Exhibit 4.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") is made and entered into as
of the day of , (the "EFFECTIVE DATE"), by and between XXXXX
XXXXXX (the "COMPANY") and , a resident of
(the "EXECUTIVE").
RECITALS
The Company and the Executive desire to enter into this Agreement to
establish the terms and conditions of the Executive's employment by the Company
during the term hereof.
The Executive will have responsibilities for activities in companies in
the Xxxxx Xxxxxx group in addition to those owed to the Company - these
companies together with the Company are referred to in this Agreement as the
"Group".
AGREEMENT
NOW, THEREFORE, in consideration of the covenants contained herein, the
above recitals and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the conditions and
covenants contained herein the parties agree as follows:
ARTICLE I
DUTIES
1.01 Duties. The Company hereby employs the Executive, and the Executive
hereby accepts such employment, as the Company's
upon the terms and subject to the conditions
set forth in this Agreement. The Executive will report directly to the
. The Executive shall perform such duties and
functions consistent with his role as as may from
time to time be assigned to him by the Company's or
Board of Directors.
1.02 Other Business
(a) During the term of this Agreement, the Executive agrees that
during the course of the Company's business hours, he will devote the whole of
his time, attention and efforts to the performance of his duties and obligations
hereunder. The Executive shall not, during the term of this Agreement, engage in
any activity which materially interferes with his performance of duties assigned
the Executive hereunder.
(b) The Executive shall not, during the term of this Agreement,
without the written approval of the Chief Executive Officer and obtained in each
instance, directly or indirectly (i) accept employment or receive any
compensation for the performance of services from any business enterprise other
than the Company or the Group, or (ii) enter into or be concerned or interested
in any trade or business or public or private work (whether for profit or
otherwise and whether as partner, principal shareholder or otherwise), which
may, in the absolute
discretion of the Chief Executive Officer, hinder or otherwise interfere with
the performance by the Executive of his duties and obligations hereunder, except
as a holder of not more than five percent (5%) of any class of stock or other
securities in any company which is listed and or traded on any securities
market. Nothing in this section 1.02(b) prevents the Executive from carrying out
up to 15 hours per week of unpaid employment with religious, not for profit or
voluntary organizations.
ARTICLE II
COMMENCEMENT OF AGREEMENT
The term of this Agreement (the "INITIAL TERM") shall commence on the
Effective Date and shall continue until terminated hereunder in accordance with
the termination provisions contained in Article VI. This Agreement shall
continue in full force and effect unless the Executive shall, give the Company
at least ninety (90) days written notice of termination.
ARTICLE III
COMPENSATION
During the term of this Agreement, the Company shall pay, or cause to be
paid to the Executive in cash in accordance with the normal payroll practices of
the Company for senior executive officers (including deductions withholdings and
collections as required by law), the following:
3.01 Annual Base Salary. An annual base salary ("ANNUAL BASE SALARY") will
be paid equal to Dollars ($ ) per year.
Adjustments in Annual Base Salary, if any, shall be determined by the Company in
its sole and absolute discretion, based upon annual reviews prior to March 31 of
each year of the scope of the Executive's duties and Executive's performance of
such duties.
3.02 Annual Bonus. A cash bonus (the "ANNUAL BONUS") to be paid each year
pursuant to the Company's Executive Incentive Plan, in place at the time,
subject to the achievement of goals agreed by the Chief Executive Officer in
accordance with this Section 3.02, at the same time bonuses are generally paid
to other senior executives of the Company for the relevant fiscal year. Each
year of the term of this Agreement the Chief Executive Officer shall approve
objective and quantifiable annual goals which shall be reduced to writing and
presented to the Executive on or before the sixtieth (60th) day after the
Effective Date or the commencement of the Company's fiscal year, as appropriate.
The targeted annual bonus shall be percent ( %) of the Executive's Annual
Base Salary.
3.03 Gross Amounts. The Annual Base Salary and Annual Bonus set forth in
this Article III shall be the gross amounts of such Annual Base Salary and
Annual Bonus. The Executive is responsible for paying any and all taxes due on
any amounts received by him as Annual Base Salary or Annual Bonus, including,
but not limited to, any income tax, social security tax, Medicare tax or capital
gains tax.
