Exhibit 10.36
XXXXXXXX TECHNOLOGIES, INC.
Employment Agreement
THIS EMPLOYMENT AGREEMENT ("Agreement"), effective as of April 1, 2003, by
and between XxxxxXxx Technologies, Inc., a Delaware corporation (the "Company"),
and Xxxxxxx X. Xxxxxxx (the "Employee");
WHEREAS, the Company desires to continue the employment of the Employee
and the Employee desires to continue to be so employed by the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which consideration are hereby acknowledged, the parties agree as
follows:
1. Employment
The Company hereby employs the Employee, and the Employee hereby
accepts employment with the Company, upon the terms and conditions hereinafter
set forth.
2. Duties
The Employee shall serve as Chairman of the Board of Directors. In
such capacity, the Employee will report to the Board of Directors of the Company
and will perform such duties on behalf of the Company consistent with such
office as may be assigned to him from time to time by the Board of Directors of
the Company including, without limitation, working in the field of financial
management, operating issues, mergers, acquisitions and joint ventures,
financial community relationships (eg stockbrokers, stockholders, underwriters,
bankers, etc) and additional financing activities. The Employee agrees to abide
by the rules, regulations, instructions, personnel practices, and policies of
the Company and any changes therein which may be adopted from time to time by
the Board of Directors of the Company.
3. Term
Unless sooner terminated as provided in Section 7 and subject to
Section 7, the term of the Employee's employment under this Agreement will be
three (3) years from the date first above written (such period, as it may be
extended, is referred to in this Agreement as the "Employment Period"). On April
1 of each calendar year during the Employment Period the term of this Agreement
and the Employment Period shall automatically be renewed for the three (3) year
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period beginning on that April 1 unless either party gives written notice to the
other party prior to that April 1 of its intention that this Agreement not renew
in which case this Agreement shall terminate on the date which is one (1) year
less one (1) day after the April 1 which follows receipt of that written notice.
During such one (1) year period, Employee shall be required to continue to
perform his duties hereunder unless the parties agree otherwise.
4. Extent of Services
During the term of his employment, the Employee shall devote his
best efforts to the performance of his duties under this Agreement, committing
no less than one hundred (100) hours per month, excluding time spent in Board
meetings. Under no circumstances will the Employee knowingly take any action
contrary to the best interests of the Company.
5. Compensation
In consideration of his employment and the services rendered by the
Employee under this Agreement, the Company shall pay the Employee compensation
as follows:
5.1 Base Salary. A base salary ("Base Salary") of Ninety Thousand
Dollars ($90,000.00) per year during the Employment Period, payable in
accordance with the Company's ordinary payroll practices
6. Other Benefits
6.1 Additional Compensation and Benefits. The Employee shall be
entitled to receive the same health, disability and other benefits as are
offered by the Company to employees from time to time. The Company, at its
expense, shall obtain officers' and directors' errors and omissions insurance in
respect of Employee's tenure as a director of the Company.
6.2 Expenses. The Company will, upon substantiation thereof,
reimburse Employee for all reasonable expenses of types authorized by the Board
of Directors of the Company in the ordinary course of business and incurred by
the Employee in connection with the Company's business affairs. The Employee
must regularly submit, for approval by the Chief Financial Officer of the
Company, a statement of these expenses and will comply with such other
accounting and reporting requirements as the Company may from time to time
establish.
6.3 Car Allowance. The Employee shall receive a car allowance in the
amount of $600.00 per month.
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7. Termination
7.1 By the Company. The Company may terminate the Employee's
employment with the Company (a) in accordance with the provisions of Section 3
of this Agreement, (b) at any time without notice for "cause", as defined below,
(c) at any time without cause upon thirty (30) days' advance notice, subject to
Section 7.4 below and subject to the requirement that the Company pay to the
Employee the amount set forth in Section 7.4 herein, (d) upon the death of the
Employee, or (e) in the event of the Employee's disability preventing him from
rendering services to the Company consistent with his duties hereunder for a
period of six (6) consecutive months.
7.2 By the Employee. The Employee may terminate his employment with
the Company in accordance with the provisions of Section 3 or at any time upon
one hundred and twenty (120) days' advance notice.
