Exhibit 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of October 7,
1996, by and between Xxxxxxxxx-Ceco Corporation, a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxxx ("Executive").
RECITALS
WHEREAS, the Executive has extensive and valuable knowledge and experience
and the Company desires to have the benefit of the Executive's knowledge and
experience; and
WHEREAS, the Company desires to employ Executive and Executive desires to
be employed by the Company on the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the promises contained herein, the
parties agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive, and the
Executive hereby accepts employment with the Company, as Executive Vice
President and Chief Financial Officer of the Company, to perform such duties and
services of an executive and administrative character as shall be assigned to
him from time to time by the President or Board of Directors (the "Board") of
the Company (the "Services"), including managerial functions in the areas of
financing and accounting. The Executive agrees to hold such offices with the
Company and/or any other entity controlling, controlled by or under common
control with the Company (an "Affiliate") to which, from time to time, he may be
elected or appointed, without additional compensation. Employment shall
commence on the date hereof and shall continue until terminated pursuant to this
Agreement.
2. COMPENSATION. For all duties to be performed by Executive hereunder,
Executive shall receive the following compensation:
(a) an annual salary of $200,000, payable in accordance with the
Company's normal payroll practices (prorated for any partial calendar
year), with prospective changes as determined by the Board or a committee
thereof;
(b) an annual bonus based on the Company's performance and other
appropriate factors, if any, if awarded in the sole discretion of the
Board, provided, however, that Executive's annual bonus for the 1996
calendar year shall be a prorated portion of $25,000 and thereafter the
Executive's annual bonus shall not exceed $25,000 unless otherwise
determined by the Board or a committee thereof;
(c) the fringe benefits and participation in benefit plans generally
available to employees of the Company located at the Company's facility in
San Ramon, California, from time to time, it being acknowledged that the
Company may at any time change the fringe benefits or benefit programs
offered to the Executive to the extent consistent with changes made to
benefits or programs offered generally to employees of the Company;
(d) 1.67 days paid vacation per month; and
(e) a relocation allowance, to the extent required under the
provisions of the Company's Policy Manual, as in effect as of the date
hereof, with all time periods referenced therein for these purposes
extended to August 1, 1997.
3. EXPENSES. Executive shall be entitled to reimbursement from the
Company of reasonable business expenses incurred in the performance of
Executive's duties hereunder, in accordance with the Company's policies.
4. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges that during his employment with the
Company, he will have access to confidential and proprietary information of
the Company, including without limitation, information relating to the
business, customers, suppliers, products, developments, pricing and other
methods of doing business of the Company. Executive recognizes that such
information is the property of the Company and shall be held by him solely
for the Company's benefit, and shall not be used or disclosed to others at
any time other than in the performance of Executive's duties hereunder.
Upon the termination of Executive's employment, Executive shall deliver to
the Company all copies of information of or with respect to the Company in
his possession.
(b) Executive acknowledges that he has carefully read and considered
the terms of this Section 4 and knows them to be essential to induce the
Company to enter into this Agreement and to protect the business of the
Company and that any breach of the provisions contained herein will result
in serious and irreparable injury to the Company. Therefore, in the event
of a breach or anticipated breach of any of the terms of this Section 4,
the Company shall be entitled, in addition to all other rights and remedies
available under law or in equity, the equitable relief against Executive,
including, without limitation, an injunction to restrain Executive from
such breach or anticipated breach and to compel compliance with this
Agreement.
5. TERMINATION. The parties acknowledge that Executive's employment
hereunder is an employment at will and may be terminated by either party at any
time, with or without cause. In addition, Executive's employment may be
terminated at any time as follows:
(a) Disability. The Company may, on not less than 30 days prior
written notice, terminate Executive's employment in the event that (i)
Executive is unable, because of mental or physical disability
("Disability"), to perform his duties hereunder for a total of 90 days
(whether or not consecutive) in any period of 12 months, or (ii) if two
physicians licensed to practice medicine in the United States shall have
certified to the Company that Executive's disability is such as will
preclude Executive from performing his duties for at least the number of
days specified in clause (i) hereof, including the number of days already
elapsed. Executive agrees to submit to any reasonable medical examination
requested by the Company.
(b) Death. Executive's employment shall automatically terminate upon
the date of death of Executive.
(c) Cause. The Company may terminate Executive's employment at any
time for cause. For purposes hereof, the term "cause" shall include,
without limitation: (i) dishonest, fraudulent or illegal conduct; (ii)
misappropriation of Company funds; (iii) misconduct which is reasonably
deemed to be injurious to the Company; (iv) commission of a criminal
misdemeanor or felony, other than minor traffic violations; or (v) willful
failure by Executive to perform his duties hereunder.
6. COMPENSATION UPON TERMINATION.
(a) Termination Other than For Cause. If Executive's employment is
terminated by the Company, other than pursuant to Section 5(a) or 5(c) of
this Agreement, the Company shall provide as "Severance" to Executive, for
a period of twelve months following such termination, (i) payment of
Executive's monthly salary as of the date of termination and (ii) the
benefits described in Section 2(c) above.
