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EXHIBIT 10.75
EMPLOYMENT AGREEMENT - XXXXX X. XXXXXX
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AGREEMENT
This Agreement is made as of November 1, 1996, between Xxxxx X. Xxxxxx
(hereinafter "Executive"), and Roadmaster Industries, Inc., a Delaware
corporation ("Roadmaster"). Executive and Roadmaster are hereinafter sometimes
together referred to as the "Parties."
In consideration of the mutual covenants, promises and agreements in
this Agreement, the Parties agree as follows:
1. Employment. Roadmaster hereby employs Executive as the President
and Chief Operating Officer of Roadmaster, and the President and Chief
Executive Officer of the DP Fitness Division of Roadmaster Corporation, and
Executive accepts these positions, subject to the terms and conditions of this
Agreement, for a period of one (1) year, subject to additional one year
additional terms upon agreement of the Parties, to be reflected in a signed
writing executed by authorized officers of Roadmaster and by the Executive.
2. Duties of Executive. Executive shall faithfully, diligently and to
the best of his ability serve Roadmaster, under the direction and supervision
of Chairman and Chief Executive Officer (the "CEO") of Roadmaster and according
to existing Roadmaster policies. Executive shall diligently perform and
accomplish those duties, tasks, and responsibilities assigned to him by
Roadmaster's CEO, and in particular to cause the DP Fitness Division of
Roadmaster to meet those goals set forth in Exhibit A, attached. Executive
shall devote all of his working time, energy and skill to perform these duties,
and shall not engage in any other employment or work for compensation. However,
Executive shall be permitted to pursue other business investments (other than
as an Executive or employee) and directorships (which may provide
remuneration), as long as these do not interfere or compete with Executive's
duties to Roadmaster. In addition, Executive has been nominated for a seat on
Roadmaster's Board of Directors, and if elected by the shareholders shall serve
as a director without additional compensation.
3. Compensation and Benefits. Executive's initial salary shall be Two
Hundred Fifty Thousand Dollars ($250,000.00) per year. After one year,
Executive's compensation shall be reviewed according to Roadmaster's prevailing
salary practices and Executive's performance. Roadmaster currently pays salary
in twenty-four equal semi-monthly installments, but may elect to pay salary
more or less frequently, and shall pay Executive his salary according to
Roadmaster's then prevailing practices. Executive shall be eligible for an
annual bonus of up to One Hundred Twenty-Five Thousand Dollars ($125,000.00),
based upon the achievement of those goals set forth in Exhibit A (which shall
provide for a bonus based upon meeting performance goals and levels as
determined by the Compensation Committee of Roadmaster). Roadmaster shall
provide Executive with a Five Hundred Dollar ($500.00) per month automobile
allowance. Roadmaster shall provide Executive the opportunity to participate in
the insurance and other benefit plans made available to other executives of
Roadmaster, on a basis consistent with those provided to other executives of
Roadmaster in similar positions.
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4. Executive's Options. Roadmaster has awarded to Executive an option
to purchase 250,000 shares of the common stock of Roadmaster (the "First
Option"), with the First Option exercise price being the closing price of
Roadmaster common stock on the New York Stock exchange on October 31, 1996,
namely $1.50 per share, times the number of shares of Roadmaster common stock
purchased upon exercise of the First Option. The First Option shall be in the
form attached as Exhibit B to this Agreement. The First Option shall vest in
eleven (11) installments of 20,900 shares each at the end of each month during
Executive's employment by Roadmaster under this Agreement, and 20,100 shares at
the end of the twelfth month of Executive's employment by Roadmaster under this
Agreement. The First Option may be exercised in whole or in part at any time to
the extent that the right to purchase shares has vested, all pursuant to the
terms of the First Option. Roadmaster shall award the Executive an option to
purchase an additional 250,000 shares of the common stock of Roadmaster (the
"Second Option"), with the Second Option exercise price being the closing price
of Roadmaster common stock on the New York Stock Exchange on October 31, 1996,
namely $1.50 per share, times the number of shares of Roadmaster common stock
purchased upon exercise of the Second Option. The Second Option shall be in the
form attached as Exhibit C to this Agreement. The Second Option shall be
awarded and shall vest upon fulfillment by Executive of those goals specified
in Exhibit A attached.
