EXHIBIT 10.19
EMPLOYMENT AGREEMENT
BETWEEN NUMEREX CORP. AND XXXXXXX X. XXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement"), made effective as of the
15th day of July 1998, by and between Numerex Corp., a corporation incorporated
under the laws of the Commonwealth of Pennsylvania ("Numerex" or the "Company"),
and XXXXXXX X. XXXXX (the "Executive").
WHEREAS, Numerex is desirous of hiring Executive to serve as Vice
President, Chief Operating Officer and Chief Financial Officer of Numerex;
WHEREAS, the Executive is desirous to serve as Vice President, Chief
Operating Officer and Chief Financial Officer of Numerex;
WHEREAS, Numerex considers the services of the Executive to be in the best
interests of Numerex and desires to induce the Executive to serve Numerex on an
impartial and objective basis and without distraction or conflict of interest;
and
WHEREAS, the Executive is willing to be employed by Numerex from and after
the date hereof on the basis of the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, upon the mutual promises and covenants of the parties, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound, the parties agree as
follows:
1. Employment.
Numerex hereby employs the Executive, and the Executive hereby
accepts such employment, for the period stated in Section 3 below and upon the
other terms and conditions herein provided.
2. Position and Duties.
(a) Employment Duties.
During the Employment Period (as defined in Section 3) the
Executive agrees to serve as Vice President, Chief Operating Officer and Chief
Financial Officer of Numerex, except as may be modified by the written agreement
of the parties hereto. In his capacity as Vice President, Chief Operating
Officer and Chief Financial Officer of Numerex, the Executive shall promote the
best interests of Numerex, will be responsible for the day to day financial
operations of Numerex and shall perform such managerial duties and
responsibilities for Numerex as may from time to time be assigned to him by the
President of Numerex. As Vice President, Chief Operating Officer and Chief
Financial Officer of Numerex, the Executive shall have supervision and control
over and responsibility for day-to-day operational responsibilities and all
areas of financial operations, shall perform such other duties as may from time
to time be assigned to him by the President of Numerex and shall report directly
to the President of Numerex. The other duties as may from time to time be
assigned to him shall be consistent with and shall not interfere with the
performance of the duties described herein and shall be of a type customarily
performed by persons of similar titles with similar corporations. Throughout the
Employment Period, and except for illness, vacation periods and leaves of
absence granted by Numerex (if any), the Executive shall devote all his business
time, attention, skill and efforts to the faithful performance of his duties
hereunder, and shall accept such office or offices to which he may be appointed
to by the President or Board of Directors of Numerex. The
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Executive shall keep complete and accurate records which reflect the carrying
out of his duties hereunder. In addition he shall keep the President fully
informed of developments relating to the carrying out of his duties hereunder.
3. Term.
Period of Employment and Extension of Employment Period.
The period of the Executive's employment under this Agreement
shall commence as of July 15, 1998 and shall, unless sooner terminated by the
death of the Executive, mutual agreement or pursuant to Section 7 hereof,
continue for a period of one (1) year therefrom (such period being herein
referred to as the "Employment Period"), provided however, that unless either
party gives written notice to the other within sixty (60) days of the Expiration
Date, Executive's Employment Period shall continue for an additional year from
the Expiration Date. The last day of the Employment Period, as from time to time
extended, and without regard to any early termination pursuant to Section 7, is
hereinafter referred to as the "Expiration Date."
4. Compensation.
(a) Salary and Incentive Compensation.
For all services rendered by the Executive in any capacity
during the Employment Period under this Agreement, subject to Section 7(e)
hereof, the Executive shall be paid as compensation (1) an annual salary of
$185,000, or such higher salary as may be negotiated from time to time by
Numerex and the Executive. Such salary shall be payable in accordance with the
standard pay schedule established for Numerex executives and any
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discretionary bonus shall be payable in the manner and at the time specified by
the Board of Directors.
(b) Reimbursement of Expenses.
Numerex shall pay or reimburse the Executive, in accordance
with Numerex's policies and requirements, for all reasonable business travel and
other expenses incurred by the Executive in performing his obligations under
this Agreement.
5. Participation in Incentive Compensation
and Benefit Plans.