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ARTICLE IV
OTHER BENEFITS
4.01 Incentive Savings and Retirement Plans. The Executive shall be
entitled to participate, during the term of this Agreement, in all incentive
(including the Company's Equity Incentive Plan), savings and retirement plans,
practices, policies and programs available to other senior executives of the
Company. Any benefits received pursuant to this Section 4.01 shall be the gross
amount of such benefits. The Executive is responsible for paying any and all
taxes due on any benefits received pursuant to this Section 4.01, including, but
not limited to, any income tax, social security tax, Medicare tax or capital
gains tax.
4.02 Welfare Benefits. Immediately upon the Effective Date and throughout
the term of this Agreement, the Executive and/or the Executive's family, as the
case may be, shall be entitled to participate in, and shall receive all benefits
under, all welfare benefit plans, practices, policies and programs provided by
the Company (including without limitation, medical, prescription, dental,
disability, salary continuance, employee life, group life, dependent life,
accidental death and travel accident insurance plans and programs) at a level
that is equal to other senior executives of the Company. For the avoidance of
doubt, the Executive's Company provided Accident, Death and Dismemberment cover
will be a minimum three times the Executive's annual base salary, or such higher
amount as is agreed by the Company.
4.03 Fringe Benefits. Immediately upon the Effective Date and throughout
the term of this Agreement, the Executive shall be entitled to participate in
all appropriate fringe benefit programs provided by the Company to its senior
executives at comparable levels.
4.04 Expenses. During the term of this Agreement, the Executive shall be
entitled to receive prompt reimbursement for all reasonable and necessary travel
and other business expenses incurred or paid by the Executive in connection with
the performance of his services under this Agreement. The Executive shall be
reimbursed upon the Company's receipt of accountings in accordance with
practices, policies and procedures applicable to senior executives of the
Company.
4.05 Vacation. The Executive shall be entitled to twenty (20) paid
vacation days during each twelve (12) month period, beginning the Effective
Date, during the term of this Agreement. Such paid vacation days shall accrue
without cancellation, expiration or forfeiture.
4.06 Car Allowance. The Company will either lease an automobile for
business and personal use by the Executive, or, in the alternative, the
Executive will be entitled to an automobile lease allowance not to exceed
Dollars ($ ) per month during the term of this Agreement. Unused
allowance or part thereof will be paid to the Executive. The Company shall be
responsible for all costs relating thereto, including gasoline, repairs,
maintenance and insurance. All automobile insurance policies for such automobile
shall name the Company and the Executive as co-insureds. Personal taxation costs
arising from the Executive's personal use of such automobile shall be the
Executive's sole responsibility.
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4.07 Annual Review. The Executive's benefits under this Article IV will be
reviewed annually during the review process provided in Section 3.01.
ARTICLE V
RESTRICTIVE COVENANTS
5.01 Trade Secrets. Confidential and Proprietary Business Information.
(a) The Company has advised the Executive and the Executive has
acknowledged that it is the policy of the Company to maintain as secret and
confidential all Protected Information (as defined below), and that Protected
Information has been and will be developed at substantial cost and effort to the
Company. "Protected Information" means trade secrets, confidential and
proprietary business information of the Company, any information of the Company
other than information which has entered the public domain (unless such
information entered the public domain through effects of or on account of the
Executive), and all valuable and unique information and techniques acquired,
developed or used by the Company relating to its business, operations,
employees, customers and suppliers, which give the Company a competitive
advantage over those who do not know the information and techniques and which
are protected by the Company from unauthorized disclosure, including but not
limited to, customer lists (including potential customers), sources of supply,
processes, plans, materials, pricing information, internal memoranda, marketing
plans, internal policies, and products and services which may be developed from
time to time by the Company and its agent or employees.
(b) The Executive acknowledges that the Executive will acquire
Protected Information with respect to the Company and its successors in
interest, which information is a valuable, special and unique asset of the
Company's business and operations and that disclosure of such Protected
Information would cause irreparable damage to the Company.
