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EXHIBIT 10.1
SUPERCONDUCTOR TECHNOLOGIES, INC.
EMPLOYMENT AGREEMENT
This Agreement is entered into as of January 1, 2001, (the "Effective
Date") by and between Superconductor Technologies Inc. (the "Company") and M.
Xxxxx Xxxxxx (the "Executive").
In consideration of the promises and mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, it is mutually covenanted and agreed by and between the
parties as follows:
1. POSITION AND DUTIES. Executive shall continue to be employed as
President and Chief Executive Officer of the Company, reporting to the Company's
Board of Directors, and assuming and discharging such responsibilities as are
commensurate with Executive's position. Executive shall also be nominated to the
Company's Board of Directors. Executive acknowledges that frequent travel may be
necessary in carrying out his duties hereunder. Executive shall perform his
duties faithfully and to the best of his ability and shall devote his full
business time and effort to the performance of his duties hereunder.
2. AT-WILL EMPLOYMENT. The parties agree that the Executive's employment
with the Company shall be "at-will" employment and may be terminated at any time
with or without cause or notice. No provision of this Agreement shall be
construed as conferring upon Executive a right to continue as an Executive of
the Company.
3. COMPENSATION. For all services to be rendered by Executive pursuant to
this Agreement, Executive's annual base salary is presently $300,000 (the "Base
Salary"), payable monthly in accordance with the Company's normal payroll
practices. Executive shall also be eligible for periodic cash bonuses, as
authorized by the Board of Directors (or the Compensation Committee) in its sole
discretion (each a "Bonus").
4. OTHER BENEFITS.
(a) GENERAL PROGRAMS. Executive shall be entitled to participate in
the employee benefit plans and programs of the Company, if any, to the extent
that his position, tenure, salary, age, health and other qualifications make him
eligible to participate in such plans or programs, subject to the rules and
regulations applicable thereto. The Company reserves the right to cancel or
change the benefit plans and programs it offers to its Executives at any time.
(b) AUTOMOBILE LEASE. Company shall continue to lease an automobile
for Executive. Upon termination of Executive's existing lease, the Company will
lease a comparable new model for Executive.
(c) STOCK OPTIONS. Executive shall remain eligible for future option
grants in the sole discretion of the Board of Directors.
5. EXPENSES. The Company shall reimburse Executive for reasonable travel,
entertainment or other expenses incurred by Executive in the furtherance of or
in connection with the performance of Executive's duties hereunder, in
accordance with the Company's expense reimbursement policy as in effect from
time to time.
6. TERMINATION.
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(a) INVOLUNTARY TERMINATION. If Executive's employment with the
Company terminates in an Involuntary Termination, then for a period of twelve
(12) months following Executive's termination: (i) Executive shall be entitled
to receive continuing payments of severance pay at a rate equal to Executive's
current Base Salary, (ii) any Bonus for such period which had been previously
authorized, and (iii) the Company shall make available to Executive and
Executive's spouse and dependents, at the Company's expense, group health, life
and other similar insurance plans substantially comparable to the group health,
life and other similar insurance plans in which Executive or such dependents
participated on the date of such termination. In addition, all unvested options
of Executive for Company equity shall be immediately vested on the date upon
which Executive's employment with the Company terminates in an Involuntary
Termination.
(b) OTHER TERMINATION. If Executive's employment terminates other
than in an Involuntary Termination, then Executive shall not be entitled to
receive severance or other benefits pursuant to this Agreement, but may be
eligible for those benefits (if any) as may then be established under the
Company's severance and benefits plans and policies existing at the time of such
termination.
7. DEFINITIONS.
(a) CAUSE. "Cause" shall mean the occurrence of anyone or more of
the following:
(i) Executive's conviction by, or entry of a plea of guilty or
nolo contendere in, a court of final jurisdiction for any crime which
constitutes a felony in the jurisdiction involved;
(ii) Executive's misappropriation offends or commission of an
act of fraud; whether prior or subsequent to the date hereof, upon the Company;
(iii) negligence by Executive in the scope of Executive's
services to the Company;
(iv) a breach by Executive of a material provision of this
Agreement; or
(v) a failure of Executive to substantially perform his duties
hereunder.