In addition to the payments provided under this Agreement, the
Executive (or his beneficiary) is and shall be entitled to benefits under any
and all executive or contingent compensation plans, stock options, restricted
stock or stock purchase plans, retirement income or pension plans, supplemental
or excess benefit plans, group hospitalization, health care, or sick leave
plans, life or other insurance or death benefit plans, travel and accident
insurance, vacation plans, automobile leasing, or other present or future group
employee benefit plans or programs of Numerex for which executive employees of
Numerex are eligible, and the Executive may be eligible to receive, during the
Employment Period, all benefits and emoluments for which he is eligible under
any such benefit plan or program of Numerex in accordance with the provisions
and requirements (including discretionary authority, where applicable of any
such plan or program.
6. Vacation and Sick Leave.cable) of any
Executive shall be entitled to four (4) weeks of annual vacation and
personal and sick leave in accordance with established Numerex policy.
7. Termination of Employment.
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(a) Termination without Cause and Non-Extension of Employment
Period.
Notwithstanding anything to the contrary contained in this
Agreement, subject to Executive receiving the compensation set forth in
subsection (e) of this Section 7, Numerex may terminate the Executive's
employment under this Agreement at any time or not renew this Agreement beyond
the end of the Employment Period.
(b) Termination with Cause.
Numerex may terminate the Executive's employment under this
Agreement at any time for cause. The Executive shall have no right to receive
compensation or other benefits for any period after termination for cause. The
term "for cause" shall include and shall be limited to the following events:
(i) The Executive is convicted of a felony;
(ii) The Executive willfully and deliberately fails or
refuses in a material respect to comply with a significant instruction of the
President or the Board of Directors of Numerex, provided the Executive fails to
cure such non-compliance within twenty (20) days after receiving written notice
of such non-compliance, other than non-compliance due to a physical or mental
illness, which willful failure results in, or which in the good faith judgment
of the Board of Directors may result in demonstrable material injury and damage
to Numerex; or
(iii) The Executive willfully and deliberately makes material
misrepresentations to the President or the Board of Directors of Numerex.
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If Numerex's Board of Directors determines that Executive's
employment under this Agreement shall be terminated for cause, then the Board of
Directors shall forthwith provide Executive with a written notice of said
determination. The notice shall contain a detailed statement of the facts which
constitute the particulars of the cause for termination.
(c) Termination for Good Reason.
If Employee's employment with the Company is terminated
whether by the Company or Employee during the Employment Period upon the
occurrence of any of the following events, the Company will pay to Employee
the amount set forth in Section 7(e) hereof:
(i) a merger, consolidation, reorganization, sale of all or
substantially all of the assets or other similar event; or
(ii) a "change in control" of the Company wherein within six months
prior to the occurrence of such event or within one year after the occurrence of
such event, Employee's position with the Company or the surviving or acquiring
Person is changed from his current position with the Company to a lesser
responsible position, the nature and scope of Employee's duties and authority or
his responsibilities with the Company or the surviving or acquiring Person are
reduced to a level below that which he enjoys on the date hereof or his then
current base annual salary is reduced to a level below that which he enjoys on
the date hereof. For purpose of this Section 7(c), a "change in control" of the
Company means a change in control of the Company of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as enacted and enforced on the date hereof, whether or not the
Company is subject to such reporting requirement; provided that without
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limitation such a change in control shall have been deemed to conclusively occur
when any of the following events shall have occurred:
(A) within any period of two consecutive years
during the Term, a change in at least a majority of the members of the Board
or the addition of five or more new members to the Board; or
(B) a "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) or group acting in concert, (as described
in Section 13(d)(2) of the Exchange Act), other than a person or group existing
on the day hereof, holds or acquires beneficial ownership within the meaning of
Rule 13d-3 promulgated under the Exchange Act of a number of common shares of
the Company which constitutes either (a) more than fifty percent of the shares
which voted in the election of directors of the Company at the shareholders'
meeting immediately preceding such determination or (b) more than twenty-five
percent of the Company's outstanding common shares. For purposes of this Section
7(c) hereof, unexercised warrants or options or unconverted nonvoting securities
shall count, for this purpose, as constituting beneficial ownership of the
Company's common shares into which the warrants or options are exercisable or
the nonvoting convertible securities are convertible, notwithstanding anything
to the contrary contained in Rule 13d-3 of the Exchange Act; or
(iii) the Company permanently fills the position of President and/or Chief
Executive Officer (with an individual other than the Acting President on the
date hereof) and within three (3) months from the commencement of employment of
such person, Executive determines that he is unable to continue to fulfill his
duties hereunder, in such a manner which would enable him to promote the best
interests of the Company; or, the acting President and
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acting Chief Executive Officer on the date hereof is appointed to the position
of permanent President and/or Chief Executive Officer, and within three (3)
months after the first anniversary of this Agreement, Executive determines that
he is unable to continue to fulfill his duties hereunder, in such manner which
would enable him to promote the best interests of the Company, or
(iv) a change in the nature and scope of Executive?s duties and authority
to a level below that which he enjoys on the date hereof.