(c) Either during or after termination of employment by the Company,
the Executive shall not, directly or indirectly, divulge, furnish or make
accessible to any person, firm, corporation, association or other entity
(otherwise than as may be required in the regular course of the Executive's
employment with Xxxxx Xxxxxx) nor use in any manner, any Protected Information,
or cause any such information of the Company to enter the public domain.
5.02 Non-Competition
(a) The Executive agrees that the Executive shall not during the
Executive's employment with the Company, and, subject to Sections 6.01(b),
6.02(b), and 6.03(c) for a period of up to two (2) years after the termination
of this Agreement, directly or indirectly, in any capacity, engage or
participate in, or become employed by or render advisory or consulting or other
services in connection with any Prohibited Business as defined in Section
5.02(c).
(b) The Executive agrees that the Executive shall not during the
Executive's employment with the Company, and, subject to Sections 6.01(b),
6.02(b), and 6.03(c) for a period of up to two (2) years after the termination
of this Agreement, make any financial investment, whether in the form of equity
or debt, or own any interest, directly or indirectly, in
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any Prohibited Business. Nothing in this Section 5.02(b) shall, however,
restrict the Executive from making any investment in any company whose stock is
listed on a national securities exchange; provided that (i) such investment does
not give the Executive the right or ability to control or influence the policy
decisions of any Prohibited Business, and (ii) such investment does not create a
conflict of interest between the Executive's duties hereunder and the
Executive's interest in such investment.
(c) For purposes of this Section 5.02, "Prohibited Business" shall
be defined as the business of:
(i) marketing or selling of fiber cement products, where the
marketing or selling of such products is a principal
activity of the business;
(ii) manufacturing or processing fiber cement products;
(iii) building, assembling, operating or maintaining plant and
equipment, where that plant and equipment is particular
to the manufacturing or processing of fiber cement
products;
(iv) manufacturing or processing raw materials for fiber
cement products where that manufacturing or processing
is particular to the raw material used in fiber cement
products;
(v) research or development activities relating to
5.02(c)(i)-(iv); and
any branch, office or operation thereof, which is a competitor of the Company or
which has established or seeks to establish contact, in whatever form
(including, but not limited to solicitation of sales, or the receipt or
submission of bids), with any entity who is at any time a client, customer or
supplier of the Company (including but not limited to all subdivisions of the
federal government.)
5.03 Non-Solicitation. From the date hereof until two (2) years after the
Executive's termination of employment with the Company, the Executive shall not,
directly or indirectly (a) encourage any employee or supplier of the Company or
its successors in interest to leave his or her employment with the Company or
its successors in interest, (b) employ, hire, solicit or cause to be employed,
hired or solicited (other than by the Company or its successors in interest), or
encourage others to employ or hire any person who within two (2) years prior
thereto was employed by the Company or its successors in interest, or (c)
establish a business with, or encourage others to establish a business with, any
person who within two (2) years prior thereto was an employee or supplier of the
Company or its successors in interest.
5.04 Disclosure of Employee-Created Trade Secrets Confidential and
Proprietary Business Information. The Executive agrees to promptly disclose to
the Company all Protected Information developed in whole or in part by the
Executive during the Executive's employment with the Company and which relates
to the Company's business. Such Protected Information is, and shall remain, the
exclusive property of the Company. All writings created during the Executive's
employment with the Company (excluding writings unrelated to the Company's
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business) are considered to be "works-for-hire" for the benefit of the Company
and the Company shall own all rights in such writings.
5.05 Survival of Undertakings and Injunctive Relief
(a) The provisions of Sections 5.01, 5.02, 5.03 and 5.04 shall
survive the termination of the Executive's employment with the Company
irrespective of the reasons therefor.