7.3 Cause. For the purposes of this Section 7, "cause" means:
(a) engaging in any crime or offense involving money or other
property of the Company, or
(b) conviction of a felony, or
(c) continuing, repeated willful failure or refusal to perform
specific written directives of the Company's Board of Directors consistent with
the Employee's duties after notice that such failure will be deemed to
constitute cause for termination and a reasonable opportunity to cure such
failure or refusal, or
(d) excessive absenteeism, or
(e) owning, engaging in, conducting, managing, operating,
participating in, being employed by, being connected in any manner whatsoever
with, or rendering services or advice to (whether for compensation or without
compensation), any other person or business entity which is engaged in the same
business as conducted by the Company at the time, provided that nothing shall
restrict the Employee's right to invest in the securities (not to exceed 1% of
the outstanding securities of any class) of any publicly-held corporation in the
management of which the Employee does not participate.
7.4 Amounts Payable Upon Termination. Upon termination of the
Employee's employment with the Company in accordance with clause (a), (b), (d)
or (e) of Section 7.1, all compensation and benefits under this Agreement will
cease, effective the date of termination. Upon termination of the Employee's
employment with the Company in accordance with clause (c) of Section 7.1, all
compensation shall cease, effective upon the date of termination, but the
Employee shall receive, for one year from the date of Employee's notice of
termination given pursuant to Section 7.1(c) the following: (i) Base Salary at
the same salary rate being paid on the date of termination and (ii) the benefits
described in Section 6. Other than as specifically set forth in Sections 6.2,
7.1, and this Section 7.4, the Employee will not be entitled to receive any
compensation or benefits after termination of his employment with the Company.
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8. Non-Disclosure: Non-Competition
8.1 Proprietary Information.
(a) The Employee agrees that all information and know-how,
whether or not in writing, of a private, secret or confidential nature
concerning the Company's business or financial affairs (collectively,
"Proprietary Information") is and will be the exclusive property of the Company.
By way of illustration, but not limitation, Proprietary Information includes
contemplated or planned marketing, sales, advertising, or public relations
plans, methods or techniques; inventions, products, projects, developments,
compositions, plans, research data, financial data, manufacturing processes or
techniques, trade secrets, personnel data, computer programs, designs, and
client and supplier lists, whether or not copyrightable, trademarketable or
licensable. The Employee will not disclose any Proprietary Information to others
outside the Company or use the Proprietary Information for any unauthorized
purposes without written approval by an officer of the Company, either during or
after his employment, unless and until such Proprietary Information has become
public knowledge without the fault of the Employee.
(b) The Employee agrees that all files, letters, memoranda,
reports, records, data sketches, drawings, notebooks, notes, specifications,
programs, computer program listings, or other written photographic, or other
tangible material containing Proprietary Information, whether created by the
Employee or others, which comes into his custody or possession, is the exclusive
property of the Company, to be used by the Employee only in the performance of
his duties for the Company.
(c) The Employee agrees that his obligation not to disclose or
use information, know-how and records of the types set forth in Paragraphs (a)
and (b) above also extends to such types of information, know-how, records and
tangible property of customers of the Company or suppliers to the Company or
other third parties who may have disclosed or entrusted the same to the Company
or to the Employee in the course of the Company's business.
8.2 Developments.
(a) The Employee will make full and prompt disclosure to the
Company of all inventions, improvements, ideas, concepts, approaches,
discoveries, methods, developments, software, and works of authorship, whether
or not copyrightable, trademarketable or licensable, which are created, made,
conceived or reduced to practice by the Employee or under his direction or
jointly with others in connection with his employment by the Company, whether or
not during normal working hours or on the premises of the Company (all of which
are collectively referred to in this Agreement as "Developments").
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(b) The Employee agrees to cooperate fully with the Company,
both during and after his employment with the Company, with respect to the
procurement, maintenance and enforcement of patents, copyrights, and trademarks
(both in the United States and foreign countries) relating to Developments. When
requested by the Company, Employee agrees to sign all papers, including, without
limitation, copyright applications, trademark applications, patent applications,
declarations, oaths, formal assignments, assignments of priority rights and
powers of attorney, which the Company, in its sole discretion, may deem
necessary or desirable in order to protect its rights and interest in any
Development.
