwise, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent as the Corporation would be required to
perform if such succession had not taken place.
11. Miscellaneous.
a. Modification and Waiver. Any term or condition of this Agreement
may be waived at any time by the party hereto that is entitled to the benefit
thereof-, provided, however, that any such waiver shall be in writing and signed
by the waiving party, and no such waiver of any breach or default hereunder is
to be implied from the omission of the other party to take any action on account
thereof A waiver on one occasion shall not be deemed to be a waiver of the same
or of any other breach on a future occasion. This Agreement may be modified or
amended only by a writing signed by all of the parties hereto.
b. Governing Law. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Utah. In any action or proceeding arising out of or relating to this
Agreement (an "Action"), each of the parties hereby irrevocably submits to the
non-exclusive jurisdiction of any federal or state court sitting in the State of
Utah, Salt Lake Country, and further agrees that any Action may be heard and
determined in such federal court or in such state court. Each party hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to the maintenance of any Action in the State of Utah,
Salt Lake Country. It is understood and agreed that this provision for
jurisdiction and venue is part of the value consideration given by the Executive
and relied upon by the Corporation in connection with the Executive's employment
as contemplated hereby.
C. Tax Withholding. The payments and benefits under this Agreement may
be compensation and as such may be included in either the Executive's W-2
earnings statements or 1099 statements. The Corporation may withhold from any
amounts payable under this Agreement such federal, state or local taxes as shall
be required to be withheld pursuant to any applicable law or regulation.
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d. Paragraph Captions. Paragraph and other captions contained in this
Agreement are for reference purposes only and are in no way intended to
describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
e. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the
remainder of this Agreement.
f. Integrated Agreement. This Agreement constitutes the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof, and supersedes any other employment agreements executed
before the date hereof. There are no agreements, understandings, restrictions,
representations or warranties between the parties other than those set forth
herein or herein provided for.
g. Interpretation: Counterparts. No provision of this Agreement is to
be interpreted for or against any party because that party or that party's legal
representative drafted such provision. For purposes of this Agreement: "herein,"
hereby," "hereinafter," "herewith," "hereafter" and "hereinafter" refer to this
Agreement in. its entirety, and not to any particular subsection or paragraph.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which shall constitute one and the same
instrument.
h. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered by hand
delivery, or by facsimile (with confirmation of transmission), or by overnight
courier, or by registered or certified mail, return receipt requested, postage
prepaid, in each case addressed as follows:
If to the Executive:
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Xxxxx Xxxxxx
X.X. Xxx 000000
Xxxx Xxxx, Xxxx 00000
If to the Corporation:
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Marker International
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxx XxXxxxxxx
Chairman of the Board of Directors
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Copy To:
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Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Esq.
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notices and communications shall be effective
when actually received by addressee.
i. No Limitations. The Executive represents his employment by the
Corporation hereunder does not conflict with, or breach any confidentiality,
non-competition or other agreement to which he is a party or to which he may be
subject.
I. WAIVER OF JURY TRIAL: COST OF ENFORCEMENT. THE PARTIES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. IN THE EVENT IT
IS NECESSARY FOR EITHER PARTY TO COMMENCE AN ACTION IN ANY WAY CONNECTED WITH
THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE NON
PREVAILING PARTY, ALL COSTS OF SUCH ACTION, INCLUDING REASONABLE ATTORNEYS FEES
AND INCLUDING TRIAL AND APPELLATE PROCEEDINGS. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE PARTIES' ACCEPTANCE OF THIS AGREEMENT.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of
the date first above written.
MARKER INTERNATIONAL
/s/ Xxxxx Xxxxxx
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By: Xxxx XxXxxxxxx Xxxxx Xxxxxx
Chairman of the Board of Directors
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