5. Change in Control. Change in Control of the Company means: (i) a
sale, merger, or transfer of all or substantially all of the assets of the
Company; (ii) if any "Person" or "Group" of Persons (as such terms are
determined pursuant to Sections 13(d) and 14(d) of the Exchange Act and the
rules and regulations promulgated thereunder) either alone or in conjunction
with its "Affiliates" (as that term is defined in Rule 405 under the Securities
Act), other than a person or group consisting solely of Management Stockholders
or their "Affiliates" (as that term is defined in Rule 405 under the Securities
Act), becomes the beneficial owner, directly or indirectly, of voting
securities of the Company representing, or securities convertible into, or
exchangeable for, securities representing more than fifty percent (50%) of the
combined voting power of the Company's then outstanding securities eligible to
vote for the election of Directors; or (iii) if any "Person" or "Group" of
Persons (as such terms are determined pursuant to Section 13(d) and 14(d) of
the Exchange Act and the rules and regulations promulgated thereunder) either
alone or in conjunction with its "Affiliates" (as that term is defined in Rule
405 under the Securities Act), acquires the right or power to nominate and/or
control, directly or indirectly, whether through the ownership of voting
securities of the Company, by contract or otherwise, a majority of the members
of the Company's Board of Directors without having first received the prior
written consent of at least two-thirds (including a majority of the Management
Directors) of the members of the Board of Directors of the Company then in
office prior to such person or group of persons acquiring such right or power.
In the event a Change in Control: (a) all shares under the First and
Second Options shall become immediately vested one hundred percent (100%) and
shall remain exercisable for their entire term, and (b) Roadmaster shall pay
Executive an amount equal to one year's base salary, in equal installments
payable on the same payment dates used for payment of salary to Roadmaster's
other management personnel. Executive agrees that execution and delivery of
Roadmaster's customary release is a condition precedent to the payment of any
severance compensation.
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6. Location. Executive agrees that the primary location for his
performance of his duties shall be the facility of DP Fitness Division located
in Opelika, Alabama.
7. Confidentiality. As used in this Agreement, the term "Confidential
Information" shall mean any and all information not readily available to the
public, including but not limited to documents, reports, summaries, data
compilations, programs, devices, designs, strategies, or methods which
constitute, discuss, relate or concern (a) the financial condition, results of
operations or compensation of the management of Roadmaster, Roadmaster
subsidiaries and any subsidiaries of Roadmaster's subsidiaries (together, the
"Company"); (b) the terms and conditions (including prices) of sales and offers
of sales of products and services of the Company, (c) the terms, conditions or
current status of the Company's relationship or transactions with any of the
Company's customers or suppliers; (d) the identities and business practices and
preferences of the Company's actual and prospective customers and suppliers, or
of any officer, employee or agent thereof with whom the Company may
communicate; (e) the invention, product ideas, trade secrets, market
techniques, skills, ideas, strategic plans and market data possessed,
developed, accumulated, or acquired by the Company; (f) any communications
between the Company, its officers, directors, shareholders or employees, and
any attorney employed or retained by the Company for any purpose, or any person
retained or employed by those attorneys in representing the Company; (g) the
terms and conditions of this Agreement; (h) any information regarding any
potential merger, acquisition, divestiture, purchase or sale of assets, joint
venture, or other business combination or financing in which the Company may
contemplate participation; and (i) any other information from which the Company
derives actual or potential economic value from the information not being
generally known to other persons or entities who might obtain economic value
from its disclosure or use, or which gives the Company an opportunity to obtain
an advantage over its competitors who do not know or use the information.