8.3 Non-Competition.
(a) During the Employment period and for a period of two years
after Employee's employment is terminated, for any reason, by the Company or the
Employee, the Employee will not, without the Company's prior written approval,
directly or indirectly:
(i) recruit, solicit or knowingly induce, or attempt to
induce, any employee or consultant of the Company to terminate his or her
employment or consulting relationship with, or otherwise cease his relationship
with, the Company, or
(ii) solicit, divert or take away, or attempt to divert
or to take away, the business or patronage of any of the clients, customers or
accounts, or prospective clients, customers or accounts of the Company. For
purposes of this Agreement, a prospective client, customer or account is any
individual or entity whose business is solicited by the company, proposed to be
solicited by the Company, or who approaches the Company, with respect to
possibly become a client, customer or account during the Employment Period; or
(iii) engage (whether for compensation or without
compensation) as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, or in any other capacity
whatsoever (otherwise than as the holder of not more than one percent (1%) of
the total outstanding stock of a publicly-held company), in any business
activity which competes with any business then being conducted by the Company or
any business proposed to be conducted by the Company at the time of the
termination of the Employee's employment with the Company.
(b) If any restriction set forth in this Subsection 8.3 is
found by any court of competent jurisdiction to be unenforceable because it
extends for too long a period of time or over too great a range of activities or
in too broad a geographic area, it shall be interpreted to the extent only over
the maximum period of time, range of activities or geographic areas to which it
may be enforceable.
(c) The restrictions contained in this Subsection 8.3 are
necessary for the protection of the business and goodwill of the Company and are
considered by the Employee to be reasonable for these purposes. The Employee
agrees that any breach of this Subsection 8.3 will cause the Company substantial
and irrevocable damage and, therefore, in the event of any such breach, in
addition to such other remedies which may be available, the Company will have
the right to seek equitable remedies, including, without limitation, specific
performance and injunctive relief.
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8.4 Survival of Obligations. The obligations of the Employee under
this Section 8 shall survive the termination of this Agreement.
9. Notices
All notices under this Agreement must be in writing and must be
delivered by hand or mailed by certified or registered mail, postage prepaid,
return receipt requested, to the parties as follows:
If to the Company: Xxxxxxx Xxxxx, CFO
XxxxxXxx Technologies, Inc.
0 Xxxxxxx Xxxx, Xxxxxxxx X.
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
with a copy to: Xxxx Xxxxxx
Xxxxx, Xxxxxx-Xxxxx and Xxxxxxxxx, PC
Reservoir Place
0000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
If to the Employee: To the address
set forth below the signature of the Employee;
or to such other address as is specified in a notice complying with this Section
9. Any such notice is deemed given on the date delivered by hand or three days
after the date of mailing.
10. Other Agreements
The Employee hereby represents that he is not bound by the terms of
any agreement with any previous employer or other party to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. The Employee further represents that his performance of all
the terms of this Agreement and as an employee of the Company does not and will
not breach any agreement to keep in confidence proprietary information,
knowledge or data acquired by him in confidence or in trust prior to his
employment with the Company.
11. Miscellaneous
11.1 Entire Agreement. This Agreement constitutes the entire
Agreement between the parties with regard to the subject matter hereof,
superseding all prior understandings and agreements, whether written or oral and
including, without limitation, the previous consulting agreement between the
parties which is of no further force and effect in respect of the period after
July 21, 2002.
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11.2 Modification. This Agreement may not be amended or revised
except by a writing signed by the parties.
11.3 Successors and Assigns. This Agreement is binding upon and
inures to the benefit of both parties and their respective successors and
assigns, including any entity with which or into which the Company may be merged
or which may succeed to its assets or business, although the obligations of the
Employee are personal and may be performed only by him.
11.4 Captions. Captions have been inserted in this Agreement solely
for convenience of reference, and in no way define, limit or affect the scope or
substance of any provision of this Agreement.
11.5 Severability. The provisions of this Agreement are severable,
and the invalidity of any provision shall not affect the validity of any other
provision. In the event that any court of competent jurisdiction determines that
any provision of this Agreement or the application thereof is unenforceable
because of its duration or scope, the parties agree that the court in making
such determination shall have the power to reduce the duration and scope of such
provision to the extent necessary to make it enforceable, and that the Agreement
in its reduced form is valid and enforceable to the full extent permitted by
law.
11.6 Governing Law. This Agreement is to be construed under and
governed by the laws of the Commonwealth of Massachusetts. Any dispute arising
hereunder shall be heard by a court in Boston, Massachusetts.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
XXXXXXXX TECHNOLOGIES, INC.
By:
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Xxx Xxxx
Chairman of the Compensation Committee
EMPLOYEE
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Xxxxxxx X. Xxxxxxx
00 Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
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