(b) The Executive acknowledges and agrees that the restrictions
imposed upon the Executive by Sections 5.01, 5.02, 5.03 and 5.04 and the purpose
of such restrictions are reasonable and are designed to protect the Protected
Information and the continued success of the Company without unduly restricting
the Executive's future employment by others. Furthermore, the Executive
acknowledges that, in view of the Protected Information which the Executive has
or will acquire or has or will have access to and in view of the necessity of
the restrictions contained in Sections 5.01, 5.02, 5.03 and 5.04, any violation
of any provision of Sections 5.01, 5.02, 5.03 and 5.04 hereof would cause
irreparable injury to the Company and its successors in interest with respect to
the resulting disruption in their operations. By reason of the foregoing the
Executive consents and agrees that if the Executive violates any of the
provisions of Sections 5.01, 5.02, 5.03 or 5.04 of this Agreement, the Company
and its successors in interest as the case may be, shall be entitled, in
addition to any other remedies that they may have, including money damages, to
an injunction to be issued by a court of competent jurisdiction, restraining the
Executive from committing or continuing any violation of such Sections of this
Agreement.
In the event of any such violation of Sections 5.01, 5.02, 5.03 and 5.04
of this Agreement, the Executive further agrees that the time periods set forth
in such Sections shall be extended by the period of such violation.
ARTICLE VI
TERMINATION
6.01 Termination of Employment by Voluntary Resignation/Death/Disability.
(a) The Executive's employment under this Agreement may be
terminated:
(i) Upon voluntary resignation by the Executive in
accordance with the notification requirement provided in Article II;
(ii) Upon the death of the Executive, this Agreement and the
Executive's employment hereunder shall terminate immediately and without notice
by the Company; or
(iii) In the event of the inability of the Executive to
perform his duties or responsibilities thereunder, as a result of a Permanent
Disability (as defined below) upon written notice by the Company. A "Permanent
Disability" occurs when for a period of ninety (90) consecutive calendar days,
or an aggregate of one hundred twenty (120) calendar days during any calendar
year (whether or not consecutive) the Executive is unable to perform his
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duties or responsibilities hereunder, even with reasonable accommodation, as a
result of a mental or physical ailment or incapacity. Upon the occurrence of a
Permanent Disability, the Company will evaluate the Executive's condition and
determine whether or not to send written notice of such Executive's termination.
(b) Upon termination pursuant to this Section 6.01(a)(i), the
Executive shall not be entitled to payment of any compensation other than salary
under this Agreement earned up to the date of such termination, any accrued but
unpaid vacation days, and any stock options, warrants or similar rights which
have vested at the date of such termination. The Company, in its sole and
absolute discretion, may decide to continue to pay the Executive his Annual Base
Salary, in accordance with the Company's normal practices for other senior
executives, for up to two (2) years after the Executive's voluntary resignation,
in return for the Executive not violating the provisions of Section 5.02 for an
equivalent period.
(c) Upon termination pursuant to this Section 6.01(a)(ii), the
Company shall pay or grant, to such person as you designate in a notice filed
with the Company, or, if no such person shall be designated, to your estate as a
lump sum death benefit, an amount equal to any compensation under this Agreement
earned up to the date of such termination, including salary and any accrued but
unpaid vacation days. In addition, any stock options or warrants which have
vested at the time such termination will be exercisable by your estate in
accordance with the Company's Equity Incentive Plan. Your designated beneficiary
or the executor of your estate, as the case may be, shall accept the payment
provided for in this paragraph 6 in full discharge and release of the Company of
and from any further obligations under this agreement.
(d) Upon termination pursuant to this Section 6.01(a)(iii), the
Executive shall be entitled to the benefit of disability or other relevant
insurance or benefits provided pursuant to Section 4.02. The Executive shall not
be entitled to payment of any compensation other than salary under this
Agreement earned up to the date of such termination, any accrued but unpaid
vacation days, and any stock options, warrants or similar rights which have
vested at the date of such termination. The Company, in its sole and absolute
discretion, may decide to continue to pay the Executive his Annual Base Salary,
in accordance with the Company's normal practices for other senior executives,
for up to two (2) years after the Executive's voluntary resignation, in return
for the Executive not violating the provisions of Section 5.02 for an equivalent
period.
6.02 Termination for Cause. (a) The Company may terminate the Executive's
employment for Cause by giving the Executive written notice of such termination.
