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Exhibit 10.51
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of October 13, 1997,
between The American Materials & Technologies Corporation, a Delaware
corporation ("the Company") and Xxxxx X. Xxxxxxx, an individual ("Executive").
WITNESSETH THAT:
WHEREAS, the Company desires to employ Executive as its Vice President
and Chief Financial Officer for the period and upon and subject to the terms
herein provided; and
WHEREAS, Executive is willing to agree to be employed by the Company for
the period and upon and subject to the terms herein provided;
NOW, THEREFORE, in consideration of the premises, the parties hereto
covenant and agree as follows:
SECTION 1. TERM OF EMPLOYMENT; COMPENSATION. The Company agrees to
employ Executive from the date hereof until October 13, 2000, in an executive
capacity as Vice President and Chief Financial Officer, with the
responsibilities and benefits normally associated with such position. The
Company will pay Executive for his services during the term of the Executive's
employment hereunder at an annual rate of not less than $135,000, payable
semi-monthly in accordance with standard Company practice, subject to such
payroll and withholding deductions as are required by law. Executive's base
salary shall be subject to annual review commencing December 31, 1998. Executive
shall be entitled to receive an annual bonus for each year of employment under
this Agreement, in an amount to be determined by the Compensation Committee of
the Company's Board of Directors. In addition, the Company shall cause Executive
to be granted an option to purchase 25,000 shares of common stock, $.01 par
value, of the Company at a purchase price equal to the closing market price on
the day prior to the date of the next meeting of the Company's Board of
Directors. Such option will have a term of ten years and vest in equal annual
installments over a period of four years from the date of grant, and shall be
subject to the other terms and conditions customarily attached to options issued
by the Company under its Incentive and Nonqualified Stock Option Plans.
Notwithstanding the preceding sentence of this Section 1, all options granted
pursuant to this Section 1 shall vest in full upon and immediately prior to the
sale of all or substantially all of the assets of the Company or the merger of
the Company with any other corporation or other entity as a result of or as a
part of any change in control of the Company.
SECTION 2. OFFICE AND DUTIES. Executive shall have responsibility,
subject to the Board of Directors of the Company, for participating in the
management and direction of the Company's business and shall perform such tasks
and duties as may from time to time be
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assigned to the Executive by the President and/or the Board of Directors;
provided that Executive's duties shall not be inconsistent with Executive's
title and position. Executive shall devote substantially all of his business
time, labor, skill, undivided attention and best ability to the performance of
his duties hereunder. During the term of his employment, Executive shall not
directly or indirectly pursue any other business activity without the Company's
prior written consent. Executive agrees that he will travel to whatever extent
is reasonably necessary in the conduct of the Company's business and agrees to
relocate his residence to the Los Angeles, California area.
SECTION 3. EXPENSES. Executive shall be entitled to prompt reimbursement
for expenses incurred by him in connection with the performance of his duties
hereunder upon submission of vouchers therefor in accordance with the Company's
established procedures. In addition, the Company agrees to pay $1,500 per month
for temporary living expenses for a period of ten months in connection with
Executive's relocation to the Los Angeles area. The Company also agrees to pay
for moving Executive's household goods, furniture and personal property from La
Jolla, California to Los Angeles, and to reimburse real estate commissions (up
to 6%) upon the sale of Executive's current residence.
SECTION 4. VACATION. Executive shall be entitled to a paid vacation of
four weeks per year.
SECTION 5. ADDITIONAL BENEFITS. Executive shall be entitled to
participate in all fringe benefit plans which the Company may, in its sole and
absolute discretion, make available generally to its employees, including
medical, dental long-term disability, life insurance, and 401(k) plan. However,
the Company shall not be required to establish or maintain any such program of
plan.
SECTION 6. TERMINATION OF EMPLOYMENT. (a) Notwithstanding any other
provision of this Agreement, Executive's employment may be terminated:
(i) By the Company without cause, in which event the Company shall
pay to Executive an amount equal to one year's base salary.
(ii) In the event of the Executive's termination following the sale or
merger or other change in control of the Company, Executive shall
be paid an amount equal to the then current base salary for a
period of twelve months plus a bonus amount equal to 20% of such
annual salary. Executive shall also be paid a pro-rata bonus,
computed at 20% of salary, for the portion of the current fiscal
year through date of termination.