(d) Employee Notice and No Mitigation.
Employee shall have the right to terminate his employment
pursuant to Section 7(c) hereunder if he shall first give the Company not less
than thirty days written notice of his intention to so terminate his employment
specifying the reason(s) for such termination and the date of termination, and
thereafter the Company shall not have cured or remedied the reason(s) (provided
the reason(s) are capable of being cured or remedied) for such termination prior
to the date of termination set forth in such notice. Anything in this Agreement
to the contrary notwithstanding, Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment.
(e) Remedies for Termination.
Upon termination of the Executive's employment under this
Agreement pursuant to subsection (a) by reason of termination without cause or
the Company's not renewing Agreement beyond the end of the Employment Period, or
(c) for "Good Reason" of this Section 7, the Executive shall receive his base
salary plus bonus for the most recently completed year of employment, payment of
which shall be at the time provided for in this
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Agreement as if the Executive's employment under this Agreement had not
terminated. Such payment shall be in lieu of any payments required to be made
under Section 4(a) hereof. In addition, Executive shall receive reimbursement
for outplacement related expenses incurred by him, not to exceed $25,000. All
options heretofore granted to Executive under any of the Company?s stock option
plans shall be amended to become non-qualified stock options and such options
shall be further amended so that they do not expire ninety (90) days after
Executive?s termination of employment. All other terms of the options shall
remain unchanged.
(f) Disability.
(i) Total Disability.
If the Executive is totally disabled (as hereinafter
defined) prior to the expiration of the Employment Period, Numerex may, on ten
(10) days written notice to Executive, pay the Executive a disability benefit
which is equal to the salary provided in Section 4, as the same may have been
increased from time to time, received by Executive at the commencement of the
Executive's total disability, reduced by the sum of (i) the amount of any
benefits to which the Executive may be entitled with respect to the same period
under any disability plan or pension plan, including related supplemental and
excess benefit plans or agreements, of Numerex and (ii) the disability benefits
payable under any government regulated plan including workers' compensation
benefits. Payment of such disability benefit shall commence with the week
coincident with the notice given above and shall continue until the earlier of
the Expiration Date or the Executive's death. As used in this Agreement, the
term "total disability" shall mean the complete inability of the Executive to
perform all of his
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duties under this Agreement, which disability shall continue for any period of
six full consecutive months. Upon the termination of such total disability, the
Executive shall be offered an appropriate position as may be available at
Executive's established compensation and benefits level.
(ii) Partial Disability.
In the event of partial disability or illness, the
obligation of Numerex to pay the salary of Executive pursuant to Section 4 of
this Agreement shall not be affected.
8. Withholding of Taxes.
Numerex may withhold from any payments under this Agreement all
applicable taxes, as shall be required pursuant to any law or governmental
regulation or ruling.
9. Non-Competition, Non-Disclosure and Confidentiality.
(a) During the term of this Agreement, as it may be extended,
and while Executive is receiving payments pursuant to Section 7(e) hereof
Executive shall not (except with the prior approval of the Board of Directors of
Numerex) be directly or indirectly engaged or concerned or interested in:
(i) any other business competing in any respect with the
business of Numerex, or any company affiliated with Numerex, except as the
holder of investments comprising not more than five (5%) percent of the issued
shares of capital stock of any class of any company.
(ii) any other occupation whatsoever and for this purpose
"occupation" shall include any public or private appointed office or work which
in the opinion
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of the Board of Directors of Numerex hinders or interferes with or otherwise
impinges upon the performance by the Executive of his duties hereunder.
(b) The Executive shall not either during or after the termination
of this Agreement:
(i) divulge or communicate to any person or persons,
except to officials of Numerex, or its affiliates; or
(ii) use for his own purposes or for any purposes other than those
of Numerex, or its affiliates, any secret confidential or private information
(a) relating to the business or affairs of Numerex, or any affiliate of Numerex;
or (b) relating to the workings of any process or invention which is carried on
or used by Numerex, or any affiliate of Numerex; or (c) which has been obtained
from any third party on terms restricting its disclosure or use; or (d) relating
to the clients or customers of Numerex, or any affiliate of Numerex provided
however, these restrictions shall cease to apply to any information or knowledge
which may come into the public domain (otherwise than through the fault of the
Executive).