For purposes of this Agreement, "Cause" for termination shall mean:
(i) the willful failure or refusal to carry out the reasonable
directions of the Chief Executive Officer or Board of Directors, which
directions are consistent with the Executive's duties as set forth under this
Agreement;
(ii) willful act by the Executive that constitutes gross
negligence in the performance of the Executive's duties under this Agreement and
which materially injures the
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Company. No act, or failure to act, by the Executive shall be considered
"willful" unless committed without good faith and without a reasonable belief
that the act or omission was in the Company's best interest; or
(iii) a conviction for a violation of a state or federal
criminal law involving the commission of a felony or other crime involving moral
turpitude.
(b) Upon termination for Cause, the Executive shall not be entitled
to payment of any compensation other than salary under this Agreement earned up
to the date of such termination, any accrued but unpaid vacation days, and any
stock options, warrants or similar rights which have vested at the date of such
termination. The Company, in its sole and absolute discretion, may decide to
continue to pay the Executive his Annual Base Salary, in accordance with the
Company's normal practices for other senior executives, for up to two (2) years
after such termination for Cause, in return for the Executive not violating the
provisions of Section 5.02 for an equivalent period.
6.03 Termination Without Cause or Termination by Executive for Good
Reason. Should the Executive's employment be terminated for a reason other than
as specifically set forth in Sections 6.01 or 6.02 above, whether terminated by
the Company or terminated by the Executive for Good Reason (as defined below):
(a) the Company shall pay the Executive an amount equal to 1.5 times
the Annual Base Salary applying as at the date of termination, paid in
accordance with Section 6.03(c).
(b) the Company shall pay the Executive an amount equal to 1.5 times
the Average Annual Bonus paid in accordance with Section 6.03(c). For purposes
of this Section 6.03, Average Annual Bonus shall mean the aggregate Annual Bonus
paid to the Executive over the last three years immediately preceding the year
of such termination divided by three.
(c) the Company shall pay the amounts specified in each of Sections
6.03(a) and (b) above in monthly installments, in accordance with the Company's
normal payroll practices for other senior executives, for the period of eighteen
months following such termination. In addition, the Company, in its sole and
absolute discretion, may decide to continue to pay the Executive additional
amounts equal to his Average Annual Base Salary, in accordance with the
Company's normal practices for other senior executives, for up to two (2) years
following the Executive's termination, in return for the Executive not violating
the provisions of Section 5.02 for an equivalent period.
(d) all of the stock options, warrants, retirement benefits and
other similar rights, if any, granted by the Company to the Executive which are
vested at the date of termination shall remain vested plus that number of the
stock options, warrants, retirement benefits and other similar rights, if any,
that would vest during the remainder of the term of this Agreement shall
continue to vest over the remainder of the term of this Agreement and all such
vested stock options, warrants, retirement benefits, and other similar rights,
if any, shall be
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immediately delivered to the Executive without restriction or limitation of any
kind (except for normal transfer restrictions);
(e) all health, medical and benefits shall continue for the
remainder of the term of this Agreement; and
The term "Good Reason," in connection with the termination by the
Executive of his employment with the Company shall mean:
(i) A diminution in the responsibilities, title or office of the
Executive such that he does not serve as an executive officer of the Company
(which diminution was not for Cause or the result of the Executive's
disability); or
(ii) A reduction by the Company in the Executive's Annual Base
Salary to less than (a) $ , or (b) the Executive's Annual Base Salary at
the time of such reduction.
6.04 No Mitigation. The Executive shall not be required to mitigate the
amount of any payment provided for in Section 6.03 by seeking other employment
or otherwise, nor shall the amount of any payment provided for in Section 6.03
be reduced by any compensation earned by the Executive as a result of employment
by another company, self-employment or otherwise.
ARTICLE VII
MISCELLANEOUS
7.01 Assignment, Successors. This Agreement, or any right or interest
herein, may not be assigned by either party hereto, whether by operation of law
or otherwise, without the prior written consent of the other party. This
Agreement shall be binding upon and inure to the benefit of the Executive and
the Executive's estate and the Company and any assignee of or successor to the
Company.