(iii) By the Company for "Cause" (as hereafter defined) in which event
the Company's obligation to pay future compensation hereunder shall
cease, except for any obligation of the company under any
compensation or benefit plan in which Executive is then a vested
beneficiary. "Cause" means:
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(A) Executive's material failure, refusal or inability to perform,
neglect of, or carrying out in an irresponsible way his duties
hereunder, or breach of any one or more of the material
provisions of this Agreement, which shall have continued for a
period of thirty days (or such longer period as is reasonable
required to cure such breach with diligent and good faith
effort) after written notice to Executive from the President
or other representative of the Board of Directors of the
Company specifying such breach or failure and which shall not
have resulted from a breach of any material provision of this
Agreement by the Company;
(B) Inability of Executive to discharge his duties hereunder for
one or more period totaling three consecutive months during
any consecutive twelve month period due to illness, accident
or other disability (mental or physical); or
(C) Conviction of Executive for any crime involving moral
turpitude or any other illegal act that materially and
adversely reflects upon the business affairs or reputation of
the company or on Executive's ability to perform his duties
hereunder.
(iv) By the Executive for any reason upon two weeks' written notice, in
which event the Company's obligation to pay future compensation
hereunder shall cease, except for any obligation of the Company
under any compensation or benefit plan in which Executive is then a
vested beneficiary; provided, however, that if such termination by
the Executive is the result of a material breach by the Company of
the terms hereof which continues for ten days (or such longer
period as is reasonably required to cure such breach with diligent
and good faith effort) after the Company's receipt of written
notice thereof, then the Company shall pay to Executive an amount
equal to twelve months' base salary plus any bonus earned under
this Agreement, such bonus amount to be computed on a pro rata
basis according to the number of months of employment completed
during such fiscal year. In addition, all of Executive's stock
options granted pursuant to the Agreement shall become vested in
full and immediately exercisable.
(b) In the event of Executive's death during the term of his employment,
the Company's obligation to pay any further compensation hereunder shall cease,
except that Executive's legal representative shall be entitled to receive his
fixed compensation for the period up to the last day of the month in which such
death shall have occurred.
SECTION 7. CONFIDENTIALITY. Executive shall not, either during the
period of his employment with the Company or thereafter, reveal or disclose to
any person outside the Company or use for his own benefit, without the Company's
specific written authorization, whether by private communication or by public
address or publication or otherwise, any information concerning the affairs of
the Company not already lawfully generally available. Upon the termination of
Executive's employment, Executive shall promptly surrender to the Company all
documents, materials, data, information and equipment belonging to or relating
to
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the Company's business and in his possession, custody or control, and Executive
shall not thereafter retain or deliver to any other person any of the foregoing.
SECTION 8. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given when delivered or three
days after mailing if mailed by first-class, registered or certified mail,
postage prepaid, addressed, if to Executive, at his current residence and, if to
the Company, to its corporate office at 0000 Xxxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx
00000.
SECTION 9. ASSIGNABILITY. This Agreement shall not be assignable by
Executive, but it shall be binding upon, and to the extent provided in SECTION 6
shall inure to the benefit of, his heirs, executors, administrators and legal
representatives.
SECTION 10. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the Company and Executive with respect to the subject matter
thereof and there have been no oral or other agreements of any kind whatsoever
as a condition precedent or inducement to the signing of this Agreement or
otherwise concerning this Agreement or the subject matter hereof.
SECTION 11. EXPENSES. Each party shall pay its own expenses incident to
the performance or enforcement of this Agreement, including all fees and
expenses of its counsel, except as otherwise herein specifically provided.
SECTION 12. WAIVERS AND FURTHER AGREEMENTS. Any waiver of any terms or
conditions of this Agreement shall not operate as a waiver of any other breach
of such terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof; provided, however, that no such written waiver,
unless it by its own terms explicitly provides to the contrary, shall be
construed to effect a continuing waiver of the provision being waived and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance with such provision. Each of the parties hereto agrees to executive
all such further instruments and documents and to take all such further action
as the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
SECTION 13. AMENDMENTS. This Agreement may not be amended, nor shall any
waiver, change, modification, consent or discharge be effected except by an
instrument in writing executed by or on behalf of the party against whom
enforcement of any waiver, change, modification , consent or discharge is
sought.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the law of the State of California.
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IN WITNESS WHEREOF, the parties have executed or this Agreement as of
the date first above written.
THE AMERICAN MATERIALS & TECHNOLOGIES
CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
President & Chief Executive Officer
EXECUTIVE
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
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