(c) All lists of clients or customers correspondence and all other
papers, memoranda, records and writings, together with information stored on a
computer or in computer format which may have been made by the Executive or have
come into his possession relative to the business of Numerex, or any affiliate
of Numerex shall be and remain the property of Numerex, including any copyright
therein, and shall be handed over by him to Numerex from time to time on demand
and in any event upon his leaving the service of Numerex.
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(d) As the Executive in the course of his employment is likely to
obtain knowledge of the trade secrets and other confidential information of
Numerex, and affiliates of Numerex, and will have dealings with the customers
and others upon whom reliance is placed by Numerex, in order to protect such
trade secrets and information and the goodwill of Numerex, the Executive agrees
without prejudice to any other duty implied by law and whether or not Numerex
shall have been in breach of this Agreement:
(i) during his employment and for a period of one (1) year after
its termination (howsoever arising) Executive will not, either on his own
account or for any person, firm, company, or organization, solicit or entice or
endeavor to solicit or entice away from Numerex, any employee of Numerex or its
affiliates;
(ii) during his employment and for a period of one (1) year after
its termination (howsoever arising), Executive will not, in competition with any
business carried on by Numerex, or any affiliate of Numerex at the termination
of his employment hereunder, solicit business from any person, firm, company or
organization which, to his knowledge, at any time during the period of twelve
(12) months preceding the termination of his employment hereunder, has dealt
with Numerex or, which to his knowledge is, on the termination of his
employment, in the process of negotiating with Numerex.
(e) While the restrictions contained in this Clause 9 are considered
by the parties to be reasonable in all the circumstances it is recognized that
restrictions of the nature in question may fail for technical reasons unforseen
and, accordingly, it is hereby agreed and declared that if any such restrictions
shall be adjudged to be void as going beyond what is reasonable in all the
circumstances for the protection of the interests of Numerex, but would be
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valid if part of the wording thereof were deleted or the periods (if any)
thereof were reduced, or the range of activities or area dealt with thereby were
reduced in scope, the said restriction shall apply with such modifications as
may be necessary to make it valid and effective.
10. General Provisions.
(a) Non-Assignability.
Neither this Agreement nor any right or interest hereunder
shall be assignable by the Executive without Numerex's prior written consent;
provided, however, that nothing in this Section 10(a) shall preclude the
executors, administrators, or other legal representatives of the estate of the
Executive from assigning any right hereunder to the person or persons entitled
thereto under the Executive's will or, in case of intestacy, to the person or
persons entitled thereto under the laws of intestacy applicable to the
Executive's estate.
(b) No Attachment.
Except as otherwise required by law, no right to receive
payments under this Agreement shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge or hypothecation or to
execution, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
(c) Amendment.
No amendment or modification of this Agreement shall be deemed
effective unless and until executed in writing by the parties hereto.
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(d) Entire Understanding.
This Agreement sets forth the entire understanding between the
parties with respect to the subject matter hereof and cancels and supersedes all
prior oral and written agreements between the parties or otherwise applicable to
Executive, with respect to the subject matter hereof, including, but not limited
to the Severance Agreement dated April 16, 1996 between Executive and the
Company.
11. Reimbursement of Enforcement Expenses.
If the Company fails to pay or provide Employee any of the
amounts due him hereunder or fails to provide Employee with any of the other
benefits due him under this Agreement, and provided the Company does not cure
any such failure within thirty days after having received written notice from
Employee of such failure, Employee shall be entitled to full reimbursement from
the Company for all costs and expenses (including reasonable attorneys' fees and
costs) incurred by Employee in enforcing his rights under this Agreement.
12. Severability.
If for any reason any provision of this Agreement shall be held
invalid, such invalidity shall not affect any other provision of this Agreement
not held so invalid, and all other such provisions shall to the full extent
consistent with law continue in full force and effect. If any such provision
shall be held invalid in part, such invalidity shall in no way affect the rest
of such provision not held so invalid, and the rest of such provision, together
with all other provisions of this Agreement, shall likewise to the full extent
consistent with law continue in full force and effort.
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13. Headings.
The headings are included solely for convenience of reference and
shall not control the meaning or interpretation of any of the provisions of this
Agreement.