7.02 Severability. If all or any part of this Agreement is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not serve to invalidate any portion of this Agreement not
declared to be unlawful or invalid. Any paragraph or part of a paragraph so
declared to be unlawful or invalid shall, if possible, be construed in a manner
which will give effect to the terms of such paragraph or part of a paragraph to
the fullest extent possible while remaining lawful and valid.
7.03 Amendment and Waiver. This Agreement shall not be altered, amended or
modified except by written instrument executed by the Company and the Executive.
A waiver of any term, covenant, agreement or condition contained in this
Agreement shall not be deemed a waiver of any other term, covenant, agreement or
condition and any waiver of any other term, covenant, agreement or condition,
and any waiver of any default in any such term, covenant, agreement or condition
shall not be deemed a waiver of any later default thereof or of any other term,
covenant, agreement or condition.
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7.04 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed given upon personal delivery,
facsimile transmission (with confirmation of receipt), delivery by a reputable
overnight courier service or five (5) days following deposit in the U.S. mail
(if sent by registered or certified mail, return receipt requested, postage
prepaid), in each case duly addressed to the party to whom such notice or
communication is to be given as follows:
If to the Company: XXXXX XXXXXX
If to the Executive:
Either party may from time to time designate a new address by notice given in
accordance with this Section. Notice and communications shall be effective when
actually received by the addressee.
7.05 Counterpart Originals. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
7.06 Entire Agreement. This Agreement forms the entire agreement between
the parties hereto with respect to any severance payment and with respect to the
subject matter contained in the Agreement.
7.07 Applicable Law. The provisions of this Agreement shall be interpreted
and construed in accordance with the laws of the state of California, without
regard to its choice of law principles.
7.08 Effect on Other Agreements. This Agreement shall supersede all prior
agreements, promises and representations regarding employment by the Company,
Xxxxx Xxxxxx , or any of their subsidiaries or affiliates, and any
severance or other payments contingent upon termination of employment.
7.09 Extension or Renegotiation. The parties hereto agree that at any time
prior to the expiration of this Agreement, they may extend or renegotiate this
Agreement upon mutually agreeable terms and conditions.
7.10 Legal Fees; Arbitration. The parties hereto expressly agree that in
the event of any dispute, controversy or claim by any party regarding this
Agreement, the prevailing party shall be entitled to reimbursement by the other
party to the proceeding of reasonable attorney's fees, expenses and costs
incurred by the prevailing party. Any controversy, dispute or claim arising out
of, in connection with, or in relation to the interpretation, performance or
breach of this Agreement or otherwise arising out of the execution hereof,
including any claim based on contract, tort or statute, shall be resolved, at
the request of any party, by submission to binding arbitration at the Orange
County, California offices of Judicial Arbitration & Mediation Services, Inc.
("JAMS"), and any judgment or award rendered by JAMS shall be final, binding and
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unappealable, and judgment may be entered by any state or federal court having
jurisdiction thereof. Any party can initiate arbitration by sending written
notice of intention to arbitrate (the "DEMAND") by registered or certified mail
to all parties and to JAMS. The Demand shall contain a description of the
dispute, the amount involved, and the remedy sought. The arbitrator shall be a
retired or former judge agreed to between the parties from the JAMS' panel. If
the parties are unable to agree, JAMS shall provide a list of three available
judges and each party may strike one. The remaining judge shall serve as the
arbitrator. Each party hereto intends that the provisions to arbitrate set forth
herein be valid, enforceable and irrevocable. In her award, the arbitrator shall
allocate, in her discretion, among the parties to the arbitration all costs of
the arbitration, including the fees of the arbitrator and reasonable attorneys'
fees, costs and expert witness expenses of the parties. The parties hereto agree
to comply with any award made in any such arbitration proceedings that has
become final and agree to the entry of a judgment in any jurisdiction upon any
award rendered in such proceeding becoming final.
IN WITNESS WHEREOF the parties have executed this Employment Agreement on
the date first written above.
XXXXX XXXXXX ,
By:
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Name:
Title:
, an individual
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