Executive acknowledges and agrees that the Company is engaged in a number of
highly competitive businesses, and has expended, and will expend, significant
sums and invested significant resources to develop and maintain the secrecy of
the Confidential Information. The Company has obtained a valuable economic
asset which has enabled it to maintain positive business relationships with its
customers and suppliers. Executive acknowledges and agrees that if the
Confidential Information were disclosed to another person or entity or used for
the benefit of anyone other than the Company, the Company would suffer
irreparable harm. Executive acknowledges and agrees (a) that the Confidential
Information is and at all times will remain the sole property of the Company;
(b) Executive will use his best efforts and the utmost diligence to protect the
Confidential Information from disclosure to any other person or entity (except
to the extent that the use or disclosure of Confidential Information is
required in order for the Company to do business or obtain business benefit) ;
and (c) shall not use any of the Confidential Information for his own benefit
or that of any other person or entity other than the Company, including but not
limited to any Confidential Information which Executive may learn, create,
develop or modify in connection with his employment. The Executive acknowledges
and agrees that any Confidential Information which is made or becomes available
to him does so solely in order to permit him to perform his duties under this
Agreement, and agrees that in the event his employment is terminated hereunder
for any reason, he will not take and will promptly return all tangible
Confidential Information, and any copies, abstracts, notes or other documents
or records which constitute, discuss, relate, refer to or summarize any
Confidential Information.
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8. Non-Competition. The Executive agrees that during the term of this
Agreement, Executive will not, without the written consent of Roadmaster,
engage in or become directly or indirectly interested in any business activity
or entity, whether as owner, partner, officer, director, employee, stockholder
(except that Executive may be the owner of less than one percent of the stock
of a company traded on a major public stock exchange), trustee, beneficiary,
consultant, lessor or lessee, which engages in any business activity in the USA
competitive with the Company. Provided that Roadmaster is paying Executive any
severance compensation due under this Agreement, Executive agrees that for two
(2) years following any termination of his employment (but only for one (1)
year following a termination pursuant to subpart (b) of paragraph 11),
Executive will not, without the written consent of Roadmaster, engage in or
become directly or indirectly interested in any business activity or entity,
whether as owner, partner, officer, director, employee, stockholder (except
that Executive may be the owner of less than one percent of the stock of a
company traded on a major public stock exchange), trustee, beneficiary,
consultant, lessor or lessee, which engages in any business activity in the USA
competitive with the Company. The Executive agrees that he will not during the
term of this Agreement, and for two (2) years following any termination of his
employment, either directly, indirectly or in concert with others, seek to
influence or induce any person employed by the Company to become employed by
any person or entity in competition with the Company.
9. Enforcement. It is the desire of the Parties that the provisions of
paragraphs 6 and 7 be enforced to the fullest extent permitted by law, and to
the extent that any part or portion thereof is determined to be void or
invalid, then the Agreement shall be applied and enforced to the maximum extent
permitted by law, and this Agreement shall be interpreted as if it had been
amended to contain only those terms and restrictions permitted under applicable
law and public policy. Employee acknowledges and agrees that the Company will
be irreparably harmed by any violation or threatened violation of paragraph 6
or 7 of this Agreement, and that any violation or threatened violation of those
paragraphs can be enjoined or otherwise restrained by any court of competent
jurisdiction, without notice and without bond.
10. Inventions. Executive shall disclose to Roadmaster any and all
inventions, including contributions, improvements, ideas or discoveries,
whether patentable or not, conceived or made by Executive, alone or jointly
with others, while he is employed by Roadmaster, which inventions shall be the
sole property of Roadmaster. Executive hereby agrees to assign all interests in
inventions to Roadmaster, and to assist in every proper way, and to execute at
any time (whether or not the Executive is still employed by Roadmaster) all
papers requested of Executive by Roadmaster to secure for Roadmaster patent
rights to any invention in this and any foreign countries selected by
Roadmaster. This Agreement does not apply to an invention for which no
equipment, supplies, facilities or trade secret information of Roadmaster was
used and which was developed entirely on Executive's own time, unless (a) the
invention relates (I) to the business of Roadmaster, or (ii) to Roadmaster's
actual or demonstrably anticipated research or development, or (b) the
invention results from any work performed by Executive for Roadmaster.