14. Settlement of Disputes.
Any claims, controversies, demands, disputes or differences between
or among the parties hereto or any persons bound hereby arising out of, or by
virtue of, or in connection with, or relating to this Agreement shall be
submitted to and settled by arbitration in the City of Philadelphia,
Pennsylvania, before and in accordance with the rules then obtaining of
JUDICATE. In the event JUDICATE does not exist for settlement of disputes at the
time either or both of the parties desire to submit a claim, controversy,
demand, dispute or difference to arbitration, then such claim, controversy,
demand, dispute or difference shall be submitted to and settled by arbitration
in the City of Philadelphia, Pennsylvania before a single arbitrator who shall
be knowledgeable in the field of business law and employment relations and such
arbitration shall be in accordance with the rules then obtaining of the American
Arbitration Association. Except as provided in Section 11 hereof, the parties
agree to bear joint and equal responsibility for all fees of the arbitrator,
abide by any decision rendered as final and binding, and waive the right to
submit the dispute to a public tribunal for a jury or non-jury trial.
15. Governing Law.
This Agreement has been executed and delivered in the Commonwealth
of Pennsylvania and its validity, interpretation, performance and enforcement
shall be governed
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by and construed in accordance with the laws thereof applicable to contracts
executed and to be wholly performed in Pennsylvania.
16. Consent to Jurisdiction.
Except as provided in Section 14 hereof, Executive and Numerex
irrevocably consent to the exclusive jurisdiction of the Court of Common Pleas
of Xxxxxxxxxx County, Pennsylvania and/or the United States District Court for
the Eastern District of Pennsylvania in any action or proceeding pursuant to
this Agreement and agree to service of process in accordance with Section 16
herein.
17. Notices.
All notices, requests, demands and other communications hereunder
shall be in writing and shall have been duly given if delivered by hand or
mailed, certified or registered mail, return receipt requested, with postage
prepaid, to the following address or to such other address as either party may
designate by like notice:
A. If to Executive, to:
Xxxxxxx X. XxXxx
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
B. If to Numerex, to:
100 Four Falls Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxx 00 and Xxxxxxxx Xxxx
Xxxx Xxxxxxxxxxxx, XX 00000-0000
Attention: President
and to such other additional person or persons as either party shall have
designated to the other party in writing by like notice.
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18. Successors, Binding Agreement.
(a) Numerex will require any successor (whether direct or indirect,
by purchase, merger, consolidation, or otherwise) to all or substantially all of
the business and/or assets of Numerex to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that Numerex would be
required to perform it if no such succession had taken place.
(b) This Agreement shall inure to the benefit of and be enforceable
by and inure to the benefit of both Numerex and its successors and assigns and
the Executive and his personal or legal representatives, executors,
administrators, heirs, distributees, devisees, legatees, successors and assigns.
If the Executive should die while any amount is payable to the Executive under
this Agreement all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee, or, if there is no such designee, to the Executive's
estate.
EXECUTIVE AFFIRMS THAT THE ONLY CONSIDERATION FOR SIGNING THIS AGREEMENT
ARE THE TERMS STATED HEREIN, THAT NO OTHER PROMISES OR AGREEMENTS OF ANY KIND
HAVE BEEN MADE TO OR WITH HIM BY ANY PERSON OR ENTITY WHATSOEVER TO CAUSE HIM TO
SIGN THIS AGREEMENT, AND THAT HE FULLY UNDERSTANDS THE MEANING AND INTENT OF
THIS DOCUMENT. EXECUTIVE STATES AND REPRESENTS THAT HE HAS BEEN ADVISED, AND HAD
AN OPPORTUNITY, TO DISCUSS FULLY AND REVIEW THE TERMS OF THIS AGREEMENT WITH AN
ATTORNEY. EXECUTIVE FURTHER STATES AND REPRESENTS THAT HE HAS CAREFULLY
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READ THIS AGREEMENT, UNDERSTANDS THE CONDITIONS HEREOF, FREELY AND VOLUNTARILY
ASSENTS TO ALL THE TERMS AND CONDITIONS HEREOF, AND SIGNS THE SAME AS HIS OWN
FREE ACT.
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IN WITNESS WHEREOF, Numerex has caused this Agreement to be executed and
its seal to be affixed hereto by its officers thereunto duly authorized, and the
Executive has signed this Agreement this 15th day of July, 1998.
ATTEST: NUMEREX CORP.
By: /s/ Xxxxxx X. Xxx
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Xxxxxx X. Xxx, Acting President and
Acting Chief Executive Officer
WITNESS: EXECUTIVE
/s/ Xxxxxxx X. XxXxx
-------------------------- ------------------------------------------
Xxxxxxx X. XxXxx