Notwithstanding the foregoing, Executive shall not be deemed to have been
terminated for Cause without (i) reasonable notice to Executive setting forth
the reasons for Company's intention to terminate for Cause, and (ii) an
opportunity for Executive, together with his counsel, if any, to be heard before
the Board.
(b) INVOLUNTARY TERMINATION. "Involuntary Termination" shall mean
(i) without Executive's express written consent, a material reduction of
Executive's duties or responsibilities relative to Executive's duties or
responsibilities in effect immediately prior to such reduction, or the removal
of Executive from such duties and responsibilities, unless Executive is provided
with comparable duties and responsibilities over the same business unit; (ii)
without Executive's express written consent, a material reduction of the
facilities and perquisites (including office space and location) available to
Executive immediately prior to such reduction; (iii) without Executive's express
written consent, a reduction by the Company of Executive's Base Salary in effect
immediately prior to such reduction; (iv) a material reduction by the Company in
the kind or level of Executive benefits to which the Executive is entitled
immediately prior to such reduction with the result that the Executive's overall
benefits package is significantly reduced; (v) any purported termination of the
Executive by the Company which is not effected for Cause or for which the
grounds relied upon are not valid; or (vi) the failure of the Company to obtain
the assumption of this Agreement by any successors contemplated in Section 9
below. The conversion of the Company into a subsidiary, division or other
business unit of any Successor entity as contemplated by Section 9 below shall
not constitute a triggering event under clause "i" of this Section 7 provided
Executive has substantially the same duties and responsibilities over such
subsidiary, division or other business unit immediately before and after such
conversion.
8. RIGHT TO ADVICE OF COUNSEL. Executive acknowledges that he has had the
right to consult with counsel and is fully aware of his rights and obligations
under this Agreement.
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9. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether
direct or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's business
and/or assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same manner and
to the same extent as the Company would be required to perform such obligations
in the absence of a succession. For all purposes under this Agreement, the term
"Company," shall include any successor to the Company's business and/or assets
which executes and delivers the assumption agreement described in this
subsection (a) or which becomes bound by the terms of this Agreement by
operation of law.
(b) EXECUTIVE'S SUCCESSORS. Without the written consent of the
Company, Executive shall not assign or transfer this Agreement or any right or
obligation under this Agreement to any other person or entity. Notwithstanding
the foregoing, the terms of this Agreement and all rights of Executive hereunder
shall inure to the benefit of, and be enforceable by, Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
10. NOTICE CLAUSE.
(a) MANNER. Any notice hereby required or permitted to be given
shall be sufficiently given if in writing and upon mailing by registered or
certified mail, postage prepaid, to either party at the address of such party or
such other address as shall have been designated by written notice by such party
to the other party .
(b) EFFECTIVENESS. Any notice or other communication required or
permitted to be given under this Agreement will be deemed given on the day when
delivered in person, or the business day after the day on which such notice was
mailed in accordance with Section 10(a).
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal substantive laws, but not the choice of law rules,
of the state of California.
12. SEVERABILITY. The invalidity or unenforceability of any provision of
this Agreement, or any terms hereof, shall not affect the validity or
enforceability of any other provision or term of this Agreement.
13. CONFIDENTIALITY. Executive acknowledges that he previously executed an
Executive Proprietary Information Agreement with the Company, dated April 13,
l997, and hereby reaffirms his obligations thereunder.
14. INTEGRATION. Except for any confidentiality agreement executed by
Executive, this Agreement represents the entire agreement and understanding
between the parties as to the subject matter herein and supersedes all prior or
contemporaneous agreements whether written or oral, including without limitation
the letter agreement between the parties dated April 3, 1997. No waiver,
alteration, or modification of any of the provisions of this Agreement shall be
binding unless in writing and signed by duly authorized representatives of the
parties hereto.
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15. TAXES. All payments made pursuant to this Agreement shall be subject
to withholding of applicable income and employment taxes.
IN WITNESS WHEREOF, each of the parties has duly executed this Agreement
effective as of the day and year first above written.
SUPERCONDUCTOR TECHNOLOGIES INC.
/s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
Chairman of the Board
EXECUTIVE
/s/ M. XXXXX XXXXXX
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M. Xxxxx Xxxxxx
Exhibit 10.1 - 4