(b) Termination With Cause. If Executive's employment is terminated
pursuant to Section 5(b), or by the Executive, or by the Company pursuant
to Section 5(a) or 5(c) of this Agreement, the Company shall not be
obligated to pay the Executive any Severance. All obligations of the
Company under this Agreement shall cease upon the termination of
Executive's employment under such circumstances.
7. STOCK AWARD. The Company shall grant to Executive a restricted stock
award in accordance with Exhibit A hereto.
8. NOTICE. Any notice required to be given, served or delivered to any
of the parties hereto shall be sufficient if it is in writing and sent by
certified or registered mail, with proper postage prepaid, addressed as follows
and shall be deemed given up on deposit in the mail in such manner:
Executive
Xxxxxx X. Xxxxxxx
0000 Xxxx Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
To the Company:
Xxxxxxxxx-Ceco Corporation
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
9. ASSIGNMENT. This Agreement is for personal services and may not be
assigned by either party. This Agreement shall inure to the benefit of and be
enforceable by Executive's personal and legal representatives, executors,
administrators, heirs, distributees, devices and legatees. If the Executive
should die while any amounts are still payable to him hereunder, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to the Executive's estate.
10. APPLICABLE LAW. This Agreement shall be governed by the laws of the
State of California, and the parties consent to the jurisdiction of California
courts over all matters relating to this Agreement.
11. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties, supersedes all prior discussions, agreements and understandings of
every kind between the parties, and may be changed only by a written document
signed by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
13. SEVERABILITY. If any provision of this Agreement shall be prohibited
by or invalid under applicable law, or otherwise determined to be unenforceable,
such provision shall be ineffective to the extent of such prohibition or
invalidity without invalidating the remainder of this Agreement.
14. WAIVER. Any waiver of any breach of this Agreement shall not be
construed to be a continuing waiver or consent to any subsequent breach on the
part of either of the Executive or of the Company.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first written above.
XXXXXXXXX-CECO CORPORATION
By: /s/ X.X. Xxxxxxxxxxx
Title: Chief Operating Officer
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
EXHIBIT A
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD ("Award") is entered into effective as of
October 7, 1996, by and between Xxxxxxxxx-Ceco Corporation, a Delaware
corporation (the "Company"), and Xxxxxx X. Xxxxxxx ("Employee").
WITNESSETH:
WHEREAS, the Board of Directors of the Company has determined that it
is in the best interests of the Company and its stockholders for designated
officers and employees of the Company to obtain or increase their stock interest
in the Company in order to create a greater incentive to work for and manage the
Company's affairs in such a way that its shares may become more valuable and has
authorized the Xxxxxxxxx-Ceco Corporation Amended and Restated 1991 Long-Term
Incentive Plan (the "Plan"); and
WHEREAS, pursuant to Employee's Employment Agreement with the Company
dated as of October 7, 1996, the Company has agreed to provide Employee with an
award of a restricted stock interest in the Company on the terms and conditions
set forth herein and in the Plan, and the Employee has accepted such Restricted
Shares on such terms and conditions.
NOW, THEREFORE, in consideration of the premises and of the services
to be performed by the Employee under Section 3 hereunder, the Company hereby
grants this Award to the Employee on the terms hereinafter expressed.
Section 1. Definitions. For purposes of this Award, the following
terms shall have the following meanings:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the Committee appointed by the Board to
administer the Plan.
(c) "Common Stock" shall mean the common stock of the Company, $.01
par value.
(d) "Effective Date" shall mean October 7, 1996.
(e) "Employment Agreement" shall mean the Employment Agreement
between the Employee and the Company dated as of October 7, 1996.
(f) "Restricted Shares" shall have the meaning specified in Section
2.
(g) "Restrictions" shall have the meaning specified in Section 3.
(h) "Vested Shares" shall have the meaning specified in Section 4.
Section 2. Award of Restricted Shares. Subject to all of the terms
and conditions set forth below and in the Plan, the Company hereby grants to
Employee an award of 15,000 shares of Common Stock (the "Restricted Shares").
The transfer of the Restricted Shares to Employee is conditioned upon Employee,
concurrently with the execution of this Award, delivering to the Company a duly
signed stock power, endorsed in blank, relating to the Restricted Shares.
Section 3. Restrictions. The Restricted Shares are being awarded to
Employee subject to the transfer and forfeiture restrictions set forth in
Sections 3(a) and (b) below (together, the "Restrictions"), which shall lapse as
provided in Section 4 hereof.
(a) Transfer. Prior to the lapse of the Restrictions with respect to
any Restricted Shares, Employee may not directly or indirectly, by operation of
law or otherwise, voluntarily or involuntarily, sell, assign, pledge, or
otherwise transfer all or any part of the Restricted Shares without the prior
written consent of the Committee, which consent may be withheld by the Committee
in its sole discretion.