11. Termination for Cause. Roadmaster may terminate this Agreement for
cause if (a) the Executive commits any act of fraud, theft or is convicted of a
felony or other charge involving dishonesty or moral turpitude; (b) Executive
commits or causes a material breach of this Agreement; or (c) Executive
willfully or recklessly fails to perform his duties in the position for which
he is employed. If Roadmaster
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terminates Executive for cause, Executive shall not be entitled to any
further compensation from Roadmaster under this Agreement or otherwise. If
Executive is formally charged by requisite official processes with a felony or
other charge involving dishonesty or moral turpitude, then Roadmaster may place
Executive on a paid leave of absence pending resolution of the charges.
12. Termination for Other Causes. This Agreement shall be terminated
upon any of the following: (a) death of the Executive; or (b) the disabling
injury, or illness, or other disability of the Executive for 180 days out of
any one year period. Termination for any of the foregoing shall terminate the
Executive's entitlement to compensation, except under any Roadmaster employee
benefits in which the Executive participates, such as life insurance or
disability insurance.
13. Termination Without Cause. Roadmaster may terminate Executive at
will, without cause, at any time. If Roadmaster terminates the Executive
without cause during the term of this Agreement, then Roadmaster shall pay
Executive as severance compensation (a) Executive's then existing base salary
at the time of the termination for the remaining term of the Agreement, payable
on the same payment dates used for payment of salary to Roadmaster's other
management personnel.
14. No Other Reliance. The Parties represent and warrant that each has
relied upon his or its own judgment and the judgment of their respective legal
counsel regarding every aspect of this Agreement, and that no statements or
representations (expressed or implied) were made by the Company or any of the
Company's agents, employees, officers, directors or legal representatives that
have influenced or induced the Executive to execute this Agreement.
15. Entire Agreement. This Agreement reflects the entire understanding
between the Parties and no statements, promises or inducements by Roadmaster or
any agent of Company shall be valid or binding unless they are contained in
this Agreement. This Agreement constitutes the entire agreement between the
Parties and fully supersedes and replaces any and all alleged or actual prior
agreements or understandings between the Parties.
16. Notices. Any notice required hereunder shall be in writing and
shall be properly served (a) if delivered in Person, or (b) if sent by
facsimile transmission, confirmed by delivery, mail or recognized overnight air
courier service, or (c) if sent by certified or registered mail letter with
return air courier service, in any case addressed to the Parties at the
following addresses, or those other addresses of which the sending party has
been given notice as provided for in this paragraph:
If to Roadmaster: Roadmaster Industries, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000 XXX
Attn: Xx. Xxxxxxx X. Xxxxxxx, Executive
Vice President
Facsimile Number: (000) 000-0000
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With a copy to: Xxxxx X. Xxxxxxx
Vice President & General Counsel
Roadmaster Corporation
00000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000 XXX
Facsimile Number: (000) 000-0000
If to Executive: Xxxxx X. Xxxxxx
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Peachtree City, Georgia
With a copy to:
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Facsimile Number:
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Notice shall be effective on the date of personal delivery of the
notice, one day after the sending of the facsimile transmission, or seven (7)
days after mailing (if sent only by registered or certified mail).
17. Assignment. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and assigns; provided,
however, that neither party may assign or delegate or subcontract its rights or
obligations under this Agreement except with the prior written consent of the
other party except that Roadmaster may, without Executive's consent, assign or
transfer this Agreement in whole or part to any of Roadmaster's subsidiaries of
substantially equivalent financial capability.
18. Non-Waiver. The waiver of any breach of the terms of this
Agreement shall not constitute the waiver of any other or further breach under
this Agreement, whether or not of a like kind or nature.
19. Remedies. All rights and remedies of the Parties stated herein are
non-exclusive and in addition to other rights and remedies provided by law.
20. Severability. In the event that any one or more of the terms,
conditions or provisions of this Agreement is held invalid, illegal or
unenforceable, that term, condition or provision shall be severed and the
remaining terms, conditions and provisions shall remain binding and effective.
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21. Choice of Law. This Agreement shall be governed by and interpreted
under the laws of the State of Georgia, United States of America.
22. Counterparts. This Agreement may be executed in two or more
identical counterparts, which together shall constitute one agreement.
XXXXX X. XXXXXX ROADMASTER INDUSTRIES, INC.
("Executive") ("Roadmaster")
-------------------------------- By:
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Its:
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