(b) Forfeiture. Subject to Section 4, upon termination of Employee's
employment with the Company for any reason whatsoever, all Restricted Shares
held by Employee at the effective time of such termination of employment shall
immediately thereafter be returned to and canceled by the Company, and shall be
deemed to have been forfeited by Employee to the Company. Upon a forfeiture of
Employee's Restricted Shares, the Company will not be obligated to pay Employee
any consideration whatsoever for the forfeited Restricted Shares.
4. Lapse of Restrictions.
(a) The Restrictions shall lapse with respect to the Restricted
Shares awarded hereunder as follows:
(i) the Restrictions shall lapse as to 20% of the total
Restricted Shares covered by this Award on each annual anniversary of
the Effective Date (an "Anniversary Date"); and
(ii) the Restrictions shall lapse immediately prior to
termination of Employee's employment by the Company as a result of
Employee's death or disability or resignation or retirement by
Employee as to (x) the number of Restricted Shares as to which the
Restrictions would have lapsed on the next Anniversary Date,
multiplied by (y) (A) the number of days which, as of such employment
termination, have elapsed since the most immediately preceding
Anniversary Date divided by (B) 365; and
(iii) the Restrictions shall lapse as to all of the Restricted
Shares covered by this Award immediately prior to a termination of
Employee's employment by the Company other than (A) as described in
Section 4(a)(ii) or (B) for "cause" (as defined in the Employment
Agreement).
(b) To the extent the Restrictions shall have lapsed under Section
4(a) with respect to all or a portion of the Restricted Shares subject to this
Award, those Shares ("Vested Shares") shall no longer be Restricted Shares and
will thereafter be free of the terms and conditions of this Award.
5. Adjustments. If there is any change in the capital stock of the
Company by reason of any stock dividend or distribution, stock split,
recapitalization, reorganization, merger, consolidation, split-up, combination
or exchange of shares, or any similar change affecting the capital stock of the
Company, which has occurred after the date hereof, the terms "Restricted Shares"
and "Vested Shares" shall include any shares, securities, or other property
that Employee receives or becomes entitled to receive as a result of Employee's
ownership of the original Restricted Shares. In such event, any references in
this Award to Employee's employment with the Company shall thereafter refer to
Employee's employment with any successor entity to the Company.
6. Change of Control. There will be no lapse of Restrictions on
Restricted Shares upon a Change in Control or a "covered transaction" (as
defined in the Plan) unless otherwise approved by the Committee, except to the
extent otherwise expressly provided in Section 4 hereof.
7. Custody. All certificates representing the Restricted Shares
(other than Vested Shares) shall be deposited, together with stock powers
executed by Employee, in proper form for transfer, with the Company. The
Company shall provide Employee with a copy of a certificate representing the
Restricted Shares. The Company is hereby authorized to cause the transfer to
come into its name of all certificates representing the Restricted Shares which
are forfeited by Employee to the Company pursuant to Section 3 hereof. At the
request of Employee, certificates representing Vested Shares shall, subject to
any applicable securities law restrictions, be delivered by the Company to
Employee or Employee's personal representative. Certificates representing
shares that have become Vested Shares in accordance with Section 4 shall be
issued without the legend evidencing the Restrictions.
8. Voting and Other Rights. Upon Employee's timely compliance with
each of the conditions set forth in Section 2 hereof, Employee shall have all of
the rights and status as a shareholder of the Company in respect of the
Restricted Shares, including the right to vote such shares and to receive
dividends or other distributions thereon.
9. Withholding. The award of Shares hereunder, and the lapse of
Restrictions on the Restricted Shares, is conditioned on any applicable
withholding taxes having been collected by the Company pursuant to a lump sum
payroll deduction from Employee's other compensation or by direct payment by
Employee to the Company.
10. Miscellaneous.
(a) Entire Agreement. Subject to the terms and conditions set forth
in the Plan, this Award contains the entire understanding and agreement between
the parties and cannot be amended, modified or supplemented in any respect,
except as permitted under the Plan or by a subsequent written agreement entered
into by both parties.
(c) Successors. This Award is binding upon and will inure to the
benefit of any successor to the Company whether by way of a merger, purchase,
consolidation or otherwise.
(d) Applicable Law. This Award shall be construed in accordance with
and governed by the substantive laws of the State of Delaware (regardless of the
law that might otherwise govern under applicable Delaware principles of
conflicts of laws).
IN WITNESS WHEREOF, the parties have caused this Award to be effective
as of the day and year first above written.
EMPLOYEE XXXXXXXXX-CECO CORPORATION
/s/ Xxxxxx X. Xxxxxxx By /s/ X.X. Xxxxxxxxxxx
XXXXXX X. XXXXXXX Name: X.X. Xxxxxxxxxxx
Its: Chief Operating Officer
